Shegog v. Colvin
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 4/20/2018: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LAQUANNA SHEGOG,
Plaintiff,
v.
NANCY A. BERRYHILL1, Acting
Commissioner of Social Security,
Defendant.
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No. 16 C 7436
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 (“Commissioner”)
denying Plaintiff Cheryl Finney’s (“Plaintiff”) claims for Social Security Income
(“SSI”) under Title XVI 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 memorandum in support of
reversing or remanding the Commissioner’s decision, which this Court will construe
as a motion for summary judgment [Doc. No. 12] is granted and the Commissioner’s
cross-motion for summary judgment [Doc. No. 17] 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 her applications for SSI on March 15, 2013 alleging disability
beginning August 31, 2007 due coronary artery disease, diabetic retinopathy,
hypertension, juvenile diabetes, domestic abuse, paresthesia, high cholesterol,
depression, glaucoma, blepharitis, headaches, and amenorrhea. (R. 205–210, 238.)
The claim was initially denied on July 5, 2013 and upon reconsideration on January
15, 2014. (R. 91, 107.) After filing a written request for a hearing, Plaintiff appeared
on June 25, 2014 before an Administrative Law Judge (“ALJ”) who rescheduled the
hearing so Plaintiff could obtain counsel. (R. 71–77.) A second hearing was held
before the same ALJ on November 19, 2014, where Plaintiff once again appeared
unrepresented. (R. 52–70.) A vocational expert, Pamela Tucker, was also present at
the hearing and testified. (Id.) On March 23, 2015, the ALJ denied Plaintiff’s claim
for SSI, finding her not disabled under the Social Security Act. (R. 34–51.) The
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) (R. 1–7.)
II.
ALJ Decision
On March 23, 2015, the ALJ issued an unfavorable written determination
finding Plaintiff was not disabled. (R. 34–51.) At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity since March 15, 2013, her
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application date. (R. 39.) At step two, the ALJ found that Plaintiff suffered from
severe impairments of diabetes mellitus with peripheral neuropathy and possible
glaucoma, coronary artery disease, hypertension and hyperlipidemia. (Id.) At step
three, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that meet or medical equaled the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). (R. 40.)
Before step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform work at a light exertional level, subject to several
limitations.2 At step four, the ALJ concluded that Plaintiff is unable to perform her
past relevant work. (R. 44.) At step five, based on Plaintiff’s age, education, work
experience, and RFC, the ALJ determined there were jobs that existed in significant
numbers in the national economy that Plaintiff could have performed such as
advertising material distributer, cleaner/housekeeper, and routing clerk. (R. 44–45.)
Because of this determination, the ALJ found that Plaintiff is not disabled under
the Act. (Id.)
At this stage, the ALJ determined Plaintiff could perform light work involving:
[N]o more than frequent bilateral handling, fingering and feeling and no
more than occasional ramp and stair climbing, balancing, stooping, kneeling,
crouching, bending, twisting and crawling; in a work environment exclusive
of: ladder, rope and/or scaffold climbing requirements; and should avoid
concentrated exposure to temperature extremes and work hazards such as
unprotected heights and dangerous moving machinery.
(R. 41.)
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DISCUSSION
III.
ALJ Standard
Under the Act, a person is disabled if he 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 his former
occupation? and (5) Is the plaintiff unable to perform any other work? 20 C.F.R. §
416.920(a)(4).
An affirmative answer at either step three or step five 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 to any remaining question precludes a
finding of disability. Id. The plaintiff bears the burden of proof at steps one through
four. 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.
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IV.
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.”) (internal 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 [his] 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
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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).
We review the ALJ’s decision but we play an “extremely limited” role. Elder,
529 F.3d at 413. 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).
V.
Analysis
Plaintiff alleges that the ALJ’s decision should be remanded because the ALJ:
(1) failed to properly advise her of her right to counsel and to develop the record; (2)
failed to classify Plaintiff’s depression a severe impairment; (3) did not support her
RFC determination with substantial evidence; and (4) erred at step five. Plaintiff
also contends that the Appeals Council failed to consider Plaintiff’s new and
material evidence.
A. The ALJ’s RFC Determination
“The RFC is an assessment of what work-related activities the claimant can
perform despite her limitations.” Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir.
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2004); see 20 C.F.R. § 404.1545(a)(1) (“Your residual functional capacity is the most
you can still do despite your limitations.”). In determining an individual's RFC, the
ALJ must consider all of her limitations which arise from medically determinable
impairments, even those that are not severe. SSR 96-8p; Villano v. Astrue, 556 F.3d
558, 563 (7th Cir. 2009).
Plaintiff specifically alleges that the ALJ erred when she discounted the
opinion of Plaintiff’s long-term treater, Ellen Barton, an advanced practice nurse
(“APN”). Defendants claim no error occurred because Ms. Barton is not an
“acceptable medical source” under the regulations.
Under the regulations, only an “acceptable medical source” can establish the
existence of a medically determinable impairment. 20 C.F.R. § 404.1527. But,
health care providers, such as nurse practitioners are still considered “medical
sources” whose opinions may be used to “to show the severity of the individual's
impairment(s) and how it affects the individual's ability to function.” See SSR 06-3p.
The regulations provide that ALJ’s should “apply the same criteria listed in 20
C.F.R. § 404.1527 for evaluating medical opinions from acceptable medical sources
to the opinions of “other medical sources”. See Philips v Astrue, 413 Fed. Appx. 878,
884 (7th Cir. 2010). These factors include “the length, nature, and extent of the
treatment relationship, frequency of examination, the physician's specialty, the
types of tests performed, and the consistency and supportability of the physician’s
opinion.” Scott v. Astrue, 647 F.3d 734 (quoting Moss v. Astrue, 555 F.3d 556, 561
(7th Cir. 2009)). “In deciding how to weigh the opinions of ‘other sources,’ including
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[APNs], ALJs have broader discretion than they do with the opinions of physicians.”
Fieldhouse v. Colvin, 2016 WL 3027830 (N.D. Ill. May 27, 2016). This does not,
however, allow the ALJ to summarily dismiss their findings. See SSR 06-3p (“the
adjudicator generally should explain the weight given to opinions from these “other
sources,” or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinions may have an effect on the outcome of
the case”).
Here, the only explanation the ALJ offered for according no decisional weight
to Ms. Barton’s opinion was that it was “not supported by treating notes and [was]
not from a recognized acceptable medical source.” (R. 44.) While the articulation
standard is lower for “other medical sources” than “acceptable medical sources”, this
alone is not enough to support the ALJ’s determination. An ALJ must weigh every
medical opinion, regardless of its source, and is not permitted to summarily dismiss
an opinion simply because it did not come from an “acceptable medical source.” 20
C.F.R. § 404.1527(c) (“[r]egardless of its source, we will evaluate every medical
opinion we receive”). Thus, the ALJ’s sole reason for discounting Ms. Barton’s
opinion is that her treatment notes “do not show any functional limitations.” (R. 44.)
This determination ignores several of the evaluating factors, including Plaintiff’s
treating relationship with Ms. Barton, her routine visits, and whether Ms. Barton’s
opinion is supported by other evidence of record. Because the ALJ did not minimally
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articulate her consideration of even some of these factors, the Court is unable to
trace a path of reasoning between the evidence and her conclusions.
The ALJ’s determination with respect to Ms. Barton’s opinion is critical in
this case because it may have an effect on the outcome. In her medical evaluation,
Ms. Barton opined that Plaintiff’s capacity: (1) to bend, stand, and stoop would be
reduced more than 50%; (2) to climb, push, or pull would be reduced 20–50%; and
(3) for fine manipulation, gross manipulation, and bilateral finger dexterity would
be reduced 20–50%.3 (R. 390.) Moreover, Ms. Barton found Plaintiff had a reduced
ability to perform activities of daily living, could not lift for than ten pounds at one
time, and had moderate limitation in social functioning and concentration,
persistence, and pace. (Id.) At the hearing, the vocational expert testified that no
jobs would be available for a hypothetical individual with Plaintiff’s same age,
education, work history, and the RFC limitations articulated by Ms. Barton. (R. 67–
68.) Accordingly, the Court must remand. To be clear, the Court is not making a
determination as to whether the ALJ on remand will accord different weight to Ms.
Barton’s opinion, however, remand is required here so that the ALJ can fully
articulate her reasoning.
B. Plaintiff’s remaining arguments
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
Plaintiff’s brief mistakenly states that the Ms. Barton opined that Plaintiff could stand
throughout an eight hour day. (Pl.’s Br. at 12.)
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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.
CONCLUSION
For the foregoing reasons, Plaintiff’s Memorandum in Support of Reversing
or Remanding Commissioner’s Decision [Doc. No. 12] is granted in part and the
Commissioner’s cross-motion [Doc. No. 17] 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
April 20, 2018
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