Laude v. Berryhill
Filing
29
MEMORANDUM Opinion and Order Signed by the Honorable Mary M. Rowland on 5/6/2019.Mailed notice. (dm, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROSENA L., 1
Plaintiff,
No. 17 C 7771
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Magistrate Judge Mary M. Rowland
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Rosena L. filed this action seeking reversal of the final decision of the
Commissioner of Social Security denying her application for Disability Insurance
Benefits (DIB) under Title II of the Social Security Act (the Act). The parties
consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28
U.S.C. § 636(c), and filed cross motions for summary judgment. This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons stated below, the case is
remanded for further proceedings consistent with this Opinion.
I. PROCEDURAL HISTORY
On May 8, 2014, Plaintiff applied for DIB, alleging that she became disabled on
October 15, 2013 because of a thyroid condition, idiopathic thrombocytopenia, and
right-hand problems, including numbness. (R. at 127, 137, 157, 232). The Social
In accordance with Internal Operating Procedure 22, the Court refers to Plaintiff only by her first
name and the first initial of her last name.
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Security Administration (SSA) denied Plaintiff’s application initially on July 28, 2014
and upon reconsideration on March 27, 2015. (Id. at 152–57, 161–64). After
requesting a hearing, Plaintiff, represented by counsel, testified before an
Administrative Law Judge (ALJ) on April 14, 2016. (Id. at 54–56, 63–89, 101–09,
165–66). The ALJ also heard testimony from a medical expert (ME) and a vocational
expert (VE). (Id. at 54–55, 90–100, 109–25).
On August 25, 2016, the ALJ issued an unfavorable decision. (R. at 22–39).
Applying the five-step sequential evaluation process, the ALJ found, at step one, that
Plaintiff had not engaged in substantial gainful activity since her alleged disability
onset date. (Id. at 27). At step two, the ALJ found that Plaintiff has the following
severe impairments: right wrist arthritis secondary to scapholunate advanced
collapse (SLAC) wrist, status post fusion; autoimmune inflammatory process,
including left wrist/hand; and left wrist ulnar impaction syndrome. (Id.). At step
three, the ALJ determined that Plaintiff does not have an impairment or a
combination of impairments that meets or medically equals the severity of any of the
listings enumerated in the regulations. (Id. at 28).
The ALJ then assessed Plaintiff’s Residual Functional Capacity (RFC) 2 and
determined that Plaintiff has the RFC to:
perform light work as defined in 20 CFR 404.1567(b) except that she
should not climb ladders, ropes, or scaffolds; she can occasionally crawl;
and occasionally handle and finger with her bilateral hands. [Plaintiff]
can lift or carry up to 10 pounds with her dominant right hand. She
Before proceeding from step three to step four, the ALJ assesses a claimant’s RFC, which “is the
maximum that a claimant can still do despite [her] mental and physical limitations.” Craft v. Astrue,
539 F.3d 668, 675–76 (7th Cir. 2008); 20 C.F.R. § 404.1520(a)(4).
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should avoid moderate exposure to hazards such as dangerous moving
machinery or unprotected heights.
(R. at 28). Moving to step four, the ALJ determined that Plaintiff could not perform
any past relevant work. (Id. at 32). At step five, the ALJ found that light, unskilled
jobs existed in significant numbers in the national economy that Plaintiff could
perform, such as usher (52,000 jobs), furniture rental consultant (44,000 jobs), or
counter clerk (44,000 jobs). (Id. at 33–34). Accordingly, the ALJ concluded that
Plaintiff had not been under a disability from her alleged onset date through the date
of the ALJ’s decision. (Id. at 34).
On September 9, 2017, the Appeals Council denied Plaintiff’s request for review.
(R. at 1–5). Plaintiff seeks judicial review of the ALJ’s decision, which stands as the
Commissioner’s final decision. Villano v. Astrue, 556 F.3d 558, 561–62 (7th Cir. 2009).
II. STANDARD OF REVIEW
A court reviewing the Commissioner’s final decision may not engage in its own
analysis of whether the claimant is severely impaired as defined by the Social
Security regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may
it “reweigh evidence, resolve conflicts in the record, decide questions of credibility, or,
in general, substitute [its] own judgment for that of the Commissioner.” Id. The
Court’s task is “limited to determining whether the ALJ’s factual findings are
supported by substantial evidence.” Id. “Evidence is considered substantial if a
reasonable person would accept it as adequate to support a conclusion.” Indoranto v.
Barnhart, 374 F.3d 470, 473 (7th Cir. 2004); see Moore v. Colvin, 743 F.3d 1118, 1120–
21 (7th Cir. 2014) (“We will uphold the ALJ’s decision if it is supported by substantial
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evidence, that is, such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”) (internal quotations omitted). “Substantial
evidence must be more than a scintilla but may be less than a preponderance.”
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). “In addition to relying on
substantial evidence, the ALJ must also explain [her] analysis of the evidence with
enough detail and clarity to permit meaningful appellate review.” Briscoe ex rel.
Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).
Although this Court accords great deference to the ALJ’s determination, it “must
do more than merely rubber stamp the ALJ’s decision.” Scott v. Barnhart, 297 F.3d
589, 593 (7th Cir. 2002) (citation, quotations, and alternations omitted). “This
deferential standard of review is weighted in favor of upholding the ALJ’s decision,
but it does not mean that we scour the record for supportive evidence or rack our
brains for reasons to uphold the ALJ’s decision. Rather, the ALJ must identify the
relevant evidence and build a ‘logical bridge’ between that evidence and the ultimate
determination.” Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014). “[W]here the
Commissioner’s decision lacks evidentiary support or is so poorly articulated as to
prevent meaningful review, the case must be remanded.” Steele v. Barnhart, 290 F.3d
936, 940 (7th Cir. 2002).
III. DISCUSSION
Plaintiff makes a number of arguments challenging the ALJ’s decision. After
reviewing the record and the parties’ briefs, the Court is convinced by Plaintiff’s
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argument that the ALJ erred in evaluating Plaintiff’s subjective symptom
allegations. 3
A two-step process governs the evaluation a claimant’s own description of his or
her impairments. First, the ALJ “must consider whether there is an underlying
medically determinable physical or mental impairment(s) that could reasonably be
expected to produce the individual’s symptoms, such as pain.” SSR 16-3p, at *2 (Mar.
16, 2016). “Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce the individual’s symptoms is established, we
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[.]”
Id.
In evaluating the claimant’s subjective symptoms, “an ALJ must consider several
factors, including the claimant’s daily activities, her level of pain or symptoms,
aggravating factors, medication, treatment, and limitations, and justify the finding
with specific reasons.” Villano, 556 F.3d at 562 (citations omitted); see 20 C.F.R. §
404.1529(c); SSR 96-7p; SSR 16-3p. An ALJ may not discredit a claimant’s testimony
about her symptoms “solely because there is no objective medical evidence supporting
it.” Villano, 556 F.3d at 562 (citing 20 C.F.R. § 404.1529(c)(2)). Even if a claimant’s
symptoms are not supported directly by the medical evidence, the ALJ may not ignore
Because the Court remands for this reason, it does not address Plaintiff’s other arguments at this
time.
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circumstantial evidence, medical or lay, which does support claimant’s credibility.
Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539–40 (7th Cir. 2003).
Although the Court will uphold an ALJ’s subjective symptom evaluation if it “is
not patently wrong,” the ALJ “still must competently explain an adverse-credibility
finding with specific reasons supported by the record.” Engstrand v. Colvin, 788 F.3d
655, 660 (7th Cir. 2015) (internal quotations omitted). Simply reciting the regulatory
factors, though, is not enough: “[w]ithout an adequate explanation, neither the
applicant nor subsequent reviewers will have a fair sense of how the applicant’s
testimony is weighed.” Steele, 290 F.3d at 942. “An erroneous credibility finding
requires remand unless the claimant’s testimony is incredible on its face or the ALJ
explains that the decision did not depend on the credibility finding.” Pierce v. Colvin,
739 F.3d 1046, 1051 (7th Cir. 2014).
The ALJ found that Plaintiff’s symptom allegations were “not entirely consistent
with the medical evidence and other evidence in the record” and were “not entirely
supported by the record evidence.” (R. at 29, 31). Specifically, the ALJ found that
Plaintiff’s allegations were not supported because: (1) Plaintiff “testified that she left
her former job because she was fired, not because her impairments prevented her
from working”; and (2) Plaintiff has improved with treatment, including
corticosteroid injections and surgery, such that “she is able to use her hands to do
things that need doing.” (Id. at 31). Because these reasons are legally insufficient and
not supported by substantial evidence, remand is warranted. See Ghiselli v. Colvin,
837 F.3d 771, 778–79 (7th Cir. 2016).
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First, the ALJ erred by selectively relying on one aspect of Plaintiff’s work
history to discredit her symptom statements while ignoring the rest. The ALJ
discounted Plaintiff’s allegations because she left her last place of employment due
to being fired rather than because of her physical impairments. (R. at 31). 4 Yet, the
ALJ did not mention that Plaintiff testified that she looked for employment after
she was fired but could not return to work due to increasing pain and weakness for
which she needed medical treatment. (Id. at 69–71, 76–79, 83). Also, the ALJ did
not address Plaintiff’s fifteen-year employment history with good earnings, (R. 240–
45, 270–74), which could support her allegations of being unable to work due to her
physical limitations. See Stark v. Colvin, 813 F.3d 684, 689 (7th Cir. 2016) (“a
‘claimant with a good work record is entitled to substantial credibility when
claiming an inability to work because of a disability.’ ”) (citing Hill v. Colvin, 807
F.3d 862, 868 (7th Cir. 2015).
The ALJ also failed to explain how Plaintiff’s “improvement with treatment”
undermined her allegations of continued impairments and pain following
treatment. When discounting Plaintiff’s allegations, the ALJ stated:
[T]he record . . . shows that the claimant has improved with treatment
and she is able to use her hands to do things that need doing.
Corticosteroid injections provided significant temporary relief, and
surgery improved the functioning of the claimant’s right hand and wrist
to the point that she was back to doing “essentially everything.” The
claimant now states that she has increased left wrist pain. However,
once again, the medical record indicates that she has experienced
improvement with treatment.
Plaintiff testified that she last worked in 2013 for a high school where she was responsible for
ordering uniforms and equipment. (R. at 69–70). She stated that she was fired for allegedly taking a
sweatshirt home that did not belong to her; however, she denied taking it. (Id.).
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(R. at 31) (citing Id. at 696–698, 938, 957, 969, 1038). But the ALJ did not explain
how Plaintiff’s treatment with steroids injections, which provides only short-term
relief, and surgery on her right hand in 2015, undermined her allegations of
continuing decreased mobility in her right hand and progressive left hand and wrist
pain through 2016. Nor did the ALJ explain how Plaintiff’s improvement related to
her ability to perform full time employment. “Simply because one is characterized
as ‘stable’ or ‘improving’ does not mean that [one] is capable of [ ] work.” Murphy v.
Colvin, 759 F.3d 811, 819 (7th Cir. 2014); see also Scott v. Astrue, 647 F.3d 734, 739
(7th Cir. 2011) (“[t]here can be a great distance between a patient who responds to
treatment and one who is able to enter the workforce.”).
Moreover, the citations provided by the ALJ were only to five progress notes
where the ALJ selectively highlighted portions that supported her conclusions but
ignored contrary notations. For example, although Plaintiff’s occupational therapist
did note in July 2015 that Plaintiff reported that she “use[d] her hands for things
that need doing,” the ALJ failed to mention that the note also indicated that
Plaintiff reported that she could only use her hands “for things that need doing”
when her right hand was taped and that the pain had not changed much. (Id. at
696–98). In the same note, the therapist stated that Plaintiff still could not
complete light hygiene and dressing tasks without pain; that she continued to
experience pain and stiffness in the morning; and that she had not resumed her
former hobbies such as gardening. (Id.). Similarly, although her treating physician,
Dr. Prete, acknowledged in August 2015 that Plaintiff is feeling much better and
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able to use her hands after starting on prednisone and plaquenil, the doctor also
noted that she is fatigued, has diffuse joint pain and is “currently still unable to
work.” (R. at 957). Likewise, although Plaintiff’s treating physician indicated in
November 2015 that she “had a good response to steroids” and “had no significant
pain/stiffness in her hands while on prednisone,” Dr. Woodrick also noted that now
Plaintiff’s “left wrist is very painful” and “feels like the right did a year or two ago.”
(R. at 969). The ALJ is not permitted to “‘cherry-pick’ from . . . mixed results to
support a denial of benefits,” as she did here. Scott, 647 F.3d at 739–740.
Also absent from the ALJ’s analysis is any discussion of a host of additional
evidence which could corroborate Plaintiff’s pain allegations. The Seventh Circuit
instructs that “where the medical signs and findings reasonably support a
claimant’s complaint of pain, the ALJ cannot merely ignore the claimant’s
allegations.” Zurawski v. Halter, 245 F. 3d 881, 887–88 (7th Cir. 2001) (citing Luna
v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994). Here, the ALJ erred by offering no
analysis of how the medical evidence that could “reasonably support a claimant’s
complaint of pain,” either contradicts or undermines Plaintiff’s allegations of pain.
See Martinez v. Astrue, 630 F.3d 693, 697 (7th Cir. 2011) (“Ignored was the
requirement [ALJs] carefully evaluate all evidence bearing on the severity of pain
and give specific reasons for discounting a claimant’s testimony about it.”) (citing 20
C.F.R. § 404.1529). For instance, the ALJ did not address evidence of continued
pain and limited mobility in her right-hand following surgery; of worsening left
hand and wrist pain, with MRI results showing severe degenerative changes; and of
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her diagnoses in 2015 and 2016 of left wrist Triangular Fibrocartilage Complex
(TFCC) tear and ulnocarpal impingement syndrome. (627–28, 823–24, 1038). “An
ALJ must weigh all the evidence and may not ignore evidence that suggests an
opposite conclusion.” Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) citing
Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982). The ALJ committed
reversible error by ignoring this contradictory evidence and should consider it on
remand.
The ALJ similarly erred by failing to assess Plaintiff’s complaints of disabling
fatigue or to explain how the medical evidence either supports or contradicts these
allegations. Plaintiff alleged that she was persistently tired and fatigued and
needed to rest for up to five hours a day. (R. at 80–81). The record reveals numerous
occasions where the Plaintiff reported her fatigue to her treaters and where her
doctors observed her fatigued presentation. (Id. at 910, 913, 915, 930, 934, 957, 960–
61, 992, 1019, 1041). Plaintiff’s treating physician, Dr. Prete, concluded that
Plaintiff’s moderately-severe fatigue required her to nap several times during the
day in addition to eight hours of sleep at night. (R. at 1041). “To the extent [the
ALJ] chose not to address the issues of pain and naps because she found
[claimant]’s testimony on these issues to be incredible, the ALJ was required to
explain her reasoning.” Cuevas v. Barnhart, No. 02 C 4336, 2004 WL 1588277, at
*15 (N.D. Ill. July 14, 2004). The ALJ did not do so here. See McCammond v. Colvin,
No. 15 C 6589, 2016 WL 3595736, at *6 (N.D. Ill. July 5, 2016) (requiring the ALJ
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on remand to assess the claimant’s “claim that he must sit or lie down throughout
the day”).
Additionally, the ALJ failed to address Plaintiff’s daily activities as outlined in
SSR 16-3p. Plaintiff testified that she cannot perform basic daily activities such as
brushing and blow drying her hair and making the bed. (R. at 68, 81–82). She also
stated that she needs help from her family chopping up food for meals, carrying
laundry downstairs, and folding the laundry. (Id. at 67–68). These limitations on
daily activities were also noted by her treatment providers. (696–98, 1041). Without
addressing these allegations, the Court does not “have a fair sense of how the
applicant’s testimony is weighed.” Steele, 290 F.3d at 942; see also Zurawski, 245 F.3d
at 887 (finding error when the AJ did not explain inconsistencies between claimant’s
“activities of daily living (that were punctured with rest), his complaints of pain, and
the medical evidence”).
For these reasons, the Court finds that the ALJ’s evaluation of Plaintiff’s
subjective symptoms statements was not supported by substantial evidence. On
remand, the ALJ shall reevaluate Plaintiff’s subjective symptom allegations in
accordance with SSR 16-3p and with due regard for the full range of medical evidence.
See Zurawski, 245 F.3d at 888. The ALJ shall then reevaluate Plaintiff’s RFC,
considering all of the evidence of record, including Plaintiff’s testimony, and shall
explain the basis of his findings in accordance with applicable regulations and
rulings. Finally, with the assistance of a VE, the ALJ shall determine whether there
are jobs that exist in significant numbers that Plaintiff could have performed.
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IV. CONCLUSION
Plaintiff’s request to remand for additional proceedings [14] is GRANTED, and
the Commissioner’s motion for summary judgment [21] is DENIED. Pursuant to
sentence four of 42 U.S.C. § 405(g), the ALJ’s decision is reversed, and the case is
remanded to the Commissioner for further proceedings consistent with this opinion.
E N T E R:
Dated: May 6, 2019
MARY M. ROWLAND
United States Magistrate Judge
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