Lewis v. Colvin

Filing 22

MEMORANDUM Opinion and Order: Plaintiff Jeffrey L. Lewis ("Plaintiff") appeals the decision of the Commissioner of the Social Security Administration ("Commissioner") denying his disability insurance benefits under Title II of the Social Security Act. Plaintiff filed a brief [Dkt. 15] to reverse the Decision of the Commissioner of Social Security, and Defendant responded with a motion for summary judgment [Dkt. 16]. We hereby construe Plaintiff's brief in support of reve rsing the decision of the Commissioner as a motion. For the following reasons, Plaintiff's motion is granted and the Commissioner's motion is denied. The Administrative Law Judge's ("ALJ") decision is remanded for further proceedings consistent with this opinion. - Signed by the Honorable Susan E. Cox on 11/9/2017. [For further details see order] Mailed notice (np, ) Modified on 11/9/2017 (np, ).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEFFREY L. LEWIS
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.

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No. 16 C 7870
Magistrate Judge Susan E. Cox

MEMORANDUM OPINION AND ORDER
Plaintiff Jeffrey L. Lewis (“Plaintiff”) appeals the decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying his disability insurance benefits under
Title II of the Social Security Act. Plaintiff filed a brief [Dkt. 15] to reverse the Decision of the
Commissioner of Social Security, and Defendant responded with a motion for summary
judgment [Dkt. 16]. We hereby construe Plaintiff’s brief in support of reversing the decision of
the Commissioner as a motion. For the following reasons, Plaintiff’s motion is granted and the
Commissioner’s motion is denied. The Administrative Law Judge’s (“ALJ”) decision is
remanded for further proceedings consistent with this opinion.
I.

Background
a.

Procedural History and Claimant’s Background

Plaintiff filed an application for disability insurance benefits on July 31, 2012 with an
alleged onset date of disability of May 18, 2004. [Record (“R.”) 166.] His last day of work
coincided with his alleged onset date. [Id.] Plaintiff was last insured for disability insurance
benefits on December 31, 2010. [R. 18.] To obtain benefits, Plaintiff would have to establish
1

Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to Federal Rule of Civil
Procedure 25(d).

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disability onset on or before his date last insured, which was December 31, 2010. See 42 U.S.C.
§ 416(i).
During the application process for disability insurance benefits, Plaintiff claimed that he
stopped working on the alleged onset date due to a combination of physical impairments: high
blood pressure, lower back pain, high sugar level, and bad knees. [R. 202.] Plaintiff’s relevant
past work consisted of one occupation: from January 1979 through May 2004, he worked as a
yard manager at the Chicago Transportation Authority (“CTA”). [R. 40, 203.] In this role,
Plaintiff controlled about 20 switchmen, maintained the rolling stock, pulled carts into the yard,
stored and repaired carts, and was responsible for adding and cutting the number of trains during
rush hours. [R. 204.]
Plaintiff’s disability insurance benefits application was denied initially on January 8,
2013, and again upon reconsideration on June 13, 2013. [R. 17.] Thereafter, Plaintiff requested
an administrative hearing, which was held on February 23, 2015 before ALJ Regina M Kossek.
[R. 17-26, 91.] At his hearing before the ALJ, Plaintiff testified that he was admitted to the
hospital for six days in May 2004 due to high blood pressure and dizziness. [R. 41.] Plaintiff
testified that he received short term disability from the CTA following his hospitalization. When
his short term disability benefits expired, the Plaintiff did not apply for long term disability
benefits because he had income through rental properties and claimed that he “didn’t really get
fully informed as to my rights to my benefits.” [R. 43.] Plaintiff also testified that he did not
make a claim for worker’s compensation benefits because his brother passed away around the
same time “and [Plaintiff] didn’t exercise the rights that [he] should at the time . . . they should
have been exercised.” [R.45.] Instead, Plaintiff took early retirement from the CTA because he
did not feel he could perform his job as a yard manager. [R. 42, 44.] Plaintiff posited two

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reasons why he could no longer perform his duties. First, the dizziness that had led to his
hospitalization made working around heavy moving equipment perilous. [R. 50.] Second, he
stated that he could no longer do the walking and climbing that his work required because his
back pain was too severe. [R. 44.]
The medical treatment documentation in the administrative record is fairly sparse. The
majority of the medical records consists of treatment notes from Dr. Claudia Johnson, M.D., of
the Claude Mandel Clinic.

The treatment notes are from visits between June 2011 and

November 2014 (all after Plaintiff’s date last insured), and show that Plaintiff regularly reported
knee and back pain. There is very little in the way of objective findings or plans for Plaintiff’s
care in the notes, and there are no diagnostic tests. On March 8, 2013, Dr. Johnson completed a
Physical Residual Functional Capacity Questionnaire. [R. 279-82.] Dr. Johnson reported that
Plaintiff suffered from daily back and knee pain that was aggravated by standing; she further
opined that he would be limited to one hour of standing and 45 minutes of sitting at one time,
and could sit for four hours and stand/walk for two hours in an eight-hour workday. [R. 280-81.]
Dr. Johnson also claimed that Plaintiff could walk two blocks without rest or severe pain. [R.
280.] Plaintiff’s counsel attempted to subpoena older records from the Claude Mandel Clinic,
but was unable to do so. Plaintiff requested a subpoena from the ALJ on the Friday, February
20, 2015, which was shortly before the ALJ hearing on Monday, February 23, 2015; at the
hearing, Plaintiff’s counsel stated that he had been trying to get the older record from the Claude
Mandel Clinic since December 2013, but despite getting “every indication . . . that they were
going to comply and produce these records,” the clinic did not provide Plaintiff with the records.
[R. 34-35.] As a last resort, Plaintiff filed the late subpoena to alert the ALJ to the fact that the
records were not available. [R. 35-36.] On three occasions, the ALJ asked Plaintiff’s counsel

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“how dare [he]” seek such a late subpoena, and stated that she found it “disrespectful to the
process.” [R. 33-34, 36.]
On March 23, 2015, the ALJ denied Plaintiff’s claim, finding that Plaintiff was capable
of performing his past relevant work as a yardmaster as generally performed, thus making him
not disabled within the meaning of the Social Security Act. [R. 25.] The Appeals Council then
denied Plaintiff’s request for review, leaving the ALJ’s decision as the final decision of the
Commissioner. [R. 1.] The ALJ’s decision is currently under review by this Court under 42
U.S.C. § 405(g).
b.

The ALJ’s Decision
The ALJ issued a written decision on March 23, 2015 following the five-step analytical

process required by 20 C.F.R. 404.1520. [R. 14-26.] As an initial matter, the ALJ found that
Plaintiff met the insured status requirements of the Act through December 31, 2010. [R. 19.] At
step one, the ALJ found Plaintiff had not engaged in substantial gainful activity from the alleged
onset date of May 18, 2004 through the date last insured of December 31, 2010. [Id.] At step
two, the ALJ concluded that Plaintiff had the severe impairments of degenerative disc disease
and osteoarthritis. [Id.] Other impairments were determined to be non-severe. [R. 20.] At step
three, the ALJ concluded Plaintiff did not have an impairment or combination of impairments
that met or medically equaled the severity of a listed impairment. [Id.] Prior to step four, the ALJ
found that through the date of last insured, Plaintiff maintained the residual function capacity
(“RFC”) to perform light work, except that Plaintiff could frequently climb stairs, ramps,
ladders, or scaffolds, balance, stoop, kneel, crouch, and crawl. [R. 21.]
In making this finding, the ALJ determined Claimant’s creditably to be “somewhat
limited” and his symptoms to be “unsupported and inconsistent with the medical records.” [R.

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23.] Factors considered by the ALJ included minimal treatment received by Claimant (2-3 doctor
visits per year, no aggressive treatment) as of his date last insured, failure of Claimant to seek
disability or worker’s compensation upon retirement, no emergency room visits, and Claimant’s
testimony that his alleged degenerative condition had not worsened since 2009-2010. [R. 23.]
Second, the ALJ gave extremely minimal weight to the medical opinion of Claimant’s
treating physician, Claudia M. Johnson, M.D., and the RFC questionnaire she completed on
March 8, 2013. [R. 23.] The ALJ determined Dr. Johnson’s opinion to be speculative, based in
Claimant’s subjective complaints, and “inconsistent with the longitudinal medical record,” which
consisted of “no aggressive treatment, no imaging or clinical findings, and no emergency room
visits or hospitalizations to support [Dr. Johnson’s] assessment.” [R. 23, 24.] Furthermore, the
ALJ found Dr. Johnson’s RFC assessment used a check-list form, lacked explanation, was
completed more than two years after claimant’s date last insured, did not specify a time period
for which her opinion applied, and contradicted her earlier statements which indicated
Claimant’s treatment posed no restrictions on his work ability. [R. 24.]
Third, the ALJ did not weigh the opinion of the Medical Expert who testified at
Claimant’s hearing because the expert did not have access to the medical record at the time of
the hearing and thus could not provide a certain RFC assessment. [Id.]
Fourth, the ALJ gave little weight to the opinion of State agency medical consultants,
who determined Claimant’s only severe impairment was hypertension. The ALJ determined
medical evidence received through the hearing level indicated claimant’s hypertension was
controlled with medication. [Id.]
Furthermore, the ALJ – citing HALLEX I-2-5-78 - denied Claimant’s subpoena request
to obtain treatment records from Claude Mandel Clinic that potentially dated to 2009 and 2010

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[R. 17, 35, 161.] The ALJ denied Claimant’s subpoena request because the request was made
less than five days before the hearing date. [R. 17.] Additionally, the ALJ determined the
evidence in question was not reasonably necessary for full presentation of Claimant’s case. [Id.]
Claimant’s file contained more recent medical records from the Claude Mandel Clinic than those
requested through subpoena. [Id.] According to the ALJ, because Claimant’s alleged disabling
condition is degenerative, the more recent medical records included in the file should be more
indicative of claimant’s condition than the earlier records. [Id.]
At step four, the ALJ concluded Plaintiff was capable of performing his past relevant
work as a yardmaster as generally performed. [R. 25.] In reaching this conclusion, the ALJ relied
on the VE’s testimony, determining Plaintiff performed the job as yardmaster at the medium
exertional but that the position is generally performed in the economy at the light exertional level
within Plaintiff’s RFC limitations. Because the ALJ determined Plaintiff to be capable of
performing past relevant work as a yardmaster, Plaintiff was found not disabled as defined by the
Social Security Act. [Id.]
c.

Issues Before the Court
Plaintiff now challenges the ALJ’s RFC findings on four grounds. First, Plaintiff

contends that the ALJ failed to properly consider the medical opinions of Plaintiff’s treating
physician and the medical expert that testified at Plaintiff’s administrative hearing. [Dkt. 15 at 4–
8.] Second, Plaintiff argues the ALJ’s RFC assessment lacks substantial evidentiary support.
[Dkt. 15 at 8–11.] Third, Plaintiff contends the ALJ did not properly evaluate Plaintiff’s
symptoms. [Dkt. 15 at 11–15.] Finally, Plaintiff argues the ALJ erred in her duty to fully develop
the record. [Dkt. 15 at 15–16.] Because the Court remands on Plaintiff’s first contention, the
Court need not reach the other issues, but does provide some guidance to the ALJ on remand, as

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discussed below.
II. Social Security Regulations and Standard of Review
The Social Security Act requires all applicants to prove they are disabled as of their date
last insured to be eligible for disability insurance benefits. ALJs are required to follow a standard
five-step test inquiry to assess whether a claimant suffers from a disability as defined in the
Social Security Act. The ALJ must determine: (1) whether the claimant is currently engaged in
substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the
severe impairment meets or equals impairment listed by the Commissioner; (4) whether the
claimant is capable of performing past relevant work; and (5) considering the claimant’s age,
education, and prior work experience, whether they are capable of adjusting to other work in the
national economy. 20 C.F.R. § 404.1520. An affirmative answer leads either to the next step, or
at steps 3 and 5, a finding of disabled. A negative answer at any point other than step 3 leads to a
finding of not disabled. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). The burden of proof
rests with the claimant in steps one through four, and shifts to the Commissioner in step five. Id.
Section 405(g) of the Compilation of The Social Security Laws states “[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
if the final decision of the Commissioner of Social Security is based upon substantial evidence
and the proper legal criteria. Scheck, 357 F.3d at 699. 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). In
reviewing a commissioner’s decision, the Court may not “reweigh evidence, resolve conflicts in
the record, decide questions of credibility, or, in general, substitute [its] own judgment for that of

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the Commissioner.” Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Even where
“reasonable minds could differ” or an alternative position is also supported by substantial
evidence, the ALJ’s judgment must be affirmed if supported by substantial evidence. Elder v.
Astrue, 529 F.3d 408, 413 (7th Cir. 2008); Scheck, 357 F.3d at 699.
Although not required to address every piece of evidence when denying benefits, “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). The reasoning must “build an
accurate and logical bridge form the evidence to his conclusion,” sufficient to allow a reviewing
court an ability to assess the findings and provide the claimant meaningful judicial review.
Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014); Clifford, 227 F.3d at 872. “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).
III. Discussion
A.

The ALJ Failed to Properly Weigh the Medical Opinion Evidence

Pursuant to 20 C.F.R. § 404.1527(c), ALJs are required to “evaluate every medical
opinion [they] receive.” For treating physicians, if the opinion “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record,” the treating physician’s opinion is given controlling
weight. 20 C.F.R. § 404.1527(c)(2). If the ALJ does not give the treating physician’s opinion
controlling weight, the ALJ is to consider the following factors in determining what weight to
give the opinion: 1) the length of the treatment relationship and the frequency of examination; 2)
the nature and extent of the treatment relationship; 3) supportability; 4) consistency with the

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record as a whole; 5) the treating physician’s specialty, if any; and 6) any other factors which
tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)-(6). The ALJ “will always
give good reasons in [the] notice of determination or decision for the weight [the ALJ] give[s]
[the] treating source’s medical opinion.” 20 C.F.R. § 404.1527(c)(2).

Treating physicians are

not the only opinion weighed in this manner; “[r]egardless of its source,” the ALJ “will evaluate
every medical opinion [the ALJ] receive[s],” and consider all of the factors listed above. 20
C.F.R. § 404.1527(c)(2).
Here, the ALJ gave Dr. Johnson’s opinion “extremely limited weight because it is
inconsistent with the longitudinal medical record.” [R. 23.] In particular, the ALJ believed that
the record lacked “aggressive treatment,” “imaging or clinical findings,” and “emergency room
visits or hospitalizations . . . which one would expect given the restrictive limitations [Dr.
Johnson] assessed.” [R. 24.] The ALJ further reasoned that “the checklist-style form appears to
have been completed as an accommodation to the claimant and includes only conclusions
regarding her functional limitations without any rationale for those conclusions.” [R. 24.]
The Court does not believe that these qualify as “good reasons” for deciding to give Dr.
Johnson’s opinions “extremely limited weight.” First, the ALJ is drawing conclusions from the
evidence without any basis in fact. There is no indication as to how or why the ALJ concluded
that the RFC questionnaire was “completed as an accommodation to the claimant,” and this
represents rank speculation on the part of the ALJ that is presented as evidence. Second, the ALJ
does not have any evidence or medical expert testimony to support her conclusion that “one
would expect” additional medical treatment to support Dr. Johnson’s proposed limitations on
Plaintiff’s work abilities.

See Myles v. Astrue, 582 F.3d 672, 677 (7th Cir. 2009) (ALJ

impermissibly “played doctor” by finding that claimant’s condition was “less serious because it

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was treated only with oral medication and not with insulin therapy,” when “no doctor gave any
reason why insulin was not prescribed”); see also, Schmidt v. Sullivan, 914 F.2d 117, 118 (7th
Cir. 1990) (“Common sense can mislead; lay intuitions about medical phenomena are often
wrong”).
Even if the ALJ had given sufficient reasons for failing to assign controlling weight to
Dr. Johnson’s treating physician opinion, she failed to consider any of the factors described
above. For example, the ALJ failed to give any consideration to Dr. Johnson’s longstanding
treatment history with the Plaintiff, even though, as a treating physician, Dr. Johnson is “likely to
be the medical professional[] most able to provide a detailed, longitudinal picture of [Plaintiff’s]
medical impairment(s) and may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone or from reports of individual
examinations, such as consultative or brief hospitalizations.” See 20 C.F.R. § 404.1527(c)(2). In
fact, the ALJ failed to consider those factors when assigning weight to any of the medical
opinions in this case. [See R.24.] The ALJ also refused to weigh the opinion of the medical
expert “because the medical expert did not have access to the medical record at the time of the
hearing and he did not provide an assessment with certainty.” [R. 24.] Instead of ensuring that a
complete record was developed by providing the medical expert with those materials or with
time to review them, the ALJ abdicated her responsibility to both adequately develop the record
and to properly weigh all medical opinion evidence. In short, the ALJ failed to properly weigh
the medical opinion evidence in this case, requiring remand to engage in the necessary
discussion of that evidence pursuant to the relevant regulations and case law.
B.

Other Issues on Appeal

Because the Court remands on this issue, it need not reach the other issues raised by the

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Plaintiff on appeal. However, the Court notes that the ALJ refused to issue a subpoena for
records from Plaintiff’s treating physician for a period that pre-dated the date last insured, citing
HALLEX I-2-5-78.

While the Court understands that the provision cited by the ALJ is

permissive (i.e., the ALJ “may issue a subpoena”), it allows the ALJ to subpoena such records
“[w]hen it is reasonably necessary for a full presentation of the case.” HALLEX I-2-5-78. The
ALJ claimed that the records were not necessary for the case because “claimant’s allegedly
disabling condition is degenerative, the more recent records should be indicative of the
claimant’s condition at the earlier date.” [R. 17.]

The ALJ reached this conclusion without

citing any medical evidence or testimony to support it. The more prudent course of action would
have been to subpoena the records to ensure that the ALJ had a record of the Plaintiff’s condition
during the relevant time period, rather than drawing ipse dixit medical conclusions based on an
incomplete set of medical records. The Court is also troubled by the adversarial and accusatory
tone struck by the ALJ during the hearing when the issue of Plaintiff’s subpoena was discussed.
The Court believes that it would behoove both the Plaintiff and the ALJ to ensure that a complete
set of Plaintiff’s records from the Claude Mandel Clinic are available in this case on remand.
Additionally, Plaintiff argued that the ALJ committed reversible symptom evaluation
errors pursuant to Social Security Ruling (“SSR”) 16-3p.

However, the Social Security

Administration recently clarified that SSR 16-3p only applies when ALJs “make determinations
on or after March 28, 2016,” and that SSR 96-7p governs cases decided before the
aforementioned date. See Notice of Social Security Ruling, 82 Fed. Reg. 49462 n.27 (Oct. 25,
2017). The ALJ issued her opinion on March 23, 2015. [R. 26.] Therefore, the ALJ properly
applied SSR 96-7p Plaintiff’s arguments related to SSR 16-3p are moot. Nonetheless, SSR 163p will apply on remand. See Notice of Social Security Ruling, 82 Fed. Reg. 49462 n.27 (Oct.

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25, 2017). The Court recommends that the ALJ pay particular attention to this ruling, which
requires the ALJ to “consider and address reasons for not pursuing treatment that are pertinent to
an individual’s case.” SSR 16-3p. Much of the ALJ’s reasoning for finding the Plaintiff’s
“credibility somewhat limited” was based on the Plaintiff’s failure to pursue aggressive treatment
or emergency room visits, as well as the fact that Plaintiff did not pursue worker’s compensation
or long term disability benefits. However, the ALJ failed to consider any of the factors listed in
SSR 16-3p (e.g., the inability to pay for more aggressive treatment or emergency room visits) or
the Plaintiff’s reasons for failing to pursue other benefits (e.g., the he was unaware of his rights
and struggling with the loss of his siblings).

The ALJ should take care to make such

considerations on remand, as per the requirements of SSR 16-3p.
CONCLUSION
For the following reasons, Plaintiff’s motion is granted and the Commissioner’s motion is
denied. The Administrative Law Judge’s (“ALJ”) decision is remanded for further proceedings
consistent with this opinion.

ENTER:
DATED:

11/9/2017

____________________________
Susan E. Cox
United States Magistrate Judge

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