Hentz v. Berryhill

Filing 43

ORDER signed by the Honorable Sheila M. Finnegan on 1/6/2021. For the reasons stated in the accompanying Order, the Commissioner's motion to alter judgment pursuant to Federal Rule of Civil Procedure 59(e) (Doc. 37) is denied. Mailed notice.(sxw, )

Case: 1:18-cv-07379 Document #: 43 Filed: 01/06/21 Page 1 of 14 PageID #:2187

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHEILA H.,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.

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No. 18 C 7379
Magistrate Judge Finnegan

ORDER
On September 1, 2020, the Court reversed the decision of the administrative law
judge (“ALJ”) and remanded this case to the Social Security Administration for further
proceedings. (Doc. 35). The Commissioner of Social Security then filed a motion to alter
judgment pursuant to Federal Rule of Civil Procedure 59(e), arguing that the Court erred
in remanding the case. (Doc. 37). According to the Commissioner, the Court’s conclusion
that the ALJ erred in failing to explain the residual functional capacity (“RFC”) findings
(that Plaintiff could frequently reach in all directions with the right upper extremity and
stand and walk up to six hours) was contrary to caselaw. (Doc. 37, at 2-7; Doc. 42, at 29). The Commissioner also contends that the Court should not have found that the ALJ’s
failure to address Plaintiff’s use of medication for right arm pain and her claimed
limitations in performing activities of daily living required reassessment of her subjective
statements. (Doc. 37, at 9-10; Doc. 42, at 9). For the reasons set forth below, the motion
is denied.

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DISCUSSION 1
I.

Standard
A Rule 59(e) motion to alter or amend judgment must (a) present newly discovered

evidence or (b) identify record evidence “that clearly establishes a manifest error of law
or fact.” Burritt v. Ditlefsen, 807 F.3d 239, 252-53 (7th Cir. 2015) (quotation omitted);
Lorena T. v. Saul, No. 18 C 6348, 2020 WL 4748153, *1 (Aug. 17, 2020). A “manifest
error” requires “a ‘wholesale disregard, misapplication, or failure to recognize controlling
precedent.’” Burritt, 807 F.3d at 253 (quoting Oto v. Metropolitan Life Ins. Co., 224 F.3d
601, 606 (7th Cir. 2000)); Lorena T., 2020 WL 4748153, at *1.

Because the

Commissioner fails to make the requisite showing under Rule 59(e), the Court denies the
motion to alter judgment.
II.

Analysis
A.

Frequently Reaching in All Directions with Right Arm

The ALJ determined that Plaintiff retains the RFC to frequently reach in all
directions with her right upper extremity. (Doc. 35, at 14-15, citing R. 416-17). This Court
concluded on review that, “[a]part from the RFC finding itself, the ALJ did not mention
Plaintiff’s ability to reach with (or otherwise use) her right arm in particular in the decision
nor explain how the evidence supported that finding.” (Id. at 15). This was problematic
because, as explained below, there was record evidence of right arm limitation that the
ALJ did not address and that could have resulted in a different RFC formulation. (See id.
at 15-16). Moreover, a more restrictive limitation of occasionally (rather than frequently)

1

This opinion assumes the reader’s familiarity with the procedural history and facts of this
case as set forth in the Court’s September 1, 2020 Order. (Doc. 35). Information from the prior
Order is repeated here only as necessary to resolve the instant motion.
2

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reaching in all directions with the right arm would have eliminated Plaintiff’s past relevant
work, and that was the sole support for the ALJ’s conclusion that she was not disabled.
(See id. at 12, 22). Under these circumstances, this Court found that a remand was
necessary since the ALJ’s decision did not reveal why the ALJ concluded that Plaintiff
could reach frequently as opposed to occasionally (or never). (See id. at 15-16).
Where the ALJ’s decision “‘lacks evidentiary support or is so poorly articulated as
to prevent meaningful review,’ a remand is required.” (Id. at 13 (quoting Hopgood ex rel.
L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009) (quoting Steele v. Barnhart, 290 F.3d
936, 940 (7th Cir. 2002))). The Commissioner concedes that the ALJ failed to articulate
any basis for the RFC finding that Plaintiff could frequently reach in all directions with her
right arm. (Doc. 37, at 7) (“It is true that the ALJ provided no explanation for why the
specific frequent reaching limitation was assessed and that no doctor opined the specific
reaching limitation that the ALJ assessed.”); (Doc. 42, at 8) (“ . . . though the ALJ should
have said more, it was also Plaintiff’s burden to prove greater limitations before the ALJ
and, in this Court, to demonstrate harm by identifying evidence that compelled greater
limitations than the ALJ found.”). Nonetheless, the Commissioner argues that the Court
erred in remanding this case for further proceedings regarding Plaintiff’s ability to reach
with her right arm because this error was harmless. (Doc. 37, at 6-8).
In briefing the merits, the Commissioner previously stated that “[w]here, as here,
no doctor’s opinion suggests greater limitations than the ALJ finds, courts are loathe to
find error in the ALJ’s reasoning” and cited two cases in support: Dudley v. Berryhill, 773
Fed. Appx. 843 (7th Cir. May 16, 2019) (citing Rice v. Barnhart, 384 F.3d 363 (7th Cir.
2004)); and Best v. Berryhill, 730 Fed. Appx. 380 (7th Cir. July 11, 2018). (Doc. 24, at 6).

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Now seeking to alter the Court’s ruling on the merits, the Commissioner more expansively
asserts that “where Plaintiffs do not or cannot identify a specific limitation compelled by
the record or opined by any doctor that the ALJ omitted, the Seventh Circuit has found
not [sic] error (or that any error is harmless).” (Doc. 37, at 7). The Commissioner
contends that the Court “overlooked a key line of recent cases” supporting this result.
(Doc. 42, at 4). As such, the Commissioner now suggests that finding no error (or
harmless error) is not just favored but required where the ALJ omitted discussion of a
specific limitation that is not “compelled” by the record or opined by any doctor.
In support of this argument, the Commissioner continues to cite Dudley and Best,
but now also directs the Court to three additional cases: Castile v. Astrue, 617 F.3d 923
(7th Cir. 2010); Saunders v. Saul, 777 Fed. Appx. 825 (7th Cir. June 28, 2019); and
Jozefyk v. Berryhill, 923 F.3d 492 (7th Cir. May 8, 2019). (Doc. 37, at 6-8; Doc. 42, at 56, 9). All three of these newly-cited cases were decided before the Commissioner filed
his summary judgment brief (on July 18, 2019), yet were not discussed in that brief. (See
Doc. 24). Nor did the Commissioner seek to supplement the record with his refined
position and additional caselaw before the Court ruled on the merits. In any event, the
cases do not require this Court to affirm the ALJ’s decision, as the Commissioner urges,
due to the absence of a treating physician opinion or other evidence compelling additional
functional limitation. (See Doc. 37, at 7-8; Doc. 42, at 8-9). Close examination of the
underlying facts in these cases reveals that they are plainly distinguishable. As discussed
in detail later, the record in these cases did not contain (as it does here) sufficient
evidence of limitation such that the RFC formulation conceivably could have been
different had the ALJ considered the evidence.

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Specifically, in concluding that Plaintiff retained the RFC to frequently reach in all
directions with her right upper extremity, the ALJ failed to discuss the following evidence
of limitation: Plaintiff’s claim in a function report that she had trouble reaching overhead;
and her testimony that she could only use her right arm for about an hour before
experiencing pain and needing to rest it, she sometimes would not use that arm for days,
and her daughter helped her wash up and dress four times a week when the arm bothered
her. (Doc. 35, at 15). The Commissioner asserts that “[t]he ALJ listened to Plaintiff’s
allegations, noting that Plaintiff alleged difficulty lifting objects due to her degenerative
disc disease of the cervical spine.”

(Doc. 37, at 7).

Notwithstanding this general

observation about lifting (Doc. 35, at 20, citing R. 417), the ALJ did not account for
Plaintiff’s specific alleged problems since the decision made no mention of difficulties
reaching (as opposed to lifting) or using the right arm. As such, the Court does not know
whether the ALJ considered and rejected—or overlooked—this evidence.
Nor did the ALJ explain how treatment records documenting various right arm
problems, such as tingling, heaviness, an assessment of radiculopathy, shoulder strain,
and cervical pain radiating down the right arm to three fingers (but no weakness or
numbness) on EMG evaluation, demonstrate an ability to reach frequently with the right
arm. (Id. at 15-16). The Commissioner focuses on findings on consultative examinations
of “normal grip strength bilaterally and normal strength and fine and gross motor skills” as
well as normal range of motion, motor strength, and neurological findings. (Doc. 37, at 7;
Doc. 42, at 8). True, the ALJ noted such findings. (R. 418-19; Doc. 35, at 9-10, citing
948-49, 1355). But the ALJ in no way connected them to the RFC finding of frequently
reaching in all directions with the right arm, and the Commissioner likewise offers no

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explanation of how (if at all) these findings bear on the ability to do so. Absent any
explanation, the Court does not know how the ALJ arrived at this particular limitation.
In addition, there was a lack of opinion evidence supporting the RFC determination
regarding reaching. (Doc. 35, at 16). The ALJ considered the findings of consultative
examiner Dr. Carlton and accorded his opinion great weight, but Dr. Carlton did not
evaluate Plaintiff’s reaching abilities. (Id.). The ALJ also discussed the findings of
consultative examiner Dr. Patil, who likewise did not assess reaching. (Id.). The state
agency reviewing physicians, whose opinions the ALJ accorded some weight, similarly
rendered no opinions regarding reaching.

(Id.).

The Court thus cannot glean an

explanation for the ALJ’s conclusion from the doctors’ opinions.
Unlike in this case, the five cases on which the Commissioner relies did not involve
an ALJ’s failure to discuss specific evidence of limitation that, if considered, conceivably
could have led to a different RFC formulation.

Four of the cases—Dudley, Best,

Saunders, and Jozefyk—are distinguishable because they involved a lack of evidence of
more restrictions that could have changed the RFC determination, which (as discussed
above) is not so here. 2 For example, Dudley noted the absence of a doctor’s opinion
indicating a greater degree of limitation, but focused on the ALJ’s reliance on (not failure
to consider) the record evidence of limitations. There, the Seventh Circuit found that the
ALJ accounted for certain of the consultative psychologist’s findings in formulating the
RFC. Dudley, 773 Fed. Appx. at 843. In so holding, the court noted that the ALJ had
2

The fifth case, Castile, is inapposite. There, the Seventh Circuit simply commented on the
ALJ’s consideration of the absence of a treating physician opinion as part of the court’s analysis
of why “the district court did not err in upholding the ALJ’s credibility determinations.” Castile, 617
F.3d at 929-30. Among a variety of evidence on which the ALJ relied, the court noted that “[t]he
ALJ found it illuminating and persuasive on its face that none of Castile’s doctors opined that she
was unable to work.” Id. at 930.
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accepted this doctor’s opinion, and found that while the ALJ failed to assign specific
weight to the opinion, “this error was harmless” because the ALJ added limitations
accounting for work stress and “difficulty adapting to change-related work stress.” Id.
The court then added: “When no doctor’s opinion indicates greater limitations than those
found by the ALJ, there is no error.” Id. (citing Rice, 384 F.3d at 370 (dismissing treating
physician opinion “arguably more restrictive than” RFC as “presumably based” on
plaintiff’s “subjective complaints” not doctor’s “objective observations”)).
While Best also broadly emphasized the absence of a doctor’s opinion indicating
a greater degree of limitation, the decision turned on the plaintiff’s reliance solely on a
clinical diagnosis. There, the plaintiff argued (in relevant part) that the RFC formulation
did not include any limitations based on his neck problems. Best, 730 Fed. Appx. at 382.
The Seventh Circuit summarily rejected this argument because the plaintiff “point[ed] to
his diagnosis of radiculopathy, but no doctor recommended any limitations based on this
condition.” Id. The court then concluded that “[t]here is no error when there is ‘no doctor’s
opinion contained in the record [that] indicated greater limitations than those found by the
ALJ.’” Id. (citing Rice, 384 F.3d at 370).
Similarly, in Saunders, the plaintiff did not identify evidence of additional limitation.
There, the plaintiff argued that the ALJ did not account for moderate limitations of
concentration, persistence, or pace in the hypothetical question to the VE. Saunders,
777 Fed. Appx. at 824. The Seventh Circuit rejected this argument because the ALJ
permissibly relied on the testimony of a medical expert and included in the hypothetical
to the VE “all of the doctor’s proposed limitations that she found to be supported by the
record.” Id. at 823, 825. The court noted that the plaintiff did not say what other evidence

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the ALJ should have relied on and never identified what other restrictions the ALJ should
have included in the hypothetical question. Id. at 825.
Likewise, in Jozefyk, the plaintiff did not testify about additional restrictions, nor did
the medical record support them. There, the plaintiff argued that the RFC did not account
for moderate limitations of concentration, persistence, or pace. Jozefyk, 923 F.3d at 497.
The Seventh Circuit rejected this argument because the ALJ considered all limitations
supported by record evidence and tied that evidence to the limitations included in the RFC
finding. Id. at 497-98. The court alternately found that, even if the RFC assessment was
flawed, any error was harmless because the plaintiff cited no evidence that his memory
and concentration deficits kept him from performing simple, routine, and repetitive tasks.
Id. at 498. The court concluded that because the plaintiff “did not testify about restrictions
in his capabilities related to concentration, persistence, or pace deficits, and the medical
record does not support any, there are no evidence-based restrictions that the ALJ could
include in a revised RFC finding on remand.” Id.
In the case at hand, Plaintiff did identify evidence of additional limitation. She
testified about her right arm limitations, submitted a function report about her reaching
difficulties, and provided medical evidence documenting various right arm problems.
Absent any mention of Plaintiff’s claimed degree of right arm limitation and any
explanation of how the medical evidence supports her ability to reach frequently in all
directions with the right arm (recall that the consultative examiners did not assess
reaching), the Court cannot discern the basis for this RFC determination. Despite the
Commissioner’s efforts to minimize this problem, as this Court concluded, the VE’s
testimony that Plaintiff could return to her past relevant work “cannot stand” as a result.

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(Doc. 35, at 22). Specifically, a more restrictive limitation of occasionally reaching in all
directions with the right arm would eliminate Plaintiff’s past relevant work, which is the
sole support for the ALJ’s conclusion that she was not disabled. (Id. at 12, 22). 3 Yet the
ALJ’s decision does not reveal why the ALJ concluded that Plaintiff could reach frequently
and omitted discussion of record evidence that conceivably would have allowed for a
different conclusion.
For all of these reasons, the Commissioner has not demonstrated that the Court
made a manifest error in concluding that remand is warranted for the ALJ to reconsider
the RFC determination as to reaching.
B.

Standing and Walking up to Six Hours

The ALJ found that Plaintiff retains the RFC to stand or walk up to six hours. (Doc.
35, at 14, citing R. 416-17). This Court concluded on review that “the ALJ failed to explain”
these RFC findings.

(Doc. 35, at 16).

The ALJ relied on aspects of consultative

examinations by Dr. Carlton and by Dr. Patil. (Id. at 16-17). Dr. Carlton observed that
Plaintiff rose from sitting to standing without assistance, displayed normal reciprocal gait,
and walked more than 50 feet without using an assistive device. (Id. at 16). The ALJ
gave great weight to Dr. Carlton’s overall opinion that Plaintiff could safely sit, stand, and
walk more than 50 feet. (Id. at 16-17). Plaintiff also reported to Dr. Patil that she did not
have difficulties with physical activities, and Dr. Patil made normal findings on

3

The Commissioner did not previously (and does not now) dispute Plaintiff’s challenge of
the VE’s testimony that her skills were transferable to other jobs at the sedentary level, instead
relying on the ALJ’s alternate finding that Plaintiff could return to her past relevant work. (Doc.
35, at 22). In any event, the VE testified that those jobs also would be eliminated with a limitation
of occasionally reaching in all directions with the right upper extremity. (Id. at 12). Though the
VE additionally testified that such a person under age 55 could perform unskilled jobs at the light
level, Plaintiff was 55 years old at the time of the hearing. (Id.). The ALJ did not rely on this
testimony.
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examination, including as to Plaintiff’s gait. (Id. at 17). The ALJ additionally accorded
some weight to the state agency reviewing physicians’ opinions, which concluded that
Plaintiff could stand, walk, or sit for about six hours based in particular on: Dr. Carlton’s
consultative examination; and a July 2014 emergency room visit for dental pain, where a
nurse noted that Plaintiff arrived ambulatory and had a steady gait, and she was
discharged ambulating without assistance. (Id.).
The Court noted that the opinions “each rely in part on Plaintiff’s ability to walk
more than 50 feet without an assistive device (or simply to walk unassisted)[,]” however,
“a claimant’s ability to walk for 50 feet without an assistive device may not necessarily
demonstrate her ability to stand for six hours.” (Id. (citing Thomas v. Colvin, 534 Fed.
Appx. 546, 551 (7th Cir. 2013) (citing Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011))
(emphasis added). The Commissioner contends that this Court’s citation of Thomas and
Scott constitutes error because they are distinguishable on their facts. (Doc. 37, at 2-3;
Doc. 42, at 2-4). After citing those decisions, this Court went on to explain that “the ALJ’s
discussion of Plaintiff’s alleged standing and walking limitations relied on an unduly
selective recitation of the evidence.” (Doc. 35, at 17). Specifically, the ALJ ignored
Plaintiff’s statements to Dr. Carlton that: after walking approximately three to four blocks,
she had to stop at least twice due to knee pain; and she could not go back to work
following an injury in 2006 due, in part, to difficulty with prolonged standing and walking.
(Id. at 17-18). The ALJ also made no mention of Plaintiff’s testimony that she experienced
dizziness and only walked to the corner and back because she got off balance. (Id. at
18).

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“While the ALJ need not discuss every piece of evidence, the ALJ nonetheless
must build a logical bridge from the evidence to the RFC findings that Plaintiff can stand
and walk up to six hours.” (Id. at 18 (citing Simila v. Astrue, 573 F.3d 503, 513 (7th Cir.
2009); Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013))). The Commissioner does
not dispute the omission of the foregoing evidence from the ALJ’s decision, but minimizes
the ALJ’s failure to discuss such allegations of problems walking and standing because
Plaintiff’s “word on this issue is largely irrelevant.” (Doc. 37, at 5). The Commissioner
argues that “discrepancies” between Plaintiff’s claimed degree of limitation and the
medical evidence are “probative of exaggeration and, thus, good cause to assign those
allegations reduced weight.” (Id.). Maybe so, but there is no indication in the decision
that the ALJ undertook this sort of analysis. On the contrary, the ALJ reached no specific
conclusions about whether the medical evidence supported Plaintiff’s alleged difficulties
walking and standing. As such, on this record, the Court cannot discern whether the ALJ
considered and rejected—or overlooked—Plaintiff’s claimed limitations.
Finally, relying on Castile, Dudley, Best, Saunders, and Jozefyk, the Commissioner
argues that any error was harmless because “no doctor opined that Plaintiff was more
limited in sitting, standing, or walking than the ALJ found” and Plaintiff did not “identify
any specific limitation compelled by the record that the ALJ omitted.” (Doc. 37, at 5-6;
Doc. 42, at 5). 4 As set forth in Section II.A above, none of these cases requires this Court
to affirm the ALJ’s decision here because the Plaintiff identified record evidence of alleged
4

The Commissioner also contends that Plaintiff’s failure to submit a “competing” medical
opinion supports an inference that she decided it would not be helpful, citing Buckhanon ex rel.
J.H. v. Astrue, 368 Fed. Appx. 674 (7th Cir. 2010). (Doc. 42, at 5). The Commissioner’s reliance
on Buckhanon is misplaced, however, since a finding that a claimant’s symptoms are medically
equivalent to a listed impairment (the issue in Buckhanon) requires an expert opinion. Minnick v.
Colvin, 775 F.3d 929, 935-36 (7th Cir. 2015).
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walking and standing limitations that the ALJ failed to adequately address and that could
have led to a different RFC finding even if it did not “compel” a different finding. Under
the circumstances of this case, this Court concluded that remand was necessary to
ensure that the ALJ considered this evidence in addition to the evidence of right-arm
problems discussed above. (See Doc. 35, at 17-18).
For all of these reasons, the Commissioner has not demonstrated that the Court
made a manifest error in concluding that remand is warranted for the ALJ to reconsider
the RFC determination as to standing and walking.
C.

Medication and Activities of Daily Living

The ALJ concluded that, although Plaintiff’s impairments could reasonably be
expected to cause the alleged symptoms, her statements about the intensity, persistence,
and limiting effects were not entirely consistent with the evidence. (Doc. 35, at 20, citing
R. 417). In evaluating Plaintiff’s symptoms, the ALJ “must consider” (among other factors)
her medication and activities of daily living “and justify the finding with specific reasons.”
(Id. at 19 (quoting Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009)). Here, the ALJ
did not discuss Plaintiff’s use of Gabapentin for right arm pain, or her claimed degree of
restriction in performing activities of daily living, so this Court cannot be certain whether
the ALJ considered this evidence. (Id. at 20-21).
Undaunted, the Commissioner contends that “[i]t is clear from the record that the
ALJ was well aware of the Gabapentin use—the ALJ had an extended discussion with
Plaintiff about that use at the hearing[.]” (Doc. 37, at 9, citing R. 464-65; Doc. 42, at 9,
citing R. 464-65). The Commissioner likewise asserts that “the ALJ specifically discussed
Plaintiff’s allegations about how her household activities were limited with Plaintiff at the

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hearing[.]” (Doc. 42, at 9, citing R. 465-66, 474-78). 5 Yet the Commissioner cites no
authority holding that this Court may (or should) assume that the ALJ necessarily
considered evidence that was not mentioned in the decision simply because it came up
during the administrative hearing.
As always, the ALJ must build a logical bridge from the evidence to the findings.
(Doc. 35 at 18 (citing Simila, 573 F.3d at 513; Pepper, 712 F.3d at 362)). While this does
not require discussion of every piece of evidence, the ALJ did not include any discussion
of the use of medication for Plaintiff’s right arm pain or the evidence of limitations on her
ability to perform activities of daily living. The Commissioner also ignores that the Court
did “not suggest that consideration of the foregoing evidence requires a different result,
only that the ALJ should address such evidence and explain its impact (if any) on the
subjective symptom assessment.” (Id. at 22).
Therefore, the Commissioner has not shown that the Court made a manifest error
in finding that remand is necessary to reassess Plaintiff’s subjective statements about her
limitations.

5

Contrary to the Commissioner’s suggestion, the cited testimony about Gabapentin was
elicited on examination by Plaintiff’s counsel (not the ALJ). (See R. 452, 464-65). The same is
true of some of the cited testimony about activities of daily living, though the rest came out on
examination by the ALJ. (See R. 452, 465-66, 473-78)
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CONCLUSION
For the reasons stated above, the Commissioner’s motion to alter judgment
pursuant to Federal Rule of Civil Procedure 59(e) (Doc. 37) is denied.
ENTER:

Dated: January 6, 2021

_____________________________
SHEILA FINNEGAN
United States Magistrate Judge

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