Baldino v. Berryhill
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Sunil R. Harjani on 3/18/2019. Mailed notice(lxs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TRACIE B.,
v.
Case No. 17-CV-7276
Plaintiff,
Magistrate Judge Sunil R. Harjani
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Tracie B. brings this action for judicial review of the Social Security Administration’s
decision denying her application for Disability Insurance Benefits under the Social Security Act.
For the reasons set forth below, this Court remands the SSA’s decision for further proceedings
consistent with this Order.
Background
Claimant’s application for disability insurance benefits was denied initially, upon
reconsideration, and in a July 28, 2016 decision following a hearing held by the ALJ. R. 18. The
Appeals Council declined review in August 11, 2017, leaving the ALJ’s decision as the final
decision of the SSA, reviewable by this Court pursuant to 42 U.S.C. § 405(g). R. 1, 5. The ALJ
concluded that Claimant “has not been under a disability within the meaning of the Social Security
Act from June 5, 2012, through the date of this decision.” R. 21.
Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” that is, “‘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(4)(a)(4). The ALJ must consider whether: (1) the claimant
has performed any substantial gainful activity during the period for which disability is claimed;
(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 past relevant work; and (5) the claimant is able to perform any other work
existing in significant numbers in the national economy. See id.; see also Zurawski v. Halter, 245
F.3d 881, 885 (7th Cir. 2001).
At step one, the ALJ found that Claimant had not engaged in substantial gainful activity
since the onset date. R. 23. At step two, the ALJ determined that Claimant had two severe
impairments: cervical myelopathy and cervical radiculopathy. R. 23. The ALJ determined that
Claimant’s back abnormality – bulging of two lumbar discs – was a non-severe impairment. R.
23-24.
At step three, the ALJ determined that Claimant does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. R. 24. At step four, the ALJ found that
Claimant has the residual functional capacity (“RFC”) to perform “sedentary work” and can
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perform her past relevant work as a branch manager. R. 28. 1 Presumably, the ALJ did not address
step five because the ALJ had already concluded that Claimant was able to perform her past
relevant work. R. 28. As a result, the ALJ concluded that the Claimant was not disabled. See 20
CFR 404.1520(f).
I.
RFC
Claimant contends that the ALJ failed to identify the evidentiary basis that supported his
assessment of Claimant’s RFC. Specifically, Claimant argues that the ALJ did not identify
evidence that supported the specific functional limitations 2 included in the RFC assessment and
therefore the ALJ’s conclusion that Claimant’s RFC was “sedentary” was inappropriate. Doc. [12]
at 6; see Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005) (“the ALJ did not
explain how he arrived at [the RFC and its related limitations]; this omission in itself is sufficient
to warrant reversal”).
Here, the only medical opinion that the ALJ gave any weight – albeit limited weight – was
the state agency medical consultant who reviewed Claimant’s medical history. R. 27-28. The state
agency medical consultant opined that Claimant retained the RFC to perform work at the light
This Court notes that although the ALJ’s decision appears to have inadvertently wrote that Claimant’s
RFC was “less than sedentary work,” R. 24, the ALJ’s decision as a whole combined with the parties’
briefing suggests that the ALJ intended to make an RFC finding of sedentary work. Compare R. 26 (“The
undersigned has accommodated the claimant’s impairments and associated symptoms by limiting her to
sedentary level work with additional physical limitations as described above.”) (emphasis added), with R.
28 (finding that Claimant can perform past relevant work as a general manager because it is generally
performed at a sedentary level), and Doc. [12] at 5 (Claimant’s brief recognizing that “[t]he ALJ found that
[Claimant] retained the RFC to perform work at the sedentary exertional level”). Accordingly, this Court
proceeds with the understanding that the ALJ intended to make a sedentary RFC determination. On remand,
the ALJ is directed to clarify its RFC determination.
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The RFC’s specific limitations are: “She can lift/carry 10 pounds occasionally and less than 10 pounds
frequently. She can sit for 6 hours in an 8-hour workday. She can stand/walk for 2 hours. She can push/pull
as much as she can lift/carry. She is limited to occasional use of foot controls on the left. She can never
reach overhead with the left upper extremity. She can handle and finger occasionally with the left upper
extremity. She cannot climb ramps or stairs. She can occasionally climb ladders, ropes, or scaffolds, stoop,
kneel, crouch, or crawl.” R. 24.
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exertional level but could occasionally climb ropes, scaffolds, ramps and stairs; could occasionally
stop; and could frequently feel, handle, and finger with the left upper extremity. R. 27. The ALJ
reasoned that little weight was appropriate because the opinion was made before all the relevant
evidence that warranted inclusion of additional functional restrictions was in the record. R. 27-28.
But the ALJ did not provide a discussion describing the evidence he relied on in formulating his
conclusion otherwise. Because the only available medical opinion evidence was discounted and
without having explained the basis for the ALJ’s RFC determination otherwise, this Court is unable
to ascertain the basis for the ALJ’s finding. And so, this Court concludes that the ALJ faced an
evidentiary deficit that was impermissibly filled with his own lay opinion. See, e.g., Suide v.
Astrue, 371 Fed.Appx. 684, 690 (7th Cir. 2010) (“it is the evidentiary deficit left by the ALJ’s
rejection of his reports—not the decision itself—that is troubling.”); Briscoe ex rel. Taylor, 425
F.3d at 352 (“the ALJ did not explain how he arrived at these conclusions; this omission in itself
is sufficient to warrant reversal of the ALJ's decision.”); SSR 96–8p at *7 (“RFC assessment must
include a narrative discussion describing how the evidence supports each conclusion, citing
specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities,
observations).” Accordingly, remand is appropriate so that the ALJ can elaborate how he
determined the RFC. On remand, the ALJ is instructed to specifically explain the evidentiary basis
for the RFC finding and its related functional restrictions.
A.
Sitting
The ALJ’s decision does not explain how he determined that Claimant could sit for 6 hours
in an 8-hour workday despite her testimony that she struggled to sit. R. 24; R. 39 (Claimant
testifying that she cannot drive for more than two hours because “the longer I sit the more pain I
get in my left side, my left arm, my left leg. Numbness, burning in my back.”). The ALJ should
have addressed his basis for determining that Claimant is able to sit for 6 hours in an 8-hour
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workday. For example, the ALJ did not state that its sitting limitation resulted from medical
opinions in the record. Indeed, the ALJ did not cite the record in support of this conclusion even
though it contains medical opinions suggesting that Claimant can sit for a total of 6 hours in an 8hour workday. See, e.g., R. 66, 67, 78, 80 (providing that the Claimant can “sit (with normal
breaks) for a total of: About 6 hours in an 8-hour workday”). Accordingly, the case is remanded
so that the can evaluate and reconcile the medical opinions in the record that suggest Claimant can
sit for 6 hours in an 8-hour workday with Claimant’s contradictory testimony.
B.
Lying Down
Claimant contends that the ALJ’s decision warrants remand because the ALJ did not
provide a functional restriction for Claimant’s alleged need to lie down between 9:00 a.m. and
5:00 p.m. for “[t]wo to three hours sometimes.” R. 55. Claimant’s alleged need to lie down for 2
hours per 8-hour workday, or 25% of the workday, is important because the Vocational Expert
(“VE”) testified that an individual who needed to lie down for 20 percent of a work shift “would
be unable to maintain employment.” R. 59. The ALJ rejected this alleged functional restriction
and reasoned that “laying down daily for 2-3 hours [is] not supported by the medical records.” R.
27. Such analysis is insufficient.
If a claimant alleges a functional limitation that requires he or she to lie down for two hours
to alleviate pain, the ALJ must address whether the alleged limitation should be incorporated into
the RFC as functional restrictions. See SSR 96–8p (“The RFC assessment must include a
discussion of why reported symptom-related functional limitations and restrictions can or cannot
reasonably be accepted as consistent with the medical and other evidence.”). An ALJ may not
discredit testimony solely because there is no objective medical evidence to support it. See Adaire
v. Colvin, 778 F.3d 685, 687 (7th Cir. 2015) (“[The ALJ’s] principal error, which alone would
compel reversal, was the recurrent error made by the Social Security Administration's
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administrative law judges, and noted in many of our cases, of discounting pain testimony that can't
be attributed to “objective” injuries or illnesses”); see also Myles v. Astrue, 682 F.3d 672, 677 (7th
Cir. 2009). In Myles, the ALJ committed reversible error by discounting an alleged symptomrelated limitation without providing an explanation beyond stating a lack of objective medical
evidence. Myles, 682 F.3d at 677. Here, like in Myles, the only discussion the ALJ gave to
Claimant’s alleged need to lie down is that “laying down daily for 2-3 hours [is] not supported by
the medical records.” R. 27. This statement on its own is an insufficient explanation under Myles.
Therefore, the case must be remanded for further analysis into Claimant’s alleged need to lie down
for 2-3 hours to alleviate pain.
C.
Claimant’s Need to Frequently Alternate Positions
Claimant contends that the ALJ did not explain how he analyzed Claimant’s allegation that
she needed to frequently alternative positions to relieve pain. Doc. [12] at 10 (citing R. 39).
Claimant cites her own testimony that she cannot drive long distances because doing so entails
sitting in one place for two hours at a time, a task which she cannot do without frequently
alternating positions. Id.
This Court construes the analysis of Claimant’s symptom-related
functional limitation of needing to frequently alternate positions while seated to go hand-in-hand
with the symptom-related functional limitation discussed above of not being able to sit more than
6 hours per 8-hour work day. As a result, for the same reasons discussed above, this case is
remanded so that the ALJ can revisit the RFC with respect to Claimant’s alleged need to frequently
alternate positions while seated.
D.
Claimant’s Tendency to Drop Items Held In Her Left Hand
Claimant also contends that the ALJ did not explain how he evaluated Claimant’s
allegation that she frequently dropped items that she held in the left hand. See Doc. [12] at 10
(citing R. 53). Specifically, Claimant testified that she had difficulty “opening a jar or something
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like that, I have a lot more weakness on this side. I drop things. . . . Silverware, you go to pick up,
but if I use my left hand I’ll -- I’ll drop it.” R. 53. Although Claimant testified that she had
difficulty using her left hand, she testified that she could still use her right hand. See R. 53
(Claimant explaining that she can put on earrings or stuff like that with her right hand).
The ALJ addressed Claimant’s left hand’s issues in his decision. R. 27.
The ALJ
recognized these alleged impairments of the hand and explained how the Claimant’s testimony
was inconsistent with the evidence:
Additionally, the claimant testified to numbness and weakness to her entire hand.
She reported burning stabbing pain and muscle tightness on the left side with
reaching overhead. She testified to difficulty opening a jar and dropping
silverware. However, the medical records showed mild symptoms or improvement
following cervical spine surgery. For example, an x-ray of her neck in October
2014 only showed postoperative changes and no abnormalities to her cervical spine
discs (Exhibit 5F/155). In January 2015, examination findings showed limited
cervico-thoracic spine range of motion and some numbness to the left digits 1-3
(Exhibit 5F/205). However she had full 5/5 motor strength to her cervical and
thoracic spine and only minimally reduced 4+/5 motor strength at C7.
R. 27.
As shown above, the ALJ addressed and considered Claimant’s alleged hand restrictions.
Accordingly, the ALJ’s decision with respect to potential RFC restrictions concerning her left hand
is supported by the substantial evidence on the record.
E.
Severe Pain
Claimant argues that the ALJ erred by failing to properly assess her allegations of severe
pain as part of the RFC determination. Once an underlying impairment that could reasonably be
expected to produce an individual's symptoms such as pain is established, the ALJ should evaluate
the intensity and persistence of those symptoms to determine the extent to which the symptoms
limit an individual's ability to perform work-related activities. See SSR 16-3p.
The ALJ applied the appropriate analytical process. See R. 24-25. Claimant’s suggestion
that the ALJ only noted an MRI of the lumbar spine and in turn ignored the MRI of the cervical
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spine is incorrect. Compare Doc. [12] at 11 (“the ALJ impermissibly ignored the MRI of the
cervical spine that reflected disc herniation”) with R. 25 (“In May 2012, MRI of the cervical spine
showed small herniation . . . .”). Claimant goes on to suggest that the ALJ failed to appropriately
analyze Claimant’s June 2014 operation and therefore failed to make a decision based on the
substantial evidence on the record with respect to Claimant’s pain, numbness, and weakness. Doc.
[12] at 12. But the decision clearly shows that the ALJ did in fact refer to the June 2014 medical
visit. See R. 26. As the ALJ pointed out, the June 2014 medical visit’s report states that “Patient
states she is doing okay, the numbness at the left arm has improved since the surgery. States pain
is controlled with medications.” R. 402; see also R. 26. Additionally, the ALJ tracked the
Claimant’s progress through a January 2016 therapy discharge summary that documented how
Claimant was doing better overall. R. 26; R. 605. Accordingly, the ALJ’s determination with
respect to Claimant’s pain is supported by the substantial evidence on the record.
F.
Activities of Daily Living
Claimant contends that the ALJ erred in failing to explain how he considered Claimant’s
limitations in activities of daily living (“ADL”) when he assessed her subjective allegations. Doc.
[12] at 12. Specifically, Claimant challenges the ALJ’s finding that Claimant’s ADL limitations
did not constitute strong evidence that Claimant was disabled since the ADL testimony was not
objectively verified. Doc. [12] at 12. But a review of the ALJ’s decision does indeed show how
the ALJ considered Claimant’s ADL limitations. The ALJ recognized that Claimant needed to sit
down while dressing, leaned against a wall while showering, needed frequent breaks while
straightening up her house and doing dishes, and performed minimal chores. R. 27.
Nevertheless, this Court is unable to ascertain whether the ALJ considered Claimant’s
alleged ADL limitations because the ALJ simply stated that Claimant’s ADL were outweighed by
other factors. R. 27. Even though the ALJ’s subjective symptom evaluation is afforded special
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deference, the ALJ should have addressed the alleged ADL evidence rather than broadly
dismissing them for lack of verification and as “difficult to attribute” as opposed to other sources.
See SSR 16-3p; see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (highlighting the
importance of ADL analysis by noting that “[t]he critical differences between [ADL] and activities
in a full-time job are that a person has more flexibility in scheduling the former than the latter, can
get help from other persons . . . , and is not held to a minimum standard of performance, as she
would be by an employer.”); Castile v. Astrue, 617 F.3d 923, 929 (7th Cir. 2010) (noting an ALJ’s
subjective symptom evaluation is afforded “special deference.”).
Accordingly, the ALJ is
instructed on remand to analyze Claimant’s alleged ADL evidence.
G.
Side Effects from Prescription Medications
Claimant also argues that the ALJ erred in failing to explain how he considered Claimant’s
side effects from prescription medications. Doc. [12] at 13. In evaluating the intensity, persistence,
and limiting effects of an individual’s symptoms, an ALJ should consider the “side effects of any
medication an individual takes or has taken to alleviate pain or other symptoms.” SSR 16-3p; see
also CFR 404.1529(c)(3)(iv). Here, Claimant points to her own testimony that her medications
impaired her focus and caused her to feel groggy, tired, and sleepy, R. 45, and suggests that the
ALJ “did not explain why it was unreasonable to find that [Claimant] did not, in fact experience
these side effects as a result of the medication that she used to treat her pain.” Doc. [12] at 14. But
the ALJ did recognize Claimant’s side effects: “She testified to medication side effects of trouble
focusing, tiredness, ‘grogginess’, and tiredness.” R. 27.
The ALJ’s acknowledgement of
Claimant’s side effects does not suggest that the ALJ determined Claimant’s side effects to be
unreasonable. Rather, it suggests that the ALJ did in fact consider Claimant’s alleged side effects
in evaluating the intensity, persistence, and limiting effects of Claimant’s symptoms. Accordingly,
remand with respect to the ALJ’s analysis of Claimant’s medication’s side effects is not necessary.
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II.
Past Relevant Work
Claimant next contends that the ALJ erred in finding that Claimant could perform past
relevant work as a branch manager. To be found disabled under the law, an individual must have
a medically determinable impairment(s) of such severity that he or she is not only unable to do his
or her previous work but cannot, considering his or her age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national economy. SSR
82-62. Here, the ALJ found Claimant capable of performing her past job as a branch manager as
it is generally performed.
In finding that an individual has the capacity to perform a past relevant job, the
determination or decision must contain among the findings the following findings of fact: (1) a
finding of fact as to the individual’s RFC, (2) a finding of fact as to the physical and mental
demands of the past job/occupation, and (3) a finding of fact that the individual’s RFC would
permit a return to his or her past job or occupation. See SSR 82-62; see also Nolen v. Sullivan, 939
F.2d 516, 519 (7th Cir. 1991) (“We therefore remand the matter for the ALJ to determine the
demands of [the claimant’s] job and, based on the evidence available, his ability to meet them
during his insured status.”); Strittmatter v. Schweiker, 729 F.2d 507, 509 (7th Cir. 1984) (“The
administrative law judge was required to determine the physical demands of the particular type of
sedentary work that this claimant had done and then compare those demands to her present
capabilities.”).
Here, the ALJ’s decision merely cites the Dictionary of Occupational Titles listing branch
manager as a sedentary job and the VE’s testimony that the claimant is able to perform that job as
generally performed. But the ALJ’s decision neither addresses the specific duties involved as a
branch manager nor assesses Claimant’s ability to perform those specific tasks. Accordingly, the
ALJ’s decision is deficient under Strittmatter and Nolen. We therefore remand the matter for the
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ALJ to determine the demands of Claimant’s past relevant work and, based on the evidence
available, her ability to meet them.
III.
Evidentiary Standard
Claimant further challenges the ALJ’s decision by arguing that the ALJ applied an incorrect
evidentiary standard in evaluating her subjective allegations. Doc. [12] at 10. An ALJ must base
the decision on the preponderance of the evidence offered at the hearing or otherwise included in
the record. See 20 CFR § 404.953. “Preponderance of the evidence means such relevant evidence
that as a whole shows that the existence of the fact to be proven is more likely than not.” 20 C.F.R.
§ 404.901. Here, Claimant suggests that the ALJ departed from the preponderance of the evidence
standard by finding Claimant’s subjective allegations to be “not entirely consistent with the
medical evidence and other evidence in the record.” R. 26. But the ALJ’s decision does not state
that the ALJ employed a standard beyond the preponderance of the evidence. Nor does Claimant
cite any authority to suggest that an ALJ violates the preponderance of the evidence standard by
noting that the claimant’s assertions are not supported by the record. Rather, this Court construes
the ALJ’s statement that a Claimant’s subjective allegations were “not entirely consistent with the
medical evidence and other evidence in the record” plainly. Therefore, this Court finds such a
statement to be appropriate because the very definition of “preponderance of the evidence”
requires an adjudicator to weigh all relevant evidence. See 20 C.F.R. § 404.901. Accordingly, the
ALJ did not violate the preponderance of the evidence standard by noting that the Claimant’s
allegations were not entirely consistent with the record.
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Conclusion
For the foregoing reasons, this Court remands this case for further proceedings consistent
with this Order.
SO ORDERED.
Dated: March 18, 2019
______________________
Sunil R. Harjani
United States Magistrate Judge
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