Rodriguez v. Colvin
Filing
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MEMORANDUM Opinion and Order: For the foregoing reasons, Plaintiff's motion for summary judgment 15 is granted and the Commissioner's cross-motion for summary judgment 20 is denied. This matter is remanded for further proceedings consistent with this opinion. [For further details see order] - Signed by the Honorable Susan E. Cox on 1/5/2017. Mailed notice (np, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSE RODRIGUEZ,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the U.S. Social
Security Administration,
Defendant.
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No. 15 C 9329
Magistrate Judge Susan E. Cox
MEMORANDUM OPINION AND ORDER
Plaintiff Jose Rodriguez (“Plaintiff”) appeals the decision of the Commissioner of the
Social Security Administration (“SSA”) denying his Social Security disability benefits under
Title II (“DIB”) of the Social Security Act (“the Act”). Plaintiff has filed a brief, which this
Court will construe as a motion for summary judgment [dkt. 15] and the Commissioner has filed
a cross-motion for summary judgment [dkt. 20]. After reviewing the record, the Court grants
Plaintiff’s motion for summary judgment and denies the Commissioner’s cross-motion for
summary judgment. The ALJ’s decision is reversed and remanded for further proceedings
consistent with this opinion.
BACKGROUND
I.
Procedural History
Plaintiff filed a DIB application on September 24, 2012, alleging a disability onset date of
August 23, 2012. (R. 258.) His initial application was denied on December 11, 2012 and again at
the reconsideration stage on March 21, 2013. (R. 158-170.) Plaintiff requested a hearing before
an Administrative Law Judge (“ALJ”) on March 26, 2013; the hearing was held on February 20,
2014. (R. 79, 202-03.) Plaintiff appeared at the hearing with his attorney. (R. 79.) Vocational
Expert (“VE”), Aimee Mowery, and Medical Expert (“ME”), James McKenna, were also present
and offered testimony. (R. 79.) On May 14, 2014, the ALJ issued a written decision denying
Plaintiff’s application for DIB. (R. 38-48.) The Appeals Council (“AC”) denied review on
August 24, 2015, thereby rendering the ALJ’s decision as the final decision of the agency. (R. 17; Herron v. Shalala, 19 F.3d 329, 332 (7th Cir. 1994).)
II.
Medical Evidence
Plaintiff’s history of back pain began in 1990 while he was on duty at a bakery. (R. 127,
469.) Plaintiff stated that he had lifted a heavy object when he felt an immediate pinch in his
lower back, followed by severe pain. (R. 469.) He presented to a neurosurgeon who administered
a series of lumbar epidural steroid injections (“injections”) which significantly improved
Plaintiff’s radiating pain; however, he continued to report constant low back pain. (Id.)
Plaintiff’s history of knee surgery began in 1991 when he underwent an anterior cruciate
ligament (“ACL”) reconstruction on his right knee (R. 731.) In 2001, he underwent a knee
revision and an exploratory arthrogram; 1 then, in 2008, he had both a right knee revision and a
total right knee replacement. (R. 731, 421.) Following his knee replacement, Plaintiff continued
to experience pain and stiffness in his knee. (R. 421.)
In November 2011, Plaintiff presented to Dr. John Gashkoff M.D., with complaints of
low back pain and left thigh numbness that had gradually increased over the past year. (R. 469.)
Dr. Gashkoff examined Plaintiff, diagnosed him with lumbar disc degeneration and lumbar
radiculopathy, then administered a series of injections to help alleviate Plaintiff’s low back pain.
(R. 465, 471-72.) At his follow-up appointment, Dr. Gashkoff ordered a magnetic resonance
1
An arthrogram is “a radiographic record obtained after introduction of opaque contrast material into a joint.”
Dorland’s Medical Dictionary, http://www.dorlands.com (last visited December 8, 2016) [hereinafter Dorland’s].
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imaging (“MRI”) of Plaintiff’s lumbar spine, which revealed a slightly more prominent disc
bulge at L1. (R. 460.) He advised Plaintiff to continue normal activities as tolerated and not to
engage in bedrest. (Id.)
In December 2011, Plaintiff presented to Dr. Jack Casini M.D., due to soreness and
swelling in his right knee. (R. 449.) Dr. Casini observed some instability in Plaintiff’s knee, but
noted he could walk without interruption. (Id.) He diagnosed Plaintiff with an unstable right knee
total replacement and discussed the possibility of a revision surgery with Plaintiff. (Id.)
In January 2012, Plaintiff underwent a right total knee replacement. (R. 414.) Two weeks
later Plaintiff returned for a follow-up appointment, where Dr. Casini opined that Plaintiff was
healing well from his surgery. (R. 426.)
In January 2013, Plaintiff returned to Dr. Casini for an x-ray on his right knee which
revealed it was in good position. (R. 763.) Plaintiff also complained of increasing pain in his left
knee, but an x-ray revealed that it was normal. (Id.)
In February 2013, Plaintiff presented to Dr. Lena Shahbender, M.D. for his low back pain
and knee pain. (R. 747.) Dr. Shahbender reviewed Plaintiff’s medical history, diagnosed him
with degenerative disc disease, chronic low back pain, and Iliotibial band syndrome, 2 and
recommended physical therapy for his left knee pain. (R. 748.)
In July 2013, Plaintiff returned with complaints of back and hand pain, difficulty
walking, and the constant need to sit. (R. 928.) Dr. Shahbender ordered him a seated walker, but
she advised him to continue normal activities as tolerated and not to engage in any form of
bedrest. (R. 929-30.) In February 2014, Dr. Shahbender noted that Plaintiff had difficulty
walking for more than five minutes and, again, ordered him a walker. (R. 971.)
2
Iliotibial band syndrome is a “caused by repetitive rubbing of the iliotibial tract (or band) against the lateral
femoral epicondyle . . . ; the primary symptom is severe pain in the thigh and knee.” Dorland’s.
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Plaintiff underwent a full body bone scan and MRI shortly before his hearing in February
2014. (R. 91.) Plaintiff submitted these records to the ALJ on February 25, 2014. 3 (Pl.’s Br., at
Exhibit A.) The undated bone scan was negative. 4 (Id.) The undated MRI revealed degeneration
of Plaintiff’s ACL and cartilage thinning. (Id.)
III.
Testimony
An ME was present at Plaintiff’s hearing and offered testimony. The ALJ asked the ME
to list the medically determinable impairments of record. (R. 93.) The ME testified that Plaintiff
suffered from osteoarthritis of his right knee with two knee replacements, lower back
degenerative disc disease and mild facet arthritis, 5 chronic pain syndrome, a Schmorl’s node in
his lumbar spine, 6 diabetes, sleep apnea, nicotine dependence, and non-severe hypertension. (R.
94-95.)
The ME stated that Plaintiff’s right knee replacement was successful and that he
presented with a normal gait. (R. 96.) He ultimately opined Plaintiff would be limited to light
level work due, in part, to his knee replacement and Schmorl’s node. (R. 104.) The ME testified
that Plaintiff should avoid ladders, ropes, scaffolds, unprotected heights, moderate exposure to
extreme cold or vibration, and slippery wet surfaces. (R. 104-05.) He stated that Plaintiff could
occasionally stoop, crouch, kneel, and climb five or six step ladders, ramps, and stairs. (R. 105.)
A VE was also present and offered testimony. The ALJ asked the VE whether a
hypothetical person with the same age, education, and work experience as Plaintiff, and a
residual functional capacity (“RFC”) limited to light exertional work and occasionally stooping,
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In her opinion, the ALJ noted that copies of these studies were not received. (R. 41.) In her motion, Commissioner
noted that she received documents on February 25, 2014, but the MRI was not among them. (Def.’s Mem. at 8.)
4
A negative finding typical “indicat[es an] absence . . . of a condition.” Dorland’s.
5
Facet arthritis is “a type of spondylarthritis centered in facet joints, with disk degeneration and pain; it is most
common in the lumbar region.” Dorland’s.
6
A Schmorl’s node is “a small mass of tissue in the form of a swelling, knot, or protuberance.” Dorland’s.
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kneeling, crouching, crawling, using five or six step ladders, ramps, and stairs and avoiding long
ladders, ropes, scaffolds, unprotected heights, moderate exposure to extreme cold or vibration,
and slippery wet surfaces, could perform any of Plaintiff’s past work. (R. 140-41.) The VE
responded that such a hypothetical person could not perform any of Plaintiff’s past work, but
other jobs, including hand packager, marker, and sorter would be available to such an individual.
(R. 141.) The ALJ then asked the VE if these jobs would remain available to a hypothetical
person with the additional RFC limitations of frequent bilateral handling and fingering 7 and
alternating between sitting and standing positions each half hour, to which the VE responded that
they would remain available. (R. 141-42.) In her final hypothetical, the ALJ asked the VE
whether light exertional positions that were not repetitive in nature would be available for such
an individual. (R. 142.) The VE stated that occupations including office helper, housecleaner,
and mail clerk, would be available, but that they would not remain open to an individual with a
sedentary exertion level. (R. 143.)
IV.
ALJ Decision
On May 14, 2014 the ALJ issued a written determination denying Plaintiff’s DIB
application. (R. 38-48.) As an initial matter, the ALJ found that Plaintiff met the insured status
requirements of the Act through December 31, 2012. (R. 40.) At step one, the ALJ determined
that Plaintiff did not engage in Substantial Gainful Activity (“SGA”) since his alleged onset date
of August 23, 2012. (Id.) At step two, the ALJ found that Plaintiff had the severe impairments of
osteoarthritis of the right knee with two ultimate knee replacements, degenerative disc disease
and mild facet arthritis, diabetes mellitus, sleep apnea, obesity, chronic pain syndrome, and
nicotine dependence. (R. 40.) 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
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As opposed to constant bilateral handling and fingering. (R. 141.)
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the listed impairments of 20 C.F.R. Part 404, Subpart P, App’x 1. (R. 41-42.) At step four, the
ALJ then assessed Plaintiff’s Residual Functional Capacity (“RFC”) and determined that
Plaintiff could perform light work except that he should avoid climbing long ladders, ropes, and
scaffolds, moderate to extreme cold or vibration, and unprotected heights, but could occasionally
stoop, kneel, crouch, or crawl. (R. 42-43.) The ALJ stated Plaintiff could vocationally climb five
or six step ladders, ramps, and stairs and perform frequent bilateral handling and fingering. (R.
42.) The ALJ further determined that Plaintiff must be allowed to alternate between sitting and
standing positions every half hour while performing a task. (R. 43.)
In support of her
determinations, the ALJ ascribed significant weight to the findings of two State agency
consultants who opined that Plaintiff retained the capacity for light demand work. (R. 45.) In
contrast, she gave little weight to the notations of treating physician, Dr. Shahbender, which
ordered Plaintiff a seated walker, reasoning that they were inconsistent with other evidence in the
record which indicated Plaintiff had normal strength in his knees and was encouraged to continue
activities as tolerated. (R. 43, 46.) The ALJ also discounted Plaintiff’s allegation that he could
not walk long distances, finding that it was inconsistent with other medical evidence which
demonstrated his right knee was stable and that the injections had provided him significant pain
relief. (R. 44). 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 jobs existing in significant
numbers in the national economy, leading to a finding that he is not disabled under the Social
Security Act. (R. 47-48.)
STANDARD OF REVIEW
The ALJ’s decision must be upheld if it follows the administrative procedure for
determining whether the plaintiff is disabled as set forth in the Act, 20 C.F.R. §§ 404.1520(a)
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and 416.920(a), if it is supported by substantial evidence, and if it is free of legal error. 42 U.S.C.
§ 405(g). Substantial evidence is “relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28
L.Ed.2d 842 (1971). Although we review the ALJ’s decision deferentially, she must nevertheless
build a “logical bridge” between the evidence and her conclusion. Moore v. Colvin, 743 F.3d
1118, 1121 (7th Cir. 2014). A “minimal[ ] articulat[ion] of her justification” is enough. Berger v.
Astrue, 516 F.3d 539, 545 (7th Cir. 2008).
ANALYSIS
Plaintiff asserts that the ALJ made three errors. First, Plaintiff argues that the ALJ
improperly weighed the opinion evidence of his treating physician. (Pl.’s Br. at 3.) Second,
Plaintiff argues the ALJ erred when she relied on the opinions of non-examining State Agency
Physicians. (Pl.’s Br. at 4.) Finally, Plaintiff argues the ALJ failed to discuss the medical expert
testimony taken at the hearing in violation of Social Security Rule 96-8p. (Pl.’s Br. at 5.) The
Court finds that the ALJ erred because she failed to properly weigh the medical opinion evidence
of Plaintiff’s treating physician. Because this conclusion requires reversal, the other alleged
errors need not be addressed at this time.
A.
The ALJ Failed to Properly Weigh the Opinion Evidence of Plaintiff’s Treating
Physician.
First Plaintiff argues that the ALJ improperly weighed the opinion evidence of his
treating physician, Dr. Lena Shahbender. (Pl.’s Br. at 3.) Specifically, he asserts that the ALJ
failed to give controlling weight to the medical opinion of Dr. Shahbender, who observed
Plaintiff could not walk for more than five minutes and ordered him a walker. (Pl.’s Br. at 3-4.)
Plaintiff argues that the ALJ was required to engage in a discussion explaining the weight she
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applied to Dr. Shahbender’s opinion using the factors listed in 20 C.F.R § 404.1527. (Id.)
Plaintiff opines that the ALJ failed to discuss the evidence, requiring remand. (Pl.’s Br. at 4.)
Commissioner argues that the ALJ supported her decision to assign no weight to Dr.
Shahbender’s opinion with substantial evidence. (Def.’s Mem. at 3-5.) Specifically,
Commissioner asserts that the ALJ pointed to specific instances in the record that showed
Plaintiff could perform activities “as tolerated” and was encouraged to exercise. (Def.’s Mem. at
3-4.) Commissioner contends that the ALJ engaged in a lengthy discussion of Plaintiff’s history
of back pain, knee pain, and other medical treatments and provided specific reasoning for
rejecting Dr. Shahbender’s opinion. (Def.’s Mem. at 5.)
A treating physician's opinion is entitled to controlling weight if it is well supported by
medical findings and not inconsistent with other substantial evidence in the record. See 20 C.F.R.
§ 404.1527(c)(2). If an ALJ finds that the treating source opinion is inconsistent with other
substantial evidence in the record, she is entitled not to give the opinion controlling weight;
however, she may not thereafter reject the opinion. SSR 96-2p. If the ALJ does not assign
controlling weight to a treating opinion she must consider five factors to determine what weight
to give the opinion: (1) the “[l]ength of the treatment relationship and the frequency of
examination”; (2) the “[n]ature and extent of the treatment relationship; (3) whether the “medical
source presents relevant evidence to support an opinion”; (4) the consistency with the record a
whole; and (5) whether the treating physician was a specialist in the relevant area. 20 C.F.R. §
404.1527(c)(2)-(6).
Here, the ALJ determined that Dr. Shahbender’s opinion was inconsistent with other
medical evidence in the record and therefore did not assign it controlling weight. (R. 45-46.)
Specifically, the ALJ found the treating source medical opinion from Dr. Shahbender that stated
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Plaintiff could not walk for more than five minutes and required a walker contradicted other
medical evidence in the record that encouraged Plaintiff to exercise and documented that he had
normal knee strength. (R. 46.) After she noted this inconsistency, the ALJ improperly concluded
her analysis and stated that she did not give any weight to Dr. Shahbender’s opinion. (Id.)
Although the ALJ was entitled not give Dr. Shahbender’s opinion controlling weight due to her
findings, she was still required to address the factors listed in 20 C.F.R. § 404.1527(c) to
determine what weight to assign the opinion. SSR 96-2p. SSR 96-2p states that treating source
medical opinions like Dr. Shahbender’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). In her
decision the ALJ acknowledged that there was some inconsistency between Dr. Shahbender’s
opinion and the other medical records, but she failed to minimally address any of the other
enumerated factors. (R. 45-46.) Specifically, the ALJ did not speak to the length, nature, and
extent of Dr. Shahbender’s treatment of Plaintiff, the frequency of examinations, the
supportability of the decision, or whether Dr. Shahbender had a relevant specialty. Ultimately,
the ALJ impermissibly rejected Dr. Shahbender’s opinion before engaging in the required
discussion.
Commissioner argues that the ALJ engaged in a “considerable discussion of [P]laintiff’s
allegations of, and treatment for, pain” requiring this Court to uphold the ALJ’s findings. (Def.’s
Mem. at 5.) However, the issue is whether the ALJ addressed the enumerated factors when she
assigned no weight to Dr. Shahbender’s opinion, not the depth of her discussion regarding
Plaintiff’s medical history. Even though the ALJ may have attributed proper weight to Dr.
Shahbender’s opinion, her failure to articulate her application of each factor to her ultimate
conclusion warrants remand for a more thorough analysis.
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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is granted and the
Commissioner’s cross-motion for summary judgment is denied. This matter is remanded for
further proceedings consistent with this opinion.
DATE: 1/5/2017
___________________________________________
U.S. MAGISTRATE JUDGE, SUSAN E. COX
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