Dean v. Colvin
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 7/27/2018.(rbf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DELORIS DEAN,
Claimant,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the U.S. Social
Security Administration,
Defendant.
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No. 16 CV 9269
Magistrate Judge Michael T. Mason
MEMORANDUM OPINION AND ORDER
Plaintiff Deloris Dean (“Claimant”) filed a motion for summary judgment seeking
reversal of the final decision of the Commissioner of Social Security (“Commissioner”),
denying her claim for disability benefits. The Commissioner has filed a cross-motion
asking the Court to uphold the decision of the Administrative Law Judge (“ALJ”). For
the reasons set forth below, Claimant’s motion for summary judgment (Dkt. 17) is
granted and the Commissioner’s motion for summary judgment (Dkt. 21) is denied.
I. Background
A. Procedural History
Claimant filed her applications for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) on November 5, 2012 due to two strokes,
obstructive sleep apnea, diabetes and hypertension. (R. 231.) Claimant’s applications
were denied initially and on reconsideration. (R. 134, 145.) Claimant requested a
hearing before an ALJ, which was held on December 17, 2014. (R. 35-83.) On April
13, 2015, the ALJ issued a written decision finding that Claimant was not disabled. (R.
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17-34.) On July 26, 2016, Claimant’s request for review by the Appeals Council was
denied, making the ALJ’s decision the final decision of the Commissioner. (R. 1-6.)
This action followed.
B. Relevant Medical Evidence
1. Treating Physicians
Evidence before the ALJ dates back to October of 2012. (R. 384.) Claimant
claims she suffered a stroke in 2012. (R. 54.) A discharge report from St. James
Hospital shows that she was admitted with complaints of right arm and facial weakness
and numbness, and she was diagnosed with a transient ischemic attack with a rule out
of cerebrovascular accident. (R. 392.) She was also diagnosed with diabetes mellitus,
dyslipidemia, a urinary tract infection, an anxiety disorder, and substance abuse. (Id.)
There are no treatment notes, doctor visits, or hospital visits in the record
between October of 2012 and November of 2013 that relate to Claimant’s ambulatory
limitations. Claimant underwent a physical therapy assessment with Dr. John Williams,
PT, in November of 2013. Claimant was recommended skilled physical therapy to
address deficits in balance, gait, and endurance during this assessment. (R. 541.) She
presented to the assessment with pain, and she demonstrated reduced balance, gait
deficits, significant muscle weakness, decreased range of motion and flexibility, and
reduced endurance. (Id.) Dr. Williams gave Claimant a short term goal of an ability to
ambulate 300 feet with a rolling walker and noted that Claimant had a mild/moderate left
antalgic gait pattern while using her walker, and that without her assistive device, she
had an increased hip sway while ambulating. (R. 543.) Physical therapy reports from
January of 2014 show that Claimant was using her cane. (R. 843.)
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2. Agency Physicians
In March of 2013, Claimant underwent a consultative examination for the Bureau
of Disability Determination Services with Dr. Albert Osei. (R. 488.) During that exam,
the adjudicator noted that Claimant had mild difficulties getting on and off the exam
table and mild difficulties getting up from the sitting position. (R. 491.) Dr. Osei also
noted that Claimant could walk greater than 50 feet both with using a walker and without
the walker; however, without the walker, she had mild dragging of her left foot and less
swinging of her left arm. (R. 429.) She was able to perform toe, heel and tandem walk
with marked unsteadiness and could squat with holding, but she was unable to hop on
either leg. (Id.) This information was reviewed by physician Vidya Madala, M.D., also in
March of 2013. Dr. Madala noted that Claimant walked with a walker, but that she was
capable of walking with mild difficulties without any assistive device. (R. 91.) Dr.
Madala asserted that Claimant was unable to walk for long without pain and needed the
use of a walker or a cane. (R. 92.)
In November of 2013, Claimant attended an internal medicine consultative
examination for the Bureau of Disability Determination Services with Dr. Charles
Carlton. (R. 516.) At this exam, Claimant stated she suffered another stroke in August
of 2013. (R. 517.) There are no records from the hospital from the time period in which
the stroke allegedly occurred. While at the hospital, Claimant reports to have received
physical therapy, but that she was experiencing balance problems and was given a
prescription for additional physical therapy on an outpatient basis. (Id.) Claimant also
claims that she was prescribed a walker during her hospitalization for the stroke in
August of 2013 to help with balance. (Id.) Dr. Carlton once again noted that Claimant
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was able to walk greater than 50 feet without an assistive device, but that she displayed
some unsteadiness on her feet while attempting to toe walk, heel walk, squat, and
tandem walk. (R. 518.) He also noted a mild degree of difficulty in performance without
the use of an assistive device. (R. 521.) The reviewing physician on consideration, Dr.
Julio Pardo, M.D., opined in January of 2014 that Claimant needs a walker or cane,
noting mild difficulties in walking when not using any assistive device. (R. 112.)
C. Claimant’s Testimony
Claimant appeared at the hearing represented by her attorney and offered the
following testimony. At the time of the hearing, Claimant was 54 years old and living
with her sister, mother, and father. (R. 53, 63.) Claimant began using a walker after her
stroke in 2012. (R. 71.) After her stroke in 2013, she again was using a walker and a
cane. (R. 46.) She started using the cane while in physical therapy, and she was told
at the hospital to use the cane to avoid falls. (R. 71.) She stated that she uses the
cane because she has trouble with balance and is a fall risk, so the cane helps her to
get around. (R. 51.) Claimant also indicated that she has fallen down the stairs due to
her struggle with balance. (R. 58.) She stated that she cannot walk long distances, so
she uses a scooter cart when she goes to the store. (R. 67.) She also claimed she can
only walk for ten minutes before she needs a break, and that she can stand twenty to
twenty-five minutes before she needs to sit down. (Id.)
D. Vocational Expert Testimony
Vocational Expert (“VE”) Lee Knutson also appeared at the hearing. The VE first
classified Claimant’s past work under the Dictionary of Occupational Titles (“DOT”) as a
CNA (medium/semiskilled, or heavy as performed) and a companion (light/semi-skilled).
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(R. 79.) Next, the ALJ asked the VE if an individual was limited to light work and to
occasional climbing ladders, ropes or scaffold; frequent climbing ramps or stairs;
frequent balancing, stooping, crouching, kneeling, and crawling, they could perform
Claimant’s past work. (R. 79-81.) The VE testified that such an individual could
perform her past work as a companion, as well as an assembler, maid, or housekeeper.
(Id.) Using the same hypothetical, but changing to occasional climbing ramps or stairs,
occasional balancing, stooping, crouching, kneeling, and crawling, the VE stated
Claimant would still be able to perform her past work as a companion as well as an
assembler, maid, or housekeeper. (Id.) Changing the hypothetical to no kneeling,
crawling, climbing of ladders, ropes or scaffold; occasional climbing of ramps or stairs;
no reaching with the left non-dominant upper extremity; occasional handling and
fingering with the left non-dominant upper extremity; limited to jobs which can be
performed while using a handheld assistive device at all times when standing, and the
contralateral upper extremity cannot be used to carry objects, the VE testified that such
an individual would not be able to perform any of the past work. (Id.) He stated that the
use of a cane would limit her to sedentary work, and the inability to use the left hand for
reaching would eliminate all work entirely in the workforce. (Id.)
II. Analysis
A. Standard of Review
This Court will affirm the ALJ's decision if it is supported by substantial evidence
and free from legal error. 42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940
(7th Cir. 2002). Substantial evidence is more than a scintilla of evidence; it is "such
relevant evidence as a reasonable mind might accept as adequate to support a
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conclusion." Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995) (quoting Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). We must consider
the entire administrative record, but will not "reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute our own judgment for that of the Commissioner."
Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (citing Clifford v. Apfel, 227 F.3d
863, 869 (7th Cir. 2000)). This Court will "conduct a critical review of the evidence" and
we will remand if the Commissioner's decision “lacks evidentiary support or an adequate
discussion of the issues." Lopez, 336 F.3d at 539 (quoting Steele, 290 F.3d at 940).
In addition, while the ALJ "is not required to address every piece of evidence," he
"must build an accurate and logical bridge from evidence to his conclusion." Clifford,
227 F.3d at 872. The ALJ must "sufficiently articulate [his] assessment of the evidence
to assure us that the ALJ considered the important evidence ... [and to enable] us to
trace the path of the ALJ's reasoning." Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir.
1993) (per curiam) (quoting Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985)).
B. Analysis under the Social Security Act
In order to qualify for SSI or DIB, a claimant must be "disabled" under the Social
Security Act (the "Act"). A person is disabled under the Act if "he or she has an inability
to engage in any substantial gainful activity by reason of a medically determinable
physical or mental impairment which can be expected to last for a continuous period of
not less than twelve months." 42 U.S.C. § 423(d)(1)(A). In determining whether a
claimant is disabled, the ALJ must consider the following five-step inquiry: "(1) whether
the claimant is currently employed, (2) whether the claimant has a severe impairment,
(3) whether the claimant's impairment is one that the Commissioner considers
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conclusively disabling, (4) if the claimant does not have a conclusively disabling
impairment, whether he can perform past relevant work, and (5) whether the claimant is
capable of performing any work in the national economy." Dixon v. Massanari, 270 F.3d
1171, 1176 (7th Cir. 2001). The claimant has the burden of establishing disability at
steps one through four. Zurawski v. Halter, 245 F.3d 881, 885-86 (7th Cir. 2001). If the
claimant reaches step five, the burden then shifts to the Commissioner to show that "the
claimant is capable of performing work in the national economy." Id. at 886.
Here, the ALJ applied the five-step process in denying Claimant’s application for
benefits. At step one, the ALJ determined that Claimant had not engaged in substantial
gainful activity since her alleged onset date of October 1, 2013. (R. 22.) At step two,
the ALJ determined that Claimant had the following severe impairments:
cerebrovascular accident, hypertension, and obesity. (Id.) The ALJ found that
Claimant’s obstructive sleep apnea, asthma, and diabetes mellitus were non-severe
impairments. (R. 23.) At step three, the ALJ concluded that Claimant does not have an
impairment or combination of impairments that meets or medically equals the severity of
one of the Commissioner’s listed impairments. (R. 23.)
The ALJ went on to assess Claimant’s RFC, finding Claimant had the residual
functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) and
416.967(b), except occasional balancing, stooping, kneeling, crouching, crawling, and
climbing of ladders, ropes, scaffolds, ramps and stairs. (R. 24.) Based on this RFC, at
step four, the ALJ found that Claimant is capable of performing past relevant work as a
companion. (R. 27-28). As a result, the ALJ entered a finding of not disabled. (Id.)
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Claimant now argues that the ALJ’s decision is not supported by substantial
evidence and requires remand. The only issue in this appeal is whether the ALJ
improperly evaluated Claimant’s need for an assistive device. We address Claimant’s
argument below and find that the ALJ’s opinion should be remanded.
C. The ALJ Failed to Build An Accurate And Logical Bridge From The Evidence
To Her Conclusion That Claimant Does Not Need an Assistive Device.
Claimant contends that the ALJ failed to include at least some use of an assistive
device in the RFC. (R. 51, 67.) She argues that although the cane was never
prescribed by a doctor, there was sufficient evidence in the record that the ALJ should
have considered the use of a cane or walker in making his determination. In response,
the Commissioner argues that “to find that a hand-held assistive device is medically
required, there must be medical documentation establishing the need for a hand-held
assistive device to aid in walking or standing, and describing the circumstances for
which it is needed.” SSR 96-8p, 1196 SSR LEXIS 5. The Commissioner asserts that
nothing in the record establishes that a cane was medically necessary.
In making a disability determination, an ALJ's RFC assessment must include an
evaluation of medically determinable impairments. See Villano v. Astrue, 556 F.3d 558,
563 (7th Cir. 2009). This evaluation must be captured in a narrative discussion
describing how the evidence supports each conclusion, citing specific medical facts
(e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).
SSR 96-8p, 1996 SSR LEXIS 5; see also Briscoe ex rel. Taylor v. Barnhart, 425 F.3d
345, 352 (7th Cir. 2005). “Although the ALJ need not discuss every piece of evidence
in the record, he must confront the evidence that does not support his conclusion and
explain why it was rejected.” Thomas v. Colvin, 534 Fed. Appx 546, 550 (7th Cir. 2013).
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Here, we find that the record includes sufficient evidence regarding Claimant’s
need for an assistive device, which the ALJ should not have disregarded. For example,
Claimant noted in her functional report that she uses a cane or walker. (R. 292.)
Claimant was using her cane during the hearing and testified as to her need for it. (R.
45-46, 57-58, 67.) She also stated that she was prescribed a walker for balance during
her hospital stay after her most recent stroke in August of 2013. (R. 517.) Although
there are no medical records to corroborate her claim that her walker was prescribed at
the hospital, physical therapy reports from November of 2013 indicate that she was still
using a walker, and the physical therapist incorporated her walker into the short-term
goals. (R. 541.) The physical therapy reports also note that Claimant was still using a
cane in January of 2014. (R. 843.) Claimant testified as to balance issues, which she
asserts are the reason she needs a cane. (R. 51.) Further, Claimant asserts that a
nurse at the hospital instructed her to use her cane because of her instability. (R. 71.)
Moreover, the state physicians that the ALJ relied on to determine Claimant’s
RFC also noted that Claimant has a mild need for an assistive device. (R. 92, 112,
521.) The Commissioner argues that the ALJ properly noted that all the state
physicians opined that Plaintiff could walk for more than 50 feet without an assistive
device. However, the ALJ failed to properly evaluate the rest of the state physicians’
medical opinions, in which they noted mild difficulties in walking without an assistive
device and increased dragging of the left foot and decreased left arm swinging without
an assistive device. (R. 91, 112, 429, 518.) They also noted that Claimant cannot walk
for long without pain and needs an assistive device. (R. 92, 112, 521.) Dr. Charles
Carlton noted a mild degree of difficulty in performance without need/use of assistive
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device. (R. 521.) Despite this evidence, the ALJ excluded the use of an assistive
device from his RFC.
We find that this was an error that requires remand. In Parker v. Astrue, the
Seventh Circuit addressed an ALJ’s decision to disregard a claimant’s purported need
for a cane. 597 F.3d 920, 922 (7th Cir. 2010). The Court noted that “although the ALJ
thought it suspicious that plaintiff use[d] a cane when no physician had prescribed a
cane;” the Court held that “a cane does not require a prescription [because] it had been
suggested to plaintiff by an occupational therapist.” Parker, 597 F.3d at 922. Here,
while it is true that there is no prescription in the record, there are several references (in
addition to her testimony) in the record regarding Claimant’s need for a case. The ALJ
should have more thoroughly examined this evidence and articulated logical reasons for
disregarding this evidence in making his RFC findings. Thomas, 534 Fed. Appx. at 550
(remanding where the ALJ did not build the requisite logical bridge between the
evidence in the record that claimant needed a cane and the RFC that did not account
for a cane). In addition, although the Commissioner cites to medical evidence in the
record that Claimant can walk 50 feet without use of an assistive device, this is not the
same as the ability to sustain full time employment. See, e.g, Thomas, 534 Fed. Appx.
at 551 (“walking for 50 feet without a cane – ‘a brief excursion’ – does not demonstrate
an ability to stand for 6 hours.”); Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011)
(“brief excursion hardly demonstrates an ability to stand for 6 hours”).
And finally, we agree with Claimant that the ALJ should have included this
limitation in her hypothetical to the VE. Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir.
2002) (“hypothetical questions posed to the vocational expert ordinarily must include all
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limitations supported by the medical evidence in the record). The VE opined that the
need for a cane at all times would limit her to sedentary work, which the ALJ
disregarded. The Commissioner argues that the ALJ did not error here because
Claimant has not demonstrated that her past work entailed more than 50 feet of walking
at a time, or that she would be unable to do this work without the need for an assistive
device under limited circumstances. However, we note again that the ALJ cannot
disregard evidence in the record that is contrary to his determination. The record was
clear that Claimant needs a cane to perform some activities. The ALJ should have
included this factor into his hypotheticals to the VE.
For these reasons, we find that remand is required in this case. On remand, the
ALJ is to consider Claimant's testimony and the other evidence in the record about her
reliance on a cane. If the ALJ again determines that Claimant is not disabled, he or she
should adequately articulate their reasons for disregarding the evidence regarding
Claimant’s reliance on an assistive device.
III. Conclusion
For the foregoing reasons, Claimant’s motion for summary judgment is granted,
and the Commissioner’s motion for summary judgment is denied. It is so ordered.
DATED: July 27, 2018
_____________________________
The Honorable Michael T. Mason
United States Magistrate Judge
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