Maiolo v. Colvin
ORDER: After reviewing the record, the court grants Plaintiff's motion for summary judgment 13 and denies the Commissioner's cross-motion for summary judgment 18 . This matter is remanded for further proceedings. [For further details see order] - Signed by the Honorable Susan E. Cox on 1/5/2017. Mailed notice (np, ) Modified on 1/5/2017 (np, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
CAROLYN W. COLVIN, Acting
Commissioner of the U.S. Social
Security Administration, 1
No. 15 C 10372
Magistrate Judge Susan E. Cox
MEMORANDUM OPINION AND ORDER
Plaintiff Ralph Maiolo (“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 filed a motion for summary
judgment  and the Commissioner has filed a cross-motion for summary judgment . After
reviewing the record, the court grants Plaintiff’s motion for summary judgment and denies the
Commissioner’s cross-motion for summary judgment.
Plaintiff filed a DIB application on January 17, 2014 alleging a disability onset date of
November 11, 2013 due to coronary artery disease, atrial fibrillation, dyslipidemia, hypertensionbenign, benign prostatic hypertrophy, and high blood pressure. (R. 68, 228-31.) His initial
application was denied on April 14, 2014, and again at the reconsideration stage on December
19, 2014. (R. 75, 91.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”)
Carolyn W. Colvin is substituted for her predecessor, Michael J. Astrue, pursuant to Federal Rule of Civil
on January 21, 2015, and the hearing was scheduled on July 23, 2015. (R. 28-67, 107.) Plaintiff
appeared at the hearing with his attorney. (R. 28-67.) A medical expert (“ME”) and vocational
expert (“VE”) also appeared and offered testimony. (Id.) On August 14, 2015, the ALJ issued a
written decision denying Plaintiff’s application for DIB benefits. (R. 10-22.) The Appeals
Council (“AC”) denied review October 14, 2015, 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). (R. 1-3; Herron v. Shalala, 19 F.3d
329, 332 (7th Cir. 1994).
On August 14, 2015, the ALJ issued a written determination denying Plaintiff’s DIB
application. (R. 10-22.) As an initial matter, the ALJ found that Plaintiff met the insured status
requirements of the Act through March 31, 2016. (R. 15.) At step one, the ALJ determined that
Plaintiff did not engage in Substantial Gainful Activity (“SGA”) since his alleged onset date of
November 11, 2013. (Id.) At step two, the ALJ found that Plaintiff had the severe impairments of
obesity, hypertension with LVH, atrial arrhythmias, sleep apnea, and sclerotic changes of the
heart valve. (Id.) At step three, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments of 20 C.F.R. Part 404, Subpart P, App’x 1. (R. 25.) Before step four, the ALJ found
that Plaintiff had the residual functional capacity (“RFC”) to perform light work. (Id.) The ALJ
also found that Plaintiff’s RFC was further limited to no exposure to humidity, wetness, dust,
odors, fumes, pulmonary irritants, extreme cold, or extreme heat. (Id.) At step four, the ALJ
concluded that Plaintiff could not perform any of his past relevant work. (R. 20.) Finally, at step
five, the ALJ found that there were jobs that existed in significant numbers in the national
economy that Plaintiff could perform. (R. 21.) Specifically, the ALJ found that Plaintiff could
work as a mail clerk, office helper, and small parts assembler. (Id.) Because of this
determination, the ALJ found that Plaintiff was not disabled under the Act. (R. 21-22)
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)
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).
Plaintiff asserts that the ALJ made three errors. First, Plaintiff argues that the ALJ
improperly analyzed whether het met or equaled a listing. Second, Plaintiff argues that the ALJ
incorrectly determined his credibility. Third, Plaintiff argues that the ALJ erred in his RFC
finding. The Court finds that the ALJ’s RFC assessment was not supported by substantial
evidence. Because this conclusion requires reversal, the alleged credibility error need not be
addressed at this time.
The ALJ’s Step Two & Three Determinations Were Supported by Substantial
Plaintiff argues that the ALJ improperly analyzed whether he met or equaled a listing.
(Pl.’s Mem. at 9.) Plaintiff contends that the ME gave contradictory testimony regarding whether
or not his left ventricle met listing level, and that the ALJ was required to discuss the
contradiction. (Id.) The Commissioner responds that the ALJ reasonably relied on the testifying
ME’s opinion in determining that Plaintiff did not meet Listing 4.02. (Def.’s Mem. at 2.) The
Commissioner contends that Plaintiff misread the ME’s testimony and the Listing because
although the ME testified that Plaintiff’s enlarged atrium met Listing 4.02(A), Plaintiff failed to
meet Listing 4.02(B) and the ME ultimately concluded Plaintiff did not meet Listing 4.02.
(Def.’s Mem. at 3.) At step two, an ALJ must determine the medical severity of a claimant’s
impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c); SSR
96-3p. Listing 4.02 is chronic heart failure. The required level of severity for this impairment is
met when the requirements in both “A” and “B” are satisfied. The Commissioner’s argument is
persuasive. Plaintiff misread both the ME’s testimony and the Listing. The ME’s testimony
never equated Plaintiff’s impairment to listing level. The ME testified that Plaintiff’s
echocardiogram showed that his left atrium was dilated to 4 centimeters, and that Plaintiff was
below listing level. (R. 47.) Further, 4.02(A) explicitly states that an enlarged left atrium must be
greater than or equal to 4.5 cm, with normal or elevated ejection fraction during a period of
stability, which is .5 centimeters greater than the size of Plaintiff’s left atrium. (R. 438.)
Therefore, it appears that Plaintiff’s impairments did not singly meet listing level 4.02.
Next, Plaintiff contends that the ME failed to consider his atrial fibrillation and mitral
valve disease in combination. (Pl.’s Mem. at 10.) The Commissioner responds that just because
the ME canvassed Plaintiff’s impairments one by one does not mean that either the ME or the
ALJ failed to consider the combined impact of the impairments. (Def. Mem. at 3.) At step three,
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. § 404.1520(a)(4)(iii). An ALJ should
identify the Listing by name and offer more than a perfunctory discussion. Barnett v. Barnhart,
381 F.3d 664, 668 (7th Cir. 2004). The ALJ must also obtain the opinion of a medical expert on
the issue. (Id.) In this case, there is nothing in the record or peculiar about the ME’s testimony
that shows the ME did not consider Plaintiff’s impairments in combination, when assessing
whether Plaintiff met or equaled a listing. Further, Plaintiff does not provide this Court any
guidance on what particular Listing his impairments may have equaled. The Court is not
concluding that Plaintiff’s impairments do not ultimately equal a Listing, it is asserting that
Plaintiff’s argument failed to support the assertion that the ALJ did not provide substantial
evidence in his step two and three determinations. Therefore, the ALJ’s step two and three
findings will not be disturbed.
The ALJ Failed to Support His RFC Finding with Substantial Evidence &
Improperly Weighed the Medical Evidence
Plaintiff argues that the ALJ erred in his RFC finding. Plaintiff contends that the ALJ
failed to consider the opinion of cardiologist, Dr. Dominick Stella, M.D., which asserted that
Plaintiff’s complaints of fatigue were probably related to his clonidine 2 usage and lowering his
blood pressure. (Pl.’s Mem. at 12.) The Commissioner responds that the ME specifically
considered Plaintiff’s clonidine usage and allegations of fatigue; however, the ME determined
that Plaintiff retained the RFC to perform a reduced range of light work. (Def.’s Mem. at 11.)
The Commissioner’s argument is unpersuasive. On December 4, 2013, treating cardiologist, Dr.
Stella wrote to Dr. John P. Kalamaris, D.O. regarding Plaintiff’s cardiology follow-up. (R. 43536.) Dr. Stella opined that Plaintiff was then without complaints of chest pain or shortness of
breath, at rest. (R. 435.) However, Dr. Stella noted that Plaintiff complained of fatigue, and that
clonidine is a “antihypertensive,” which is “an agent that counteracts high blood pressure.” Dorland’s Medical
Dictionary http://www.dorlands.com (last visited Jul. 29, 2016) [hereinafter Dorland’s ].
Plaintiff’s complaints were probably related to the lowering of his blood pressure, in addition to
his clonidine usage. (R. 436.) Dr. Stella further noted that he would attempt to wean Plaintiff
from the clonidine over time once his blood pressure was under control. (Id.) In his decision, the
ALJ summarized portions of Dr. Stella’s treatment notes, but neglected to discuss Dr. Stella’s
letter to Dr. Kalamaris, which suggested Plaintiff was suffering from medication side-effects. (R.
17, 431, 435-36.) An ALJ is required to evaluate every medical opinion in the record. 20 C.F.R.
§ 404.1527(d). After the ALJ’s required evaluation of Dr. Stella’s opinion regarding Plaintiff’s
fatigue and medication usage, she was then required to weigh that opinion using the checklist of
factors set forth in 20 C.F.R. § 404.1527(c). See also Young v. Barnhart, 362 F.3d 995, 1001 (7th
Cir. 2004) (‘Weighing conflicting evidence from medical experts...is exactly what the ALJ is
required to do.’) The ALJ was not allowed to disregard Dr. Stella’s opinion simply because the
ME offered a contradictory opinion regarding the cause of Plaintiff’s fatigue. “An ALJ must
weigh all the evidence and may not ignore evidence that suggests an opposite conclusion.”
Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) citing Whitney v. Schweiker, 695 F.2d
784, 788 (7th Cir. 1982). Simply parsing out a few statements of the medical evidence is not
adequate in explaining why contrary evidence does not persuade. This “sound-bite” approach to
record evaluation is an impermissible methodology for evaluating the evidence. (Id.)
Next, Plaintiff argues that the ALJ improperly weighed the opinions of the consultative
mental experts because the ALJ failed to give the required good reasons for giving little or no
weight. (Pl.’s Mem. at 14.) The Commissioner responds that the ALJ reasonably explained that
these opinions were based on an incomplete record, the entire record contained no evidence of
mental impairments, and Plaintiff consistently reported having no mental impairments. (Def.’s
Mem. at 11.) The Court finds that the ALJ’s reasoning was not supported by substantial
evidence. The ALJ was not free to disregard Plaintiff’s established impairment of unspecified
depressive disorder. Instead, the ALJ had a duty to fully develop the record before drawing any
conclusions. Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005). See also Chase v. Astrue, 458
F. App’x 553, 557 (7th Cir. 2012). An ALJ may not “play doctor” by using his own lay opinions
to fill evidentiary gaps in the record. In this case, the ALJ opined that the opinions were based on
an incomplete record, and significantly, there was no evidence of mental treatment in the record.
The ALJ further noted that while the consultative examiner found a diagnosis of depressive
disorder, evidence received at the hearing level revealed that the Plaintiff consistently reported
no mental impairments. (R. 20.) At that point, if the ALJ had questions or concerns about
Plaintiff’s diagnosis of depression, he should have sought another medical professional opinion
regarding its existence and severity. However, since it was established that Plaintiff had a mental
impairment, the ALJ was required to fully develop the record and order a Psychiatric Review
Technique to assess the severity of Plaintiff’s mental impairment. When evaluating mental
impairments, the regulations require that the Administration follow a special technique. The
Psychiatric Review Technique described in 20 CFR 404.1520a and summarized on the
Psychiatric Review Technique Form requires adjudicators to assess an individual’s limitations
and restrictions from mental impairment(s) in categories identified in the “paragraph B” and
“paragraph C” criteria of the adult mental disorders listings. The adjudicator must remember that
the limitations identified in the “paragraph B” and “paragraph C” criteria are not an RFC
assessment but are used to rate the severity of mental impairment(s) at steps two and three of the
sequential evaluation process. SSR 96-8p.
Lastly, Plaintiff contends that the ALJ improperly gave no weight to the opinions of
treating physician, Dr. Melissa Pradhan, M.D., because Dr. Pradhan was not required to be a
cardiologist to render an opinion. (Pl.’s Mem. at 14.) The Commissioner responds that the ALJ
appropriately explained that Dr. Pradhan was not a cardiologist, and Plaintiff’s impairments that
were in her expertise, such as Plaintiff’s obesity and muscoskeletal complaints, did not account
for the extreme limitations that Dr. Pradhan imposed. (Def.’s Mem. at 10.) The Commissioner
contends that more importantly, the ALJ explained that he accepted the opinion of the testifying
ME, that the evidence in the record did not account for the limitations that Dr. Pradhan imposed.
(Def.’s Mem. at 10.) On January 29, 2015, Dr. Pradhan completed a Physical RFC
Questionnaire. (R. 487-89.) Dr. Pradhan indicated that occasionally and frequently, Plaintiff
could only lift and carry six to ten pounds; stand/sit less than four hours in an eight-hour
workday; frequently could handle, finger, and feel; occasionally could push/pull with his hands
and feet, stoop, and reach; never could climb ramps, stairs, ladders, or ropes, balance, crouch, or
crawl; and must avoid exposure to temperature extremes, high humidity, moving machinery, and
cold air. (R. 487.) Dr. Pradhan also indicated that Plaintiff had problems with memory loss, and
that during the day, every two hours for fifteen minutes, Plaintiff’s legs needed to be elevated
above heart level. (Id.) Dr. Pradhan noted that Plaintiff’s limitations were based on the diagnoses
of atrial fibrillation, coronary artery disease, lower extremity edema, hypertension, and dyspnea
on exertion and cited Plaintiff’s EKG and cardiac catheter for support of her findings. (R. 488.)
The Commissioner’s argument is unpersuasive because the ALJ failed to support the weight
given to Dr. Pradhan’s opinion with substantial evidence. 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. § 404.1527(c); see Scott v.
Astrue, 647 F.3d 734, 739 (7th Cir. 2011). The ALJ must also “offer good reasons for
discounting” the opinion of a treating physician. Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.
2010) (internal quotations omitted); Scott, 647 F.3d at 739. In this case, the ALJ discounted Dr.
Pradhan’s opinion by noting that Dr. Pradhan was an internal medicine physician and not a
cardiologist. (R. 19.) The ALJ noted that Plaintiff’s obesity alone could not explain the sitting or
standing limitations, and there were no neurological or muscoskeletal complaints to account for
such a reduction. (R. 19.) The ALJ further noted that the limitations were also inconsistent with
the record, which did not account for Plaintiff’s alleged symptoms as explained by the testifying
ME. (R. 19-20.) Although it appears as though the ALJ provided some analysis to support his
finding, his required assessment did not end there. Even if 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. 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. See id. According to the ALJ’s decision,
it does not appear that the ALJ considered the required regulatory factors when weighing Dr.
Pradhan’s opinion. The ALJ did not consider the length, nature, and extent of Plaintiff and Dr.
Pradhan’s treating relationship. The record indicates that as early as May 6, 2014, Dr. Pradhan
was treating Plaintiff for his blood pressure, hypertension, edema, obesity, smoking, and was
advising him on his heart condition with the aid of cardiologist Dr. Ajay Parikh, M.D. (R. 577,
615, 628, 652.) Nor did the ALJ consider the frequency of examination. The record indicates that
from May 2014 and thereafter, Dr. Pradhan examined Plaintiff at least once per month, and
sometimes multiple times per month. (R. 505, 535, 558, 569, 572, 586, 593, 597, 598, 602, 604,
622, 624, 652-55.) It seems as though the ALJ did consider Dr. Pradhan’s specialty, by noting
that she was not a cardiologist. However, a physician’s specialty is just one factor that can be
considered when weighing a physician’s opinion. Moreover, if the ALJ determined that Dr.
Pradhan, an internist, was not qualified to give an opinion about Plaintiff’s functional limitations
because she was not a cardiologist, then he should have concluded that the testifying ME was
equally as unqualified, being that the ME was also not a cardiologist, but an internist and
pulmonologist. (R. 42.) Further, Dr. Pradhan consistently performed blood pressure checks,
blood and urine analysis, referred Plaintiff to a cardiologist on several occasions, consistently
prescribed and adjusted Plaintiff’s medications, and overall was well informed of Plaintiff’s
condition and RFC. Given the totality of the factors, Dr. Pradhan’s opinion should not have been
dismissed simply because she was not a cardiologist. On remand, the ALJ should take great care
in reweighing the opinions of Dr. Pradhan and all of the other physicians.
Because this conclusion requires reversal on the basis the ALJ did not properly consider
and assess Plaintiff’s RFC due to him he improperly weighing several physicians’ medical
opinions, Plaintiff’s complaint of the ALJ’s credibility assessment need not be addressed at this
time. 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, 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: January 5, 2017
U.S MAGISTRATE JUDGE, SUSAN E. COX
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