Bell v. Berryhill
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 6/10/2020: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MEGAN B., 1
Plaintiff,
v.
ANDREW SAUL, Commissioner of
Social Security, 2
Defendant.
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No. 18 C 1836
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 Megan B.’s claim for
Disability Insurance Benefits (“DIB”). The parties have consented to the jurisdiction
of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the
reasons that follow, Plaintiff’s request to reverse the decision of the Commissioner
is granted in part and denied in part, and the Commissioner’s motion for summary
judgment [Doc. No. 24] is denied.
In accordance with Internal Operating Procedure 22 – Privacy in Social Security
Opinions, the Court refers to Plaintiff only by her first name and the first initial of her last
name.
1
Andrew Saul has been substituted for his predecessor pursuant to Federal Rule of Civil
Procedure 25(d).
2
BACKGROUND
I.
PROCEDURAL HISTORY
On May 29, 2014, Plaintiff filed a claim for DIB, alleging disability since
April 18, 2013 due to back pain and obesity. The claim was denied initially and
upon reconsideration, after which she timely requested a hearing before an
Administrative Law Judge (“ALJ”), which was held on October 25, 2016. Plaintiff
personally appeared and testified at the hearing and was represented by counsel.
Vocational expert Glee Ann Kehr also testified.
On May 4, 2017, the ALJ denied Plaintiff’s claim for benefits, finding her not
disabled under the Social Security Act. The Social Security Administration Appeals
Council then denied Plaintiff’s request for review, leaving the ALJ’s decision as the
final decision of the Commissioner and, therefore, reviewable by the District Court
under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
II.
ALJ DECISION
Plaintiff’s claim was analyzed in accordance with the five-step sequential
evaluation process established under the Social Security Act. See 20 C.F.R. §
404.1520(a)(4). The ALJ found at step one that Plaintiff had not engaged in
substantial gainful activity since her alleged onset date of April 18, 2013. At step
two, the ALJ concluded that Plaintiff had the following severe impairments:
degenerative disc disease of the lumbar spine and obesity; and non-severe
impairments of hand numbness and depression. The ALJ concluded at step three
that her impairments, alone or in combination, do not meet or medically equal a
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Listing. Before step four, the ALJ determined that Plaintiff retained the Residual
Functional Capacity (“RFC”) to perform sedentary work with the following
additional limitations: the ability to alternate to sitting for ten minutes after every
forty-five minutes of standing or walking, and alternate to standing for ten minutes
after every forty-five minutes of sitting; occasional kneeling, crouching, and
crawling, and climbing ramps and stairs; never stooping or climbing ladders, ropes,
or scaffolds; and allowed to wear a back brace at work up to 100% of the time. At
step four, the ALJ concluded that Plaintiff would be capable of performing her past
relevant work as an administration clerk-secretary, leading to a finding that she is
not disabled under the Social Security Act.
DISCUSSION
I.
ALJ LEGAL STANDARD
Under the Social Security 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). In order to determine whether a Plaintiff is
disabled, the ALJ considers the following five questions in 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
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occupation? and (5) Is the Plaintiff unable to perform any other work? 20 C.F.R. §
416.920(a)(4).
An affirmative answer at either step 3 or step 5 leads to a finding that the
Plaintiff is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389
(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a
finding of disability. Id. The Plaintiff bears the burden of proof at steps 1-4. Id.
Once the Plaintiff shows an inability to perform past work, 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. Id.
II.
JUDICIAL REVIEW
Section 405(g) provides in relevant part that “[t]he 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). 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); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its
judgment for that of the Commissioner by reevaluating facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Skinner, 478 F.3d
at 841; see also Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (holding that the
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ALJ’s decision must be affirmed even if “‘reasonable minds could differ’” as long as
“the decision is adequately supported”) (citation omitted).
The ALJ is not required to address “every piece of evidence or testimony in
the record, [but] 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). In cases where the ALJ denies benefits to a Plaintiff, “he must build an
accurate and logical bridge from the evidence to his conclusion.” Clifford, 227 F.3d
at 872. The ALJ must at least minimally articulate the “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); 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 . . . .”); see Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005).
Where conflicting evidence would allow reasonable minds to differ, the
responsibility for determining whether a Plaintiff is disabled falls upon the
Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir.
1990). However, an ALJ may not “select and discuss only that evidence that favors
his ultimate conclusion,” but must instead consider all relevant evidence. Herron v.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
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III.
ANALYSIS
Plaintiff argues that the ALJ’s decision was in error for several reasons,
including: (1) failure to weigh medical opinions consistent with the treating
physician rule; (2) determining the RFC using his own lay opinion and without
relying on record evidence; and (3) failing to properly evaluate Plaintiff’s symptoms.
A.
Treating Physician Rule 3
Plaintiff first maintains that the ALJ failed to follow the “treating physician
rule” by not appropriately weighing the opinions of her treating physicians, Drs.
Sonal Parikh and Mohamed Khaleel. An ALJ must give controlling weight to a
treating physician’s opinion if the opinion is both “well-supported” and “not
inconsistent with the other substantial evidence” in the case record. 20 C.F.R. §
404.1527(c); see Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). The ALJ must
also “offer good reasons for discounting” the opinion of a treating physician.
Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (internal quotations omitted);
Scott, 647 F.3d at 739; see also Israel v. Colvin, 840 F.3d 432, 437 (7th Cir. 2016) (“A
contradictory opinion of a non-examining physician does not, by itself, suffice as a
justification for discounting the opinion of the treating physician.”). The regulations
The Social Security Administration has modified the treating-physician rule to eliminate
the “controlling weight” instruction. See 20 C.F.R. § 404.1520c (“We will not defer or give
any specific evidentiary weight, including controlling weight, to any medical opinion(s) ...,
including those from your medical sources.”). However, the new regulations apply only to
disability applications filed on or after March 27, 2017. Compare 20 C.F.R. § 404.1527 (“For
claims filed (see § 404.614) before March 27, 2017, the rules in this section apply.”), with20
C.F.R. § 404.1520c (“For claims filed (see § 404.614) on or after March 27, 2017, the rules in
this section apply.”). Plaintiff's application in this case was filed in 2014, and therefore the
ALJ was required to apply the treating physician rule when deciding Plaintiff's application.
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require the ALJ to consider a variety of factors, including: (1) the length, nature,
and extent of the treatment relationship; (2) the frequency of examination; (3) the
physician’s specialty; (4) the types of tests performed; and (5) the consistency and
support for the physician’s opinion. See 20 C.F.R. § 404.1527(c). Even if a treater’s
opinion is not given controlling weight, an ALJ must still determine what value the
assessment does merit. Scott, 647 F.3d at 740; Campbell, 627 F.3d at 308.
Dr. Parikh, a family physician, completed a Spinal Questionnaire in June
2014. She stated that she had been seeing Plaintiff every one to four months for
nearly two years. Her diagnosis was of chronic back pain and lumbar radiculopathy
status post two laminectomies and opined that Plaintiff was permanently disabled.
In the section asking the physician to identify the positive clinical findings for her
diagnosis, Dr. Parikh noted Plaintiff had lumbar tenderness and spasm, and
sensory loss at the L-5 level. She wrote “none” next to the section for describing
other clinical signs or comments. The diagnostic test results listed on the
questionnaire were an x-ray and an MRI of her lumbar spine, showing a herniated
disc at L-5.
Plaintiff’s symptoms were described as severe back pain when sitting or
standing for a long time, radiating to her legs, sometimes with leg numbness. Dr.
Parikh estimated that in a workweek, Plaintiff had the RFC to occasionally lift or
carry five to ten pounds; sit for zero to one hour in an eight-hour day; and
stand/walk for three out of eight hours. She could not push, pull, kneel, bend, or
stoop. Plaintiff would not be able to sit continuously and would have to get up and
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move for fifteen minutes every half hour, and she was also expected to require
unscheduled breaks to rest for fifteen minutes every thirty minutes and would
likely be absent from work more than three times a month as a result of her
impairment. Plaintiff’s pain was said to be severe enough to constantly interfere
with her attention and concentration. Her medications were Motrin, hydrocodone,
calcium, and a depo shot; no side effects were reported. Plaintiff’s treatment
included the two laminectomies (which took place in 1999 and 2010), physical
therapy once, and an epidural steroid injection. Dr. Parikh did not consider Plaintiff
to be a malingerer.
Dr. Khaleel, a pediatrician and family medicine specialist, completed a
Chronic Pain RFC Questionnaire on September 17, 2014, 4 and answered a set of
questions in 2016. The 2014 questionnaire was completed after only two visits, the
second of which had occurred six months earlier. He diagnosed Plaintiff with low
back pain and hip pain, with a fair prognosis. Dr. Khaleel estimated Plaintiff had
the RFC to walk one city block without rest or severe pain; sit for only one hour at a
time and stand for only two hours at a time; sit for a total of less than two hours
and stand for about two hours total in a workday; lift less than ten pounds
occasionally; occasionally climb stairs, rarely crouch/squat; and never twist, stoop,
or climb ladders. Plaintiff was expected to need periods of walking around for fifteen
minutes every thirty minutes during the workday; every two hours, she would
require a thirty to forty-five-minute break to lie down; and she would likely be
The ALJ mistakenly attributed the September 2014 report to Dr. Parikh, but that error
had no bearing on the decision.
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absent from work more than four days per month. She would also need to wear a
back brace. Relevant objective signs were reduced range of motion and tenderness
in the lower back. The pain was expected to frequently interfere with Plaintiff’s
concentration needed to perform even simple work tasks. Side effects of medication
was identified as drowsiness.
At counsel’s request in 2016, Dr. Khaleel answered several questions about
Plaintiff’s impairments, treatment, and prognosis. He stated that she had
experienced back pain since age seventeen and underwent laminectomy and
discectomy procedures in 2010. She had undergone physical and occupational
therapy and taken pain medication without improvement, and her prognosis was
considered poor to fair. Dr. Khaleel stated that Plaintiff said she experienced pain
with sitting, standing, and physical activity. (R. 550.) When Plaintiff tried returning
to her former job, she experienced back pain radiating to her legs, and on several
occasions her body would “lock up” on her. The pain was not relieved through
medication, and it increased throughout the day and interfered with her ability to
do her job. (R. 551.) Dr. Khaleel also concluded that “[i]f this is her subjective pain
experience she may not be able to perform a sitting job.” (R. 551.) The objective
findings supporting Plaintiff’s complaints were disc degeneration and disc bulging
with impingement on nerve structures in her lumbar spine. Dr. Khaleel noted that
Plaintiff had experienced minimal success with neurosurgery, and that her
subsequent treatment with physical therapy and pain management could be
considered routine and conservative.
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The Court concludes that the ALJ did not adequately consider the relevant
factors when deciding to give little weight to the opinions of Drs. Parikh and
Khaleel. The ALJ noted that Dr. Parikh and Dr. Khaleel are both family physicians,
but each was Plaintiff’s treating physician for a significant period of time, and she
went for regular visits. The ALJ gave the opinions little weight because the
limitations seemed to be almost exclusively based on Plaintiff’s subjective
complaints rather than an evaluation of the medical record. However, that is not a
basis by itself to discredit a physician’s report describing pain. See Hall v. Colvin,
778 F.3d 688, 691 (7th Cir. 2015) (“The administrative law judge's most serious
error . . . is her belief that complaints of pain, to be credible, must be confirmed by
diagnostic tests.”); Adaire v. Colvin, 778 F.3d 685, 688 (7th Cir. 2015) (finding that
the ALJ had made “the fundamental error that ‘subjective’ statements are to be
given zero weight”); Glynn v. Berryhill, No. 17 C 4312, 2018 WL 3785444, at *5 n.4
(N.D. Ill. Aug. 9, 2018) (“The ALJ may not reject opinions wholesale without
specifying which opinions he found were based entirely on noncredible reports from
the claimant, and why he reached that conclusion.”). By failing to give adequate
reasons for finding Plaintiff’s subjective allegations of pain to be incredible, the ALJ
did not build a logical bridge between the evidence and his conclusions that could be
evaluated by this Court. See Glynn, 2018 WL 34785444, at *5 n.4.
B.
Lay Opinion
Plaintiff next contends that the ALJ substituted his lay opinion for medical
evidence when reaching his RFC determination.
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Consulting physician Dr. Charles Carlton examined Plaintiff on September
20, 2014 and had access to a number of her medical records including her November
2012 MRI a 2013 neurosurgical record. Plaintiff was noted to be an obese
individual, with a BMI of 31. Plaintiff had a normal gait and was able to walk more
than fifty feet without using an assistive device. She was able to get into a full
squatting position but required some assistance resuming a standing position due to
reported pain in her back, hips, and legs. During the examination, Plaintiff
exhibited a full painless range of motion in all joints except her hips and knees and
some decreased range of motion of her lumbar spine. She reported some tenderness
to palpation in the paraspinal muscles throughout the low back area.
Plaintiff reported to Dr. Carlton that she had persistent pain in her back,
hips, and legs, especially with prolonged walking, standing, or sitting. She also had
occasional pain that referred down her right leg to her foot. She had pain in her low
back when either leg was elevated 30 degrees from the table but no pain or
numbness referred down her leg during that maneuver. In what he described as a
conservative estimate of her functional ability based on his examination and his
review of her medical records, Dr. Carlton stated that Plaintiff could safely sit and
stand, walk greater than fifty feet without an assistive device, and lift twenty
pounds. Based on Dr. Carlton’s report and Plaintiff’s medical records, nonexamining DDS physicians concluded that Plaintiff could perform work at the light
level with no additional restrictions.
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As discussed above, the ALJ gave little weight to the opinions of Drs. Parikh
and Khaleel that Plaintiff lacked the functional capacity to perform even sedentary
work. However, the ALJ also gave little weight to the opinions of the DDS
consultants who opined that Plaintiff could work at the light level. He thought that
a light RFC was inappropriate given the “consistent pattern of treatment for her
back, along with little increase in function from physical therapy,” (R. 20), and that
a sedentary RFC with additional restrictions better reflected Plaintiff’s functional
capacity. Specifically, the ALJ concluded that Plaintiff’s impairments could be
accommodated with a modified sit/stand option, whereby she could sit for ten
minutes after forty-five minutes standing/walking and vice versa.
Plaintiff argues that the ALJ lacked an evidentiary basis for his RFC finding
because by rejecting all of the medical opinions and finding Plaintiff could perform
sedentary work with the sit/stand option, the ALJ filled an evidentiary gap by
relying on his own lay opinion rather than medical evidence. The Court agrees that
the ALJ’s RFC determination was not supported by substantial evidence, and
remand is necessary. The ALJ apparently believed that the RFC he chose reflected
a middle ground between the two competing factions of medical opinions –
unrestricted light work on one side, and frequent need to lie down, i.e., less than
sedentary, on the other. But in his effort to find a consensus, the ALJ crafted an
RFC that is unsupported by any medical evidence or opinion. Clifford v. Apfel, 227
F.3d 863, 870 (7th Cir. 2000) (“[A]n ALJ must not substitute his own judgment for a
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physician’s opinion without relying on other medical evidence or authority in the
record.”).
Based on its conclusion that remand is necessary for the above reason, 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. Indeed, the Court admonishes
the Commissioner that, on remand, special care should be taken to ensure that
Plaintiff’s symptoms are fully analyzed under the regulations, particularly with
respect to her activities of daily living.
CONCLUSION
For the foregoing reasons, Plaintiff’s request to reverse the decision of the
Commissioner is granted in part and denied in part, and the Commissioner’s crossmotion for summary judgment [Doc. No. 24] 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
June 10, 2020
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