Peters v. Colvin

Filing 20

MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 8/21/2018.(rbf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANNIE PETERS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 16 CV 10805
Magistrate Judge Michael T. Mason

MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge:
Claimant Annie Peters (“Claimant”) seeks reversal of the final decision of the
Commissioner of Social Security (the “Commissioner”) denying her claim for
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42
U.S.C. § 1381 et seq. The Commissioner asks the Court to affirm the previous
decision. For the reasons set forth below, Claimant’s motion for summary judgment
(Dkt. 13) is granted and the Commissioner’s motion for summary judgment (Dkt. 17) is
denied.
I. BACKGROUND
A. Procedural History
On November 26, 2012, Claimant filed her application for SSI alleging disability
beginning on June 1, 2004 due to congestive heart failure, coronary heart disease,

1

hypertension, and thyroid disease. 1 Her application was denied initially and on
reconsideration. (R. 57-79.) Claimant appeared with counsel for a hearing before an
Administrative Law Judge (“ALJ”) on April 6, 2015. (R. 13-42.) On May 22, 2015, the
ALJ issued a written opinion, concluding Claimant was not under a disability since the
date the application was filed. (R. 83-100.) Claimant filed a timely request for review,
which was denied by the Appeal’s Council on September 26, 2016, making the ALJ’s
decision the final decision of the Commissioner. (R. 1-3.) This action followed and the
parties consented to the jurisdiction of this Court pursuant to 28 U.S.C. § 636(c).
B. Medical History
The records before the Court date back to 2011 and illustrate a history of
hypertension, coronary disease, hepatitis B, asthma, hypothyroidism, and obesity,
among other ailments. Records from Roseland Community Hospital from 2011 through
2014 reveal frequent visits to the Emergency Room (sometimes multiple times a month)
for various problems, including shortness of breath, chest pain, dizziness, abdominal
pain, and joint pain. (R. 324-437, 664-798, 928-1152.) She was usually treated,
discharged with pain medication, and advised to follow up with primary care physicians
for further assessment or treatment, though she often just returned to the ER with
additional complaints. Throughout the same period, claimant expressed repeated
complaints of pain in her knees, shoulder, and back to physicians at Heartland Health

1

Claimant apparently filed a prior application for SSI on March 2, 2009, alleging disability beginning
February 15, 2009. That claim was denied by an ALJ on June 30, 2011, and the Appeal’s Council
subsequently denied review. Because the current application was based on the same facts and issues
that were involved in the prior application, the ALJ in this matter only considered the question of disability
during the periods of June 1, 2004 to February 14, 2009 and from July 1, 2011 through the date of the
decision. Claimant takes no issue with the ALJ’s decision in this regard.

2

Center (R. 449-526) and Chicago Family Health Center (R. 312-315, 438-447, 527572.)
On November 2, 2012, primary care physician Dr. Catalano completed a medical
source statement. (R. 444-447.) According to Dr. Catalano, Claimant had more than
50% reduced capacity in her ability to walk, climb, push and pull, and up to 20%
reduced capacity in her ability to bend, stoop, and perform activities of daily living. (R.
447.) Around the same time, another primary care physician, Dr. Thota, submitted a
letter indicating that Claimant is “unable to work, due to her recurrent chest pain.” (R.
448.) Dr. Thota explained that Claimant was also being evaluated for coronary artery
disease and treated for hypertension, history of chronic heart failure, and thyroid
disease. (Id.)
Claimant underwent a consultative exam on September 27, 2013. She reported
a history of hypertension and congestive heart failure, and pain in her knee. (R. 856.)
She said she did not have any difficulties standing or walking. (Id.) Upon physical
exam, Claimant’s gait was normal. (R. 857.) Her range of motion of the spine and
extremities was normal except for slight decreased flexion in her knees. (R. 858.) The
consulting physician assessed chronic hypertension, history of congestive heart failure,
hypothyroidism, arthritis, asthma, and obesity. (R. 858-59.)
By way of a letter, Dominique Davis, the resident services education coordinator
at Mercy Housing, reported that she knows Claimant as a student of the Mercy Housing
“Literacy Program.” (R. 874.) In conjunction with that program, Ms. Davis administered
the Test of Adult Basic Education (“TABE”) to Claimant in October of 2014. (Id.) At that
time, Claimant “scored a grade level equivalency of 4.1.” (Id.) Ms. Davis explained that

3

despite continued participation in the program, Claimant has shown “minimal progress
in grade level gains,” “struggles substantially with maintaining focus for extended
periods of time and has difficulty concentrating on qualitative reasoning tasks.” (Id.)
C. Hearing Testimony
Claimant appeared at a hearing before the ALJ and provided testimony regarding
her symptoms and daily activities. At the time of the hearing, she was 48 years old and
living by herself in an apartment complex. (R. 21, 26.) She completed eighth grade.
(Id.)
Claimant described daily lower back pain, which has worsened over a six-year
period. (R. 22, 31.) It is triggered while lying down flat, while trying to get out of the tub,
and flares up while sitting. (R. 24, 30-31.) For relief, Claimant lays on her side for thirty
minutes at a time about three times a day. (R. 32-33.) She uses heating pads daily,
has taken muscle relaxers in the past, and was recently referred for massage therapy.
(R. 24, 31.)
Claimant’s asthma and heart problems cause shortness of breath and chest
pains, in particular while trying to perform daily activities, such as dressing or bathing.
(R. 25, 29-30.) She takes nitroglycerin once a week, but it causes headaches. (R. 25.)
Claimant also testified to swelling in her left foot and right hand, and arthritis in
her left knee, right shoulder, and possibly right elbow. (R. 26.) She cannot comb her
hair with her right hand and has trouble putting on her shoes. (R. 27.) Her neighbors
often come over to help her get dressed, wash clothes, and cook. (R. 27-28.) She
spends the majority of her time watching television in her own apartment or with her

4

neighbors. (R. 28.) She smokes cigarettes every day, but drinks only on special
occasions. (R. 29.)
A vocational expert (“VE”) also offered testimony at the hearing. The VE agreed
that Claimant was a “younger individual” (45-49), with limited education, and no past
relevant work. (R. 34.) The ALJ proposed a number of hypothetical individuals to the
VE, including one who could stand and walk for two hours in an eight-hour day, sit for
six; occasionally lift twenty pounds, frequently ten; must avoid concentrated exposure to
extreme temperatures and pulmonary irritants; could not climb ladders ropes or
scaffolds; could occasionally climb stairs and ramps, kneel crouch and crawl; and could
occasionally reach with the right, dominant arm. (R. 34-39.) According to the VE, such
an individual could perform the sedentary, unskilled jobs of circuit board assembler,
address clerk, and document preparer. (R. 38-39.)
The VE confirmed that an individual who was off task for more than twenty
percent of the day would be precluded from all competitive work. (R. 39.) Similarly, an
individual who needed to take three thirty-minute breaks a day would be unable to
maintain competitive work. (R. 40.)
II. LEGAL 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); Stepp v. Colvin, 795 F.3d 711, 718 (7th
Cir. 2015); Sims v. Barnhart, 309 F.3d 424, 428 (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 conclusion.” Diaz v. Chater, 55 F.3d 300, 305

5

(7th Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). We must
consider the entire administrative record, but will not “re-weigh evidence, resolve
conflicts, decide questions of credibility, or substitute our own judgment for that of the
Commissioner.” McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011). This Court will
“conduct a critical review of the evidence” and will not let the Commissioner’s decision
stand “if it lacks evidentiary support or an adequate discussion of the issues.” Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (quoting Steele v. Barnhart, 290 F.3d 936,
940 (7th Cir. 2002)).
Although this Court accords great deference to the ALJ’s determination, it “must
do more than merely rubber stamp the ALJ’s decision.” Scott v. Barnhart, 297 F.3d 589,
593 (7th Cir. 2002) (citation omitted). The ALJ “must build an accurate and logical
bridge from the evidence to her conclusion,” although she need not discuss every piece
of evidence in the record. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). At
a minimum, 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, 990 F.2d 180, 181 (7th Cir. 1993)
(per curiam) (quoting Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985) (internal
quotations omitted)).
B. Analysis under the Social Security Act
To qualify for SSI, a claimant must be disabled under the Social Security Act. A
claimant is disabled if she is “unable 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

6

continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). In
determining whether a claimant is disabled, the ALJ must consider the following fivestep 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 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, 270 F.3d at 1176. The claimant has the burden of establishing a 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.
C. The ALJ’s Decision
The ALJ applied the five-step analysis in determining Claimant was not disabled.
At step one, the ALJ determined that Claimant had not engaged in substantial gainful
activity since the application date. (R. 85.) Next, the ALJ concluded that Claimant
suffered from the following severe impairments: coronary artery disease, congestive
heart failure, obesity, hepatitis B, hypothyroidism, asthma, diabetes mellitus, and
unspecified arthralgias. (R. 85-86.) At step three, the ALJ decided that Claimant’s
impairments and combination of impairments did not meet or medically equal any of the
SSA’s Listings. (R. 86-88.)
Before progressing to step four, the ALJ assessed Claimant’s residual functional
capacity (“RFC”), ultimately concluding that Claimant could perform sedentary work as
defined in 20 CFR 416.967(a), with some additional limitations. Specifically, the ALJ

7

found the Claimant could lift and carry twenty pounds occasionally, ten pounds
frequently, sit for six hours and stand for two hours in an eight-hour day; occasionally
crouch, kneel, crawl, climb ramps or stairs, and reach with the right dominant arm;
never climb ladders, ropes or scaffolds; and must avoid concentrated exposure to
extreme temperatures and environmental irritants. (R. 88-99.) There was no past
relevant work to consider at step four but, based on the RFC, the ALJ concluded at step
five that there were jobs claimant could perform such as circuit board assembler,
address clerk, and document preparer. (R. 99-100.)
Claimant now argues that the ALJ failed to properly consider the medical
vocational guidelines; ignored or rejected plaintiff’s credible testimony; and improperly
discredited the opinions of claimant’s treating physicians.
D.

Remand Is Required for Further Consideration of Claimant’s NonExertional Limitations.

Claimant first argues that the ALJ failed to properly consider the medical
vocational guidelines after finding she was a “younger individual” limited to less than
sedentary work. According to Claimant, because the results of the TABE test support a
finding that she is illiterate, medical vocational guideline 201.17 required the ALJ to find
her disabled. Although the record is not complete enough to support a finding that
Claimant is illiterate, the Court finds that remand is required for further consideration of
certain non-exertional limitations that the ALJ did not properly consider in her analysis,
such as her ability to read and write, maintain concentration, and follow instructions.
At step five of the analysis described above, an ALJ must determine whether the
claimant can perform any work in the economy. Dixon, 270 F.3d at 1176. To this end,
the ALJ may use the medical vocational guidelines (also referred to as, the “grids”) to
8

determine whether other jobs exist in the national or regional economy that a claimant
can perform. Fast v. Barnhart, 397 F.3d 468, 470 (7th Cir. 2005). However, the grids
only take account of exertional impairments, which are those that affect the claimant’s
ability to meet the strength demands of jobs (i.e. siting standing, walking, lifting, etc.).
Id. Non-exertional impairments, on the other hand, are defined as all other impairments
that do not affect a claimant’s ability to meet the strength demands, such as depression,
anxiety, difficulty concentrating or remembering, etc. Id. If a claimant suffers from both
exertional and non-exertional limitations, the grids are not determinative but “rather
provide a framework for consideration.” Smith v. Colvin, 931 F. Supp. 2d 890, 896
(N.D. Ill. 2013).
Here, after assessing Claimant’s RFC, which included both exertional and nonexertional limitations, the ALJ properly acknowledged that the grids are not
determinative, but serve as a framework. (R. 99.) He noted that if the Claimant had the
RFC to perform the full range of sedentary work, a finding of “not disabled” would be
directed by medical vocational rule 201.18. Where, as here, Claimant did not expressly
inform the ALJ that she was illiterate, the ALJ’s failure to expressly consider guideline
201.17 does not amount to independent reversible error. Instead, our concern (and
plaintiff’s, as better articulated in her reply), is not necessarily with the grids, but with the
ALJ’s overall consideration of Claimant’s non-exertional impairments, including his
dismissal of the letter from Ms. Davis, the housing education coordinator.
After a detailed review of the medical evidence, the ALJ acknowledged the letter
from Ms. Davis, including the results of the TABE test (placing her at a 4th grade level),
and Ms. Davis’ observations that Claimant had difficulty maintaining focus and

9

concentrating on tasks. The ALJ gave little weight to Ms. Davis’ assessment stating
that:
Ms. Davis is not a trained or qualified mental health professional and there are no
corroborating objective findings. Throughout the record mini mental status
exams performed during physical examinations have routinely been
unremarkable and no treating or examining source has noted any difficulty with
the claimant’s focus or concentration.
(R. 98.) The ALJ was certainly within his province to note that Ms. Davis was not a
mental health professional. But this is where we part ways with his reasoning. First, it
is not surprising that the record includes few observations about Claimant’s ability to
concentrate or maintain focus. The ALJ was well aware that Claimant most often
sought treatment for her physical ailments at various emergency rooms, perhaps due to
an inability to pay, though the ALJ never appeared to ask as much. In any event, to
expect emergency room physicians to make detailed observations about Claimant’s
ability to read, write, and concentrate in a mini mental status exam for physical
complaints defies reason.
More importantly, the fact that a claimant “does not have a separate, severe
mental impairment” does not mean that mental-based limitations may be ignored. Gotz
v. Barnhart, 207 F. Supp. 2d 886, 901 n.18 (E.D. Wis. 2002). Here, although the ALJ
did not completely ignore Claimant’s questionable literacy level, and her ability to
concentrate and maintain focus, his reasons for discrediting the only evidence of these
limitations lack merit. To be clear, the Court makes no finding as to whether Claimant is
in fact “illiterate,” as that term is used in the grids. Instead the Court requires only that
the ALJ take steps to properly consider these potential limitations, and any resulting
effects on Claimant’s RFC.

10

In light of this decision, the Court need not address Claimant’s remaining
arguments in detail. The Court notes, however, that the ALJ did provide ample
reasoning for discrediting the opinions of Claimant’s treating physicians with respect to
her physical capabilities. As for credibility, further assessment may be required in
connection with the remand instructions described above.
III. Conclusion
For the foregoing reasons, Claimant’s motion for summary judgment is granted
and the Commissioner’s motion for summary judgment is denied. This case is
remanded to the Social Security Administration for proceedings consistent with this
Opinion. It is so ordered.

_______________________________
The Honorable Michael T. Mason
United States Magistrate Judge

DATED: August 21, 2018

11