Thompson v. Colvin

Filing 23

MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 2/6/2017. Mailed notice (ao,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CATRINA THOMPSON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 16 C 7182
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Plaintiff Catrina Thompson appeals the Commissioner’s decision denying her application
for Social Security benefits.

For the reasons set forth below, the Court reverses the

Commissioner’s decision.

Background
Plaintiff filed an application for benefits on May 22, 2013. (R. 74.) Her application was
denied initially on September 9, 2013, and again on reconsideration on June 3, 2014. (R. 74, 87.)
Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on
August 11, 2015. (R. 29-65.) On August 15, 2015, the ALJ issued a decision denying plaintiff’s
application.

(R. 12-22.)

The Appeals Council denied review (R. 1-3), leaving the ALJ’s

decision as the final decision of the Commissioner. See Villano v. Astrue, 556 F.3d 558, 561-62
(7th Cir. 2009).

Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is
generous, it is not entirely uncritical,” and the case must be remanded if the “decision lacks
evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Under the Social Security Act, disability is defined as the “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 12 months.” 42 U.S.C. § 423(d)(1)(A). The
regulations prescribe a five-part sequential test for determining whether a claimant is disabled.
See 20 C.F.R. § 404.1520. Under the regulations, the Commissioner must consider: (1) whether
the claimant has performed any substantial gainful activity during the period for which she
claims disability; (2) if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether the claimant’s impairment meets or equals any listed impairment;
(4) if not, whether the claimant retains the residual functional capacity (“RFC”) to perform her
past relevant work; and (5) if not, whether she is unable to perform any other work existing in
significant numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th
Cir. 2001). The claimant bears the burden of proof at steps one through four, and if that burden
is met, the burden shifts at step five to the Commissioner to provide evidence that the claimant is
capable of performing work existing in significant numbers in the national economy. See 20
C.F.R. § 404.1560(c)(2).

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At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since February 15, 2013. (R. 14.) At step two, the ALJ found that plaintiff has the severe
impairments of “congestive heart failure, obesity, non-ischemic cardiomyopathy, and status post
implantation of defibrillator.” (Id.) At step three, the ALJ determined that plaintiff does not
have an impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments. (R. 16.) At step four, the ALJ found that plaintiff cannot perform
her past relevant work but has the residual functional capacity (“RFC”) to perform sedentary
work with additional restrictions. (R. 14-21.) At step five, the ALJ found that there are jobs that
exist in significant numbers in the national economy that plaintiff can perform, and thus she is
not disabled. (R. 21-22.)
Plaintiff contends that the ALJ improperly concluded, despite an agency doctor’s
contrary opinion, that plaintiff’s anxiety disorder is a non-severe impairment. With respect to
this issue, the ALJ said:
I appreciate that a state agency reviewing doctor found that the claimant’s
depression and anxiety were severe impairments and assessed moderate
limitations in maintaining concentration, persistence or pace. However, I do not
assign any weight to this opinion, based on the longitudinal record. This opinion
by the state agency reviewing doctor appears to be based on the psychological
consultative examination in May 2014, when the claimant appeared sad and
depressed and could not recall items after three and five minute delays. However,
the same month, the claimant was started on Lexapro1 prescribed by her primary
physician, who did not perform a mental status examination. The record does not
contain any updated records from her primary physician. I also note that at the
hearing, the claimant testified that for the past four months, she has been taking
paralegal classes online for 2-3 hours per day and this is going well.

1

Lexapro is a medication “used to treat depression and generalized anxiety disorder.”
http://www.mayoclinic.org/drugs-supplements/escitalopram-oral-route/description/drg-20063707 (last visited Feb.
1, 2017).

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This suggests greater abilities in maintaining concentration, persistence or pace
than assessed by the state Agency psychological consultant. Given the
longitudinal record, I find that the claimant’s depression and anxiety are not
severe impairments.
(R. 16) (citations omitted).
The agency doctor did not examine or treat plaintiff, and thus the ALJ only had to credit
his opinion if it was supported by, and consistent with, the record as a whole. See 20 C.F.R. §
404.1527(c). The agency doctor’s opinion is neither, because as the ALJ pointed out, it is based
on an examination of plaintiff that occurred before she started taking anti-depressants and is
contradicted by her testimony that she spends several hours a day taking on-line classes.
Moreover, though not mentioned by the ALJ, the Court notes that the agency doctor is an
obstetrician, not a psychologist (see R. 86-87); Social Security Administration, Program
Operations Manual System, DI 24501.004 Medical Specialty Codes, available at
https://secure.ssa.gov/poms.nsf/lnx/0424501004 (last visited November 28, 2016), and his
opinion is internally inconsistent. Though he characterizes plaintiff’s mental impairments as
“severe,” he also states that they impose only a “mild” restriction on her activities of daily living
and ability to maintain social functioning, and a “moderate” restriction on her ability to maintain
persistence, concentration or pace. (R. 79-80.) In short, the record supports the ALJ’s rejection
of the agency doctor’s opinion.
Plaintiff also argues that the ALJ erred in rejecting the opinion of plaintiff’s treating
physician, Dr. Meeks. (See R. 17.) An ALJ must give a treating physician’s opinion controlling
weight if “it is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20
C.F.R. § 404.1527(c)(2). “If an ALJ does not give a treating physician’s opinion controlling
weight, the regulations require [him] to consider the length, nature, and extent of the treatment
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relationship, frequency of examination, the physician’s specialty, the types of tests performed,
and the consistency and supportability of the physician’s opinion,” in assessing the opinion.
Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009); see 20 C.F.R. § 404.1527(c).
Dr. Meeks opined that plaintiff meets Listing 4.02 for chronic heart failure, has severe
cardiomyopathy,2 an ejection fraction of 30%,3 “significant shortness of breath with exertion,”
“intermittent chest pain,” and “is barely able to walk one block without symptoms of dyspnea4
and fatigue.” (R. 103.) Dr. Meeks also said that plaintiff could only lift five pounds, stand or
walk less than one hour of an eight-hour workday, and sit for only two hours of an eight-hour
workday. (R. 104.)
The ALJ gave Dr. Meeks’ opinion “no weight” because she “is only a family practitioner,
not a specialist,” and her opinion is “inconsistent with the longitudinal medical evidence,” which
“indicate[s] that the claimant [has] functional class II [heart failure]” (R. 20), i.e., which only
imposes

a

“[s]light

limitation

[on]

physical

activity.”

See

Am.

Heart

Ass’n,

http://www.heart.org/HEARTORG (follow “Conditions” hyperlink; then follow “About Heart
Failure” hyperlink; then follow “Classes of Heart Failure” hyperlink) (last visited Feb. 1, 2017).
To meet Listing 4.02 for chronic heart failure, plaintiff must have an “ejection fraction of
30 percent or less during a period of stability (not during an episode of acute heart failure)” and:
1. Persistent symptoms of heart failure which very seriously limit the ability to
independently initiate, sustain, or complete activities of daily living in an
individual for whom an MC, preferably one experienced in the care of patients
with cardiovascular disease, has concluded that the performance of an exercise
test would present a significant risk to the individual; or
2

“Cardiomyopathy “is a condition where the heart muscle is abnormal.” http://www.mayoclinic.org/diseasesconditions/cardiomyopathy/basics/definition/con-20026819 (last visited Feb. 1, 2017).
3
“Ejection fraction is a measurement of the percentage of blood leaving [the] heart each time it contracts.”
http://www.mayoclinic.org/ejection-fraction/expert-answers/faq-20058286 (last visited Feb. 1, 2017). An “ejection
fraction of 55 percent or higher is considered normal.” Id.
4
Dyspnea is the medical term for shortness of breath. http://www.mayoclinic.org/symptoms/shortness-ofbreath/basics/definition/sym-20050890 (last visited Feb. 1, 2017).

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2. Three or more separate episodes of acute congestive heart failure within a
consecutive 12-month period . . . with evidence of fluid retention . . . from clinical
and imaging assessments at the time of the episodes, requiring acute extended
physician intervention such as hospitalization or emergency room treatment for 12
hours or more, separated by periods of stabilization . . . ; or
3. Inability to perform on an exercise tolerance test at a workload equivalent to 5
METs or less due to:
a. Dyspnea, fatigue, palpitations, or chest discomfort; or
b. Three or more consecutive premature ventricular contractions (ventricular
tachycardia), or increasing frequency of ventricular ectopy with at least 6
premature ventricular contractions per minute; or
c. Decrease of 10 mm Hg or more in systolic pressure below the baseline systolic
blood pressure or the preceding systolic pressure measured during exercise . . .
due to left ventricular dysfunction, despite an increase in workload; or
d. Signs attributable to inadequate cerebral perfusion, such as ataxic gait or mental
confusion.
20 C.F.R. § 404, subpt. P, app. 1, listing 4.02. The record shows that plaintiff had an ejection
fraction of less than thirty percent on various occasions. (R. 381, 478.) But it does not show that
any doctor has barred her from taking an exercise test5 or, despite several emergency room visits,
that she had three episodes of acute congestive heart failure with fluid retention in one year.
Thus, the record supports the ALJ’s rejection of Dr. Meeks’ opinion that plaintiff meets Listing
4.02.
But that was not Dr. Meeks’ only opinion. Dr. Meeks also stated that plaintiff can only
stand or walk for one hour and sit for less than two hours of an eight-hour workday, “has
significant shortness of breath with exertion,” and “can barely walk one block without [shortness
of breath] and fatigue.” (R. 227-28.) The ALJ said these opinions were inconsistent with
plaintiff’s medical records, which show that she has class II heart failure. (R. 20.) For a person
with Class II heart failure, however, “[o]rdinary physical activity results in fatigue, palpitation,
or dyspnea (shortness of breath),” the precise symptoms Dr. Meeks attributes to plaintiff. See

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The lack of a finding that plaintiff cannot conduct an exercise tolerance test excludes options 1 and 3 as a means of
establishing disability.

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Am. Heart Ass’n, http://www.heart.org/HEARTORG (follow “Conditions” hyperlink; then
follow “About Heart Failure” hyperlink; then follow “Classes of Heart Failure” hyperlink) (last
visited Feb. 1, 2017). Thus, the inconsistency cited by the ALJ is illusory.
The ALJ also rejected Dr. Meeks’ testimony because her specialty is family practice, not
cardiology. (R. 20.) But the opinions the ALJ accepted were from doctors who, unlike Dr.
Meeks, had not treated or examined plaintiff, and whose specialties are anesthesiology and
obstetrics, respectively. (See R. 74, 87); see also Social Security Administration, Program
Operations Manual System, DI 24501.004 Medical Specialty Codes, available at
https://secure.ssa.gov/poms.nsf/lnx/0424501004 (last visited Feb. 1, 2017). The ALJ does not
explain why these specialties make the opinions of the non-treating agency doctors more reliable
than that of treating physician Dr. Meeks. See Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir.
2003) (per curiam) (stating that “a contradictory opinion of a non-examining physician [is] not,
by itself,” a sufficient basis for rejecting a treater’s opinion); see also Scott v. Astrue, 647 F.3d
734, 739 (7th Cir. 2011) (“An ALJ must offer good reasons for discounting the opinion of a
treating physician.”) (quotation omitted).
In sum, the record does not support the ALJ’s rejection of Dr. Meeks’ opinions in favor
of those of the non-examining doctors.

Accordingly, the case must be remanded for

reconsideration of the medical evidence. 6

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Plaintiff also contests the ALJ’s credibility determination (an inquiry now known as symptom assessment).
Because that determination depends, at least in part, on a proper evaluation of the medical evidence, on remand the
Commissioner will have to revisit the credibility/symptom assessment issue as well.

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Conclusion
For the reasons set forth above, the Court grants plaintiff’s motion for summary judgment
[11], denies the Commissioner’s motion for summary judgment [19], reverses the
Commissioner’s decision, and remands this case for further proceedings.

This case is

terminated.
SO ORDERED.

ENTERED: February 6, 2017

_________________________________
M. David Weisman
United States Magistrate Judge

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