Hane v. Berryhill
Filing
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MEMORANDUM Opinion and Order: Signed by the Honorable M. David Weisman on 5/21/2018. Mailed notice (ao,)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
REBECCA LYNN HANE,
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations,
performing the duties and functions
not reserved to the Commissioner of
Social Security
Defendant.
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No. 17 C 6292
Magistrate Judge M. David Weisman
MEMORANDUM OPINION AND ORDER
Rebecca Lynn Hane brings this action pursuant to 42 U.S.C. § 405(g) for judicial review
of the Social Security Administration’s (“SSA’s”) decision denying her application for benefits.
For the reasons set forth below, the Court reverses the SSA’s decision.
Background
Plaintiff filed an application for benefits on July 26, 2013, alleging a disability onset date
of January 1, 2005. (R. 68-70.) Her application was denied initially on December 6, 2013, and
again on reconsideration on August 13, 2014. (R. 68, 81.) Plaintiff requested a hearing before
an Administrative Law Judge (“ALJ”), which was held on July 19, 2016. (R. 34-59.) On
October 18, 2016, the ALJ issued a decision denying plaintiff’s application. (R. 20-28.) The
Appeals Council denied review (R. 1-3), leaving the ALJ’s decision as the final decision of the
Commissioner. 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. Under the regulations, the SSA must consider: (1) whether the
claimant has performed any substantial gainful activity during the period for which she claims
disability; (2) if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether the claimant’s impairment meets or equals any listed impairment;
(4) if not, whether the claimant retains the residual functional capacity (“RFC”) to perform her
past relevant work; and (5) if not, whether he is unable 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, and if that burden
is met, the burden shifts at step five to the SSA to provide evidence that the claimant is capable
of performing work existing in significant numbers in the national economy. See 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. 22.) At step two, the ALJ found that plaintiff has the severe
impairments of “autoimmune disorder; scoliosis; obesity; history of cataract surgery; macular
edema; and hyperlipidemia.” (Id.) At step three, the ALJ found that plaintiff does not have an
impairment or combination of impairments that meets or medically equals the severity of a listed
impairment. (R. 23.) At step four, the ALJ found that plaintiff has the RFC to perform her past
relevant work as a hairstylist, and thus is not disabled. (R. 24-28.)
The ALJ concluded that plaintiff can perform medium work without any overhead
reaching or fingering restrictions (R. 24, 26), a conclusion plaintiff says is contrary to her
testimony and the record as a whole. Plaintiff testified that she has “trouble reaching up” on her
right side and, on bad days, has difficulty using her right hand, which prevents her from cooking,
cleaning, and doing other household chores. (R. 41-49.) As the ALJ pointed out, the medical
evidence is at odds with plaintiff’s testimony. The clinical notes of plaintiff’s treating physician,
Dr. Munn, which he cited when asked to opine on the limitations caused by plaintiff’s condition
(R. 434-36), show that plaintiff’s symptoms are controlled with medication. (See, e.g., R. 360
(7/17/12 medical record noting that plaintiff “is doing well on Enbrel and Plaquenil in terms of
joint pain and swelling without current symptoms”); R. 364 (1/17/12 medical record stating that
plaintiff “is doing well on Enbrel and Plaquenil in terms of joint pain and swelling with rare
episodes now”); R. 367, 372 8/18/11 & 2/17/11 medical records noting that plaintiff “improved
on Enbrel and [P]laquenil,” and was “doing well without active joint complaints”); R. 376
(8/12/10 medical record stating that plaintiff “improved on Enbrel and [P]laquenil,” is “not
having any joint pain or swelling currently,” and has “no limitations physically right now due to
the arthritis”); R. 379, 381 (2/11/10 & 8/31/09 medical records stating same).) Similarly, two
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different consultative examiners found that plaintiff had normal fine dexterity movements and
5/5 grip strength in her hands, “no restriction of range of motion,” and “no limitation of any
joint.” (R. 344, 404.) In short, the ALJ’s conclusion that plaintiff had the physical RFC to
perform medium work is supported by substantial evidence.
Plaintiff also argues that the ALJ erred in rejecting the opinion of plaintiff’s treating
physician, Dr. Munn. The ALJ was required to give the treating physician’s opinion controlling
weight if “it [was] well-supported by medically acceptable clinical and laboratory diagnostic
techniques and . . . not inconsistent with the other substantial evidence in [the] record.” 20
C.F.R. § 404.1527(c)(2);1 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. Roddy v. Astrue, 705
F.3d 631, 636 (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 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 20 C.F.R. § 404.1527(c).
Dr. Munn opined that plaintiff had a “history of persistent joint pain, swelling and
tenderness involving multiple major joints” and had “signs of joint inflammation . . . on current
physical examination despite prescribed therapy for at least 3 months,” which “resulted in
significant restriction of function of the affected joints.” (R. 436.) The ALJ gave “[n]o weight”
to Dr. Munn’s opinion because it “does not set forth functional limitations,” some of his
treatment records state that plaintiff “had no limitations due to arthritis,” and “there is no
indication that Dr. Dunn [sic] is familiar with the Agency’s rules and regulations for determining
disability.” (R. 27.)
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This regulation applies to claims that were filed before March 27, 2017.
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Given the vague and conclusory nature of Dr. Munn’s opinion, the ALJ’s failure to
assess it in accordance with the regulatory factors was harmless error. Though Dr. Munn said
plaintiff’s joint function was significantly restricted, he did not indicate what joints were affected
or what specific limitations the restriction caused. When he was asked to identify the specific
limitations, Dr. Munn simply referred to his clinical notes (R. 434-36), which as discussed
above, state that plaintiff’s symptoms are controlled by medication and/or that her arthritis does
not cause any physical limitations. In other words, Dr. Munn’s “opinion” is vague, contradicted
by his own treatment notes, and sheds no light on plaintiff’s ability to engage in work activities.
Because assessing this opinion in accordance with the regulatory factors would not have made it
more substantial or relevant, the ALJ’s failure to do so is not a basis for remand.
Plaintiff fares better with her last argument, that the ALJ’s RFC “completely ignore[s]
any limitations arising out of Plaintiff’s depression.” (Pl.’s Mem. Supp. Mot. Summ. J., ECF 9
at 9.) With respect to this issue, the ALJ said:
The record contains notation of depression. However, there is no evidence of
symptoms or abnormal mental status tests showing that the claimant has a mental
disorder as described in the 12.00 series of listings, including 12.04 for affective
disorders. In addition, there is no evidence of any episodes of decompensation or
any limitations in activities of daily living, social functioning, and with regard to
concentration, persistence or pace. There is no evidence of mental health
treatment. Furthermore, the evidence does not show that a mental disorder
caused, or could be expected to cause, functional limitations for twelve months or
more. Therefore, the undersigned finds that depression is a “non-severe”
impairment.
(R. 22-23) (citations omitted).
As plaintiff points out, the ALJ did not apply the “special technique” when determining
that plaintiff’s depression was not a severe impairment. See 20 C.F.R. § 404.1520a (eff. to Jan.
16, 2017) (instructing ALJs to determine whether the claimant has a medically determinable
mental impairment and, if so, to assess the degree of limitation that the impairment causes the
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claimant in “[a]ctivities of daily living; social functioning; concentration, persistence, or pace;
and episodes of decompensation”). The SSA contends that this was a harmless error. (Def.’s
Mem. Supp. Mot. Summ. J., ECF 17 at 4); see Richards v. Astrue, 370 F. App’x 727, 730 (7th
Cir. 2010) (“An ALJ’s failure to explicitly use the special technique may be harmless error . . .
.”). The Court disagrees. The ALJ noted that plaintiff had been diagnosed with depression and
concluded that it did not impact her activities of daily living, social functioning, concentration,
persistence, or pace or result in any episodes of decompensation. (R. 22-23.) The ALJ did not,
however, “identify the relevant evidence and build a logical bridge between that evidence and
the ultimate determination.” See Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014) (quotation
omitted). Thus, based on the ALJ’s limited articulated reasoning, the ALJ’s conclusion that
plaintiff’s depression is not a severe impairment is not supported by substantial evidence.
Conclusion
For the reasons set forth above, the Court grants plaintiff’s motion for summary judgment
[8], denies the SSA’s motion for summary judgment [16], reverses the SSA’s decision, and
remands this case for further proceedings consistent with this Memorandum Opinion and Order.
SO ORDERED.
ENTERED: May 21, 2018
_________________________________
M. David Weisman
United States Magistrate Judge
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