D'Aversa v. Berryhill
Filing
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MEMORANDUM Opinion and Order: Signed by the Honorable M. David Weisman on 11/14/2018. Mailed notice (ao,)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Janice F. D’Aversa,
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. 18 C 843
Magistrate Judge M. David Weisman
MEMORANDUM OPINION AND ORDER
Plaintiff Janice F. D’Aversa appeals the Social Security Administration Commissioner’s
decision denying her application for benefits. For the reasons set forth below, the Court reverses
the Commissioner’s decision and remands this case for further proceedings.
Background
Plaintiff applied for benefits on March 13, 2014, alleging a disability onset date of June 8,
2012. (R. 178.) Her application was denied initially on July 17, 2014, and upon reconsideration
on April 2, 2015. (R. 76–83; 85–93.) Plaintiff requested a hearing, which was held by an
Administrative Law Judge (“ALJ”) on November 4, 2016. (R. 28.) On April 17, 2017, the ALJ
issued an unfavorable decision finding Plaintiff not disabled. (R. 13–23.) The Appeals Council
declined to review the decision on December 6, 2017 (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)). While generous, this standard “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 Commissioner must consider: (1) whether the claimant has
performed any substantial gainful activity during the period for which he 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 his 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 Commissioner 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 June 8, 2012, the alleged onset date. (R. 15.) At step two, the ALJ found that Plaintiff had
the following severe impairments: “spine disorders and obesity.” (Id.) At step three, the ALJ
found that Plaintiff did not have “an impairment or combination of impairments that meets or
medically equals the severity” of one of the listed impairments. (R. 16–17.) This finding led the
ALJ to conclude at step four that Plaintiff had the residual functional capacity to “perform
sedentary work” with certain exceptions. (R. 17–23.) At step five, the ALJ determined that
Plaintiff could perform past relevant work as a medical transcriber. (R. 23.) Accordingly, the ALJ
concluded that Plaintiff was not disabled under the Social Security Act. (Id.)
A.
Residual Functional Capacity Assessment
Plaintiff contends that the ALJ failed to adequately support her RFC assessment. While an
ALJ need not rely on a certain physician’s opinion to assess RFC, there must be some evidence
supporting the ALJ’s findings. SSR 96-8p. With respect to a treating physician in particular, an
ALJ is required to give the opinion controlling weight if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.” 20 C.F.R § 404.1527(c)(2); Scott v. Astrue, 647 F.3d
734, 739 (7th Cir. 2011). The ALJ must give good reasons for the weight that she assigns a treating
physician’s opinion. Bates v. Colvin, 736 F.3d 1093, 1101 (7th Cir. 2013); Roddy v. Astrue, 705
F.3d 631, 636–37 (7th Cir. 2013). If an ALJ chooses not to 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 also 20 C.F.R. § 404.1527(c).
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Here, the ALJ committed several errors with respect to the RFC assessment that warrant
remand. First, the ALJ inappropriately rejected all of the opinion evidence, effectively creating an
“evidentiary deficit.” See Suide v. Astrue, 371 Fed. App’x 684, 690 (7th Cir. 2010) (remanding
where ALJ created an “evidentiary deficit” by rejecting treating physician’s opinion and making
an RFC determination without supporting medical evidence). The ALJ gave “little weight” to the
opinion of medical expert, Dr. Lebowitz and the State agency medical consultants. (R. 22.) The
ALJ also rejected the opinion of Dr. Bitar, Plaintiff’s treating physician, without considering
factors required by the regulations, including 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. (R. 22.) Instead, the ALJ dismissed
the opinion because it contained “vague” and “conclusive” statements about Plaintiff’s condition.
(R. 22.) This analysis is not sufficient.
Next, the ALJ relied on Plaintiff’s ability to sit through “almost her entire hearing” to
support her RFC assessment. (R. 21.) As Plaintiff argues, forcing herself to sit through an
important hearing does not demonstrate that Plaintiff has the ability to sit for up to 6 hours during
a workday, which is what the ALJ’s RFC assessment contemplates. In other words, the ALJ failed
to build a logical relationship between Plaintiff’s capacity to sit – uncomfortably for that matter
(she testified to being “in pain” during the hearing (R. 47)) – for a one-time hearing to the grind
of a daily workday. See Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (ALJ “must build a
logical bridge from evidence to conclusion”); see also Punzio v. Astrue, 630 F.3d 704, 710 (7th
Cir. 2011) (“[A] snapshot of any single moment says little about [the claimant’s] overall
condition.”); Powers v. Apfel, 207 F.3d 431, 436 (7th Cir. 2000) (“Many courts have condemned
the ‘sit and squirm’ test, and we are uncomfortable with it as well.”).
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Additionally, the ALJ’s RFC analysis lacked support for the proposition that Plaintiff
would only be “off-task” for up to 10% of the day. The record establishes that Plaintiff’s pain
affects her concentration and requires medications that cause fatigue and further affect her ability
to focus. (R. 222; 224.) In light of this evidence, the ALJ needed to explain how Plaintiff’s pain
would allow her to concentrate for 90% of the workday. See, e.g., Lanigan v. Berryhill, 865 F.3d
558, 563 (7th Cir. 2017) (“the ALJ failed to lay a foundation for certain limitations described in
the hypothetical, including that he might be off task up to 10% of the workday); Washington v.
Colvin, No. 12 C 4995, 2013 WL 1903247, at *11 (N.D. Ill. May 7, 2013) (“the ALJ’s finding that
[the claimant] would not be off task for more than 10% of the work day comes without any
explanation . . . . we are left without a logical bridge supporting the ALJ’s conclusions that [the
claimant’s] migraines would only result in 10% off-task time per day”). The Commissioner points
to the ALJ’s remark that Plaintiff’s methadone prescription would limit Plaintiff being “off-task”
for 15% of the workday, but this does not explain how Plaintiff would be “on-task” for the
remainder of the day. (R. 23.) In other words, the ALJ failed to explain the basis for her finding
that Plaintiff would be off-task only up to 10% of the time.
Contrary to the Commissioner’s argument, the ALJ also did not adequately consider and
address the effect of Plaintiff’s obesity on her RFC. The record is clear that Plaintiff is obese. (R.
452, 474, 1409.) The regulations require an ALJ to consider whether obesity causes the claimant
to suffer any functional limitations. SSR 02-1p. The ALJ merely states that “the impact of obesity
has been considered . . . with regard to the residual functional capacity limitations as required by
the SSR.” (R. 17.) Her analysis includes no discussion about how the combination of pain and
excessive weight either affects or does not affect Plaintiff’s ability to sit and work. See, e.g.,
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Thomas v. Colvin, 745 F.3d 802, 807 (7th Cir. 2014) (“combination of impairments could impose
greater restrictions than any of [claimant’s] impairments taken singly”).
All of these errors require remand.
B.
Assessment of Past Relevant Work
Plaintiff also argues that the ALJ’s finding that Plaintiff could return to her past work as a
medical transcriber was not based on substantial evidence. The Court agrees. SSR 82-62 requires
that past work experience “be considered carefully to assure that the available facts support a
conclusion regarding the claimant’s ability or inability to perform the functional activities required
in this work.” See, e.g., Nolen v. Sullivan, 939 F.2d 516, 518 (7th Cir. 1991) (concluding that
ALJs must list specific physical requirements of claimant’s past job to assess claimant’s current
ability to perform the same tasks); Prince v. Sullivan, 933 F.2d 598, 602 (7th Cir. 1991) (holding
that an ALJ must comply with SSR 82-62 and make a finding of fact about the physical and mental
demands of the past job/occupation); Steward v. Bowen, 858 F.2d 1295, 1299–1300 (7th Cir. 1988)
(“To determine if a claimant is capable of performing his or her past relevant work, an ALJ must
compare the demands of the claimant’s past occupation with his or her present capacity.”); Smith
v. Barnhart, 388 F.3d 251, 252 (7th Cir. 2004) (the ALJ’s error which required remand “lay in
equating [the claimant’s] past relevant work to sedentary work in general”).
Here, the ALJ failed to do a function-by-function analysis of Plaintiff’s past relevant work.
The Vocational Expert testified that a medical transcriber job “calls for you to be in that chair
taking dictation from a medical professional, it doesn’t leave you the option to stand when you
need to.” (R. 72.) The job only allows for “normal breaks”: a 15-minute break in the morning,
30-minute break at lunch, and 15-minute break towards the end of the day. (R. 72.) The ALJ
failed to harmonize the clear requirements of the job with Plaintiff’s demonstrated physical
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limitations, including low back pain that radiates to her groin and thigh (R. 217, 276, 277, 362,
1112, 1324, 1406) that is aggravated by prolonged standing, sitting, and walking (R. 1324).
Instead, the ALJ merely stated that “[i]n comparing the claimant’s residual functional capacity
with the physical and mental demands of this work, the undersigned finds the claimant is able to
perform the job of medical transcriber as actually and generally performed.” (R. 23.) This is not
sufficient.
C.
Subjective Symptom Analysis
Plaintiff also challenges the ALJ’s subjective symptom analysis. The Court declines to
discuss this issue at length given the need for remand that already exists.
Conclusion
For the reasons set forth above, the Court remands this case for further proceedings
consistent with this Memorandum Opinion and Order.
SO ORDERED.
ENTERED: November 14, 2018
_________________________________
M. David Weisman
United States Magistrate Judge
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