Derengowski v. Colvin

Filing 18

MEMORANDUM Opinion and Order: For the foregoing reasons, the Commissioner's decision is reversed and remanded for further proceedings consistent with this opinion. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 4/10/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DARLENE DERENGOWSKI,
Plaintiff,

No. 15 C 7914

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

Judge Thomas M. Durkin

Defendant.
MEMORANDUM OPINION AND ORDER
Darlene Derengowski brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) for judicial review of the final decision of the Commissioner of Social
Security denying Derengowski’s claim for supplemental security income and
disability insurance benefits based on a number of alleged disabilities. Derengowski
seeks an award of benefits, or in the alternative remand to the Commissioner. For
the following reasons, the Commissioner’s decision is reversed and remanded for
further proceedings consistent with this opinion and order.
Legal Standard
Judicial review of a final decision of the Social Security Administration is
generally deferential. The Social Security Act requires the court to sustain the
administrative law judge’s (“ALJ”) findings if they are supported by substantial
evidence. See 42 U.S.C. § 405(g). Substantial evidence means “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971). The court should review the entire
administrative record, but must “not reweigh the evidence, resolve conflicts, decide
questions of credibility, or substitute [its] own judgment for that of the [ALJ].”
Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). “However, this does not mean
that [the court] will simply rubber-stamp the [ALJ’s] decision without a critical
review of the evidence.” Id. A decision may be reversed if the ALJ’s findings “are not
supported by substantial evidence or if the ALJ applied an erroneous legal
standard.” Id. In addition, the court will reverse if the ALJ does not “explain his
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). “Although a written evaluation of each piece of evidence or testimony is not
required, neither may the ALJ select and discuss only that evidence that favors his
ultimate conclusion.” 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.”).
Additionally, the ALJ “has a duty to fully develop the record before drawing any
conclusions,” Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007), and deference in
review is “lessened . . . where the ALJ’s findings rest on an error of fact or logic.”
Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). In oft-quoted words, the
Seventh Circuit has said that the ALJ “must build an accurate and logical bridge
from the evidence to his conclusion.” Clifford, 227 F.3d at 872. When the ALJ has
satisfied these requirements, the responsibility for deciding whether the claimant is

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disabled falls on the Social Security Administration, and, if “conflicting evidence
allows reasonable minds to differ as to whether a claimant is disabled,” the ALJ’s
decision must be affirmed. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990).
Analysis
In order to determine whether an individual is disabled, an ALJ must follow
the five-step analysis provided by 20 C.F.R. § 404.1520(a)(4). At step one, if the ALJ
determines that the claimant is “doing substantial gainful activity,” then the
claimant is not disabled and no further analysis is necessary. If the claimant is not
engaged in gainful activity, at step two, the ALJ must determine whether the
claimant has a “severe” impairment or combination of impairments. If the ALJ finds
that the claimant has such a severe impairment, and the impairment is one
provided for in the Social Security regulation listings, then at step three, the ALJ
must find that the claimant is disabled. If the ALJ finds that the impairment is not
in the listings, then at step four, the ALJ must assess the “residual functional
capacity” (“RFC”) the claimant continues to possess despite the claimant’s
impairment. If the claimant’s RFC enables the claimant to continue his or her “past
relevant work,” then the ALJ must find that the claimant is not disabled. But if the
claimant cannot perform past relevant work, at step five, the ALJ must determine
whether the claimant “can make an adjustment to other work.” If the claimant
cannot make such an adjustment, then the claimant is disabled.
Here, the ALJ found that Derengowski has not engaged in substantial
gainful activity since September 1, 2010 (step one), and has the following severe

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impairments: pancreatitis; diabetes; neuropathy; arthritis; cirrhosis; alcohol
dependence; depression and anxiety (step two). R. 6-3 at 19. Derengowski does not
dispute these findings, or the ALJ’s finding that Derengowski “does not have an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments” (step three). Id. Rather, Derengowski
challenges the ALJ’s finding that she is not disabled because she “has the residual
functional capacity [“RFC”] to perform light work,” with certain limitations (step
four), which would enable her to adjust to other work that is available in the
national economy (step five). Id. at 27. Derengowski contends that the ALJ’s RFC
determination “is not supported by substantial evidence” for two reasons: (1) the
ALJ erroneously analyzed the testimony of the two medical experts retained by the
Commissioner who testified at the hearing—Dr. Carl Leigh, M.D., and Dr. Ellen
Rozenfeld, Psy. D.; and (2) the ALJ erroneously found that Derengowski’s testimony
regarding her symptoms was “not entirely credible.” See R. 9 at 1. Derengowski
argues that the experts’ testimony and her own testimony demonstrate that her
RFC is for “sedentary work.” Derengowski argues further that a finding that her
RFC is for “sedentary work” would compel a finding that she is disabled pursuant to
20 C.F.R. Pt. 404, Subpt. P, App’x 2, Rule 201.09.
I.

Opinion Evidence
A.

Dr. Carl Leigh, M.D.

Dr. Carl Leigh, M.D., testified as a medical expert at Derengowski’s hearing.
Dr. Leigh’s testimony consisted of a review of the records of the three consultative

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medical examinations of Derengowski performed by doctors retained by the
Commissioner over the course of the three-year application process leading up to
the hearing. Dr. Leigh testified that a comparison of the three examination reports
demonstrated that Derengowski’s condition had deteriorated over that time period.
Dr. Leigh noted that the third examination report—prepared by Dr. Roopa
Karri, M.D.—included an opinion regarding the activities in which Derengowski
was able to engage, which is an analysis relevant to the ALJ’s RFC determination.
Dr. Leigh testified that he disagreed with Dr. Karri’s opinion of Derengowski’s
abilities, because it was
very restrictive and the medical evidence of record does
not support all those restrictions. For example, the
examiner indicated [Derengowski] could climb ramps or
stairs occasionally, but she could never stoop or bend,
could never kneel, could never crouch, could never crawl.
If she were unable to bend or stoop, she wouldn’t be able
to sit as she has been for the past hour here in the room.
R. 6-3 at 80.
The ALJ interpreted Dr. Leigh’s testimony to indicate that Derengowski
could perform “light work” prior to March 11, 2013, but only “sedentary work” from
that date forward. R. 6-3 at 32. The ALJ, however, ultimately rejected the
recommendation of “sedentary work” he attributed to Dr. Leigh, and instead found
that Derengowski’s RFC was for “light work.”1 The ALJ justified this rejection of Dr.
Leigh’s opinion with the following reasoning:

The ALJ described his discount of Dr. Leigh’s testimony both as “only given
limited weight,” and “given some weight.” R. 6-3 at 32.

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However, as was noted above, the three [consultative
examinations] showed progression of [Derengowski’s]
peripheral neuropathy and justified a reduction in the
walking and standing requirements normally associated
with light work, but other clinical findings regarding
[Derengowski’s] lower extremity, such as full range of
motion in the hips, knees and ankles and the lack of a
need for an assistive device, suggest a somewhat greater
capacity to walk and stand, similar to as opined by
examining physician Dr. Karri.
R. 6-3 at 32. Although this reasoning is not entirely clear, it is apparent that the
ALJ thought that Dr. Karri’s report served to discount Dr. Leigh’s testimony. This
is a peculiar analysis in light Dr. Leigh’s testimony that Dr. Karri’s RFC opinion
was too restrictive. If the ALJ believed Dr. Leigh testified that Derengowski was
limited to a RFC of “sedentary work,” and Dr. Leigh also testified that Dr. Karri’s
RFC opinion was more “restrictive” than necessary, logic would dictate that Dr.
Leigh believed Dr. Karri’s RFC opinion was even more restrictive than “sedentary
work.” But the ALJ’s reasoning indicates that he thought Dr. Karri’s report was a
basis to find that Dr. Leigh’s RFC opinion of “sedentary work” was too restrictive,
and that an RFC of “light work” was appropriate.
The Court cannot understand the ALJ’s reasoning here. If anything, it
appears that the ALJ may have mistakenly attributed Dr. Leigh’s criticism of Dr.
Karri’s RFC opinion to Dr. Karri and then used that criticism to discount Dr.
Leigh’s testimony, which would be entirely mistaken and illogical. Whatever the
ALJ’s actual chain of thought, it is not clear at all why the ALJ found that
Derengowski had a RFC of “light work” contrary to Dr. Leigh’s testimony that
Derengowski’s RFC was “sedentary work.” The ALJ’s failure to provide any
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reasoned explanation for his decision to reject the opinion of a medical expert
demonstrates that the ALJ’s decision was not supported by substantial evidence.
This is not an inconsequential failure. As Derengowski points out, once she
turned 50 years old (which occurred before the ALJ issued his decision), “a
limitation to sedentary work would direct a finding that [she] was ‘disabled.’”
McCurrie v. Astrue, 401 Fed. App’x 145, 148 n.3 (7th Cir. 2010) (citing 20 C.F.R. Pt.
404, Subpt. P, App’x 2, Rule 201.09); see also Chihuahua v. Colvin, 2016 WL
2897405, at *10 (N.D. Ill. May 18, 2016) (“The difference in the application of the
grid is significant. For example, if the ALJ were to determine on remand that
Plaintiff could perform work at the sedentary level rather than the light level and
again rely on the grid to determine whether Plaintiff was disabled, Medical
Vocational Rule 201.09 would result in a finding of disabled.”). Therefore, the ALJ’s
decision must be remanded for reconsideration of Dr. Leigh’s testimony and Dr.
Karri’s report as they are relevant to Derengowski’s RFC.
B.

Dr. Ellen Rozenfeld, Psy. D.

Dr. Ellen Rozenfeld, Psy. D., testified as a psychological expert at
Derengowski’s hearing. Like Dr. Leigh, Dr. Rozenfeld’s testimony was based on a
review of the records of Derengowski’s medical examinations associated with her
social security application process. Dr. Rozenfeld testified that Derengowki suffered
from depression, and that this condition had worsened over the course of the
application process. Dr. Rozenfeld testified that Derengowski’s mental condition
limited her functioning as follows:

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[S]he certainly is cognitively capable of understanding,
remembering, simple and detailed instructions. However,
with regards to sustainability, being able to pay attention
and concentrate for extended periods of time, I do believe
there would be a moderate limitation such that she would
be limited to more tasks of a simple, routine nature. And
this is based on the impact of the depressive
symptomatology and her sustained attention and
concentration. She just had feelings of low self worth, so
when those feelings get generated in the work setting[,]
[a]lthough she’s cognitive and much more capable, I
would limit her to more simple, routine tasks.
With regards to social functioning, I would have
her have only occasional contact with [the] general public
in terms of having to handle extended communications,
field a lot of questions, that kind of thing. But she
certainly can handle contact. She can also handle
occasional contact with coworkers and there’s no
indication to me that she cannot have supervisory contact.
I don’t see a limitation there.
With regards to adaptability, . . . . I would limit her
to only occasional workplace changes.
R. 6-3 at 90-91 (emphasis added). Without explanation, the ALJ gave this testimony
only “limited weight.” Id. at 32. The lack of explanation demonstrates that the
ALJ’s decision was not supported by substantial evidence.
Moreover, the ALJ’s failure to appropriately account for Dr. Rozenfeld’s
testimony directly affected the ALJ’s determination that Derengowski is not
disabled. After taking testimony regarding Derengoski’s RFC, a vocational expert
testified regarding whether a substantial number of jobs exist in the national
economy that can be performed by a person with Deregowski’s RFC characteristics.
But in posing hypothetical RFC characteristics to the vocational expert, the ALJ
failed to highlight Dr. Rozenfeld’s testimony that Derengowski should be limited to
“only occasional workplace changes.” As the Social Security Administration has
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ruled, the ability “to deal with changes in a routine work setting” is one of the “basic
mental demands” of “unskilled work.” SSR 85-15, 1985 WL 56857, at *4 (Jan. 1
1985). “A substantial loss of ability to meet [this activity] would severely limit the
potential occupational base,” and “in turn, would justify a finding of disability.” Id.
Dr. Rozenfeld’s testimony in this regard was highly relevant to the vocational
expert’s assessment of Derengowski’s job prospects, and should not have been
disregarded without legitimate justification. The ALJ provided none, so his decision
must be remanded for consideration of this issue.
II.

Credibility Determination
Lastly, the ALJ improperly found that Derengowski’s testimony regarding

her symptoms was “not entirely credible for the reasons explained in this decision.”
R. 6-3 at 29. The decision does not identify any inconsistencies in Derengowski’s
testimony. Rather, the decision merely recites the objective medical evidence. True,
not all of the evidence fully supports Derengowski’s testimony. But much of it
certainly does. And neither of the medical experts testified that they thought the
record evidence served as a basis to question the veracity of Derengowski’s claims.
The Court cannot say what the basis of the ALJ’s credibility determination is. The
only justification given, that her testimony was “not entirely credible,” is a phrase
the Seventh Circuit has “repeatedly derided as ‘meaningless boilerplate.’” Chase v.
Astrue, 458 Fed. App’x 553, 558 (7th Cir. 2012). Absent a “basis to review whether
[the ALJ’s] conclusion was supported by substantial evidence or to understand how
his determination influenced his RFC assessment,” the ALJ’s credibility

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determination must be rejected. Eskew v. Astrue, 462 Fed. App’x 613, 616 (7th Cir.
2011). Therefore, to the extent that such an assessment is necessary to determine
whether Derengowski is disabled, Derengowski’s credibility should be reassessed on
remand.
Conclusion
For the foregoing reasons, the Commissioner’s decision is reversed and
remanded for further proceedings consistent with this opinion.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: April 10, 2017

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