Hatcher v. Colvin

Filing 30

MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 7/27/2017. Mailed notice (ao,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
VERONICA HATCHER,
Plaintiff,
v.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security,
Defendant.

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No. 15 C 7786
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Plaintiff Veronica Hatcher appeals defendant’s decision denying her application for
Social Security benefits. For the reasons set forth below, the Court reverses the Commissioner’s
decision and remands this case for further proceedings.

Background
Plaintiff filed an application for benefits on May 9, 2013, alleging a disability onset date
of June 26, 2012.2 (R. 235.) Her application was denied initially on August 2, 2013, and again
on reconsideration on March 6, 2014. (R. 168-73.) Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”), which was held on February 3, 2015. (R. 77-132.) On
March 13, 2015, the ALJ issued a decision denying plaintiff’s application. (R. 34-68.) The
Appeals Council denied review (R. 1-4), leaving the ALJ’s decision as the final decision of the
Commissioner. See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).

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On January 23, 2017, Nancy A. Berryhill succeeded Carolyn W. Colvin as Acting Commissioner of Social
Security. See https://www.ssa.gov/agency/commissioner.html (last visited July 27, 2017). Accordingly, the Court
substitutes Berryhill for Colvin pursuant to Federal Rule of Civil Procedure 25(d).
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Plaintiff later amended her disability onset date to May 23, 2013. (See R. 80-82.)

Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is
generous, it is not entirely uncritical,” and the case must be remanded if the “decision lacks
evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Under the Social Security Act, disability is defined as the “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 12 months.” 42 U.S.C. § 423(d)(1)(A). The
regulations prescribe a five-part sequential test for determining whether a claimant is disabled.
See 20 C.F.R. § 404.1520. Under the regulations, the Commissioner must consider: (1) whether
the claimant has performed any substantial gainful activity during the period for which she
claims disability; (2) if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether the claimant’s impairment meets or equals any listed impairment;
(4) if not, whether the claimant retains the residual functional capacity (“RFC”) to perform her
past relevant work; and (5) if not, whether she is unable to perform any other work existing in
significant numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th
Cir. 2001). The claimant bears the burden of proof at steps one through four, and if that burden
is met, the burden shifts at step five to the Commissioner to provide evidence that the claimant is
capable of performing work existing in significant numbers in the national economy. See 20
C.F.R. § 404.1560(c)(2).

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At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since the alleged disability onset date. (R. 36.) At step two, the ALJ found that plaintiff had the
severe impairments of “obesity; depression/bipolar disorder; post-traumatic stress disorder
(PTSD); congenital right eye blindness; sleep apnea; degenerative joint disease of the knee; [and]
sciatica.” (Id.) At step three, the ALJ determined that plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments. (R. 37.) At step four, the ALJ found that plaintiff could not perform her past
relevant work but had the residual functional capacity to perform sedentary work with additional
restrictions. (R. 39, 66.) At step five, the ALJ found that there were jobs that existed in
significant numbers in the national economy that plaintiff could perform, and thus she was not
disabled. (R. 66-67.)
Plaintiff contends the ALJ erred in giving “little weight” to the opinion of plaintiff’s
treating physician, Dr. Forys. (See R. 65.) An ALJ must give a treating physician’s opinion
controlling weight if “it is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case
record.” 20 C.F.R. § 404.1527(c)(2). “If an ALJ does not give a treating physician’s opinion
controlling weight, the regulations require [him] to consider the length, nature, and extent of the
treatment relationship, frequency of examination, the physician’s specialty, the types of tests
performed, and the consistency and supportability of the physician’s opinion,” in assessing the
opinion. Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009); see 20 C.F.R. § 404.1527(c).
Among other things, Dr. Forys said that plaintiff’s complaints of severe knee pain were
corroborated by cracking and popping in the knees, a positive x-ray for joint space narrowing,
and a positive straight leg raise test.

(R. 1966.)

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He also noted that plaintiff’s pain was

precipitated by walking and prolonged sitting, and thus he limited her to sitting for two hours and
walking for one hour of an eight-hour workday. (R. 1967.) Dr. Forys opined that plaintiff’s pain
would frequently interfere with her concentration and attention and would cause her to miss
work more than three times a month. (R. 1970-71.)
The ALJ rejected Dr. Forys’ opinion because:
[He] relied quite heavily on the subjective report of symptoms and
limitations provided by [plaintiff], and seemed to uncritically accept as true most,
if not all, of what [plaintiff] reported. Yet, as explained elsewhere in this
decision, there exist good reasons for questioning the reliability of [plaintiff’s]
subjective complaints. For example, Dr. Forys noted that [plaintiff] had side
effects from medication, yet [plaintiff] denied such in her testimony. Further, had
such medications caused side effects, it would have been reported in the records
and or changed to one that did not cause side effects. There is no report of “good
days” and “bad days” in Dr. Forys’ records. Further, because the records and
findings are so contradictory, the doctor’s opinion is without substantial support
from the other evidence of record, or even his own record, which obviously
renders it less persuasive.
(R. 65.)
Focusing on the perceived contradictory nature of the underlying medical records, it is
true that some of Dr. Forys’ records state that plaintiff denied having knee pain. However, such
notes generally appear in records of visits that were prompted by issues wholly unrelated to her
knees. (See, e.g., R. 475, 488, 640, 676, 1654-55 (showing that plaintiff did not complain of
knee pain when she went to the doctor for a sore throat and cough, perianal pain, a keloid on her
right foot, for treatment after a sexual assault, and a rash on her breasts, respectively).)
Moreover, though plaintiff did not complain about her knees each time she saw Dr. Forys, the
record shows that she did so on a regular basis from October 2011 through November 2014.
(See R. 441, 455-58, 470, 482, 498-501, 503-06, 649, 655, 662, 669, 1352, 1357, 1362, 1554,
1567-68, 1575, 1598-1600, 1606-07, 1625-27, 1639, 1647-48.) More importantly, the record
shows that when Dr. Forys’ treatment focused on plaintiff’s knees, his clinical findings
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consistently supported her complaints of pain and decreased function. (See e.g., R. 455-58
(April 18, 2012 record noting “crepitus,3 decreased extension, decreased flexion, pain with
exten[s]ion and pain with flexion” in both knees); R. 470-73 (February 28, 2012 record noting
same and mild effusion4); R. 482-85 (January 11, 2012 record noting “crepitus, decreased
extension, decreased flexion, pain with exten[s]ion and pain with flexion” in both knees); R.
499-501 (December 3, 2011 noting same and mild effusion); R. 503-06 (October 21, 2011 record
noting crepitus, decreased extension and flexion and pain with extension and flexion in both
knees); R. 649-53 (April 27, 2013 record noting crepitus and decreased extension and flexion in
both knees); R. 655-59 (April 6, 2013 record noting crepitus in both knees, pain with extension
in right knee, and decreased flexion in left); R. 662-66 (March 9, 2013 noting same); R. 669-73
(January 3, 2013 record noting crepitus, and decreased extension and flexion in both knees); R.
1357-60 (February 8, 2014 record noting crepitus in both knees); R. 1362-66 (January 6, 2014
record noting crepitus and decreased extension and flexion in both knees); R. 1352-55 (March 8,
2014 record noting tenderness and decreased extension and flexion in both knees); R. 1647-49
(April 16, 2014 record noting clicking, popping, and decreased extension and flexion in both
knees); R. 1639-41 (May 23, 2014 record noting clicking, popping, and decreased extension and
flexion in both knees); R. 1625-27 (June 27, 2014 record noting same); R. 1606-07 (July 28,
2014 record noting same); R. 1598-1600 (August 27, 2014 record noting same and mild
effusion). Many of these findings by Dr. Forys were not based on “uncritical acceptance” of
plaintiff’s subjective reports, but rather clinical findings. Thus, the record does not support the
ALJ’s refusal to give controlling weight to Dr. Forys’ opinion.

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Joint crepitus is “the grating sensation caused by the rubbing together of the dry synovial surfaces of joints.”
Dorland’s Illustrated Medical Dictionary at 429 (32d ed. 2012).
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Effusion is “the escape of fluid into a part or tissue.” Dorland’s Illustrated Medical Dictionary at 595 (32d ed.
2012).

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Even if the record did support not giving controlling weight to Dr. Forys’s opinion, the
ALJ’s analysis would still be erroneous because he did not assess Dr. Forys opinion using the
required regulatory factors. See 20 C.F.R. § 404.1427(c) (stating that an ALJ “will evaluate
every medical opinion” by considering the nature, extent, and length of the treatment
relationship, the frequency of examination, the physician’s specialty, and the consistency and
supportability of the opinion). Given that Dr. Forys treated plaintiff nearly monthly for several
years and the only contrary opinion in the record is from a non-examining source (see R. 14244), the ALJ may well have given Dr. Forys’ opinion more weight, if he had assessed it in
accordance with the regulations. See Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)
(stating that “a contradictory opinion of a non-examining physician [is] not, by itself,” a
sufficient basis for rejecting a treater’s opinion).
The ALJ also “discounted” the opinion of plaintiff’s treating psychiatrist, Dr. Eler,
because it “appears to rest at least in part on assessment of [physical] impairment(s),” an area
outside of her expertise, and “many of [her] statements are contradictory and appear [to] have
been generated in getting favorable accommodation in the workplace and or reduced RTA fare.”
(R. 65.) As an initial matter, the ALJ does not identify the statements that are contradictory or
explain why letters seeking accommodations are inherently suspect. Further, even if Dr. Eler
lacks the expertise to opine on plaintiff’s physical limitations, the ALJ still did not explain why
he rejected the opinions she gave about plaintiff’s mental limitations, specifically that plaintiff:
(1) has bipolar disorder with episodic psychosis; (2) has “[decreased] attention, focus, [and]
concentr[ation]”; (3) is “easily distracted [and] interrupted”; (4) is “[e]xtremely sensitive and
reactive to supervisors and coworkers”; (5) has “serious limitations” in her ability to perform
tasks autonomously and on a sustained basis; (6) has “minimal” productive, goal-oriented

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activity; (7) is subject to “chronic exacerbations” of her condition; (8) has “mod[erate to] marked
limitations in basic emotional functioning in work environment (even ability to perform basic
work related activities”; and (9) is “[i]ncapable of [tolerating] even low stress.” (R. 1071, 107374, 1197-1204.) Because the ALJ failed to offer any reasons for discounting the opinion of the
psychiatrist who treated plaintiff on a regular basis for four years, this case must be remanded.
See Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011) (“An ALJ must offer good reasons for
discounting the opinion of a treating physician.”) (quotation omitted).
Plaintiff also challenges the ALJ’s credibility determination and reliance on vocational
expert testimony, issues that depend, at least in part, on a proper assessment of the medical
evidence. Thus, the ALJ must revisit these issues on remand as well.

Conclusion
For the reasons set forth above, the Court grants plaintiff’s motion for summary judgment
[17], denies the Commissioner’s motion for summary judgment [26], reverses the
Commissioner’s decision, and remands this case for further proceedings consistent with this
Memorandum Opinion and Order.
SO ORDERED.

ENTERED: July 27, 2017

_________________________________
M. David Weisman
United States Magistrate Judge

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