Mcafee v. Colvin
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 12/15/2017: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL D. MCAFEE,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.
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No. 16 C 2339
Magistrate Judge
Maria Valdez
MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of the Social Security Administration (the “Commissioner”)
denying Plaintiff Michael McAfee’s (“Plaintiff”) claims for Disability Insurance
Benefits (“DIB”) and Social Security Income (“SSI”) under Title II and Title VXI of
the Social Security Act (the “Act”). 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 Brief in Support of Reversing the Decision of the
Commissioner of Social Security, which this Court will construe as a motion for
summary judgment, is granted and the Commissioner’s cross-motion for summary
judgment [Doc. No. 21] is denied.
Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to
Federal Rule of Civil Procedure 25(d).
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BACKGROUND
I.
Procedural History
Plaintiff filed an application for DIB and SSI on August 6, 2012, alleging a
disability onset date of January 1, 2010, due to a heart condition, high blood
pressure and back pain. (R. 192–201, 224.) His initial application was denied on
November 14, 2010, and again at the reconsideration stage on April 3, 2012. (R. 71–
87, 88–105.) Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”) on May 31, 2013. (R. 131–133.) The hearing was held on July 15, 2014. (R.
30–70.) Plaintiff appeared at the hearing represented by counsel and offered
testimony. (Id.) A vocational expert also appeared and offered testimony. (Id.) On
August 28, 2014, the ALJ issued a partially favorable written decision, finding
Plaintiff became disabled on June 15, 2014. (R. 10–29.) The Appeals Council (“AC”)
denied review on December 28, 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); Herron
v. Shalala, 19 F.3d 329, 332 (7th Cir. 1994); (R. 1–6.)
II.
The ALJ Decision
The ALJ found at step one that Plaintiff has not engaged in substantial
gainful activity since his alleged onset date of January 1, 2010. (R. 16.) At step two,
the ALJ concluded that Plaintiff had severe impairments of obesity, coronary artery
disease status post myocardial infarction, and osteoarthritis of the left knee. (Id.)
The ALJ concluded at step three that Plaintiff’s impairments, alone or in
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combination, did not meet or medically equal a Listing. (R. 17.) The ALJ then
determined that Plaintiff retained the RFC to perform light work, with the
following limitations: He should avoid concentrated exposure to pulmonary irritants
such as fumes, odors, dusts, gases and poor ventilation. (Id.) The ALJ concluded at
step four that Plaintiff could not perform any past relevant work. (R. 22.)
Then, the ALJ found that on June 15, 2014 Plaintiff’s age category changed
to an individual of advanced age. (R. 23.) At step five, the ALJ determined that
prior to June 15, 2014, based upon Plaintiff’s age, education, work experience, and
RFC, there were jobs that existed in significant numbers in the national economy
that Plaintiff could have performed. (Id.) However, beginning on June 15, 2014, the
ALJ found that based on Plaintiff’s age, education, work experience and RFC, there
were no jobs that existed in significant numbers in the national economy that
Plaintiff could perform. (R. 24.) This lead to a finding that Plaintiff was not disabled
prior to June 15, 2014, but became disabled on that date and has continued to be
disabled since that date under the Act. Plaintiff seeks review only of the portion of
the ALJ’s decision that was unfavorable, the question of disability from the alleged
onset date of January 1, 2010 through June 14, 2014. [Doc. No. 17 at 1.]
DISCUSSION
I.
ALJ LEGAL STANDARD
Under the 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
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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 claimant is disabled, the ALJ
considers the following five questions in order: (1) Is the claimant presently
unemployed? (2) Does the claimant 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 claimant unable to perform her former
occupation? and (5) Is the claimant unable to perform any other work? 20 C.F.R. §
416.920(a)(4).
An affirmative answer at either step 3 or step 5 leads to a finding that the
claimant 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 claimant bears the burden of proof at steps 1–
4. Id. Once the claimant shows an inability to perform past work, the burden then
shifts to the Commissioner to show the claimant'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
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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,
or resolving conflicts in evidence. 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).
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 claimant, “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 claimant is disabled falls upon the
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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,
19 F.3d at 333; 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.”).
III.
ANALYSIS
Plaintiff asserts the following errors on appeal: (1) the ALJ failed to give the
appropriate weight to examining doctors; (2) the ALJ failed to consider Plaintiff’s
obesity in combination with his other impairments; and (3) the ALJ’s assessment
improperly placed limitations on Plaintiff’s exposure to fumes and pulmonary
irritants without supporting evidence. For the reasons that follow, this matter is
remanded for further proceedings consistent with this Opinion.
A. Opinion Evidence
Plaintiff first argues that the ALJ erred by giving “great weight” to the state
agency medical consultants, Ernst Bone, M.D. and Julio Pardo, M.D., and only
“some weight” or no indication of weight to Plaintiff’s examining doctors, Valerie
Voss, M.D. and Kimberly Middleton, M.D., respectively. [Doc. No. 17, at 11–14.]
Plaintiff argues that this was improper because state agency medical consultants,
Dr. Ernest Bone, M.D., and Dr. Julio Pardo, M.D., only considered ischemic heart
disease as a severe impairment, while the ALJ found that Plaintiff had severe
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impairments of obesity, coronary artery disease status post myocardial infarction,
and osteoarthritis of the left knee.
It is for the ALJ to determine which doctor to credit in instances where
conflicting medical evidence exists. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir.
2004) (citing Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996)). The Social Security
regulations set forth a hierarchy of medical opinion testimony for treating,
examining, and non-examining physicians. See 20 C.F.R. § 404.1527(c)(2); 20 C.F.R.
§ 404.1513. In general, opinions from treating sources with treating relationships
are given the most weight.2 20 C.F.R. § 404.1527(c)(2). Opinions from examining
sources are usually given more weight than medical opinions from non-examining
sources. 20 C.F.R. § 404.1527(c)(1), (e). The key requirement is that the ALJ must
explain what specific weight, if any, all these opinions should be given after
explicitly analyzing what the Seventh Circuit refers to as “the checklist” of factors.
20 C.F.R. § 404.1527(e); Larson v. Astrue, 615 F.3d, 744, 751 (7th Cir. 2010).
These factors include: the examining relationship; the treatment relationship
(length of the relationship and the frequency of examination, as well as the nature
and extent of the relationship); the amount of evidence that supports the opinion;
the consistency of the opinion with the record as a whole; the specialty of the
opining source, if any; and any other factors which tend to support or contradict the
opinion. 20 C.F.R. § 404.1527(c)(1)-(6). The ALJ must consider the entire record,
The Court notes that it is undisputed that there are no treating physician opinions in the
record. However, the record includes records from doctors who examined Plaintiff which
includes Dr. Middleton and Dr. Voss.
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including those portions of the record that do not support the ALJ’s ultimate
determination. Scrogham, 765 F.3d at 697.
1. Dr. Middleton
Dr. Middleton examined Plaintiff for an independent medical exam on
September 21, 2012 and prepared a report detailing the results of Plaintiff’s
examination. (R. 391–398.) The ALJ selectively summarized the report and did not
indicate what weight was given, nor did the ALJ address the significant portions
that related to Plaintiffs claim. For example, Dr. Middleton opined that Plaintiff is
extremely dyspneic, morbidly obese and has uncontrolled blood pressure and
advised Plaintiff to seek medical attention due to his high risk status. (R. 398.) Dr.
Middleton further opined Plaintiff appeared ill due to cardiac disease and that as a
result of Plaintiff’s overall condition, it would be difficult for Plaintiff to perform
gainful work. (Id.) The ALJ’s failure to address this relevant information amounts
to improper cherry-picking of the evidence. See Godbey v. Apfel, 238 F.3d 803, 808
(7th Cir. 2000) (explaining that ALJs may not selectively cherry-pick facts that
support their conclusions while ignoring contrary lines of evidence.)
The Commissioner concedes that the ALJ did not specifically discuss the
weight given to the opinion of Dr. Middleton. [Doc. No. 22 at 7.] The Commissioner
contends, however, that this is not reversible error because the ALJ instead
discussed the weight given to Dr. Voss’ opinion, which was “similar” to Dr.
Middleton’s opinion. [Id.] The Commissioner appears to be implying, without any
cited authority, that since the ALJ gave weight to one doctor, that weight can then
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be imputed to a separate doctor’s opinion. The Court finds this argument is without
merit.
Because the ALJ did not analyze this evidence, the Court cannot determine
whether the ALJ credited this evidence but found it not persuasive enough or
instead discounted it for some unstated reason. This would have been important
since it is obvious from the record that Dr. Middleton’s opinions are distinct and
different from both Dr. Pardo and Dr. Bone’s opinions. Dr. Pardo and Dr. Bone both
had access to Dr. Middleton’s records, yet is not clear what they interpreted from
her findings. The ALJ did not address the apparent discrepancy between the
reports; rather, she erred by taking the part of the report that favored her opinion
and ignoring the part that did not. Scrogham, 765 F.3d at 695; Myles v. Astrue, 582
F.3d 672, 678 (7th Cir.2009) (“It is not enough for the ALJ to address mere portions
of a doctor's report.”)
2. Dr. Voss
Dr. Voss examined Plaintiff on March 19, 2013 and prepared a report
detailing the results of the examination. (R. 402–406.) Dr. Voss’s opined that
Plaintiff “is unable to ambulate long distances due to [shortness of breath] which
could be due to [congestive heart failure] vs [chronic obstructive pulmonary disease]
given his cardiac and smoking histories. His low back pain limits his ambulation,
lifting, and standing due to daily moderate to severe pain.”3 (R. 405.) The ALJ gave
“some weight” to Dr. Voss’s report. (R. 21.) The ALJ acknowledges that Dr. Voss
Dr. Voss’s treatment notes utilize common medical abbreviations to describe Plaintiff’s
symptoms. For clarity, the Court has replaced those abbreviations with their full medical
terms. Stedman’s Pocket Medical Abbreviations, (2006).
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examined Plaintiff on one occasion and that Dr. Voss concluded Plaintiff’s
impairments limited his ability to lift, stand or walk, and that his behavior during
the exam indicated he was incapable of handling his own funds. (Id.) The ALJ then
stated that her reason for not giving Dr. Voss’s opinion more weight was because
“she did not quantify [Plaintiff’s] limitations, which makes her exact opinion as to
[Plaintiff’s] limitations unclear.” (R. 21.)
The ALJ further attempts to support her reasoning for offering Dr. Voss’s
opinion less weight than Dr. Bone and Dr. Pardo by stating that Dr. Bone and Dr.
Pardo had the advantage of reviewing additional evidence prior to forming their
opinions. (R. 21.) Also, she states Dr. Bone and Dr. Pardo provided a function by
function analysis in their assessments and have specialized knowledge of the Social
Security Administration’s disability program. (Id.) The ALJ then states that the
medical record supports the state agency consultants’ opinions that Plaintiff is able
to perform light work because Plaintiff was non-compliant with his cardiac
medications although his condition would improve significantly with medication.
(Id.) Additionally, the ALJ states that the record indicates that Plaintiff was able to
ambulate without assistance. (Id.)
The ALJ’s explanation for why greater weight was given to the state agency
doctors’ opinions is unpersuasive. Specifically, the records and opinions of Dr.
Middleton and Dr. Voss contradict the ALJ’s conclusion yet she fails to discuss why
she discounted that evidence. For example, Dr. Middleton and Dr. Voss both
indicated that Plaintiff had difficulty ambulating based on his condition. (R. 398,
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405.) Further, Dr. Middleton made a note stating Plaintiff was not being compliant
with medication because he could not afford it. (R. 396.) The ALJ fails to address
these contradictions in her analysis. “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).
The ALJ says nothing about the substance of Dr. Pardo and Dr. Bone’s
opinions and fails to show what additional evidence they were privy to that Dr.
Middleton and Dr. Voss were not. It is unclear from the ALJ’s decision whether Dr.
Pardo and Dr. Bone’s opinions are supported by substantial evidence. The ALJ must
articulate at some minimal level her analysis of the evidence. Herron, 19 F.3d at
333 (7th Cir. 1994.)
B. Issues to be Considered on Remand
Having concluded that remand is necessary to rectify problems in the ALJ's
analysis of the examining physicians' opinions, the Court need not resolve Plaintiff's
additional arguments. However, for the sake of completeness, and to help ensure
that the Commissioner's decision on remand is free from unnecessary errors, the
Court notes that the following issue should also be addressed on remand.
Plaintiff also argues that the ALJ failed to consider Plaintiff’s obesity in
combination with his other impairments. An ALJ must consider the effects of
obesity in determining whether a claimant’s impairments meet or equal a listing.
See SSR 02-1p, 2002 WL 34686281, at *3. Under the ruling, “the ALJ must
specifically address the effect of obesity on a claimant’s limitations.” Villano v.
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Astrue, 556 F.3d 558, 562 (7th Cir. 2009). Obesity can, alone or in combination with
other impairments, medically equal a listing, resulting in a finding of disability. See
SSR 02-1p, 2002 WL 34686281. In this case, the ALJ noted that he found Plaintiff’s
obesity to be a severe impairment, after which she stated “These considerations
have been taken into account in reaching the conclusions herein at the 2nd through
5th steps of the sequential disability evaluation process.” (R. 17.) However, the ALJ
did not explicitly discuss Plaintiff’s obesity further in the opinion. The Court
suggests that the ALJ explicitly make clear in her decision how Plaintiff’s obesity
was taken into account.
As for Plaintiff’s remaining arguments, the Court expresses no opinion but
encourages the Commissioner to use all necessary efforts to build a logical bridge
between the evidence in the record and her ultimate conclusions, whatever those
conclusions may be. See, e.g., Myles, 582 F.3d at 678 (“On remand, the ALJ should
consider all the evidence in the record, and, if necessary, give the parties the
opportunity to expand the record so that he may build a ‘logical bridge’ between the
evidence and his conclusions”); Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000);
Luna v. Shalala, 22 F.3d 687, 693 (7th Cir. 1994). The Commissioner should not
assume that any other claimed errors not discussed in this Order have been
adjudicated in her favor. On remand, the Commissioner therefore must carefully
articulate her findings as to every step.
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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 [Doc. No. 21]
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:
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
December 15, 2017
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