Smith v. Colvin
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 6/6/2018: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY SMITH,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.
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No. 16 C 11211
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 Anthony Smith’s (“Plaintiff”) claim for Supplemental Security
Income (“SSI”) under Title XVI 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 motion for summary
judgment is denied and the Commissioner’s cross-motion for summary judgment
[Doc. No. 13] is granted.
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 his application for SSI in June 2015, alleging disability
beginning on May 29, 2015 due to narcolepsy, sleep apnea, and cataplexy. (R. 142–
147, 159.) His application was denied initially and again upon reconsideration. (R.
56–76.) Plaintiff appeared for a hearing before an Administrative Law Judge
(“ALJ”) on July 11, 2016. (R. 34–55.) He was represented by counsel. (Id.) A
vocational expert, Pamela Warren, was also present at the hearing and testified.
(Id.) On July 26, 2016, the ALJ issued an unfavorable decision finding Plaintiff was
not disabled. (R. 17–33.) The Appeals Council (“AC”) denied review on October 28,
2016, 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); Herron v. Shalala, 19 F.3d 329, 332
(7th Cir. 1994); (R. 1–7.)
II.
ALJ Decision
On July 26, 2016, the ALJ issued an unfavorable written determination
finding Plaintiff was not disabled. (R. 17–33.) At step one, the ALJ determined that
Plaintiff had not engaged in substantial gainful activity since May 29, 2015, his
application date. (R. 22.) At step two, the ALJ found that Plaintiff suffered from
severe impairments of narcolepsy and cataplexy.2 (R. 22.) At step three, the ALJ
Cataplexy is defined as “a condition in which there are abrupt attacks of muscular
weakness and hypotonia triggered by an emotional stimulus such as mirth, anger, fear, or
surprise. It is often associated with narcolepsy.” Dorland's Medical Dictionary
http://www.dorlands.com (last visited May 31, 2018).
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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. 26)
Before step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform work at all exertional levels, subject to non-exertional
limitations.3 At step four, the ALJ concluded that Plaintiff was not capable of
performing his past relevant work. (R. 28.) 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 including hand packager, cleaner, and bagger. (R. 29.) Because of this
determination, the ALJ found that Plaintiff is not disabled under the Act. (R. 30.)
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
At this stage, the ALJ determined Plaintiff:
can never climb ladders, ropes, or scaffolds and must avoid all use or
exposure to moving machinery and unprotected heights.
(R. 26.)
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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.
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.
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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 h[is] 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 [her] 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
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.
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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 argues that the ALJ’s decision should result in remand because he:
(1) improperly evaluated the medical opinion evidence; (2) failed to consider
whether he met the relevant Listing; (3) did not obtain medical expert testimony.
For the reasons that follow, the Court finds no remandable errors.
A. Medical Opinion Evidence
To begin, Plaintiff argues that the ALJ improperly weighed the opinion of his
treating physician, Dr. Swamy Nagubadi, M.D., who concluded that Plaintiff would
not be able to work eight hours per day, five days per week on a reliable basis due to
his narcolepsy. (R. 294–96.) He also opined that Plaintiff’s narcolepsy impairs his
concentration, and that he would require a minimum of three naps per day. (Id.) In
his decision, the ALJ accorded “minimal” weight to the opinion of Dr. Nagubadi. (R.
28.)
Generally, even where a treater's opinion is not given controlling weight, an
ALJ must still determine what value the assessment does merit. Scott v. Astrue, 647
F.3d 734, 740 (7th Cir. 2011); Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010).
In making that determination, the regulations require the ALJ to consider a variety
of factors, including: (1) the nature and duration of the examining relationship; (2)
the length and extent of the treatment relationship; (3) the extent to which medical
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evidence supports the opinion; (4) the degree to which the opinion is consistent with
the entire record; (5) the physician's specialization if applicable; and (6) other
factors which validate or contradict the opinion. 20 C.F.R. § 404.1527(c). The ALJ
must then provide a “sound explanation” for that decision. Punzio v. Astrue, 630
F.3d 704, 710 (7th Cir. 2011). Plaintiff alleges that the ALJ’s discussion of Dr.
Nagubadi’s opinion did not incorporate the necessary factors.
Here, the ALJ began by acknowledging the treating relationship between Dr.
Nagubadi and Plaintiff.4 Turning to the nature of the treatment, he noted that it
had been conservative and infrequent. (R. 28.) Thereafter, the ALJ looked to the
medical evidence and explained that the Plaintiff’s examination findings had been
unremarkable and that he had had a fair response to treatment. (Id.) Then, based
on the rest of the record, he noted that Plaintiff was able to drive his children to and
from school, despite the fact that he reported that he did not drive an automobile.
(Id.) Thus, the ALJ did indeed address the requisite factors.
Nonetheless, Plaintiff argues that the ALJ’s finding is deficient because he
discounted the opinion based, in part, on unremarkable examination findings
without articulating what types of findings he expected to be contained in the record
for an applicant with narcolepsy. The Program Operations Manual System
(“POMS”), an internal agency guideline, notes that “there are no physical
abnormalities in narcolepsy” and that “laboratory studies will be normal.” DI
Plaintiff claims that ALJ failed to consider Dr. Nagubadi’s specialty in accordance with
regulations. The Court notes, however, that the ALJ referred to the doctor as Plaintiff’s
“treating physician” and Plaintiff has made no argument as to what other specialty Dr.
Nagubadi possessed. (R. 27.)
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24580.005 Evaluation of Narcolepsy, POMS, Social Security,
https://secure.ssa.gov/apps10/poms.nsf/lnx/0424580005 (Sept. 26, 2016) [hereinafter
POMS DI 24580.005]. As a result, POMS states, it is important for the ALJ to
consider the medications the claimant uses and their response to the medication,
and for the ALJ to obtain a description of the alleged narcoleptic attacks. Id. Here,
the ALJ did just that. In fact, the ALJ noted that Plaintiff had fair response to his
medical treatment and therapy, and declined to have his medications adjusted,
suggesting he was satisfied with his treatment. (R. 27–28.) Moreover, the ALJ
considered Plaintiff’s reports of “excessive daytime sleepiness” and cataplexy. (Id.).
Thus, the ALJ provided the type of consideration of Plaintiff’s narcolepsy
contemplated by POMS.
Next, Plaintiff claims that the ALJ engaged in impermissible cherry-picking
when evaluating Dr. Nagubadi’s opinion. While ALJs are prohibited from cherrypicking, see Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (“An ALJ has the
obligation to consider all relevant . . . evidence and cannot simply cherry-pick facts
that support a finding of non-disability while ignoring evidence that points to a
disability finding”), they are not required to discuss every piece of evidence in the
record in favor of their determinations. See McKinzey v. Astrue, 641 F.3d 884, 891
(7th Cir. 2011) (“[g]enerally speaking, an ALJ's adequate discussion of the issues
need not contain a complete written evaluation of every piece of evidence”) (internal
quotation marks and citation omitted).
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More specifically, Plaintiff argues that the ALJ did not consider evidence
showing that he was still sleepy, despite good response to medication. The evidence
Plaintiff points to reveals that Plaintiff presented to Dr. Nagubadi with “excessive
daytime sleepiness” and that his response to therapy was “fair” meaning he was
“more functional but still sleepy on the meds.” (R. 241, 249.) The ALJ did not ignore
this evidence; in fact, the ALJ explained that Plaintiff continually presented for
excessive daytime sleepiness and that his treatment notes indicated that he
continued to have some level of symptoms. (R. 27). Moreover, the ALJ noted that
Plaintiff’s response to his treatment was “fair”, just as it was listed in his treatment
notes. (Id.) Therefore, the Court cannot say the ALJ cherry-picked the evidence.
Finally, Plaintiff claims the ALJ failed to explain the perceived
inconsistencies between his activities of daily living and the medical evidence. In
particular, Plaintiff argues the ALJ did not adequately explain how his ability to
drive his children to school conflicted with Dr. Nagubadi’s opinion that he would
require three to four naps per day. Plaintiff turns to Jelinek v. Astrue, 662 F.3d 805,
812 (7th Cir. 2011), where the Seventh Circuit stated “ALJs must explain perceived
inconsistencies between a claimant's activities and the medical evidence.”
Here, the ALJ contrasted Plaintiff’s activities of daily living with Dr.
Nagubadi’s opinion. For example, the ALJ pointed out that Dr. Nagubadi believed
Plaintiff was unable to drive, despite the fact that he drove his children to and from
school. (R. 28.) While this alone does not support a finding that Plaintiff could
sustain full-time work, the ALJ found that it cut against some of Dr. Nagubadi’s
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limitations. In sum, the Court finds that the ALJ did not err with respect to the
medical opinion evidence and that his findings were supported by substantial
evidence.
B. Listing
Next, Plaintiff takes issue with the ALJ’s step three evaluation, particularly
that he did not consider whether his impairments satisfied the criteria of Listing
11.02.
The parties, and the ALJ, are in agreement that there is no listing which
addresses narcolepsy. Nevertheless, POMS has explained that ALJ’s may turn to
Listing 11.02, Epilepsy “when evaluating [the] medical severity” of narcolepsy.
POMS DI 24580.005.5 But, given the fact that “narcolepsy and epilepsy are not
truly comparable illnesses”, it is unclear how the ALJ is expected to evaluate the
severity of narcolepsy. Id. POMS give some guidance on the matter, stating that it
should be evaluated after three months of prescribed treatment. Furthermore,
POMS directs ALJs “to obtain from an ongoing treatment source a description of the
medications used and the response to the medication, as well as an adequate
description of the claimant's alleged narcoleptic attacks and any other secondary
events such as cataplexy, hypnagogic hallucinations or sleep paralysis.” Id. In any
event, POMS is an internal manual without the force of law, and does not bind the
SSA. Parker v. Sullivan, 891 F.2d 185, 190 (7th Cir.1989).
It is unclear if the POMS requirements were in effect at the time the ALJ issued his
decision. See id. (noting an effective date of September 26, 2016, two months after the ALJ
issued his decision).
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To the extent that Plaintiff argues that his narcolepsy meets or equals the
requirements of Listing 11.02, he has not met his burden. Ribaudo v. Barnhart, 458
F.3d 580, 583 (7th Cir. 2006) (stating plaintiff “has the burden of showing that his
impairments meet a listing, and he must show that his impairments satisfy all of
the various criteria specified in the listing.”)
Here, the only evidence Plaintiff points to in favor of his argument that he
meets the requirements of Listing 11.02 is the opinion of Dr. Nagubadi. The first
issue with this argument is that it ignores the fact that the ALJ previously
discounted Dr. Nagubadi’s opinion. Second, Dr. Nagubadi did not opine that
Plaintiff met the requirements of Listing 11.02. Rather, he merely made findings
which Plaintiff now claims meet the necessary requirements. The fact is, Plaintiff
does not provide evidence from any acceptable medical source supporting the
conclusion that he meets Listing 11.02. Accordingly, Plaintiff has not met his
burden, and the Court sees no reason to disturb the ALJ’s step three findings.
Keach v. Berryhill, No. 17 C 10133, 2018 WL 1440316, at *13 (D. Mass. Mar. 22,
2018) (stating “that a mere diagnosis of narcolepsy is not sufficient to demonstrate
that the illness is severe” and affirming the ALJ’s step three determination where
the “[c] laimant ha[d] not argued that she satisfied any criteria for severity that
would correspond to Listing 11.02.”)
C. Additional Medical Testimony
Finally, Plaintiff claims the ALJ’s disability determination is flawed because
he failed to obtain the input of a medical expert after receiving Dr. Nagubadi’s
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updated July 2016 medical opinion. It is Plaintiff’s position that the state agency
consultants erroneously considered only Listing 3.10 (and not Listing 11.02)
because they did not have access to Dr. Nagubadi’s letter at the time they issued
their opinions. Thus, Plaintiff claims, the ALJ should have submitted all the
evidence, including the letter, to a medical expert to determine whether he met
Listing 11.02.
Under SSR 96-6p, an ALJ must obtain an updated medical opinion from a
medical expert if the ALJ receives additional medical evidence that, in his opinion,
“may change the State agency medical or psychological consultant's finding that the
impairment(s) is not equivalent in severity to any impairment in the Listing of
Impairments.” 1996 WL 374180, at *4. Although the Commissioner argues that the
ALJ was not required to obtain an updated opinion because there was no “new
evidence that would show medical equivalence to any listed impairments”, the
Court finds no basis for that argument in the ALJ’s decision from the ALJ himself.
In these situations under SSR 96-6p, the Commissioner cannot speak on behalf of
the ALJ.
Nonetheless, the Court finds no reason to remand. Here, Plaintiff seeks
remand so that a medical expert can consider Listing 11.02. As discussed earlier,
there is no specific listing for narcolepsy, and ALJ’s are only encouraged by POMS,
to consider narcolepsy under Listing 11.02. While it would have been nice for the
ALJ to get an updated medical opinion, the Court will not remand for something the
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ALJ could have done, as opposed to something he required to do by law. The Court
therefore affirms the findings of the ALJ.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment is denied
and the Commissioner’s cross-motion for summary judgment [Doc. No. 13] is
granted. Affirmed.
SO ORDERED.
ENTERED:
DATE:
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
June 6, 2018
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