Muldoon v. Colvin

Filing 23

MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 9/22/2016.(rbf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMOTHY MULDOON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 15 C 3588
Magistrate Judge
Michael T. Mason

MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision of
the Commissioner of Social Security (the “Commissioner”) denying Claimant Timothy
Muldoon’s claim for Disability Insurance Benefits and Supplemental Security Income.
The parties have consented to the jurisdiction of the United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). Claimant has moved for summary judgment (Dkt. No.
12), asking that the court reverse the decision of the ALJ. The Commissioner has
responded (Dkt. No. 20), arguing that the decision of the ALJ should be affirmed. For
the reasons that follow, Claimant’s motion for summary judgment is granted and the
Commissioner’s request for summary judgment is denied.
BACKGROUND
I.

PROCEDURAL HISTORY
Claimant applied for benefits in September 2012, alleging disability since October

13, 2010 due to low back pain, limited mobility, arthritis in his knees, and depression.
(R. 168–76, 217.) Claimant’s application was denied initially and upon reconsideration,

after which he timely requested a hearing before an Administrative Law Judge (“ALJ”).
(R. 122–24.) At a hearing held on December 5, 2013, Claimant personally appeared
and testified before the ALJ. (R. 32–55.) On January 24, 2014, the ALJ issued a
decision denying Claimant’s request for benefits. (R. 24–34.) When the Appeals
Council denied his request for review, the ALJ’s decision became the final decision of
the Commissioner, reviewable by the district court under 42 U.S.C. § 405(g). See
Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
II.

MEDICAL EVIDENCE
A.

Treatment Records

Claimant worked as a sheet metal worker, producing and installing HVAC
ductwork, until his alleged onset date in October 2010. He has a history of back pain
and had three surgeries, including a spinal fusion at the L4–L5 level, in 2001 and 2004.
(R. 35–37, 303.)
Claimant has also had knee trouble. In November 2010, Claimant consulted
orthopedist Terry I. Younger, M.D. about right knee pain that he had been experiencing
for about a year. (R. 311.) An MRI revealed a medial meniscal tear, chondromalacia, 1
and iliotibial band syndrome. (R. 312.) Claimant elected to undergo arthroscopic
surgery, which was performed on November 16, 2010. (R. 297.) Six days later, he was
doing very well and walking without difficulty. (R. 298.)
On August 6, 2011, Claimant reported to Stephen P. Behnke, M.D. that for two
days he had been experiencing increasing back pain. (R. 319.) He reported that he
had been doing home remodeling but did not know how he had injured himself. (Id.)
1

Chondromalacia refers to a softening of the cartilage under the kneecap.
http://www.dorlands.com//def.jsp?id=100020715

2

Dr. Behnke observed tenderness in Claimant’s sacroiliac region and prescribed Mobic,
an anti-inflammatory drug, in addition to rest and back exercises. (Id.) In September
2011, Claimant visited orthopedist Richard S. Rabinowitz, M.D. with continued
complaints of lower back pain radiating to both legs, which he stated had been
happening for about two months. (R. 300–02.) He had “done great up until this
episode” since his back surgery in 2004. (R. 300.) Dr. Rabinowitz noted tenderness
and mildly restricted ranges of motion in his lower back and a positive straight leg raise
bilaterally. (R. 301.) A September 29, 2011 MRI revealed moderate to severe
degenerative changes, disc bulging, or foraminal narrowing at all levels of Claimant’s
lumbar spine. 2 (R. 303.) On a return visit to Dr. Rabinowitz in October 2011, Claimant
reported no improvement in his back and leg pain. (R. 306.) The orthopedist again
noted mild generalized tenderness in the lumbar area, mildly restricted lumbar
movement in all directions, and a positive bilateral straight leg test. (R. 307.) He
referred Claimant for physical therapy. (Id.)
In November 2011, Claimant again visited Dr. Rabinowitz, this time reporting
improvement in his back and leg pain following physical therapy, though he
acknowledged that he was still taking Mobic daily for pain. (R. 309.) Upon physical
2

The MRI results for the various levels of Claimant ’s lumbar spine read as follows: At the L1–
L2 level, “Moderate facet degenerative changes and ligamentum flavum hypertrophy with mild
narrowing of the lateral recesses;” at L2–L3, the same as above with the addition of “minimal
bilateral foraminal narrowing;” at L3–L4, “Large annular bulge, more focal in the middle. Severe
facet degenerative changes and ligamentum flavum hypertrophy with moderate to severe
central canal narrowing. Moderate left and mild to moderate right foraminal narrowing.” At the
L4–L5 level, “[i]n addition to evidence of the earlier surgery, there was mass effect upon the
central and left paracentral thecal sac along the epidural space with possible recurrent large
disc protrusion. Mass effect upon the anterior thecal sac. Moderate facet degenerative
changes. Moderate bilateral foraminal narrowing.” At the L5–S1 level, “Mild annular bulge with
small superimposed central protrusion. Moderate facet degenerative changes. Effacement of
the anterior thecal sac. Moderate left and moderate to severe right foraminal narrowing.” (R.
303–04.)

3

examination, he no longer had lumbar tenderness, though his movement was still mildly
restricted. (R. 309.) A straight leg raise test was negative. (R. 310.)
In January 2012, Claimant suffered from anxiety due to a difficult family situation.
(R. 318.) His primary care physician, Michael J. Osten, M.D., prescribed a fifteen-day
course of Xanax. (Id.)
In the summer of 2012, Claimant worked as an overnight stocker at a Walmart
store. (R. 241. 247.) In August 2012, Claimant saw orthopedist Ciro Cirrincione, M.D.
for pain in his left knee, which was treated with an injection. He stated that he was
taking Mobic (a nonsteroidal anti-inflammatory drug) for back pain. (R. 287–89.) On
September 4, 2012, he reported to Dr. Rabinowitz that he had been experiencing back
pain and bilateral thigh pain since starting his job at Walmart, and that his pain had
worsened in the last week. (R. 342.) Dr. Rabinowitz noted that he was sensitive to
touch over his lumbosacral nerve roots on both sides, but his straight leg raise tests
were negative. (R. 343.) He also noted that Claimant’s lumbar MRI revealed a
herniated nucleus pulposus (hernitated disc) at the L5/S1 level and another at the L3-L4
levels of the spine. (Id.) He gave Claimant a Medrol Dose Pack, an oral steroid
intended for short term use. (Id.) See “Oral Steroids,” http://www.spinehealth.com/treatment/pain-medication/oral-steroids) (last visited September 8, 2016.)
On September 14, 2012, Claimant consulted with a new orthopedist, Bruce J.
Montella, M.D., regarding the pain in his lower back and legs. Claimant reported that
the pain had built up gradually over his career as a sheet metal worker. (R. 356.) His
pain was at 6/10 on the right and 8/10 on the left, and caused him trouble walking,
bathing, kneeling, squatting, cleaning, putting on shoes or socks, reaching above the

4

head, reaching behind, driving, and sitting. (Id.) Dr. Montella observed mild lumbar
spasms in the lower lumbar spine, diminished ranges of motion, and a positive straight
leg raise. (R. 357.) He also noted that Claimant displayed zero out of five Waddell
signs. 3 (Id.)
When he returned to Dr. Montella in October 2012, Claimant stated that his low
back pain was constant and had not changed since his last visit, though a home
exercise program did “help a little.” (R. 354.) Dr. Montella again observed a positive
straight leg test and noted no signs of incongruence or malingering. (R. 355.) Dr.
Montella’s notes from that visit include his opinion that Claimant was under “full and
total disability.” (Id.) In his third visit to Dr. Montella in February 2013, Claimant
recounted that he was having low back pain with radiating pain and numbness to feet
and toes. (R. 368.) He indicated that he had trouble sitting or standing for a long period
of time. (Id.) Dr. Montella documented intermittent paraspinal spasms, limited lumbar
ranges of motion, decreased motor function in the affected area, and a positive straight
leg test. (R. 368–69.) The doctor again wrote that Claimant displayed zero out of five
Waddell signs. (R. 369.)
In June 2013, Dr. Montella completed a questionnaire about Claimant’s Residual
Functional Capacity (“RFC”). (R. 379-81.) He reported that he had been treating
Claimant since September 2012 for a diagnosis of lumbar disc herniation and symptoms
including low back pain with bilateral radiating leg pain. (R. 379.) He opined that
Claimant could sit for fifteen to twenty minutes continuously, stand for fifteen to twenty
minutes continuously, and could alternate between sitting and standing for no more than
3

Dorland’s medical dictionary defines the Waddell signs as “signs indicating that a patient’s low
back pain is being intensified by psychological factors.”
http://www.dorlands.com//def.jsp?id=120887234 (last visited September 8, 2016.)

5

thirty minutes at a time. (R. 380.) Claimant must lie down twice a day to relieve
pressure on his back, can walk up to one bock, and uses a cane for stability. (Id.) He
can carry or lift between five and ten pounds. (Id.) He cannot tolerate heights or
moving machines, and his symptoms worsen with cold weather. (R. 381.) Treatments
include Norco and Mobic, and his prognosis is fair to poor. (R. 379.)
When he next saw Dr. Montella in August 2013, Claimant reported that his pain
symptoms had not improved, and that he was also experiencing numbness and tingling
through his groin area, primarily at night. (R. 385.) He was having difficulty sleeping
through the night because of pain and was feeling increased pain in the area of the
hardware from his earlier lumbar fusion surgery. (Id.) As on previous exams, Claimant
displayed a positive straight leg test and zero out of five Waddell signs, with no signs of
incongruence or malingering. (R. 386.) In November 2013, Dr. Montella observed
similar findings, plus mild paraspinal muscle tenderness. (R. 397.) At that appointment,
Claimant related that his pain varied day to day and that he was unable to sleep more
than a couple of hours at a time, switching back and forth from his bed to a chair. (R.
396.)
B.

Consultants’ Reports

Two reviewing medical consultants conducted reviews of Claimant’s file and
issued opinions regarding his physical residual functional capacity. (R. 65–66; 85–88.)
The first, Reynaldo Gotanco, M.D., found on November 29, 2012 that the record did not
support all of the restrictions indicated by Dr. Montella. (R. 66.) Dr. Gotanco ultimately
concluded that Claimant was capable of lifting up to ten pounds, standing or walking for
a total of two hours in an eight-hour workday, and sitting (with normal breaks) for up to

6

six hours in an eight-hour workday, with some postural limitations. (R. 65–66.) He
based this assessment in part on the positive straight leg test recorded by Dr. Montella
in September 2012 and on undated MRI findings showing the results of Claimant’s
spinal fusion surgery. (R. 66.) Dr. Gotanco’s assessment corresponded to a
“sedentary” work level under Social Security Regulations. In a later review of the file,
Vidya Madala, M.D. disagreed with Dr. Gotanco’s assessment and instead found
Claimant capable of lifting up to twenty pounds occasionally and ten pounds frequently,
and opined that he was capable of standing or walking up to six hours in an eight-hour
workday. Dr. Madala’s assessment corresponded to a “light” work level. (R. 85–88.)
On October 31, 2012, Claimant was given a mental status exam by clinical
psychologist Michael E. Stone, Psy.D. Claimant had a depressed affect and stated that
he had difficulty maintaining an adequate level of energy and concentration. (R. 363.)
His thought content was consistent with depression and anxiety. (Id.) He was able to
perform some simple arithmetic, but he had trouble with multiplication and division and
was unable to explain or interpret proverbs. (R. 363, 365.) Dr. Stone diagnosed
depression secondary to medical problems and generalized anxiety disorder with panic,
and judged Claimant incapable of managing his own benefits in his current
circumstances. (Id.) After reviewing the consultative examiner’s report, agency
reviewer Terry A. Travis, M.D. concluded that Claimant’s mental impairments caused
Claimant no limitations in social functioning and only mild limitations in his activities of
daily living and in his concentration, persistence, or pace. (R. 64.) Dr. Travis noted that
Claimant’s work-related limitations “related to physical constraints and not to mental

7

problems.” (R. 64.) Another reviewer, Lionel Hudspeth, Psy.D., agreed with Dr.
Travis’s assessment on April 16, 2013. (R. 84–85.)
C.

Claimant ’s Testimony

On September 26, 2012, Claimant completed a Function Report in which he
reported that he was unable to sit for more than twenty minutes or walk for more than
thirty minutes at a time. (R. 227.) His sleep was disturbed by sharp stabbing pain in his
legs that made it difficult to lie down for more than one hour at a time. (R. 228.) He was
able to prepare lunches for his wife and kids and could sometimes walk his small dog
around the block and perform light cleaning. (R. 228.) He attended church on Saturday
evenings and attended his children’s high school music concerts. (R. 231.)
At his hearing on December 5, 2013, Claimant testified that his back surgery in
2004 did not entirely alleviate his back pain, which had gradually worsened. (R. 39.)
His pain increased when he attempted to work at Walmart. (R. 40.) He can no longer
walk the dog or lift even a gallon of milk, and he takes a number of strong medications,
which help “to a degree.” (R. 40–41.) He has had arthroscopic surgery on both knees,
but they are doing okay now. (R. 39, 41.) He feels more secure using a cane for
walking and standing. (R. 42–43.) Shooting pain causes him difficulty doing household
tasks, and he needs some assistance with bathing and dressing. (R. 46–47.) He ices
his legs for pain relief. (R. 46.)
D.

Vocational Expert Testimony

At the hearing, the Vocational Expert (“VE”) characterized Claimant’s past sheet
metal worker jobs as skilled work performed at the very heavy level. (R. 52–53.) The
ALJ asked whether Claimant’s past job could be performed by a hypothetical person

8

with the same age, education, and work experience as Claimant, who is capable of
performing work at the light exertional level with the following restrictions: he can only
occasionally climb ramps and stairs and only occasionally stoop, kneel, crouch and
crawl; can never climb ladders, ropes, or scaffolds; and must avoid unprotected heights,
dangerous moving machinery, and temperature extremes. (R. 53.) The VE responded
that Claimant’s past work would be precluded, but that such a person could perform the
light, unskilled jobs of information clerk, clerical assistant, or housekeeping cleaner.
(Id.) In response to another question from the ALJ, the VE testified that there would be
no work available for a hypothetical person with the same vocational profile and
environmental restrictions as the first, but who can perform no more than sedentary
work, cannot push or pull, can sit or stand for only thirty minutes at a time, and requires
a cane for both ambulation and standing. The VE identified the thirty-minute sit/stand
restriction as the factor preclusive of employment. (R. 53–54.)
DISCUSSION
I.

ALJ LEGAL STANDARD
Under the Social Security Act, a person is disabled if he has an “inability to

engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(a). In order to determine whether a claimant is
disabled, the ALJ considers the following five questions in order: (1) Is the claimant
presently unemployed? (2) Does the claimant have a severe impairment? (3) Does the
impairment meet or medically equal one of a list of specific impairments enumerated in

9

the regulations? (4) Is the claimant unable to perform her former occupation? and (5) Is
the claimant unable to perform any other work? 20 C.F.R. § 416.920(a)(4). The
claimant bears the burden of proof at steps one through four. Id. Once the claimant
shows an inability to perform past work, the burden then shifts to the Commissioner to
show the claimant’s ability to engage in other work existing in significant numbers in the
national economy. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389 (7th
Cir. 1992).
Here, the ALJ found at step one that, since his alleged onset date of October 13,
2010, Claimant has not engaged in significant gainful activity; his brief period of
employment at Walmart was an unsuccessful work attempt. (R. 15.) At step two, the
ALJ concluded that Claimant has severe impairments of degenerative disc disease with
a history of fusion surgery to the lumbar spine, and obesity. (Id.) The ALJ found at step
three that the impairments, alone or in combination, do not meet or medically equal a
Listing. (R. 17–18.) The ALJ then determined that Claimant retains the RFC to perform
all light work, except that he can only occasionally climb ladders, ramps, ropes,
scaffolds or stairs and can only occasionally balance, crouch, kneel, or crawl. (R. 21.)
The ALJ found at step four that Claimant cannot not perform his past relevant work. (R.
25.) At step five, the ALJ concluded that, based upon the VE's testimony and
Claimant’s education, work experience, RFC, and age, he is able to perform jobs
existing in significant numbers in the national economy. (R. 26.) As such, the ALJ
entered a finding of not disabled. (R. 27.)

10

II.

JUDICIAL REVIEW
Section 405(g) provides in relevant part that “[t]he findings of the Commissioner

of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is limited to
determining whether the ALJ’s findings are supported by substantial evidence or based
upon legal error. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000); Stevenson v.
Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v. Astrue, 478 F.3d 836, 841
(7th Cir. 2007). This Court may not substitute its judgment for that of the Commissioner
by reevaluating facts, reweighing evidence, or resolving conflicts in evidence. Skinner,
478 F.3d at 841; see also Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (holding
that the ALJ’s decision must be affirmed even if “reasonable minds could differ” as long
as “the decision is adequately supported”) (citation omitted).
The ALJ is not required to address “every piece of evidence or testimony in the
record, [but] the ALJ’s analysis must provide some glimpse into the reasoning behind
her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001). In
cases where the ALJ denies benefits to a claimant, she must “build an accurate and
logical bridge from the evidence to [her] conclusion.” Clifford, 227 F.3d at 872. The ALJ
must at least minimally articulate the “analysis of the evidence with enough detail and
clarity to permit meaningful appellate review.” Briscoe ex rel. Taylor v. Barnhart, 425
F.3d 345, 351 (7th Cir. 2005); Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007) (“An
ALJ has a duty to fully develop the record before drawing any conclusions . . . and must

11

adequately articulate his analysis so that we can follow his reasoning . . . .”); see Boiles
v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005).
Where conflicting evidence would allow reasonable minds to differ, the
responsibility for determining whether a claimant is disabled falls upon the
Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990).
However, an ALJ may not “select and discuss only that evidence that favors his ultimate
conclusion,” but must instead consider all relevant evidence. Herron v. Shalala, 19 F.3d
329, 333 (7th Cir. 1994); see Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014)
(“This ‘sound-bite’ approach to record evaluation is an impermissible methodology for
evaluating the evidence.”).
III.

ANALYSIS
Claimant poses three arguments in support of his request for remand: (1) the ALJ

erred in evaluating the medical opinion evidence; (2) the ALJ failed to consider the
effect of Claimant’s obesity on his impairments; and (3) the ALJ’s assessment of his
credibility was flawed. The Court agrees that the ALJ erred in evaluating the medical
opinion evidence and remands on that basis.
A.

Analysis of Medical Opinion Evidence

In evaluating a claim of disability, an ALJ “must consider all medical opinions in
the record.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013); see 20 C.F.R. §
404.1527(b). The opinion of a treating physician is afforded controlling weight if it is
both “well-supported” by clinical and diagnostic evidence and “not inconsistent with the
other substantial evidence” in the case record. 20 C.F.R. § 404.1527(c)(2); see Scott v.
Astrue, 647 F.3d 734, 739 (7th Cir. 2011). Because of a treating doctor’s “greater

12

familiarity with the claimant’s condition and circumstances,” Gudgel v. Barnhart, 345
F.3d 467, 470 (7th Cir. 2003), an ALJ must “offer ‘good reasons’ for discounting a
treating physician’s opinion.” Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010)
(citations omitted); see also Stage v. Colvin, 812 F.3d 1121, 1126 (7th Cir. 2016).
Those reasons must be “supported by substantial evidence in the record; a contrary
opinion of a non-examining source does not, by itself, suffice.” Campbell, 627 F.3d at
306.
Where the opinions of different physicians diverge, the ALJ must weigh each
opinion by considering such factors as “the length, nature, extent of the treatment
relationship; frequency of examination; [each] physician’s specialty, the type of tests
performed, and the consistency and supportability of [each] opinion.” Scott v. Astrue,
647 F.3d at 740; Books v. Chater, 91 F.3d 972 (1996). The ALJ must then provide a
“sound explanation” for that decision. Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir.
2011).
Here, while acknowledging Dr. Montella’s status as Claimant ’s treating physician
and his specialty as an orthopedic surgeon, the ALJ afforded “no significant weight” to
his October 2012 opinion in favor of a disability finding and “little weight” to his June
2013 RFC assessment. (R. 24.) Unfortunately, the ALJ’s stated reasons for giving
“little weight” to the treating physician’s RFC assessments do not withstand scrutiny.
First, the ALJ found a conflict between Dr. Montella’s report that he had seen
Montella “every 3 or 4 months since September 2012” and the lack of notes from more
than three meetings during that time. (R. 24.) However, three meetings over a tenmonth period comes to an average very close to the frequency reported by the doctor.

13

The ALJ also rejected Dr. Montella’s statement that Claimant had trouble with sitting,
standing, and walking in part because “the claimant did not inform the surgeon of a
problem with sitting.” (R. 25.) To the contrary, Claimant twice told Dr. Montella that his
back pain caused him trouble sitting. (R. 356, 368.)
The ALJ also found a conflict between physical examination notes indicating
normal leg strength and Claimant’s own reports that he had difficulty standing or sitting
for any length of time. But Claimant does not allege that his difficulties with sitting,
standing, and walking are caused by muscular or mechanical problems with his legs.
He instead alleges that he has pain in his lower back with radiating pain and numbness
in his legs and feet, and that these symptoms make it difficult for him to stand and walk.
(R. 41–43, 46.) His leg strength is not relevant to that complaint. The ALJ further
explained that “the limitations assessed…were based more on [Claimant’s] pain
complaints rather than [on] Dr. Montella’s objective notes, which were scarce after the
first visit.” (R. 24.) The objective findings made by Dr. Montella during his exams were
virtually identical for all three visits that preceded the date of his opinion: limited ranges
of motion in the lumbar spine, paraspinal spasms, and a positive straight leg test. (R.
355, 357, 368–69.) Dr. Montella thus properly relied on both Claimant’s pain complaints
and on objective evidence in formulating his opinions. 4 The ALJ’s stated rationales for
rejecting Dr. Montella’s RFC assessment are not supported by substantial evidence and
do not constitute the requisite “good reasons” for rejecting a treating physician’s opinion.
Campbell v. Astrue, 627 F.3d at 306. As such, remand is required.

4

Dr. Montella may have also relied on Claimant’s September 2011 MRI findings, which
included “moderate” and “severe” findings at every level of the lumbar spine. However,
because Dr. Montella did not specifically reference the MRI results in his writings, the Court will
not presume that this is the case.

14

Moreover, even where an ALJ properly declines to give controlling weight to a
treating physician’s opinion, she must explain the weight she does give to it and other
available medical opinions. Here, the ALJ has failed to adequately explain why she
gave “little weight” to the opinion of reviewer Dr. Gotanco and “more weight” to the
opinion of reviewer Dr. Madala. In evaluating the opinions of two reviewing medical
consultants, the ALJ made note of the conflict between them and elected to adopt the
opinion of Dr. Madala, who determined that Claimant was capable of light work, over
that of Dr. Gotanco, who assessed Claimant capable of only sedentary work. (R. 24.)
The ALJ offered two facts in support of her proposition that “evidence received at
the hearing showed that [Claimant] was more capable than [Dr. Gotanco] had
assessed.” (R. 24.) First, she interpreted the success of Claimant’s knee surgery as
suggesting a “greater standing and walking tolerance” than that assessed by Dr.
Gotanco. Again, this reflects her misunderstanding about the source of Claimant’s
difficulties with standing and walking, which proceed from his degenerative disc
disease. Because his knees are not relevant to that disorder, even a successful knee
surgery would not necessarily endow him with the ability to stand and walk for six hours
out of an eight hour day. The second piece of evidence cited by the ALJ as evidence of
his greater capability was Claimant’s brief job stocking shelves at Walmart, which,
according to the ALJ, “demonstrated a greater ability to lift.” (R. 24.) This ignores the
evidence that Claimant quit that job because his impairments left him unable to perform
its demands. A work attempt that fails because the claimant’s impairments prevent him
from doing the work does not demonstrate the ability to do those or similar tasks
consistently throughout the workday. Indeed, Claimant’s unsuccessful effort at work

15

“might just as easily provide corroboration that [his] impairments significantly limited
[his] ability to work.” McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011).
Compounding the problem, the ALJ’s reasons for giving “more weight” to the
opinion of Dr. Madala also do not withstand scrutiny. To support her weighting of
opinions, the ALJ simply asserted that Dr. Madala’s opinion “reflected adequately the
medical evidence available.” (R. 24.) Dr. Madala, like Dr. Gotanco, did not indicate the
date of the MRI results she examined. The MRI findings she listed were “posterior
fusion with instrumentation,” “[b]one consolidation of the graft,” and “surgical well
decompressed,” all at the L4–L5 level of the spine. (R. 87.) This description omits any
mention of the two herniated nuclei pulposi mentioned by Dr. Rabinowitz, and likewise
ignores the “mass effect” and moderate “bilateral foraminal narrowing” present at the
L4–L5 level and the multiple moderate to severe findings at the other levels of Claimant
’s spine revealed by Claimant ’s 2011 MRI. (R. 303.) Without any clear indication that
Dr. Madala examined or considered that report, the ALJ’s assertion that her opinion
“adequately reflected the medical evidence available” is not supported by substantial
evidence.
Because the ALJ’s assessment of Claimant’s residual functional capacity for light
work was based in large part on her decision to weigh Dr. Madala’s opinion more
heavily than that of Dr. Gotanco, her failure to provide a “sound explanation” for that
choice is an error that mandates remand. Punzio, 630 F.3d at 710.
B.

Remaining Arguments

Because this matter necessitates remand for the above reasons, the Court need
not explore in detail at this time the remaining errors claimed by Claimant. However, in

16

light of the credibility argument raised by Claimant, the Court notes that the Social
Security Administration has recently updated its guidance about evaluating symptom
severity in disability claims. See SSR 16-3p, 2016 WL 1119029 (effective March 28,
2016). The new ruling eliminates the term “credibility” from the SSA’s sub-regulatory
policies to “more closely follow [the] regulatory language regarding symptom evaluation”
and to “clarify that subjective symptom evaluation is not an examination of the
individual's character.” Id. at *1. Though SSR 16-3p post-dates the ALJ’s hearing in
this case, the application of a new social security regulation to matters on appeal is
appropriate where, as here, the new regulation is a clarification of, rather than a change
to, existing law. Pope v. Shalala, 998 F.2d 473, 482–483 (7th Cir. 1993), overruled on
other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999); see also Hernandez v.
Colvin, 2016 WL 4681227 (N.D. Ill. Sept. 7, 2016). Therefore, the ALJ must on remand
re-evaluate Claimant’s subjective symptom statements in light of the guidance provided
by SSR 16-3p.
CONCLUSION
For the foregoing reasons, Claimant’s motion for summary judgment is granted
and the Commissioner’s request for summary judgment is denied. This case is
remanded to the Social Security Administration for further proceedings consistent with
this Opinion.

____________________________
Michael T. Mason
United States Magistrate Judge

Dated: September 22, 2016

17