Suelflow v. Colvin

Filing 27

MEMORANDUM Opinion and Order: For the reasons contained in the accompanying Memorandum Opinion and Order, Plaintiff's motion for summary judgment [Doc. No. 18] is granted and the Commissioner's cross-motion for summary judgment [Doc. No. 22] is denied. This matter is remanded to the Commissioner for further proceedings. Civil case terminated. - Signed by the Honorable Maria Valdez on 10/6/2017. [For further details see order] Mailed notice (np, )

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

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No. 15 C 9241
Maria Valdez
Magistrate Judge

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 denying Plaintiff Kristine Suelflow’s claims
for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
The parties have consented to the jurisdiction of the United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, Plaintiff’s motion
for summary judgment [Doc. No. 18] is granted and the Commissioner’s crossmotion for summary judgment [Doc. No. 22] is denied.
BACKGROUND
I. PROCEDURAL HISTORY
On June 25, 2012, Plaintiff filed claims for both DIB and SSI, alleging
disability since March 1, 2011. (R. 72–73, 94–95.) The claims were denied initially
and upon reconsideration, after which he timely requested a hearing before an
Administrative Law Judge (“ALJ”), which was held on February 11, 2014 (R. 44–
Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to
Federal Rule of Civil Procedure 25(d).
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71.) Plaintiff personally appeared and testified at the hearing and was represented
by counsel. Id. Vocational expert Bob Hammond also testified. Id.
On May 14, 2014, the ALJ denied Plaintiff’s claims for both DIB and SSI
finding her not disabled under the Social Security Act. (R. 28–38.) The Social
Security Administration Appeals Council then denied Plaintiff’s request for review,
leaving the ALJ’s decision as the final decision of the Commissioner and, therefore,
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.

ALJ DECISION
The ALJ found at step one that Plaintiff had not engaged in substantial

gainful activity since her alleged onset date of March 1, 2011. (R. 30.) At step two,
the ALJ concluded that Plaintiff had the severe impairments of morbid obesity,
fibromyalgia, degenerative disc disease, asthma and history of scoliosis. Id. The ALJ
indicated at step three that the impairments, alone or in combination, did not meet
or medically equal a Listing. (R. 32.) The ALJ then determined that Plaintiff had
the residual functional capacity (“RFC”) to perform sedentary work with the
following limitations: can only occasionally climb ramps and stairs, balance and
stoop; can never climb ladders, ropes, or scaffolds, kneel, crouch and crawl; can
frequently reach in all directions including overhead with both upper extremities;
can tolerate occasional exposure to extreme cold and heat, wetness, humidity and
vibrations; can tolerate occasional exposure to hazards including dangerous moving
machinery or unprotected heights; can perform unskilled work tasks that can be

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learned by demonstration or in 30 days or less of a simple, routine, and repetitive
nature. (R. 32.) The ALJ concluded at step four that Plaintiff was unable to perform
her past relevant work as a cashier and a chiropractic assistant. (R. 36.) At step
five, based upon the VE's testimony and Plaintiff’s age, education, work experience,
and RFC, the ALJ concluded that Plaintiff can perform additional jobs existing in
significant numbers in the national economy, including document preparer, circuit
board screener, and order clerk. (R. 37–38.) Because of this determination, the ALJ
found that Plaintiff was not disabled under the Act. Id.
DISCUSSION
I.

ALJ LEGAL STANDARD
Under the Social Security Act, a person is disabled if she 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 plaintiff is
disabled, the ALJ considers the following five questions in order: (1) Is the plaintiff
presently unemployed? (2) Does the plaintiff have a severe impairment? (3) Does
the impairment meet or medically equal one of a list of specific impairments
enumerated in the regulations? (4) Is the plaintiff unable to perform her former
occupation? and (5) Is the plaintiff unable to perform any other work? 20 C.F.R. §
416.920(a)(4).

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An affirmative answer at either step 3 or step 5 leads to a finding that the
plaintiff is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389
(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a
finding of disability. Id. The plaintiff bears the burden of proof at steps 1–4. Id.
Once the plaintiff shows an inability to perform past work, the burden then shifts to
the Commissioner to show the plaintiff’s ability to engage in other work existing in
significant numbers in the national economy. Id.
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,
resolving conflicts in evidence, or deciding questions of credibility. 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).

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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 plaintiff, “he must build an
accurate and logical bridge from the evidence to his 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 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 plaintiff 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.”).

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III.

ANALYSIS
Plaintiff argues that the ALJ’s decision was in error because the ALJ: (1)

improperly assessed Plaintiff’s symptom statements; (2) incorrectly assessed
Plaintiff’s impairments in combination; (3) improperly weighed the opinion evidence
in determining Plaintiff’s RFC; and (4) failed to assess “other source” opinions.
Because the ALJ improperly weighed the opinion evidence, this matter must be
remanded for further proceedings.
A. The ALJ improperly weighed the opinion evidence of Dr. Calimag
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 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 See 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.

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Even where a treater’s opinion is not given controlling weight, an ALJ must
still determine what value the assessment does merit. Scott, 647 F.3d at 740;
Campbell, 627 F.3d at 308. In making that determination, the regulations require
the ALJ to consider a variety of factors, including: (1) the nature and duration of the
examining relationship; (2) the length and extent of the treatment relationship; (3)
the extent to which medical evidence supports the opinion; (4) the degree to which
the opinion is consistent with the entire record; (5) the physician’s specialization if
applicable; and (6) other factors which validate or contradict the opinion. 20 C.F.R.
§ 404.1527(c). The ALJ must then provide a “sound explanation” for that decision.
Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011).
Here, the ALJ improperly discounted the opinion of David Calimag, D.O. It is
undisputed that Dr. Calimag is Plaintiff’s treating physician and has been treating
Plaintiff since 2008. However, the ALJ gave insufficient reasons to reject Dr.
Calimag’s opinion as a treating physician. The ALJ gave “no weight” to the medical
source statement of Dr. Calimag because: (1) it “appears to be based on the
claimant’s subjective complaints”; (2) “the functional limitations appear to be a
sympathetic origin”; and (3) the opinion is “not supported by Dr. Calimag’s own
objective or clinical findings.” (R. 36). There are several flaws in the ALJ’s analysis.
First, the ALJ did not substantiate her assertion that Dr. Calimag’s opinion
was inappropriately based on Plaintiff’s subjective complaints. The Seventh Circuit
has found that “if the treating physician’s opinion is . . . based solely on the patient's
subjective complaints, the ALJ may discount it.” Ketelboeter v. Astrue, 550 F.3d 620,

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625 (7th Cir. 2008) (emphasis added). However, the Seventh Circuit recently noted
that it was “illogical to dismiss the professional opinion of an examining [physician]
simply because that opinion draws from the claimant's reported symptoms.” Aurand
v. Colvin, 654 Fed.Appx. 831, 837 (7th Cir. 2016) (unpublished opinion). “Almost all
diagnoses require some consideration of the patient's subjective reports, and
certainly [Plaintiff's] reports had to be factored into the calculus that yielded the
doctor's opinion.” McClinton v. Astrue, 2012 WL 401030, at *11 (N.D. Ill. Feb. 6,
2012). In this case, the ALJ neglected to “point to anything that suggests that the
weight [Dr. Calimag] accorded Plaintiff's reports was out of the ordinary or
unnecessary, much less questionable or unreliable.” Davis v. Astrue, 2012 WL
983696, at *19 (N.D. Ill. March 21, 2012). Thus, the ALJ did not “build an accurate
and logical bridge” from the evidence to her conclusion. Beardsley v. Colvin, 758
F.3d 834, 836 (7th Cir. 2014). Moreover, neither the ALJ nor the Commissioner cite
to any evidence that Dr. Calimag based his opinion solely on Plaintiff’s subjective
complaints, and, therefore, this reason for denying weight to his opinion is
unavailing.
Second, the ALJ offers no support for her contention that the opinion of Dr.
Calimag may have been “sympathetic.” Indeed, an ALJ's mere conjecture of a
sympathetic response is not an acceptable basis for ignoring a treating physician's
opinion. Moss v. Astrue, 555 F.3d 556, 560 (7th Cir. 2009). The ALJ must have a
substantial evidentiary basis for finding bias by the treating physician. Id. Here,
the ALJ’s rational for finding bias is the following: “The claimant testified that this

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opinion was provided during her last appointment for a sinus infection and
medication refill on February 7, 2014. Yet, the document is undated and the record
does not contain the treatment note for that date.” (R. 36). Defendant attempts to
explain the ALJ’s reasoning by arguing that “the record contains no treatment note
from that date, which indicates that Dr. Calimag’s opinion was for helping
[Plaintiff] obtain disability benefits rather than for giving treatment.” (R. 36.)
Defendant cites Hofslien v. Barnhart, 439 F.3d 375, 377 (7th Cir. 2006) for the
proposition that “an ALJ may discount a treating physician’s opinion if it appears
that the physician is rendering an opinion to assist a patient in obtaining benefits,
rather than giving treatment.” (Def.’s Mem. at 11). However, Hofslien is inapposite.
In Hofslien, the Seventh Circuit references “physician shopping” and cautions that
“many physicians (including those most likely to attract patients who are thinking
of seeking disability benefits . . . ) will often bend over backwards to assist a patient
in obtaining benefits.” Hofslien, 439 F.3d at 377. Here, Dr. Calimag has been
Plaintiff’s treating physician since 2008. There is no evidence that Plaintiff went
“physician shopping” for Dr. Calimag for the sole purpose of obtaining disability
benefits; nor is there any evidence that Dr. Calimag rendered his opinion only to
assist Plaintiff in acquiring benefits. The absence of a treatment note on the date
that Dr. Calimag issued his opinion does not constitute substantial evidence of bias.
Accordingly, the ALJ erred by offering an insufficient basis for her speculation that
Dr. Calimag’s opinion may be sympathetic. See White ex. rel. Smith v. Apfel, 167

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F.3d 369, 375 (7th Cir. 1999) (“a decision based on speculation is not supported by
substantial evidence.”).
Third, the ALJ provides inadequate support for her claim that Dr. Calimag’s
opinion contradicts his own objective or clinical findings. The ALJ’s only
explanation of inconsistency is that Dr. Calimag’s opinion “include[s] among other
things, documentation of [Plaintiff’s] straight leg testing or abnormal gait.” (R. 36.)
As Plaintiff correctly points out, although two treatment notes indicate negative
straight leg tests, (R. 477, 486), there are also two treatment notes indicating
positive straight leg tests. (R. 300, 482.) Therefore, it is unclear how Dr. Calimag’s
opinion, which indicated positive straight leg testing, is contradicted by his own
objective and clinical findings. The ALJ’s failure to address these and other findings
that support Dr. Calimag’s opinion is an error. Specifically, the ALJ did not address
clinical findings from Dr. Calimag’s treatment notes or from other treating
physicians which were consistent with Dr. Calimag’s opinion, including paraspinal
muscle and joint tenderness, limited range of motion, straight leg raise tests, tender
fibromyalgia trigger points, and radiating back pain. (R. 300, 345, 349, 363, 366-67,
400, 404, 435, 438-39, 451-52, 482.) “An ALJ cannot recite only the evidence that
supports his conclusion while ignoring contrary evidence.” See Meuser v. Colvin, 838
F.3d 905, 912 (7th Cir. 2016); see also Scott, 647 F.3d at 739–740 (“The ALJ was not
permitted to ‘cherry-pick’ from . . . mixed results to support a denial of benefits”).
Fourth, although the ALJ is not required to give Dr. Calimag’s opinion
controlling weight, she still must address the factors listed in 20 C.F.R. § 404.1527

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to determine what weight to give the opinion. SSR 96-2p. SSR 92-2p states that
treating source medical opinions like Dr. Calimag’s “are still entitled to deference
and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527.” Id.
(emphasis added). Here, the ALJ failed to minimally address many of the
enumerated factors provided in 20 C.F.R. § 404.1527. Specifically, the ALJ did not
analyze the nature and extent of the treatment relationship, the frequency of
examination, the supportability of the decision, or whether Dr. Calimag had a
relevant specialty. The ALJ is required to “sufficiently account [ ] for the factors in
20 C.F.R.§ 404.1527.” Schreiber v. Colvin, 519 Fed. Appx. 951, 959 (7th Cir. 2013)
(unpublished decision). The ALJ’s failure to do so prevents this Court from
determining the reasonableness of the ALJ’s decision in light of the factors outlined
in 20 C.F.R. § 404.1527.
For the reasons described herein, the ALJ did not offer substantial evidence
for rejecting the Dr. Calimag’s opinion, which is an error requiring remand.
B.

Remaining Arguments
Because remand is required for errors in the ALJ’s weighing of the opinion

evidence of Dr. Calimag, the Court need not address Plaintiff's remaining
arguments at this time. On remand, the Commissioner shall sufficiently account for
the factors in 20 C.F.R. § 404.1527 when evaluating the medical opinion evidence.
Further, the ALJ is advised to consider Plaintiff's testimony in light of the recent
guidance provided by SSR 16-3p and focus on Plaintiff's asserted symptoms. See
Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016).

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment [Doc. No.
18] is granted and the Commissioner’s cross-motion for summary judgment [Doc.
No. 22] is denied. The Court finds that this matter should be remanded to the
Commissioner for further proceedings consistent with this Order.

SO ORDERED.

ENTERED:

DATE: October 6, 2017

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

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