Richmond v. Colvin

Filing 33

MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 9/29/2017. Mailed notice (ao,)

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

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No. 17 C 338
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Patricia A. Richmond brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the Social Security Administration Commissioner’s decision denying her application
for benefits. For the reasons set forth below, the Court reverses the Commissioner’s decision.

Background
Plaintiff applied for benefits on June 9, 2009, alleging a disability onset date of February
9, 2009.

(R. 170.)

Her application was denied initially, on reconsideration, and by an

Administrative Law Judge (“ALJ”) in a decision dated April 13, 2011. (R. 38-50.) The Appeals
Council declined to review the decision (R. 1-3), and plaintiff appealed to this Court, which
remanded the case on May 16, 2013. (R. 651-56, 662.) The ALJ held a second hearing and
again denied plaintiff’s claims in a decision dated October 13, 2015. (R. 520-40.) The Appeals
Council declined to review the decision (R. 508-11), leaving the ALJ’s decision as the final
decision of the Commissioner, reviewable by this Court pursuant to 42 U.S.C. § 405(g). See
Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).

Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is
generous, it is not entirely uncritical,” and the case must be remanded if the “decision lacks
evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Under the Social Security Act, disability is defined as the “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 12 months.” 42 U.S.C. § 423(d)(1)(A). The
regulations prescribe a five-part sequential test for determining whether a claimant is disabled.
See 20 C.F.R. § 404.1520. The Commissioner must consider whether: (1) the claimant has
performed any substantial gainful activity during the period for which she claims disability; (2)
the claimant has a severe impairment or combination of impairments; (3) the claimant’s
impairment meets or equals any listed impairment; (4) the claimant retains the residual
functional capacity to perform her past relevant work; and (5) the claimant is able to perform any
other work existing in significant numbers in the national economy. Id.; Zurawski v. Halter, 245
F.3d 881, 885 (7th Cir. 2001). The claimant bears the burden of proof at steps one through four.
20 C.F.R. § 404.1560(c)(2); Zurawski, 245 F.3d at 886. If that burden is met, at step five, the
burden shifts to the Commissioner to establish that the claimant is capable of performing work
existing in significant numbers in the national economy. 20 C.F.R. § 404.1560(c)(2).

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At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since the alleged onset date. (R. 522.) At step two, the ALJ determined that plaintiff has the
severe impairments of “disc space narrowing and facet arthropathy1 at the L5-S1 level in the
lumbar spine; and status-post cervical fusion of the C6-7 level with minimal to mild multilevel
degenerative changes.” (R. 523.) At step three, the ALJ found that plaintiff does not have an
impairment or combination of impairments that meet or medically equal the severity of one of
the listed impairments. (R. 526-27.) At step four, the ALJ found that, from February 9, 2009
through December 31, 2011, plaintiff was unable to perform any past relevant work but had the
residual functional capacity (“RFC”) to perform sedentary work, and as of January 1, 2012, she
had the RFC to perform light work, including her past relevant work as a customer service
manager, and thus is not disabled. (R. 527, 535-36, 539-40.)
Plaintiff argues that the ALJ improperly concluded that plaintiff’s depression had
resolved in 2009:
While the evidence shows signs of depression in August and September 2009 . . .
requiring a prescription for Lexapro, the subsequently submitted evidence did not
show signs of depression, or further treatment of this condition; for example, at
the February 2010 internal medicine consultative examination, the claimant was
alert and oriented times three, in no acute distress and cooperative, and the
claimant’s records from Access did not make a mention of a continuing
prescription for Lexapro.
(R. 524) (citations omitted). But, as plaintiff points out, the February 2010 consultative exam
was a physical, not a psychological, evaluation. (See R. 375-82.) Thus, the exam report’s
silence with respect to plaintiff’s mental impairment does not support the ALJ’s conclusion that
plaintiff’s depression had ceased. Nor do plaintiff’s medical records, which do not evidence
mental health treatment, but do show that plaintiff reported having depression to other medical
providers in 2010 and was still taking the anti-depressant Lexapro in 2011. (See R. 400, 439-41,
1

Arthropathy is joint disease. Arthropathy, Dorland’s Illustrated Medical Dictionary (32 ed. 2012).
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443, 446, 451-53, 474-76, 488.) Given this evidence, the agency reviewer’s 2009 opinion that
plaintiff could only “sustain simple repetitive tasks” and “relate to others on at least a brief and
superficial basis” (R. 346), a second agency reviewer’s affirmation of the first reviewer’s opinion
(R. 385), the lack of any subsequent medical opinion that plaintiff’s depression had abated, and
the ALJ’s failure to determine whether finances played a role in plaintiff’s failure to seek mental
health treatment,2 the ALJ’s conclusion that plaintiff’s depression ended in 2009 is not supported
by substantial evidence.3
Plaintiff also contends that the record does not support the ALJ’s conclusion that
plaintiff’s physical condition improved in 2012. The record shows that, since 2012, plaintiff has
worked Monday through Friday from 9 a.m. to 2 p.m. as a caretaker for an elderly woman, a job
that requires her to cook, do laundry and housework, go grocery shopping, and accompany her
client to doctor’s appointments. (R. 593-94, 602-04, 617.) It also shows that plaintiff does her
own household chores and that “her neck does not bother her anymore.” (R. 605, 612, 841.)
However, there is also evidence that plaintiff only went back to work because she “was on the
verge of getting evicted,” she limits her work to twenty-five hours per week, takes breaks during
her workday because of pain, can only stand/walk for two hours at a time, can only carry ten
pounds, is helped by her son with her housework, and has chronic lower back pain for which she
takes medication daily. (R. 604, 624-27, 833-44, 864.) Given the significant limitations on
plaintiff’s activities, her continuing complaints of pain, and the fact that she only works out of
financial desperation, the ALJ’s conclusion that she experienced medical improvement as of
January 1, 2012 is not supported by substantial evidence. See Henderson v. Barnhart, 349 F.3d
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This lapse is curious given that the Appeals Council stated in its remand order after the district court’s reversal that
“the lack of mental health treatment could have been a result of financial hardship.” (R. 666.)
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The Court is not persuaded, however, that the ALJ should have assessed plaintiff’s complaints of urinary
frequency, an issue she raised with her doctor only twice in four years. (See R. 822, 841.) Given the dearth of
evidence suggesting that urinary frequency was a problem for plaintiff, the ALJ’s failure to assess this “impairment”
was not error.
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434, 435 (7th Cir. 2003) (“[T]he fact that a person holds down a job doesn’t prove that he isn’t
disabled, because he may have a careless or indulgent employer or be working beyond his
capacity out of desperation.”); Wilder v. Apfel, 153 F.3d 799, 801 (7th Cir. 1998)
(“[E]mployment is not proof positive of ability to work, since disabled people, if desperate (or
employed by an altruist), can often hold a job.”).4
The Court also agrees with plaintiff that the RFC for 2009-2011, which includes
occasional stooping, is erroneous. (See R. 527.) The medical evidence shows that plaintiff had
only 30 of 90 degrees of lumbar flexion in September 2009, and 45 of 90 degrees of lumbar
flexion with 8/10 pain that was aggravated by bending in August 2010. (R. 339, 765.) The ALJ
did not cite any evidence that contradicts these findings or affirmatively demonstrates that
plaintiff was able to stoop in the 2009-2011 period. Absent such evidence, the RFC for that time
period is unsupported.5
Plaintiff’s next argument is that the ALJ failed properly to assess the opinion of
plaintiff’s treating physician, Dr. Benitez. An ALJ must give a treating physician’s opinion
controlling weight if “it is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.”
20 C.F.R. § 404.1527(c)(2); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). The ALJ must
give good reasons for the weight that it assigns a treating physician’s opinion. Bates v. Colvin,
736 F.3d 1093, 1101 (7th Cir. 2013); Roddy v. Astrue, 705 F.3d 631, 636-37 (7th Cir. 2013). “If
an ALJ does not give a treating physician’s opinion controlling weight, the regulations require
the ALJ to consider the length, nature, and extent of the treatment relationship, frequency of
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Because the issue of medical improvement is related to the issue of whether plaintiff could, as of January 2012,
perform her past relevant work as a customer service manager, the latter issue will have to be revisited on remand as
well.
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Plaintiff also argues that the RFC should have had environmental restrictions to account for her non-severe
impairment of asthma. (Br. Supp. Pl.’s Mot. Summ. J. at 15.) She does not, however, identify any evidence -other than the asthma diagnosis itself -- that suggests any such restriction was required.
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examination, the physician’s specialty, the types of tests performed, and the consistency and
supportability of the physician’s opinion.” Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009);
see also 20 C.F.R. § 404.1527(c).
The ALJ gave “slight weight” to Dr. Benitez’s opinion because:
[T]he treating relationship between the claimant and Dr. Benitez consisted of a
total of four treatment visits, and while the claimant did report neck and back pain
to Dr. Benitez, the only clinical sign Dr. Benitez identified was tenderness on
flexion and turning of the neck to left side. The limitations to which Dr. Benitez
opined were so out of proportion to the clinical signs she identified that it is clear
that she did not base her opinion on objective evidence, but rather completed the
form, taking the claimant’s allegations as true.
Dr. Benitez . . . did not discuss any diagnostic imaging, which showed only
minimal to mild changes in both the claimant’s neck and back, with no
complication at the claimant’s fusion site, or the clinical examinations in the
record that showed the claimant had full strength, normal sensation, normal
reflexes, and a negative straight leg raise, just a month prior. Moreover, the
examination on March 1, 2011 was not conducted for the purpose of treatment,
but rather, for the purpose of obtaining a disability form, and Dr. Benitez did not
even complete the examination as the claimant was in a hurry to go home.
Overall, on the face of the opinion, it appears that Dr. Benitez drafted the form
based on the claimant’s allegations, during an abbreviated appointment, more than
six months from the claimant’s most recent follow-up, based on a treatment
relationship consisting of a total of four appointments, and that she did not base
her opinion on the objective evidence in the record, including the physical
examinations and diagnostic imaging that did not show the degree of impairment
the claimant alleged.
(R. 533) (citations omitted). Though the ALJ did not explicitly address each of the regulatory
factors in assessing Dr. Benitez’s opinion, “his decision makes clear that he was aware of and
considered many of the factors, including Dr. [Benitez’s] treatment relationship with [plaintiff],
the consistency of her opinion with the record as a whole, and the supportability of her opinion.”
Schreiber v. Colvin, 519 F. App’x 951, 959 (7th Cir. 2013.) In other words, the ALJ “built an
accurate and logical bridge between the evidence and his conclusion” and “provide[d] a sound
explanation” for rejecting the doctor’s opinion. Id. (quotation omitted). That is all that is

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required. Id.; see Foody v. Colvin, 169 F. Supp. 3d 804, 808 (N.D. Ill. 2015) (ALJ’s failure to
articulate “mandatory checklist of factors set forth in 20 C.F.R. § 404.1527(c)” not error where
ALJ explained reasons for “discounting” the treating physician’s conclusions and “built the
requisite ‘logical bridge’ between the evidence and [the ALJ’s] conclusion”).

Conclusion
For the reasons set forth above, the Court denies the Commissioner’s motion for
summary judgment [22], reverses the Commissioner’s decision, and remands this case for further
proceedings consistent with this Memorandum Opinion and Order.
SO ORDERED.

ENTERED: September 29, 2017

_________________________________
M. David Weisman
United States Magistrate Judge

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