Leach v. Berryhill
Filing
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MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 5/25/2018: For the reasons stated, the Court grants plaintiff's motion for summary judgment [dkt. no. 12] and denies defendant's motion for summary judgment. The Court directs the Clerk to enter judgment vacating the denial of SSI benefits and remanding the case to the Social Security Administration for further proceedings consistent with this decision. Mailed notice. (pjg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHRISTOPHER LEACH,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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Case No. 17 C 3409
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Christopher Leach applied for supplemental social security income (SSI)
benefits, claiming that he suffers from physical and mental impairments that prevent him
from working. He now seeks judicial review of the denial of his application by the Social
Security Administration (SSA). The parties have filed cross-motions for summary
judgment. For the reasons stated below, the Court grants Leach's motion, denies the
government's motion, and remands the case for further consideration.
Background
Leach applied for SSI on March 6, 2013, claiming a disability onset date of June
28, 2011. He stated that he suffered from degenerative disc disease, obesity, affective
disorder, anxiety disorder, sleep apnea, hypothyroidism, and hand tremors.
The SSA denied Leach's application on November 8, 2013 and again upon
reconsideration on June 6, 2014. Leach then requested a hearing before an
Administrative Law Judge (ALJ). Leach and his attorney attended the hearing, which
was held on January 11, 2016. The ALJ heard testimony from Leach and Richard
Fisher, a vocational expert. On April 7, 2016, the ALJ issued a finding that Leach is not
disabled and is therefore ineligible for SSI.
When the Appeals Council denied Leach's request for review on March 6, 2017,
the ALJ's decision became the final decision of the Commissioner of Social Security.
See Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015). Leach filed this lawsuit
seeking judicial review of the Commissioner's final decision, in accordance with 42
U.S.C. § 405(g). Both Leach and the Commissioner of Social Security have moved for
summary judgment.
The ALJ's decision
In reaching his decision, the ALJ used the standard five-step analysis set forth in
the Social Security regulations to determine whether an individual is disabled. See 20
C.F.R. § 404.1520(a). At step one, the ALJ determined that Leach meets the insured
status requirements of the Social Security Act. At step two, the ALJ found that Leach
had not engaged in substantial gainful activity (SGA) since his alleged disability onset
date.
At step three, the ALJ determined that Leach does not have an impairment or
combination of impairments that meets or medically equals the severity of the one of the
impairments listed in 20 CFR Part 404, Subpart B, Appendix 1. The listed impairments
that the ALJ considered were major dysfunction of joints (1.02), disorders of the spine
(1.04), affective disorders (12.04), and anxiety-related disorders (12.06). The ALJ also
considered the unlisted condition of obesity and addressed whether an impairment in
combination with obesity medically equaled a listing; he found none did.
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The ALJ first evaluated whether the severity of Leach's mental impairments
related to 12.04 and 12.06 satisfied the "Paragraph B" criteria. To satisfy the Paragraph
B criteria, the mental impairments must result in at least two of the following: marked
restriction in activities of daily living; marked difficulty in maintaining social functioning;
marked difficulty in maintaining concentration, persistence, or pace; or repeated
episodes of decompensation, each of extended duration.
The ALJ found that Leach has a mild restriction in activities of daily living, noting
that he does not report any difficulty in maintaining his personal hygiene and that he
appeared well-groomed at his psychological and psychiatric examinations. R. 24. The
ALJ also stated that although Leach struggles to perform household chores, he
attributes his difficulties to physical impairments rather than mental impairments. R. 24.
The ALJ went on to find that Leach has mild difficulties in social functioning. He
pointed to Leach's testimony that he spends time with others as well as mental health
records that indicate he was cooperative and pleasant at examinations. R. 24.
The ALJ found that Leach has moderate difficulties in maintaining concentration,
persistence, or pace given his testimony that he has no difficulty in concentrating while
he plays games, including video games. R. 24. The ALJ also noted that Leach reports
difficulty in remembering to take his medication and that his attention and concentration
were only fair at a mental status examination in October 2014. R. 24.
The ALJ found no evidence in Leach's medical history of an extended episode of
decompensation—a temporary increase in symptoms accompanied by a loss of
adaptive functioning that lasts for at least two weeks.
At step four of the five-step analysis, the ALJ evaluated Leach's residual
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functional capacity (RFC) to perform physical and mental work activities given his
physical and mental impairments. He concluded that Leach has the physical ability to
perform light work and the mental capacity to perform simple to moderately complex
tasks and make simple to moderately complex work-related decisions with frequent
contact with coworkers and supervisors and occasional contact with the public. R. 25.
In making this determination, the ALJ took into account the opinions of Leach's treating
physician, the testimony of Leach and his fiancée, and the state agency medical and
psychological consultants. The ALJ did not address the opinions of Leach's mental
health therapist or his examining psychiatrist.
Regarding Leach's physical RFC, the ALJ gave little weight to the opinion of Dr.
Christoff, Leach's primary care physician. Dr. Christoff opined that because of Leach's
lumbar disc abnormalities, he needs his cane at all times for balance and ambulation,
and he can walk "maybe two blocks max." R. 384. Dr. Christoff further stated that
Leach cannot lift 10 pounds, must change positions more than once every two hours
due to his pain, and can only sit or stand for fifteen minutes at a time. Dr. Christoff
stated that Leach "has mood issues, pain issues requiring narcotics which sedate him,
and he is in constant pain which in my opinion all make him disabled at this time." R.
392. Dr. Christoff also found Leach medically unfit to drive due to severe fatigue. R.
952. The ALJ, however, found that Leach's medical records generally showed minimal
abnormalities, and thus do not support the extensive limitations identified by Dr.
Christoff. R. 30.
The ALJ gave some weight to the state agency medical consultants, who found
that Leach is able to work at the light exertion level. R. 29. The consultants opined that
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Leach can stand, walk, or sit for up to six hours during an eight-hour work day and can
occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds. R. 29.
The state agency consultants also found that Leach can stoop and climb ladders only
occasionally. R. 29.
The ALJ gave little weight to the opinions of the State agency psychological
consultants, who opined that Leach has a mild restriction on the activities of daily living;
mild difficulty in maintaining social functioning; mild or less difficulty in maintaining
concentration, persistence or pace; and no episodes of decompensation. R. 30. The
ALJ found that the medical record shows that Leach has greater restrictions than the
state consultants identified. R. 30.
The ALJ gave no weight to the opinions of Leach's mental health therapist, Terry
Nolan, who stated that Leach had marked restrictions in socialization and activities of
daily living. R. 30. The ALJ also gave no weight to the opinion of the examining
psychiatrist, Dr. Edward Navakas, who found Leach to have marked restrictions in every
category of the Paragraph B criteria. R. 30.
At the final step of the sequential evaluation process, the ALJ found that Leach is
unable to perform any of his past relevant work as a demonstrator and merchandise
displayer. R. 31. The ALJ concluded, however, that there are other jobs in "significant
numbers in the national economy" that Leach can perform given his RFC, education,
and work experience. The ALJ therefore denied Leach's application for SSI benefits.
R. 32.
Discussion
The Court will affirm the decision of the ALJ if it is supported by substantial
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evidence. Meuser v. Colvin, 838 F.3d 905, 910 (7th Cir. 2016). Substantial evidence is
evidence that "a reasonable mind might accept as adequate to support a conclusion."
Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). The Court gives deference to the
ALJ's decision so long as the ALJ provides "an accurate and logical bridge between the
evidence and the conclusion that the claimant is not disabled." Craft v. Astrue, 539 F.3d
668, 673 (7th Cir. 2008).
Leach contends that the ALJ erred by 1) improperly evaluating the opinions of
treating and examining health care experts; 2) negatively assessing Leach's credibility;
3) underestimating the significance of his mental impairments; and 4) failing to account
for all of his physical impairments in the RFC assessment.
1.
Opinions of medical experts
Under regulations applicable in Leach's case, a treating physician's opinion is
entitled to "controlling weight" if it is "well-supported by medically acceptable and
laboratory diagnostic techniques and is not inconsistent with other substantial
evidence." 20 C.F.R. § 404.1527(c)(2); Larson v. Astrue, 615 F.3d 744, 749 (7th Cir.
2010). If an ALJ decides not to give the treating physician controlling weight, he "must
offer good reasons for declining to do so." Larson, 615 F.3d at 749 (internal quotation
marks omitted).
Dr. Christoff has been Leach's primary care physician for over a decade; his
relationship with Leach is long-standing, and his treatment notes are extensive. The ALJ
recognized Dr. Christoff as Leach's treating physician, and both parties agree with this
determination. R. 30. The ALJ found, however, that Dr. Christoff's opinion was
inconsistent with medical records and therefore did not deserve controlling weight. R.
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30. More specifically, the ALJ determined that "minimal abnormalities" in Leach's spinal
x-rays and "numerous findings of normal gait" contradicted Dr. Christof's reference to
extensive physical limitations. R. 30.
Leach contests these findings and contends that the ALJ engaged in "cherrypicking" of evidence by discounting or ignoring evidence that supported Christoff's
opinion. The Court agrees. Although the record indeed included "numerous findings of
normal gait," see R. 322, 334, 338, the ALJ did not address equally numerous findings
by several different medical providers that Leach had abnormal, slow, guarded, antalgic,
or wide-based gait. See R. 549, 586, 612, 743, 745, 749, 988. These abnormal
findings of gait are noted in the ALJ's summary of Leach's medical history, but the ALJ
did not explain if or how he considered them before withholding controlling weight from
Dr. Christoff's opinion. The Seventh Circuit has also noted that normal gait alone does
not necessarily correlate with the ability to sit or stand for six hours a day. See Murphy
v. Colvin, 759 F.3d 811, 819 (7th Cir. 2014). It is therefore unclear, and the ALJ did not
explain, why findings of normal gait in some of Leach's examinations provide an
appropriate basis to diminish the weight given to Dr. Christoff's opinion.
The ALJ also characterized scans (x-rays and MRIs) of Leach's back as showing
only "minimal abnormalities," R.26, but a closer review indicates otherwise. In 2009,
Leach's spinal scans showed moderate to severe spinal stenosis at L3-4, with improved
to moderate stenosis in 2011. R. 292. The scans showed multilevel degenerative
changes between 2009 and 2011. R. 292. Scans taken in 2013 again showed
multilevel degenerative changes at L2-3, L3-4, and L5-S1. R. 294-95. By 2015,
Leach's abnormalities had increased, with to further degeneration at L1-2 and L5-S1,
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disc bulging at multiple levels, and foraminal stenosis at L4-5 and L5-S1. R. 389. It
would be difficult to characterize this evidence as showing only "minimal abnormalities,"
as the ALJ stated.
Further evidence of the impact of Leach's back condition on his physical abilities
lies in that fact that, over the years, Dr. Christoff prescribed Leach various pain
medications and referred him to physical therapists, neurologists, and orthopedic
surgeons for further treatment. Dr. Christoff's opinion also aligns with the testimony of
Leach and his partner, Beth Downs, who stated that Leach is in too much pain to do
much other than lie in his recliner for most of the day. The ALJ did not explain if or
whether he considered any of this corroborating evidence before withholding controlling
weight from Dr. Christoff's opinion. This issue alone requires remand.
Once an ALJ finds that a treating physician's opinion does not deserve controlling
weight, he must decide what specific weight to give the opinion. Brown v. Colvin, 845
F.3d 247, 252 (7th Cir. 2016). In so doing, the ALJ should consider length and nature of
the treatment, the frequency of examination, whether the opinion is supported by
medical signs and laboratory findings, and whether the opinion is consistent with the
record as a whole. Scrogham v. Colvin, 765 F.3d 685, 697 (7th Cir. 2014).
The ALJ assigned little weight to Dr. Christoff's opinion regarding Leach's
limitations for sitting, standing, walking, and driving. The ALJ reasoned that
determinations regarding Leach's dizzy spells and problems with ambulation are outside
of Dr. Christoff's area of expertise, given that he practices internal medicine and Leach's
impairments are neurological and orthopedic in nature. That is, at best, a highly
suspect basis for devaluing Dr. Christoff's opinion. Though the opinion of a specialist is
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appropriately afforded greater weight in an area relevant to his or her expertise, no
neurologist or orthopedic specialist has evaluated Leach's ability to perform workrelated tasks. Thus there is no specialist on record contradicting Dr. Christoff's opinion.
Furthermore, though an orthopedic specialist is likely in the best position to determine
and administer treatment for musculoskeletal issues, a primary care physician like Dr.
Christoff is fully capable of evaluating whether a patient can walk, sit, push, pull, or
perform other everyday movements. It likewise does not take a neurologist to
determine that a patient who has hand tremors, dizzy spells, and major sleep
abnormalities should not be driving.
The Court also finds dubious the ALJ's statement that Dr. Christoff's opinion
about Leach's limitations deserves less weight because he is unfamiliar with the
evidentiary requirements for determining disability under the SSA. There is no
requirement that a physician be familiar with Social Security regulations; if there were,
one would be hard pressed to find any reliable medical expert testimony at all.
Although the errors cited above are sufficient to require remand, the Court will
address the remaining issues discussed by the parties to facilitate further review.
Leach next contests the ALJ's rejection of the opinion of Terry Nolan, a mental
health therapist, and Dr. Navakas, an examining psychiatrist. Nolan opined that Leach
has marked restrictions to his daily activities and socialization. Nolan's records,
however, provided few details regarding his sessions with Leach; he generally noted
that medication was effective, Leach reported no suicidal ideation and did not display
signs of debilitating emotional distress, he displayed a "new, hopeful attitude," and his
physical health was a major factor in his emotional health. R. 949-51. In his report to
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the SSA, Nolan attributed Leach's limitations in daily activity to his physical impairments
rather than his mental impairments. R. 930. Based on these facts, the ALJ reasonably
found that Nolan's opinion lacked supporting medical evidence.
As for the opinion of psychiatrist Dr. Navakas, the ALJ was not required to assign
any particular weight to the opinion of a non-treating physician. Filus v. Astrue, 694
F.3d 863, 868 (7th Cir. 2012). The ALJ reasonably declined to give any weight to Dr.
Navakas' opinion that Leach has marked impairments in all Paragraph B criteria. The
ALJ satisfied the requirement to "minimally articulate" his reasoning, id. at 869: he
stated that Navakas examined Leach only once and that Leach's mental health
treatment generally show minimal abnormalities at examinations. R. 30. Though this
explanation was on the cursory side, it meets the minimal standard.
2.
Assessment of Leach's credibility
Typically, an ALJ's credibility assessments are afforded special deference
"because [he] is in the best position to determine a witness's truthfulness and
forthrightness." Stepp v. Colvin, 795 F.3d 711, 720 (7th Cir. 2015) (citing Shideler v.
Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012)). Thus an ALJ's credibility assessment will
be overturned only if it is "patently wrong." Id. A credibility assessment may be patently
wrong, however, if the ALJ does not explain his decision sufficiently for the Court to
determine whether he "reached [his] decision in a rational manner, logically based on
[his] specific findings and evidence in the record." Murphy v. Colvin, 759 F.3d 811, 816
(7th Cir. 2014).
Here, the ALJ used boilerplate language to state that Leach's statements
regarding his symptoms were not fully supported by medical evidence. The ALJ based
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this determination on the supposedly minimal clinical abnormalities identified during
examinations and the purported improvement of Leach's symptoms with treatment.
The ALJ's credibility determination was not properly supported. The key problem
is that the determination was based on "improvements" that are not supported by the
medical record. Rather, the record shows an increase in Leach's pain symptoms over
time, an accompanying increase in the level of treatment, and mixed overall success of
this treatment. For example, Leach continued to experience pain even after receiving
several rounds of radio frequency ablations, and he was referred to physical therapy in
November 2015. R. 821, 1001. At the outset of his physical therapy sessions, he was
taking narcotic pain medications every day to attempt to control his pain. R. 1001. On
his fifteenth and final physical therapy session, Leach could not complete his exercises
because he had spent an hour standing the day before and was still recovering from the
exertion. R. 1048. Leach and his physical therapist decided to discontinue their
sessions because Leach had hit a functional plateau. R. 1050. Surely such results
cannot reasonably be characterized as "improvements." And even if they could, the
question is not whether Leach improved, but "whether [he] improved enough to meet
the legal criteria of not being classified as disabled." Murphy, 759 F.3d at 819. This
requirement was not addressed by the ALJ.
Leach also contends that the ALJ also improperly evaluated the credibility of his
statements regarding his mental health. The Court addresses this point in the following
subsection, together with the ALJ's overall assessment of Leach's mental limitations.
3.
Evaluation of Leach's mental impairments
The ALJ evaluated the severity of Leach's mental health impairments under the
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Paragraph B criteria and found that Leach's symptoms did not meet the severity of
listings in 12.04 or 12.06. The ALJ then analyzed Leach's mental RFC and found that
his impairments limit him to simple to moderately complex tasks and decision making,
with frequent contact with coworkers and supervisors, and occasional contact with the
public. R. 25. In reaching this conclusion, the ALJ gave no weight to the opinions of
Leach's mental health therapist, Terry Nolan; no weight to the examining psychiatrist,
Dr. Navakas; and little weight to the opinions of the State agency psychological
consultants.
Leach argues that the ALJ failed to properly account for the true extent of his
mental deficits in making the RFC assessment. More specifically, Leach contends that
the ALJ improperly focused on Leach's ability to play video games and on his wellgroomed appearance and cooperative demeanor at mental examinations.
The Court disagrees. It likely would have been problematic if the ALJ had
supported his conclusion only with evidence of a well-groomed appearance and ability
to concentrate on video games, but that is not what happened. The ALJ considered
Leach's mental health records as a whole, including evidence that he maintained
concentration and attention throughout his evaluations, see R. 28, and he considered
Leach's own statements that his depression and anxiety improved with medication and
therapy. R. 633, 639, 930. The record also reflects that Leach's judgment tended to be
"fair" or "poor" only when his medication needed to be adjusted or when he stopped
taking medication altogether. R. 645, 626, 752, 407.
In written statements, Leach said that he can follow written instructions "very
well" and spoken instructions "pretty well." R. 213, 238. At the hearing, Leach testified
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that he can follow clear and concise instructions and that he is "okay" with simple
directions. R. 60-61. He further stated that he struggles to function in noisy, crowded
environments. Taken together, these facts permitted a reasonable conclusion that
Leach is able to perform simple to moderately complex tasks, with frequent contact with
coworkers and supervisors but limited contact with the public.
4.
Evaluation of other physical impairments
Leach contends that the ALJ did not adequately account for his sleep apnea,
patellofemoral syndrome, and hypothyroidism, all of which are non-severe impairments;
or for his obesity, a severe impairment. The ALJ pointed to specific evidence in the
record to support the conclusion that none of these conditions imposed more than
minimal limitations on Leach's ability to perform basic work activities. R. 23. The ALJ
later provided a more cursory statement that he considered the impairments in
determining Leach's RFC but found that they do not impose any further limitations.
Taken together, this was a sufficient explanation.
Notably absent from the ALJ's opinion, however, was any discussion of Leach's
hand tremors. Leach testified that he has difficulty handling silverware, typing, and
using his game controllers because of his hand tremors. R. 61-62. There is ample
evidence in the medical record to support his testimony, including an appointment with a
neurologist specifically to address the tremors. R. 676, 626, 682, 991. The
Commissioner argues that Leach's tremors are not severe because the medical record
does not show that they stem from an underlying anatomical impairment, as required
under 20 C.F.R. § 404.1521 to establish a "medically determinable impairment." The
cause of Leach's tremors is unclear; they may be a side effect of medication or a
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symptom of some other impairment. But whatever the cause, Leach does not need to
show that the tremors are a severe impairment in and of themselves. Even if the hand
tremors may not have been disabling standing alone, their effect in combination with
Leach's other impairments may have a critical impact on whether he can work, a point
not addressed by the ALJ. See Yurt v. Colvin, 758 F.3d 850, 860 (7th Cir. 2014). On
remand, the SSA should examine carefully the effect of Leach's hand tremors on his
ability to work.
Conclusion
For the reasons stated above, the Court grants plaintiff's motion for summary
judgment [dkt. no. 12] and denies defendant's motion for summary judgment. The Court
directs the Clerk to enter judgment vacating the denial of SSI benefits and remanding
the case to the Social Security Administration for further proceedings consistent with
this decision.
Date: May 25, 2018
________________________________
MATTHEW F. KENNELLY
United States District Judge
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