Daniels v. Colvin
Filing
26
MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 12/7/2016.(rbf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARK ANTHONY DANIELS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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No. 15 C 9148
Magistrate Judge
Michael T. Mason
MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge:
Claimant, Mark Anthony Daniels (“Claimant”), has brought a motion for summary
judgment [15] seeking judicial review of the final decision of the Commissioner of Social
Security (“the Commissioner”). The Commissioner denied Claimant’s application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”).
(R. 951-67.) The Commissioner filed a cross-motion for summary judgment, asking the
court to uphold the decision of the Administrative Law Judge (“ALJ”) [19]. The Court
has jurisdiction to hear this matter pursuant to 42 U.S.C. § 405(g) and 1383(c). For the
reasons stated below, Claimant’s motion for summary judgement is granted. The
decision of the Commissioner is reversed, and the case is remanded for further
proceedings consistent with this Memorandum Opinion and Order.
I. BACKGROUND
A. Procedural History
On April 20, 2007, Claimant filed an application for DIB, alleging a disability onset
date of February 12, 2007. (R. 141-48.) The claim was denied initially on August 29,
2007 (R. 76), and upon reconsideration on February 25, 2008. (R. 77.) On March 14,
2008, Claimant requested a hearing before an ALJ. (R. 96.) An administrative hearing
was held on July 1, 2009. (R. 23-75.) Claimant, who was represented by counsel,
appeared and testified. (Id.) A vocational expert (“VE”) also appeared and testified.
(Id.) On July 27, 2009, the ALJ issued a written decision denying Plaintiff’s application
for DIB benefits. (R. 7-18.) The Appeals Council denied review on July 16, 2010,
leaving the ALJ’s decision as the final decision of the Commissioner. (R. 1-5); Estok v.
Apfel, 152 F.3d 636, 637 (7th Cir. 1998); 20 C.F.R. § 416.1481. On August 4, 2011, the
U.S. District Court for the Northern District of Illinois granted Claimant’s motion for
summary judgment and remanded the action for further proceedings. Daniels v. Astrue,
No. 10 C 5820, 2011 WL 3439269, at *1 (N.D. Ill. Aug. 4, 2011); (R. 645-70.)
On August 1, 2012, a second administrative hearing was held before an ALJ. (R.
533-73.) Claimant, who was represented by counsel, again appeared and testified.
(Id.) A VE also appeared and testified. (Id.) On August 23, 2012, the ALJ denied
Claimant’s claim for DIB. (R. 512-26.) Claimant, again, sought judicial review, and the
U.S. District Court for the Northern District of Illinois granted Claimant’s motion for
summary judgment and remanded the action for further proceedings. Daniels v. Colvin,
No. 12 C 9317, 2014 WL 2158999, at *1 (N.D. Ill. May 23, 2014); (R. 1076-1107.)
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On November 19, 2014, a third administrative hearing was held before an ALJ.
(R. 975-1028.) Claimant, who was represented by counsel, appeared and testified.
(Id.) A VE also appeared and testified. (Id.) For the third time, on December 9, 2014,
the ALJ issued a written decision again denying Claimant’s claim for DIB. (R. 951-67.)
Claimant subsequently filed this action in the District Court.
B. Medical Evidence
1. Treating Physicians
i. Physical Health
On February 12, 2007, Claimant suffered a work-related injury when he was
lifting heavy boxes and suddenly felt severe pain in his low back that radiated into both
lower extremities. (R. 357.) Claimant subsequently stayed home from work and went
to see Dr. Arti Chawla, of the Primary Care Physicians of Essington, one week later with
complaints of difficulty moving his back and numbness and tingling in his back, left
buttock, and right fourth fingertip. (R. 318.) Dr. Chawla ordered an MRI and instructed
Claimant to take Vicodin as needed for pain. (Id.) The MRI was performed on February
23, 2007, and revealed “[s]ubtle disc space herniation, left L4–5, with foraminal
narrowing.” (R. 309.) Dr. Chawla referred Claimant to the Joliet Pain Care Center and
requested that he see Dr. Hersonskey, neurosurgeon, thereafter. (R. 317.) Dr. Chawla
also recommended that Claimant remain off work until he was seen at the Joliet Pain
Care Center. (Id.)
On March 6, 2007, Claimant was seen by Aubrey Linder, PA-C, at the Joliet Pain
Care Center, at which time he reported constant pain of a six out of ten. (R. 335.) The
pain was mostly in the upper lumbar region, although he did have some weakness in his
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left lower extremity and spasms in the lower lumbosacral region. (Id.) He described
burning and numbness to the left posterior gluteal region and thigh. (Id.) Ms. Linder
prescribed a short dose of steroids and a muscle relaxer and advised Claimant to stay
off work until his follow-up appointment. (R. 336.) During his March 22, 2007 follow-up
appointment, Claimant reported some mild lower lumbosacral back pain with occasional
tingling; but he also noted that the muscle relaxer helped and that he was 80%
improved. (R. 337.) Ms. Linder documented that the leg pain resolved, as did the
numbness, tingling, and upper lumbar pain. (Id.) Ms. Linder discussed physical
therapy, which Claimant was amenable to, and released Claimant to go back to work
full-time on April 2, 2007 after he had a few physical therapy sessions. (Id.)
On April 12, 2007, Claimant was seen by Dr. Elton Dixon at the Joliet Pain Care
Center. (R. 339.) Dr. Dixon documented that Claimant was unable to attend physical
therapy and that he did not take pain medications because they upset his stomach.
(Id.) Dr. Dixon recommended that Claimant should start transforaminal injections to
manage his radiculopathy, use a Duragestic patch to manage stomach pains and ulcer,
and to remain off work for 30 days while he started a therapy routine and the injections.
(R. 340.)
On June 4, 2007, Dr. Joseph Hindo of the Primary Care Physicians of Essington,
noted that Claimant was getting more depressed. (R. 319.) Dr. Hindo referred
Claimant to a neurosurgeon, Dr. George DePhillips, and to Central Professional Group
with the instruction to stay on Prozac until he was seen by a psychiatrist. (Id.) On July
2, 2007, Claimant began treatment for his back pain with Dr. DePhillips. (R. 357.)
Based on his review of Claimant’s February 2007 MRI scan, Dr. DePhillips opined that
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the pain was related to disc injury at the L5–S1 level. (Id.) Dr. DePhillips recommended
caudal epidural steroid injections and for Claimant to remain off work. (R. 357-58.)
On August 7, 2007, Claimant underwent another MRI scan, which revealed
“[m]ild to moderate degenerative changes of the lumbar spine” and “overall ... similar
[findings] to the previous MRI of 2/2007.” (R. 370.) Claimant was seen by Dr. Faris
Abusharif at the Pain Treatment Centers of Illinois on September 21, 2007 for a lumbar
epidural steroid injection at the L4–L5. (R. 419-21.) At the appointment, Claimant
reported weakness of the legs, poor balance, stomach pains, neck pain, back and leg
pain, palpitations, depression, and anxiety. (R. 419.) The pain was described as a
consistent eight out of ten and increased with most physical activity, sitting up and
standing for long periods of time, cold weather, and walking. (Id.)
On September 26, 2007, Claimant returned to Dr. DePhillips for a follow-up
evaluation. (R. 405.) Claimant reported that he experienced minimal pain relief after
the first caudal epidural steroid injection and that he continued to experience lower back
pain that radiated into the hips and buttocks. (Id.) Claimant rated his pain at an eight
out of ten, and it was noted that prior to his back injury, his back pain was a two to three
out of ten. (Id.) Dr. DePhillips scheduled another caudal epidural steroid injection and
prescribed pain medication. (Id.) He told Claimant to remain off work and gave him a
disability certificate until the next appointment. (Id.; R. 466.) The second and third
epidural steroid injections were performed on October 11 and October 25, 2007. (R.
422-23.)
On October 29, 2007, Dr. DePhillips saw Claimant for a follow-up appointment.
(R. 404.) The third caudal epidural steroid injection had provided no significant relief.
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(R. 405.) Dr. DePhillips recommended that Claimant begin physical therapy three times
per week for three weeks and referred Claimant to Dr. John Shea, a neurologist, for an
independent medical examination. (R. 404.)
On October 31, 2007, Dr. Shea examined Claimant and reported that Claimant
had pain in his low back that radiated down the left anterior and posterior thigh and
knee, loss of strength in the left leg, and numbness in the left leg. (R. 453.) Spinal
injections and chiropractic treatment did not help, however different pain medications
had given him some help. (Id.) Dr. Shea added that Claimant could not walk very far
and that sitting for more than 25 minutes and standing bothered him. (Id.) Claimant
rated his pain at a six out of ten. (R. 454.) Dr. Shea concluded:
Indeed, the patient could have suffered a back strain related to the work
incident he described. I do not feel it caused any permanent neurological
deficits. In essence, when I saw this patient he had loss of sensation to
pinprick and vibration on the entire left side of the body which would be
unrelated to any disc in the neck or the low back. He has normal reflexes
with give-way weakness. He has no atrophy. I did not find any objective
abnormalities. I do not believe he will need surgery… As far as his back is
concerned, I do not feel he needs any further treatment. As far as his
ability to undergo gainful employment, I recommend a Functional
Capacities Evaluation (FCE).
(R. 455.)
On February 6, 2008, Claimant saw Dr. DePhillips for a follow-up evaluation. (R.
448.) Claimant continued to complain of lower back pain that radiated into both lower
extremities and that failed to improve with conservative treatment. (Id.) Dr. DePhillips
reviewed Dr. Shea’s report, and made the following remarks:
[Claimant] saw Dr. John Shea who felt that his symptoms were related to
a lumbar sprain and that he requires no further medical treatment and
certainly not surgical intervention. He felt that [Claimant] has reached
maximum medical improvement. In light of the fact that [Claimant] has a
history of a fusion at the L5–S1 level which appears to have been
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aggravated by the injury and in light of the fact that there may be other
levels of internal disc disruption[,] L3–L4 and L4–L5, it seems ludicrous to
attribute his pain to a muscle sprain which should have improved within 2–
3 months of the accident.
(Id.) Dr. DePhillips recommended a lumbar discography to pinpoint the source of
the pain “and to confirm that [Claimant] has discogenic pain and mechanical
instability that is the cause of his pain and that a stabilization procedure is a
reasonable option.” (Id.) He stated that Claimant was to remain off work until
further evaluation and signed a disability certificate, verifying that Claimant was
unable to work until further notice. (R. 240, 465.)
At the next appointment with Dr. DePhillips on April 7, 2008, Claimant
complained of worsening lower back pain over the past few weeks. (R. 447.) Dr.
DePhillips prescribed two new pain medications and ordered a lumbar discogram to rule
out discogenic pain and annular disruption. (Id.) Claimant had a follow-up appointment
with Dr. Abusharif on April 21, 2008, at which time the plan for a lumbar discogram was
discussed further. (R. 424.)
Dr. DePhillips saw Claimant again on June 4, 2008, and observed that
Claimant’s pain had progressively worsened since his last visit despite the medications
and was an eight out of ten. (R. 445.) A lumbar discogram performed on May 27, 2008
was reviewed and revealed concordant pain at L2–L3, L3–L4, and L4–L5, with annular
tearing at L3–L4 and annular disruption at L4–L5. (Id.) The discogram, however, did
not have a control level, and Dr. DePhillips explained that he would not consider it valid
without one. (Id.) Therefore, Dr. DePhillips ordered Dr. Abusharif to inject the L1–L2
disc for testing. (Id.) The L1–L2 and L2–L3 lumbar discogram was performed on June
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24, 2008, and revealed that L1–L2 was essentially normal but that L2–L3 “was a good
produced concordant pain.” (R. 468-69.)
At the next appointment on July 2, 2008, Dr. DePhillips noted that disc
morphology was normal at L1–L2 and L2–L3 levels and recommended a second
surgical opinion. (R. 443, 450.) On August 19, 2008, Dr. DePhillips found that Claimant
continued to suffer worsening pain in the lower back that radiated into both lower
extremities and ordered an MRI scan. (R. 441.) Dr. DePhillips recommended that
Claimant remain off work and referred him for a second opinion regarding lumbar fusion
surgery. (Id.)
Claimant next saw Dr. DePhillips on September 15, 2008 with continued
complaints of worsening lower back pain radiating into the buttocks and down the
posterolateral thighs and calves. (R. 438.) An MRI scan performed on September 8
revealed degenerative disc disease from L2–S1, primarily L3–L4 and L5–S1 levels,
which Dr. DePhillips noted was not significantly different than the February 2007 study.
(Id.) Dr. DePhillips wrote to Dr. Cary Templin for a second opinion regarding a multiple
level spinal fusion potentially L2–S1 and explained that conservative treatment had
failed to work. (R. 439.) A second opinion was ultimately obtained from Dr. Hurley, not
Dr. Templin, on October 25, 2008. (R. 437.) Dr. Hurley opined that a 4 level fusion at
L2–S1 would not be beneficial because the risks of surgery outweighed the benefits,
and he did not believe that surgery would relieve Claimant’s symptoms. (Id.) Dr. Hurley
encouraged Claimant to consider other treatment modalities for the pain, including a
spinal cord stimulator. (R. 865.)
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During an appointment on October 29, 2008, Dr. DePhillips explained that he
believed that it was reasonable to proceed with a spinal fusion “provided that [Claimant]
has a reasonable expectation in terms of outcome and that there is a 50% chance that
his symptoms will not improve or even worsen after the surgery;” however, Dr.
DePhillips noted that he wanted a second opinion before proceeding with surgery. (R.
437.) Dr. DePhillips added that Claimant remained unemployable and disabled. (Id.)
On March 12, 2009, Claimant saw Dr. Alex Ghanayem, a spine surgeon. (R.
494.) After reviewing Claimant’s MRI scans, discograms, and radiographs, Dr.
Ghanayem opined that Claimant is not a good candidate for additional surgical
intervention despite his discography results. (Id.) Instead, Dr. Ghanayem thought that
Claimant should attend a chronic pain/comprehensive pain program to help manage his
residual ongoing symptoms. (Id.) Dr. Ghanayem also noted that Claimant should
remain off work in the interim. (Id.)
On August 17, 2009, Claimant was treated by Dr. John Kalec at the Pain
Treatment Centers of Illinois, where he presented with significant low back pain
radiating into both lower extremities, complete loss of normal lumbar lordosis, and hard
lumbar paraspinal muscles. (R. 887.) Dr. Kalec refilled a pain prescription and
documented that Claimant had both objective and subjective evidence of significant
lumbar radiculopathy. (Id.) It was recommended that Claimant not return to work. (R.
889.)
Dr. Abusharif treated Claimant on October 19, 2009, and noted that while he
would likely require surgical intervention, he was managing his pain with Dilaudid 8 mg
daily. (R. 891.) On March 18, 2010, Dr. Ghanayem reassessed Claimant for surgery
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and, again, found that surgery was not a good option because it would likely make the
problem worse. (R. 899-900.) Claimant saw Dr. Kalec on April 19, 2010, at which time
his Dilaudid prescription was refilled. (R. 892.) On May 26, 2010, Dr. Abusharif
prescribed Neurontin 800 mg to treat the neuropathic component of Claimant’s pain and
documented that he was overall responding to pain medication. (R. 893.)
Dr. Abusharif next saw Claimant on July 26, 2010, and documented tender
paraspinous muscles, tender facet joints, crepitus over left parathoracic muscles, tender
right parathoracic, and painful lumbar muscles with flexion. (R. 859.) On August 30,
2010, Dr. Abusharif performed a lumbar transforaminal epidural steroid injection. (R.
861.) The injections provided little relief, and Dr. Abusharif recommended a trial spinal
cord stimulator. (R. 862.)
On January 31, 2011, Claimant presented to Dr. Abusharif with low back pain on
both sides, radiating to the bilateral leg and both feet, which he rated a nine out of ten.
(R. 864.) Dr. Abusharif noted that surgery was not recommended by Dr. Hurley and
began the necessary paperwork for a percutaneous trial of spinal cord stimulator. (R.
865.) On March 28, 2011, Claimant underwent a spinal cord stimulator presurgical
psychological clearance evaluation. (R. 819.) Following the assessment, Dr. Peter
Brown, pain psychologist, noted Claimant’s “involved psychiatric history” and
recommended that if a spinal cord stimulator trial proceeds, that it be a functional trial to
better assess its effectiveness. (R. 816-818.) Dr. Brown identified the following risk
factors: Claimant scored high or extremely high on the somatic complaints scale,
functional complaints scale, muscular bracing scale, depression scale, and anxiety
scale; and Claimant had the presence of a serious mental illness. (R. 817.)
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The spinal cord stimulator was placed on May 16, 2011 for three days. (R. 866,
870.) A May 19, 2011 physical therapy follow-up evaluation did not show any significant
changes with objective measurements with the exception of increased lower extremity
strength. (R. 885.) On May 19, 2011, Dr. Brown saw Claimant, who reported a 20%
improvement in his lower extremities and 15% improvement in lower back pain. (R.
815.) Nonetheless, Dr. Brown still recommended against a permanent implantation of a
spinal cord stimulator given the risk factors he identified in his initial evaluation. (Id.) At
a July 11, 2011 follow-up, Dr. Abusharif wrote that Claimant had a 20-25% reduction in
pain during those three days, and the improvement was more noticeable after the
device was removed and the pain resumed. (R. 870.) They discussed implantation of a
permanent spinal cord stimulator, which required insurance authorization. (Id.)
Claimant continued follow-up evaluations with Dr. Abusharif. (R. 871-75.) On
November 21, 2011 it was documented that insurance denied the request for a
permanent implantation. (R. 876.) Dr. Abusharif also noted that there was no
alternative treatment other than continuing with prescription management and that the
doctor planned on appealing the decision. (R. 876-77.)
On December 29, 2011, Claimant underwent an examination by Dr. Matthew
Ross at the Midwest Neurosurgery & Spine Specialists. (R. 929.) Dr. Ross found that
Claimant had reached maximum medical improvement for his work injury and that it was
not possible to completely alleviate his pain. (R. 930.) On March 5, 2012, Dr. Abusharif
repeated Dr. Ross’s findings and noted that Claimant’s pain was an eight out of ten. (R.
925, 928.) Claimant continued treatment at the Pain Treatment Centers of Illinois
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through July 16, 2012, where it was stated that his back pain persisted at a nine out of
ten and his medications continued to be adjusted as necessary. (R. 921-24.)
ii. Mental Health Treatment
Claimant underwent an initial psychiatric evaluation with Dr. Susan Sherman on
June 7, 2007. (R. 355.) He presented with a history of depression and anger, and
described feeling isolated at home while also not wanting to leave home because of his
mood changes and anger. (Id.) Dr. Sherman documented an impression of “anxious,
irritable, major depressive disorder” along with stress from not working and being in
chronic pain. (R. 356.) She prescribed Effexor. (Id.) He was assigned a Global
Assessment of Functioning (“GAF”) score of 60, which indicates a moderate impairment
in social or occupational functioning. (Id.); see Am. Psychiatric Ass’n, Diagnostic &
Statistical Manual of Mental Disorders 32 (4th ed. text revision 2000).
On June 22, 2007, Dr. Sherman noted that Claimant was “feeling better on 75
mg Effexor, less anxious and irritable, yelling less at his family, getting out a little
more[,]” and documented a slight improvement in his major depressive disorder. (R.
398.) She saw Claimant again on July 11, 2007 and increased his Effexor dosage. (Id.)
Claimant was feeling better with the increased prescription on August 17, 2007, but Dr.
Sherman found that there was some room for improvement. (Id.) On September 11,
2007, Claimant complained of persistent depression, irritability, and trouble sleeping.
(R. 397.) Dr. Sherman documented major depressive disorder, adjustment disorder,
and chronic pain. (Id.) On October 2, 2007, Dr. Sherman observed that Claimant was
still agitated a lot. (Id.) On November 7, 2007 and December 10, 2007, Dr. Sherman
indicated that Claimant’s major depression disorder was in remission but recommended
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that he continue taking his depression medication. (R. 396, 492.) On January 9, 2008,
Dr. Sherman prescribed Lithium and Klonapin. (R. 240.) Dr. Sherman saw Claimant a
number of times throughout 2008 and generally reported that he was doing well overall,
with some moments of depression. (R. 489-91.)
Claimant was seen by Amanda Twait, NP, on October 6, 2008, at which time he
reported feeling frustrated and discouraged about not being able to work; however Ms.
Twait noted that there was no depression or despondency. (R. 489.) Effexor was
effective, but it was too costly, and Cymbalta did not help his mood. (Id.) On December
9, 2008, Ms. Twait documented that Claimant was depressed and despondent about his
physical and financial situation. (R. 488.) During appointments in early 2009, Claimant
reported feeling isolated at home and very angry. (R. 486-87.) Ms. Twait saw Claimant
regularly throughout 2009 and generally reported improvement in anger management
and impulsivity. (R. 484-85.) Claimant, however, was still spending most of the day in
his bedroom and away from family, which his wife stated had persisted for the past ten
years. (Id.) Claimant continued to seek treatment regularly from Ms. Twait through
2012, during which time she monitored his medications and adjusted them as
necessary. (R. 793-812, 934-42.)
2. Agency Consultants
On February 19, 2008, Dr. Barry Free, a state agency reviewing physician,
opined that Claimant could lift and/or carry twenty pounds occasionally and ten pounds
frequently, and that Claimant could stand and/or walk, as well as sit, for six hours in an
eight-hour workday with normal breaks. (R. 408, 414.) Dr. Free also opined that
Claimant could frequently balance, kneel, and crouch; occasionally climb ramps/stairs,
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stoop, and crawl; and never climb ladders, ropes, or scaffolds. (R. 409.) In making
these findings, Dr. Free referenced only the February 2007 MRI scan, Dr. Chawla’s
February 2007 notes, and progress reports at the Joliet Pain Care Center from March to
April 2007. (R. 414.)
On May 14, 2012, James Balstrode, PT, completed a functional capacity
evaluation. (R. 907.) The report stated that “a full duty return to work is not
recommended at this time” and that Claimant’s “demonstrated work tolerance is at the
sedentary physical demand level for occasional lifting and frequent lifting/carrying, and
at the light physical demand level for occasional carrying.” (R. 908.) Specifically, Mr.
Balstrode opined that Claimant could occasionally lift 15-20 pounds; occasionally carry
30 pounds; occasionally push 14 pounds; occasionally pull 17 pounds; occasionally
bend, reach, climb stairs, squat, and kneel; and sit or stand/walk for zero to two hours at
one time in seven to eight hours. (R. 909-10.)
C. Claimant’s Testimony
At the time of the November 19, 2014 hearing 1, Claimant was 56 years old. (R.
982.) He lived at home with his wife and 23 year-old son. (Id.) He has a GED. (R.
984.) Claimant had problems with drinking in the past, including two DUIs, but now only
had a beer or two on Christmas or New Years. (Id.) He testified that he had no source
of income. (Id.) He previously received workers’ compensation from 2007 until 2012,
but he did not know why it ended. (Id.) He disputed the end of his workers’
compensation and ended up settling for $110,000. (R. 984-85.) Claimant explained
that workers’ compensation arranged a phone soliciting job for him, but he only lasted
ten weeks because he did not obtain enough customer information. (R. 985.) He had
1
Claimant also testified on July 1, 2009 and August 1, 2012.
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to take frequent breaks and move around while working as a phone solicitor; and he
explained that even though he was “not a phone person,” he tried to do it. (R. 986.)
The ALJ went through Claimant’s job history, which included work as a
warehouse forklift operator and making brake and throttle boxes for trains. (R. 986-87.)
Both jobs required him to lift over 80 pounds at times. (R. 987.) In 2007, he was
working with trains when he was injured. (R. 988-89.) Claimant explained that since
that time he has numbness in his legs and feet, shooting pain in his back, and
depression because he is unable to provide for his family and his wife had to go back to
work. (R. 989.) He also testified that every few weeks he might move wrong and end
up hunched over. (Id.) When asked how long he could stand before being in too much
pain back in 2007, he estimated ten minutes. (Id.) The pain has since worsened,
however he now has pain medicine to help manage it. (R. 990.) He is not comfortable
sitting and must continue moving to avoid numbness in his lower extremities. (R. 99091.) Claimant testified that elevating his legs or laying in a fetal position helped
somewhat. (R. 991.) In 2007, he could walk half of a block without needing to take a
break. (Id.) Claimant also has had ulcerative colitis since 1976, which causes cramps,
a frequent use of the bathroom, and increases his desire to stay at home. (R. 992.)
When he was working, he would be late or have to call in at least twice a week due to
cramps and bladder accidents. (R. 992-93.)
Claimant also testified that he has trouble making a fist and bending his fingers in
his left hand. (R. 997.) When asked about his medications, Claimant explained that he
was on nine medications at the beginning of the year, but is now taking four because
some of them caused nausea. (R. 998.)
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In terms of household work, Claimant testified that he sometimes tries to help his
wife with the laundry by moving it from the washer to the dryer. (R. 993.) He is able to
make sandwiches or microwave meals. (R. 993-94.) He does not go shopping and
only leaves the house when necessary. (R. 994.) Claimant can only sit in a car for a
half hour before being in pain. (Id.) He explained that he has had anger issues since
he was a kid that have since improved, but have not completely resolved. (Id.; R. 995.)
He has been seeing a therapist since 2007 and was prescribed different medications for
his depression and anger, but he still does not like leaving his house or being around
people. (R. 995, 999)
When asked about his interests prior to his accident, he testified that he was
never an outgoing person but that he would go out with his family more. (R. 1001.)
Following his accident, Claimant would go to the woods with a friend to sit by the water
(which was 200 feet from the car) for up to an hour and a half, but he stopped going
when his friend moved away in 2010. (R. 1002, 1009.) He explained that he can no
longer do some of the things he loved, such as working on his motorcycle or
landscaping. (R. 1004.) Back in 2007, he tried to cut the grass a few times and would
occasionally float in his pool. (R. 1005.) He tried to continue Tai Chi after his accident,
but was not able to because of the pain. (R. 1010-11.) Claimant mainly stays in his
room and uses the computer, reads, listens to music, or watches television. (R. 100607.)
D. Claimant’s Wife’s Testimony
Claimant’s wife, Joella Daniels, also testified at the hearing. (R. 1013.) She
explained that after her husband’s 2007 injury, he was unable to walk at first, and then
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was only able to walk a block occasionally. (R. 1016.) She stated that he became
depressed, was easily angered, did not want to socialize, and had lowered self-esteem.
(R. 1013-14.) Ms. Daniels testified that her husband would go out to the woods with his
friend in 2007 to “[j]ust hang out” or listen to music. (Id.) Ms. Daniels further testified
that her husband likes to minimize his situation and that he cannot lift as much as he
thinks. (R. 1014.) Although he tries to help around the house when he can, he is often
in pain afterwards and needs help from his wife and son. (R. 1015.) According to Ms.
Daniels, Claimant’s depression and reclusiveness have gotten worse. (R. 1017.)
E. Vocational Expert’s Testimony
Glee Ann Kehr, a vocational expert (“VE”), also testified at the hearing. (R. 101926.) The VE testified that she disagreed with the previous VE’s testimony and classified
Claimant’s past work as most closely resembling an assembler of motor vehicles
(unskilled, heavy as he performed it) and his work as a forklift operator as heavy as
performed, and semi-skilled. (R. 1020.)
The ALJ first asked the VE to verify that a hypothetical individual with the same
age, education, and past relevant work experience who could perform light work, with
no climbing of ladders, ropes or scaffolding, occasional postural activities (including
crouching, climbing stairs/ramps, kneeling, crawling, etc.), and with mental impairments
resulting in mild restrictions in activities of daily living and moderate restrictions in social
functioning (no public interaction, occasional interaction with co-workers, and simple
and routine tasks) could not perform his past work. (R. 1021.) The VE confirmed that
such a hypothetical person could not perform the past work; however, she opined that
such an individual could perform the following light, unskilled positions: office helper (3,
17
700 positions in Chicago); mail clerk (3,800 positions in Chicago); and housekeeping
work (5,400 positions in Chicago). (R. 1021-22.)
The ALJ next asked whether needing to change positions for five minutes at a
time every 30 minutes while still on task would affect the job possibilities. (R. 1022.)
The VE responded that it would not allow for the housekeeper job, but it would allow for
work as a merchandise marker, of which there were approximately 2,600 positions in
Chicago. (Id.) When asked whether a restriction to sedentary work would still allow for
job opportunities, the VE testified that the following jobs would accommodate the
restrictions: address clerk (2,900 in Chicago); account clerk (3,300 in Chicago); and
bench sorter (3,000 in Chicago). (R. 1022-23.)
Additionally, while the Dictionary of Occupational Titles does not address
absenteeism or off-task time, the VE used her own experience to estimate that the
positions would allow for no more than one absence a month and off-task time not to
exceed 15%. (R. 1023.) Claimant’s attorney asked the VE whether training periods for
the positions would involve more than occasional contact with co-workers, to which the
VE explained that there would not be more than two hours of interaction with another
person. (R.1024-25.) The VE was also asked whether limited use of the hands would
affect the positions, and she explained that all sedentary work would be precluded. (R.
1025.) The VE further explained that occasional use of the hands coupled with
occasional interaction with co-workers and no public interaction would preclude work.
(Id.) Additionally, the VE testified that being off-task during the five minute sit/stand
adjustment every thirty minutes would preclude work, as would outbursts where
someone was threatened and missing weeks at a time for medical reasons. (R. 1026.)
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F. Prior District Court Remand Order
On May 23, 2014, Judge Feinerman remanded Claimant’s case to the
Commissioner for further proceedings. Daniels v. Colvin, No. 12 C 9317, 2014 WL
2158999, at *1 (N.D. Ill. May 23, 2014); (R. 1076.) Specifically, Judge Feinerman found
that the ALJ did not explain how Dr. DePhillips’s assessments were inconsistent with his
conclusions that Claimant was disabled; and, in fact, that several factors indicated that
Dr. DePhillips’s opinions should have been given substantial, if not controlling, weight.
Daniels, 2014 WL 2158999, at *22, 24. Further, Judge Feinerman held that the ALJ’s
reliance upon the opinions of Dr. Free and Dr. Shea was inappropriate because the ALJ
did not adequately address why those opinions were entitled to greater weight than Dr.
DePhillips’s. Id. at *27. Lastly, Judge Feinerman found that the ALJ had an insufficient
basis to discredit Claimant’s testimony and “should reassess [Claimant’s] credibility in
light of all of the evidence in the record.” Id. at *30, 32. Judge Feinerman also held that
the residual functional capacity (“RFC”) determination would likely be affected once the
ALJ reassesses the matter pursuant to the court’s order. Id. at *32.
II. LEGAL ANALYSIS
A. Standard of Review
This Court will affirm the ALJ’s decision if it is supported by substantial evidence
and free from legal error. 42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940
(7th Cir. 2002). Substantial evidence is more than a scintilla of evidence and is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995) (quoting Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). We must consider
19
the entire administrative record, but will not “re-weigh evidence, resolve conflicts, decide
questions of credibility, or substitute our own judgment for that of the Commissioner.”
Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (citing Clifford v. Apfel, 227 F.3d
863, 869 (7th Cir. 2000)). This Court will “conduct a critical review of the evidence” and
will not let the Commissioner’s decision stand “if it lacks evidentiary support or an
adequate discussion of the issues.” Lopez, 336 F.3d at 539 (quoting Steele, 290 F.3d
at 940).
In addition, while the ALJ “is not required to address every piece of evidence,” he
“must build an accurate and logical bridge from the evidence to [his] conclusion.”
Clifford, 227 F.3d at 872. The ALJ must “sufficiently articulate [his] assessment of the
evidence to assure us that the ALJ considered the important evidence ... [and to enable]
us to trace the path of the ALJ’s reasoning.” Carlson v. Shalala, 999 F.2d 180, 181 (7th
Cir. 1993) (per curiam) (quoting Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir.
1985)).
B. Analysis under the Social Security Act
In order to qualify for disability insurance benefits or supplemental security
income, a claimant must be “disabled” under the Social Security Act (the “Act”). A
person is disabled under the Act if “he or she has an inability to engage in any
substantial gainful activity by reason of a medically determinable physical or mental
impairment which can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A). In determining whether a claimant is disabled, the
ALJ must consider the following five-step inquiry: “(1) whether the claimant is currently
employed, (2) whether the claimant has a severe impairment, (3) whether the claimant’s
20
impairment is one that the Commissioner considers conclusively disabling, (4) if the
claimant does not have a conclusively disabling impairment, whether he can perform
past relevant work, and (5) whether the claimant is capable of performing any work in
the national economy.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). The
claimant has the burden of establishing a disability at steps one through four. Zurawski,
245 F.3d at 885–86. If the claimant reaches step five, the burden then shifts to the
Commissioner to show that “the claimant is capable of performing work in the national
economy.” Id. at 886.
The ALJ followed this five-step analysis and ultimately found Claimant not
disabled under the Act. (R. 966-67.) As an initial matter, the ALJ found that Claimant
had met the insured status requirements of the Act through December 31, 2007. 2 (R.
956.) At step one, the ALJ found that Claimant had not engaged in substantial gainful
activity during the period from his alleged onset date of February 12, 2007, through his
date last insured of December 31, 2007. (Id.) At step two, the ALJ found that Claimant
had the severe impairments of degenerative disc disease of the lumbar spine and
depression. (Id.) At step three, the ALJ found that through the date last insured,
Claimant did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). (R. 957.)
Before step four, the ALJ found that Claimant had the RFC to perform light work.
(R. 959.) The ALJ also found that Claimant’s RFC was further limited to work that
allowed Claimant to change positions every thirty minutes for five minutes at a time;
2
Because Claimant had acquired sufficient Social Security coverage to remain insured through
December 31, 2007, he must establish disability on or before December 31, 2007 to be entitled to DIB.
See Shideler v. Astrue, 688 F. 3d 306, 311 (7th Cir. 2012).
21
never climb ladders, ropes, or scaffolds; no more than occasionally climb stairs or
ramps, balance, stoop, kneel, crouch, or crawl; and was limited to work that involved
only simple instructions, routine tasks, no interaction with the public, and only
occasional interaction with coworkers. (Id.) At step four, the ALJ found that through the
date last insured, Claimant was unable to perform any of his past relevant work. (R.
964.) Finally, at step five, the ALJ found that there were jobs that existed in significant
numbers in the national economy that Claimant could perform. (R. 965-66.)
Specifically, the ALJ found that Claimant could work as an office helper, mailroom clerk,
or merchandise marker; and in the alternative, if limited to sedentary work, Claimant
could work as an address clerk, account clerk, or bench sorter. (Id.) Because of this
determination, the ALJ found that Claimant was not disabled under the Act. (R. 96667.) Thereafter, on August 11, 2015, the Appeals Court again declined to assume
jurisdiction, leaving the ALJ’s decision as the final decision of the Commissioner and,
thus, reviewable by the District Court under 42 U.S.C. § 405(g). (R. 943-46.)
Claimant asserts that the ALJ made three errors. First, Claimant argues that the
ALJ failed to conform to the mandates of the Court’s prior remand order and thus,
violated the law of the case doctrine. Second, Claimant argues that the ALJ’s RFC
assessment was not supported by substantial evidence. Lastly, Claimant argues that
the ALJ failed to properly analyze his credibility. This Court agrees that the ALJ failed to
follow the law of the case doctrine and failed to support Claimant’s RFC assessment
with substantial evidence.
22
C. The ALJ Violated the Law of the Case Doctrine.
Claimant asserts that the ALJ violated the law of the case doctrine because she
failed to conform to the mandates of the Court’s prior remand order with respect to the
reassessment of Dr. DePhillips’s opinion and with respect to Claimant’s credibility. In
regard to the reassessment of Dr. DePhillips’s opinion, Claimant contends that the ALJ
violated the law of the case doctrine because the ALJ ignored this Court’s instruction to
evaluate Dr. DePhillips’s opinions using the regulatory factors set forth in 20 C.F.R. §
404.1527(c). The Commissioner responds that the ALJ assessed Dr. DePhillips’s
opinions according to the regulatory factors, reasonably denied giving Dr. DePhillips’s
opinion controlling weight, and properly assessed Claimant’s credibility.
The law of the case doctrine dictates that “once an appellate court either
expressly or by necessary implication decides an issue, the decision will be binding
upon all subsequent proceedings in the same case.” Key v. Sullivan, 925 F.2d 1056,
1060 (7th Cir. 1991). Therefore, the doctrine “requires the trial court to conform any
further proceeding on remand to the principles set forth in the appellate opinion unless
there is a compelling reason to depart.” Law v. Medco Research, Inc., 113 F.3d 781,
783 (7th Cir. 1997). The law of the case doctrine is applicable to judicial review of
administrative decisions. Key, 925 F.2d at 1060; Chicago & Northwestern
Transportation Co. v. United States, 574 F.2d 926, 929–30 (7th Cir. 1978). It requires
the administrative agency, on remand from a court, to conform its further proceedings in
the case to the principles set forth in the judicial decision, unless there is a compelling
reason to depart. Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998).
23
Further, an ALJ must give controlling weight to a treating physician’s opinion if
the opinion is both “well-supported” and “not inconsistent with the other substantial
evidence” in the case record. 20 C.F.R. § 416.927(c); see Scott v. Astrue, 647 F.3d
734, 739 (7th Cir. 2011). If the ALJ does not give the treating physician’s opinion
controlling weight, the ALJ cannot simply disregard it without further analysis. Campbell
v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010). Instead, the ALJ must still determine what
value the assessment does merit. 20 C.F.R. § 416.927 (c); Scott, 647 F.3d at 740;
Campbell, 627 F.3d at 308. The regulations require the ALJ to consider a variety of
factors, including: (1) the length, nature, and extent of the treatment relationship; (2) the
frequency of examination; (3) the physician’s specialty; (4) the types of tests performed;
and (5) the consistency and support for the physician’s opinion. Campbell, 627 F.3d at
308.
In the Court’s most recent Daniel’s decision, Judge Feinerman noted that while
the ALJ suggested that some of Dr. DePhillips’s assessments were inconsistent with his
conclusion that Claimant was disabled, the ALJ did not explain how this is so. Daniels,
2014 WL 2158999, at *11. Judge Feinerman also noted that the ALJ’s statement that
Dr. DePhillips observed that Claimant had “decreased but symmetrical ankle reflexes
and good motor strength” did not explain the relevance as it pertained to the
consistency factor, or why it undermined the reliability of Dr. DePhillips’s opinions. Id. at
*23. In the ALJ’s recent 2014 decision, the ALJ noted that she considered Dr.
DePhillips’s statements and did not give his opinion great weight. The ALJ opined that
Dr. DePhillips’s opinion was not consistent with his own treatment notes, other exams in
the record, or the imaging in the record; however, the ALJ failed to adequately articulate
24
how Dr. DePhillips’s treatment records were inconsistent with his opinion that Claimant
was disabled. Further, the ALJ failed to address the opinions of Drs. Hurley and
Ghanayem in her 2014 decision, both of which were medical evidence consistent with
Dr. DePhillips’s opinion. Both Drs. Hurley and Ghanayem credited Claimant’s
complaints of pain and recommended treatment such as medication and the
implementation of a spinal cord stimulator; and the ALJ was required to address those
opinions. See Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004); 20 C.F.R. §
404.1527(d). An ALJ is required to evaluate every medical opinion in the record and
may not ignore evidence that suggests an opposite conclusion. See Scrogham v.
Colvin, 765 F.3d 685, 698 (7th Cir. 2014) citing Whitney v. Schweiker, 695 F.2d 784,
788 (7th Cir. 1982). Thus, the ALJ again failed to articulate how Dr. DePhillips’s opinion
was inconsistent.
Next, Judge Feinerman found that Dr. DePhillips’s opinions should be given
substantial, if not controlling, weight because Dr. DePhillips had a treatment relationship
with Claimant spanning more than one year and treated him every one to three months,
unlike Dr. Shea and Dr. Free, who each saw him only once. Id. at *24. The ALJ took
issue with Judge Feinerman’s finding and opined that Dr. DePhillips did not examine
Claimant during Claimant’s second visit in September 2007 and that there was no
indication that Dr. DePhillips examined Claimant during subsequent appointments in
October 2007 or February 2008. The ALJ determined Dr. DePhillips did examine
Claimant in June 2008; and thus only examined him twice, while other visits merely
involved documenting Claimant’s subjective complaints and ordering/testing injections.
25
The ALJ’s findings; however, are assumptions not grounded in fact and not
supported by the record. See Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 702 (7th
Cir. 2009) (holding that determinations must be based on testimony and medical
evidence in the record). It is well established that an ALJ has a duty to fully develop the
record before drawing any conclusions. Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005). If the ALJ had a concern or questions about what exactly took place during
Claimant’s visits with Dr. DePhillips, she could have inquired and followed-up with Dr.
DePhillips. More importantly, neither Dr. Shea nor Dr. Free were privy to Dr.
DePhillips’s October 2007 or 2008 treatment notes or the 2008 discograms, which
reflected that Claimant had lower back pain. Thus, as Judge Feinerman found in the
previous Daniel’s decision, the length, nature, and extent of the treatment relationship
favors Dr. DePhillips because Dr. DePhillips had a treatment relationship with Claimant
spanning more than one year and treated him every one to three months, unlike Dr.
Shea and Dr. Free, who each saw Claimant once.
Additionally, Claimant contends that with respect to credibility, the ALJ again
relied on reasoning and facts that Judge Feinerman previously found to be insufficient
as a matter of law. Specifically, Claimant argues that the ALJ’s negative credibility
finding regarding “conservative treatment” was found to be in error by Judge Feinerman.
The Commissioner responds that the ALJ’s citation of conservative treatment appears
in the decision where the ALJ was discussing the nature of the treatment in conjunction
with the RFC assessment, not the credibility determination. The Commissioner’s
argument is unpersuasive. As the Seventh Circuit has held, it is proper to read the
ALJ’s decision as a whole because it would be a needless formality to have the ALJ
26
repeat substantially similar factual analyses at both steps three and five. See Rice v.
Barnhart, 384 F.3d 363, 370 (7th Cir. 2004). Therefore, the Commissioner cannot
argue in one instance that an ALJ’s opinion should be read as a whole and now argue
that it should be read in sections, separate and distinct from one another.
Further, as Claimant contends, the ALJ’s credibility findings in her 2014 decision
are simply repetitions of her 2012 findings, with only the additions that the ALJ
disagreed with the court. The ALJ’s logic in 2014 closely mirrors the same faulty
credibility logic as she used in her 2012 decision. The Court instructed the ALJ to
reassess Claimant’s credibility in light of all the evidence in the record; and the ALJ
failed in this regard. Without a compelling reason, the ALJ was not at liberty to disagree
with the Court and submit the same deficient credibility analysis. On its face, this is a
violation of the law of the case doctrine, and as such is grounds for remand.
D. The ALJ Failed to Support Her RFC Assessment with Substantial
Evidence.
Claimant asserts that the ALJ’s RFC assessment was not supported by
substantial evidence because the ALJ failed to adequately explain the basis for her
findings. Specifically, Claimant contends that the ALJ identified no basis for her finding
that Claimant needed a sit/stand option in which he could change position every thirty
minutes for five minutes at a time; nor did any treating or examining physician opine that
changing positions would accommodate Claimant’s pain at that defined interval, for an
eight-hour workday, in the course of full time employment.
An RFC is an administrative assessment of what work-related activities an
individual can perform despite her limitations. 96-8p; Dixon v. Massanari, 270 F.3d
1171, 1178 (7th Cir. 2001); 20 C.F.R. § 404.1545. A claimant’s RFC must be based
27
upon the medical evidence and other evidence in the record. Dixon, 270 F.3d at 1178.
When evaluating a claimant’s RFC, the ALJ is required to include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical facts.
SSR 96-8p; Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).
Here, this Court agrees that while the sit/stand option should have been included,
the ALJ provided no medical evidence or medical opinion that specified that Claimant
could stand/sit and change position every thirty minutes for five minutes at a time.
Neither the ALJ nor the Commissioner cited any physician opinion or medical evidence
in the record that supported the notion that the specified time interval would be
adequate to accommodate Claimant’s back pain. Thus, the ALJ’s RFC determination
was not supported by substantial evidence.
Next, Claimant contends that the ALJ ignored the existence and evidence of
Claimant’s significant left hand impairment, and failed to consider Claimant’s
impairments in combination. The Commissioner responds that if Claimant’s left hand
impairment did not prevent him from performing his past work then it should not impede
his performance of the light work described in his RFC, and that it makes sense that the
ALJ would not discuss its effects either individually or in combination. The
Commissioner’s arguments are once again unpersuasive. An ALJ must consider
whether a claimant’s impairments meet or medically equal a listed impairment, either
singly or in combination. 20 C.F.R. § 405.1520(a)(4). In addition, a claimant’s severe
and non-severe impairments must be considered in combination. SSR 96-8p; Terry v.
Astrue, 580 F.3d 471, 477 (7th Cir. 2009). It is illogical to presume that because
Claimant was previously capable of working with an impaired left hand, he continued to
28
be capable of performing work despite his symptoms of back pain, anxiety, and
depression worsening over time.
Further, during the November 19, 2014 administrative hearing, the VE testified
that occasional hand use, together with the limitations to only occasional interaction with
co-workers and no contact with the public, would preclude all work, at both the light and
sedentary levels. (R. 1025.) The VE’s testimony underscores the importance of
considering a claimant’s impairments in combination. Perhaps a person without
depression, but with hand limitations and back pain could perform work, or a person
without hand limitations, but with depression and back pain could perform work;
however, all of those taken together may possibly preclude all work. In this case,
Claimant is affected by his symptoms of depression, anxiety, back pain, and significant
limitations in the use of his left hand. It appears from the VE’s testimony that
considering Claimant’s impairments in combination may preclude Claimant from all
work. Therefore, the ALJ erred when she did not consider Claimant’s left hand
impairment in combination with his other impairments, and failed to support her RFC
finding with substantial evidence.
V. CONCLUSION
Because this conclusion requires reversal on the basis the ALJ failed to follow
the law of the case doctrine in regard to weighing Dr. DePhillips’s opinions and
Claimant’s credibility, and the ALJ failed to support her RFC findings with substantial
evidence, Claimant’s remaining alleged RFC and credibility errors need not be
addressed. The Court emphasizes that the Commissioner should not assume these
issues were omitted from the opinion because no error was found. Indeed, the Court
29
admonishes the Commissioner that on remand, special care should be taken in
completely re-evaluating the medical evidence of record, Claimant’s RFC, and
Claimant’s credibility. Notably, the Social Security Administration (the “Administration”)
has recently updated its guidance about evaluating symptoms in disability claims. See
SSR 16-3p, 2016 WL 1119029 (effective March 28, 2016). The new ruling eliminates
the term “credibility” from the Administration’s sub-regulatory policies to “clarify that
subjective symptom evaluation is not an examination of the individual’s character.” Id.
at *1. On remand, the ALJ should re-evaluate Plaintiff’s subjective symptoms in light of
SSR 16-3p.
For the foregoing reasons, Claimant Daniels’s motion for summary judgment is
granted and the Commissioner’s cross-motion for summary judgment is denied. The
Court finds that this matter should be remanded to the Commissioner for further
proceedings consistent with this Order.
____________________________
Michael T. Mason
United States Magistrate Judge
Dated: December 7, 2016
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