Bush v. Berryhill
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 11/28/2018: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BARBARA ANN BUSH,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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No. 17 C 5335
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 Social Security denying Plaintiff Barbara Ann Bush’s claims
for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act.
The parties have consented to the jurisdiction of the United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). For the following reasons, Plaintiff’s request
to reverse the Commissioner’s decision is granted in part and denied in part, and
the Commissioner’s motion for summary judgment [Doc. No. 23] is denied.
BACKGROUND
I.
PROCEDURAL HISTORY
On May 7, 2013, Plaintiff filed her application for DIB, alleging disability
since October 31, 2011 due to a crushed lumbar disc and a left shoulder injury. (R.
102–03, 140.) Her application was denied initially and again upon reconsideration.
(R. 132–34, 140–44.) Plaintiff timely requested a hearing, which took place before
an Administrative Law Judge (“ALJ”) on December 14, 2015. She was represented
by a non-attorney representative and personally testified. (R. 40–62, 145, 148–49.)
A medical expert and a vocational expert were also present and offered testimony.
(R. 62–98.) On May 25, 2016, the ALJ issued an unfavorable decision finding that
Plaintiff was not disabled. (R. 16–36.) The Appeals Council denied review on May
30, 2017. (R. 1–5.)
II.
ALJ DECISION
In determining that Plaintiff was not disabled, the ALJ analyzed Plaintiff’s
claim according to the five-step sequential evaluation process established under the
Act. (R. 20–21.) At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity (“SGA”) since October 31, 2011, her alleged disability
onset date. 1 (R. 21.) At step two, the ALJ found that Plaintiff suffered from the
following severe impairments: lumbar spondylosis 2 and obesity. (Id.) The ALJ also
found that Plaintiff suffered from the following non-severe impairments: moderate
degenerative disc disease of the cervical spine with disc bulge, left leg weakness,
bilateral hand pain and stiffness, hyperlipidemia, and depression. (R. 22.) At step
At least with respect to Plaintiff’s post-application work activity, it appears that
the ALJ gave Plaintiff the benefit of the doubt and assumed a lack of SGA. Although
Plaintiff had engaged in some work activity since her application date, the ALJ
reasoned that “it [was] not necessary to determine whether that work activity
constitutes disqualifying substantial gainful activity” because there was another
valid basis for denying Plaintiff’s application. (R. 21.)
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Lumbar spondylosis is a “degenerative joint disease affecting the lumbar vertebrae
and intervertebral disks, causing pain and stiffness, sometimes with sciatic
radiation due to nerve root pressure by associated protruding disks or osteophytes.”
Dorland’s Medical Dictionary (hereafter Dorland’s), http://www.dorlands.com (last
visited Sept. 28, 2018).
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three, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 23.)
The ALJ then determined Plaintiff’s residual functional capacity (“RFC”) for
two distinct time periods: (1) from the alleged onset date through May 6, 2013 (the
“Pre-Application Period”); and (2) from May 7, 2013 through the date of the decision
(the “Post-Application Period”). (R. 23, 28.) During the Pre-Application Period,
Plaintiff could perform work at a light exertional level, subject to several
limitations; during the Post-Application Period, Plaintiff could perform work at a
sedentary exertional level, subject to the same limitations. 3 (Id.) Moving to step
four, the ALJ concluded that Plaintiff could perform her past relevant work as a
claims examiner, which is a skilled, sedentary job, and thus is not disabled under
the Act. 4 (R. 29-30.)
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The ALJ limited Plaintiff as follows:
[Plaintiff] could occasionally operate foot controls bilaterally. [Plaintiff] could
occasionally climb ramps and stairs, but never climb ladders, ropes, or
scaffolds. She could occasionally climb ramps and stairs, but never climb
ladders, ropes, or scaffolds. She could occasionally stoop, kneel, crouch, and
crawl. [Plaintiff] could have no exposure to unprotected heights, moving
mechanical parts, or vibration. Any time off task would have been
accommodated by normal breaks.
(R. 28 (Pre-Application Period RFC); see also R. 23 (Post-Application Period RFC).)
The ALJ also made an alternate finding that there were significant jobs at the light
level available to Plaintiff during the Pre-Application Period prior to May 7, 2013.
(R. 29–30.)
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DISCUSSION
I.
ALJ LEGAL STANDARD
Under the Act, a person is disabled if she 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). To determine disability, the ALJ considers five questions in
the following 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 her former occupation (i.e., past work)? and (5) Is the plaintiff
unable to perform any other work? See Young v. Sec’y of Health & Human Servs.,
957 F.2d 386, 389 (7th Cir. 1992); 20 C.F.R. § 404.1520(a)(4).
An affirmative answer at either step three or step five leads to a finding of
disability. Young, 957 F.2d at 389. A negative answer at any step, other than at step
three, precludes a finding of disability. Id. The plaintiff bears the burden of proof at
steps one through four. Id. If the plaintiff meets this burden, 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. See Weatherbee v. Astrue, 649 F.3d
565, 569 (7th Cir. 2011).
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II.
JUDICIAL REVIEW
Because the Appeals Council denied review, the ALJ’s decision became the
final decision of the Commissioner, which is reviewable by this Court. 42 U.S.C. §
405(g); Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). “The 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). Thus, 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). “Substantial evidence means ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Id. (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). This Court may not substitute its judgment for
that of the ALJ, reweigh evidence, resolve conflicts, or decide questions of
credibility. Id.; 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” so
long as “the decision is adequately supported”) (internal citation and quotations
omitted).
Although the ALJ need not “address every piece of evidence or testimony in
the record, the ALJ’s analysis must provide some glimpse into the reasoning behind
her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001).
This requires the building of “an accurate and logical bridge from the evidence to
[the ALJ’s] conclusion.” Clifford, 227 F.3d at 872. The ALJ must explain the
“analysis of the evidence with enough detail and clarity to permit meaningful
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appellate review.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir.
2005); see also 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.”) (internal
citations omitted).
The Court plays an “extremely limited” role in reviewing the ALJ’s decision.
Elder, 529 F.3d at 413. Where conflicting evidence would allow reasonable minds to
differ, the responsibility for determining disability falls upon the ALJ, not the
Court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). Even so, an ALJ
must consider all relevant evidence, and it cannot “select and discuss only that
evidence that favors his ultimate conclusion.” Herron v. Shalala, 19 F.3d 329, 333
(7th Cir. 1994).
III.
ANALYSIS
Plaintiff argues that the ALJ erred because she: (1) failed to support her
finding that Plaintiff did not meet Listing 1.04 with substantial evidence: (2)
provided inadequate reasons for rejecting several functional restrictions offered by
James Elmes, M.D., a consulting physician who examined Plaintiff; (3) did not
incorporate Plaintiff’s mild mental limitations into her RFC assessment; and (4)
failed to properly analyze Plaintiff’s subjective allegations of pain. The Court agrees
that the ALJ failed to properly support her finding that Plaintiff did not meet
Listing 1.04, warranting remand for further administrative proceedings.
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“If a claimant has an impairment that meets or equals an impairment found
in the Listing of Impairments, [she] is presumptively eligible for benefits.” Minnick
v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015). At issue here is Listing 1.04, which
describes certain spinal disorders and is divided into three subsections. See 20
C.F.R. Pt. 404, Subpt. P., App’x 1, § 1.04(A)–(C). On appeal, Plaintiff only challenges
the ALJ’s determination regarding Listing 1.04(C). (See Pl.’s Mem. at 14–15)
(identifying only 1.04(C) specifically); (Pl.’s Reply at 8) (asserting that Listing 1.04
requires criteria that are only listed in subsection C).
Listing 1.04(C) requires, among other things, evidence of (1) lumbar spinal
stenosis; 5 and (2) an inability to ambulate effectively, as that phrase is defined in
Listing 1.00(B)(2)(b). 20 C.F.R. Part. 404, Subpart P., Appendix 1, § 1.04(C).
Although the ALJ acknowledged Plaintiff’s severe lumbar spondylosis, she
determined that Listing 1.04(C) was not satisfied because these two requirements
were not met; specifically, the ALJ found that the medical evidence did not include
evidence of lumbar spinal stenosis and that Plaintiff’s back disorder had not
resulted in an inability to ambulate effectively. 6 (R. 23.) Neither finding is legally
sufficient.
Lumbar spinal stenosis is defined as the “narrowing of the vertebral canal, nerve root
canals, or intervertebral foramina of the lumbar spine caused by encroachment of bone
upon the space.” Dorland’s (last visited Sept. 26, 2018).
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Although the ALJ did not specifically identify the subdivisions of Listing 1.04, only
subdivision (C) requires evidence of lumbar spinal stenosis and an inability to ambulate
effectively. See 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 1.04(A)–(C). The ALJ also found that
there was no evidence of nerve root compression and spinal arachnoiditis. (R. 23.) These
findings address subdivisions (A) and (B), respectively. See 20 C.F.R. Pt. 404, Subpt. P,
App’x 1, § 1.04(A)–(B).
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First, the ALJ ignored medical evidence of lumbar spinal stenosis in the
record. The ALJ overlooked a December 2014 MRI (taken after Plaintiff underwent
lower back surgery in September 2014) indicating the continued post-surgery
presence of “moderate right neuroforaminal stenosis” at the L5-S1 level, i.e., spinal
stenosis at the base of Plaintiff’s lumbar spine. 7 (R. 25, 1009–10, 1166–67.) And
despite briefly discussing the February 2016 opinion of Dr. Elmes, who examined
Plaintiff at the ALJ’s request, the ALJ neglected to note Dr. Elmes’s opinion clinical
impression that Plaintiff suffered from lumbar foraminal stenosis. (R. 26–28, 1316,
1319); see Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (“An ALJ may not
selectively discuss portions of a physician’s report that support a finding of nondisability while ignoring other portions that suggest a disability.”). In light of this
medical evidence, the ALJ’s determination that the record lacked any medical
evidence of lumbar spinal stenosis was erroneous. See Kaminski v. Berryhill, 894
F.3d 870, 874 (7th Cir. 2018) (indicating that a decision based on an incorrect
interpretation of the medical evidence is not supported by substantial evidence).
Second, even if, as the ALJ reasoned, Plaintiff’s hearing testimony and a
consultative examination, (see R. 684–91), demonstrated that Plaintiff retained “full
Neuroforaminal stenosis is a type of spinal stenosis. Neural Foraminal Stenosis:
Treatment, Symptoms, and Causes, https://www.healthline.com/health/neuralforaminal-stenosis (last visited Sept. 28, 2018). It occurs when the small openings
between the vertebrae, called the neural foramina, narrow or tighten, which may
compress the nerve roots that exit the spinal column through the neural foramina.
Id. The L5-S1 level refers to the lumbrosacral joint, which is located at the base of
the spine, between the lowest of the lumbar spine’s five vertebrae (L5), and the first
vertebra of the sacrum (S1). All about L5-S1 (Lumbrosacral Joint),
https://www.spine-health.com/conditions/spine-anatomy/all-about-l5-s1-lumbosacraljoint (last visited Sept. 28, 2018).
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range of motion of her lower extremities and is able to ambulate independently,” (R.
23), the ALJ improperly ignored other evidence indicating that Plaintiff could not
ambulate effectively. See Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). As
part of his February 2016 consultative examination, Dr. Elmes opined that Plaintiff
could not “walk a block at a reasonable pace on rough or uneven surfaces” or
perform activities like shopping. (R. 1326.) Based on examples of “ineffective
ambulation” listed in Listing 1.00(B)(2)(b), Plaintiff’s inability to perform these
activities could indicate an inability to ambulate effectively. See 20 C.F.R. Pt. 404,
Subpt. P, App’x 1, § 1.00(B)(2)(b) (“[E]xamples of ineffective ambulation include . . .
the inability to walk a block at a reasonable pace on rough or uneven surfaces [and]
the inability to carry out routine ambulatory activities, such as shopping and
banking[.]”); Moss v. Astrue, 555 F.3d 556, 562–63 (7th Cir. 2009) (finding that the
ALJ failed to adequately consider whether the claimant could ambulate effectively
based on the same examples from Listing 1.00(B)(2)).
The ALJ did not have to accept Dr. Elmes’s opinion about Plaintiff’s ability to
perform these activities, but she was required to consider it; if she decided not to
credit it, she had to explain why. See Moore, 743 F.3d at 1123 (“The ALJ must
confront the evidence that does not support her conclusion and explain why that
evidence was rejected.”). Because the ALJ failed to do so, remand is required. See
Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003) (finding remand
necessary because the ALJ improperly ignored lines of evidence); Abhsie v. Colvin,
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No. 13 C 8886, 2015 WL 1292536, at *4 (N.D. Ill. Mar. 17, 2015) (requiring remand
when the ALJ failed to confront conflicting evidence).
In addition, the Court agrees with Plaintiff that the ALJ failed to adequately
address her obesity in evaluating whether Listing 1.04(C) was met. Under SSR 021p, the ALJ was required to specifically address whether Plaintiff’s severe obesity,
in combination with her other impairments, met a listing. See McAfee v. Berryhill,
No. 16 C 2339, 2017 WL 8200182, at *5 (N.D. Ill. Dec. 15, 2017); Muiser v. Colvin,
No. 2:14-CV-167-PRC, 2015 WL 5714047, at *7 (N.D. Ind. Sept. 28, 2015); SSR 021p, 2002 WL 34686281, at *3, *5 (Sept. 12, 2002). The ALJ acknowledged this
obligation; however, she merely identified the ways that obesity, in general, may
adversely impact co-existing impairments and then concluded that “[t]hese
considerations have been taken into account in reaching the conclusions herein at
the 2nd through 5th steps of the sequential disability evaluation process.” (R. 23.)
This explanation was inadequate. The ALJ should have specifically explained
how Plaintiff’s obesity, which was deemed a severe impairment, affected her lumbar
spondylosis and any other impairment that related to Listing 1.04(C). See Muiser,
2015 WL 5714047, at *7 (finding reversible error where the ALJ offered “no analysis
of why Plaintiff’s obesity in combination” with the medical evidence regarding
Listing 1.04 did not equal that listing). Simply stating that obesity has been
accounted for does not allow this Court to review whether the ALJ’s evaluation was
legally sufficient. See Briscoe, 425 F.3d at 351 (“[T]he ALJ must also explain his
analysis of the evidence with enough detail and clarity to permit meaningful
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appellate review.”); see also McAfee, 2017 WL 8200182, at *5 (suggesting that “the
ALJ explicitly make clear in her decision how Plaintiff’s obesity was taken into
account” on remand). Remand is appropriate so that the ALJ can explicitly explain
how Plaintiff’s obesity factored into her listing analysis. See Steele, 290 F.3d at 940
(requiring remand where an ALJ’s decision does not allow for meaningful review).
Based on its conclusion that remand is necessary for the above reasons, the
Court need not explore in detail the remaining errors claimed by Plaintiff. The
Court emphasizes that the Commissioner should not assume these issues were
omitted from the opinion because no error was found.
CONCLUSION
For the foregoing reasons, Plaintiff’s request to reverse the Commissioner’s
decision is granted in part and denied in part, and the Commissioner’s motion for
summary judgment [Doc. No. 23] is denied. The Court finds that this matter should
be remanded to the Commissioner for further proceedings consistent with this
Order.
SO ORDERED.
ENTERED:
DATE:
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
November 28, 2018
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