Carson v. Colvin

Filing 30

MEMORANDUM Opinion and Order Signed by the Honorable Iain D. Johnston on 11/21/2014: (yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
PATRICIA CARSON,
Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 13 CV 50123
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Patricia Carson brings this action under 42 U.S.C. § 405(g), seeking reversal
or remand of the decision denying her social security disability benefits. For the
reasons set forth below, the case is remanded.
I. BACKGROUND 1
Ms. Carson was born on January 4, 1959 and was 53 years old on the date of
the ALJ’s decision. She was five-feet, three-inches tall, and weighed as much as 229
pounds. R. 488.
In March 2010, she went to the emergency room complaining of right leg
pain. R. 337. Doctors diagnosed her with radiculopathy and prescribed Tylenol # 3
and Toradol. R. 338. In early May 2010, she returned to the emergency room with
severe right leg pain. R. 331. She was unable to move the leg without causing pain
and felt numbness, weakness, and swelling. R. 333. Doctors diagnosed her with
sciatica and prescribed Motrin, Valium, and Vicodin. R. 332.

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The following facts are only an overview. A more complete summary is set forth in
plaintiff’s opening brief and the administrative record.

In May and June 2010, Ms. Carson saw a chiropractor. R. 305. An
examination revealed pain and tenderness to palpation in the right lower back and
right buttock; muscle spasm in the right erector spinae; and subluxation at C1-C2,
C4-C6, T2-T5, T7, L1-L5, and S2-S3. R. 306. She was unable to perform lumbar
range of motion tests because of the pain. R. 307. She had a positive straight leg
test and Braggard’s sign, indicating involvement of the sciatic nerve. In June 2010,
based on an MRI, doctors diagnosed a prominent right paracentral disc protrusion
with resultant severe spinal stenosis and marked narrowing of the right lateral
recess. R. 303.
In July 2010, Ms. Carson saw her treating physician, Dr. Adekola Ashaye,
who noted that Ms. Carson had lost sensation on the lateral aspect of the right foot
as well as on the third, fourth, and fifth toes. R. 381. In September 2010, Ms.
Carson was prescribed Norco and Neurontin for the pain. R. 380. In December 2010,
Ms. Carson told Dr. Ashaye that her pain had not improved despite the medication
and that she was unable to lie down and had to sleep in a chair. R. 400. In April
2011, Dr. Ashaye examined Ms. Carson and noted pitting edema in both legs. R.
426. Her medications were modified, but the bilateral swelling below the knees
continued. R. 488.
In January 2012, an MRI revealed bilateral facet arthropathy causing
narrowing of the inferior neural foramen at L3-L4, decreased signal compatible disc
desiccation and bilateral facet arthropathy at L4-L5, and a right paracentral disc

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protrusion extending into the neural foramen causing mass effect on the thecal sac
and S1 nerve root at L5-S1. R. 493.
On February 17, 2012, the administrative law judge (ALJ) issued her ruling
finding that Ms. Carson was not disabled. The ALJ found that Ms. Carson suffered
from disc protrusion at L5-S1, obesity, and asthma. R. 20. At step three, the ALJ
found that none of these impairments met or equaled a listed impairment (in
particular listings 3.03 and 1.04). R. 21. At step four, the ALJ concluded that Ms.
Carson retained the residual functional capacity (RFC) to perform light work with
certain limitations. R. 21. Finally, the ALJ concluded that Ms. Carson retained the
functional capacity to perform the jobs of office helper, mail clerk, and host. R. 26.
II. LEGAL STANDARDS
A reviewing court may enter judgment “affirming, modifying, or reversing the
decision of the [Commissioner], with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g). If supported by substantial evidence, the
Commissioner’s factual findings are conclusive. Id. Substantial evidence exists if
there is enough evidence that would allow a reasonable mind to determine that the
decision’s conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399-401
(1971). Accordingly, the reviewing court cannot displace the decision by
reconsidering facts or evidence, or by making independent credibility
determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). However, the
Seventh Circuit has emphasized that review is not merely a rubber stamp. Scott v.
Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (a “mere scintilla” is not substantial

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evidence). If the Commissioner’s decision lacks evidentiary support or adequate
discussion, then the court must remand the matter. Villano v. Astrue, 556 F.3d 558,
562 (7th Cir. 2009). Moreover, a reviewing court must conduct a critical review of
the evidence before affirming the Commissioner’s decision. Eichstadt v. Astrue, 534
F.3d 663, 665 (7th Cir. 2008). Indeed, even when adequate record evidence exists to
support the Commissioner’s decision, the decision will not be affirmed if the
Commissioner does not build an accurate and logical bridge from the evidence to the
conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
III. DISCUSSION
Ms. Carson argues that a remand is appropriate on numerous grounds.
Specifically, the ALJ failed to explain why Ms. Carson’s spinal impairment did not
meet or equal a listed impairment; failed to consider her obesity; failed to explain
why greater weight was given to the opinions of two state agency physicians over
Ms. Carson’s treating physician; erred with regard to Ms. Carson’s use of a cane;
misapprehended the durational requirement; failed to identify which of Ms.
Carson’s statements were credible; failed to analyze Ms. Carson’s allegations of
pain; improperly evaluated her receipt of unemployment benefits; and improperly
relied on meaningless boilerplate language.
After reviewing these arguments, the Court finds that a remand is clearly
warranted because of a failure to properly apply the treating physician rule. The
treating physician rule is based on 20 C.F.R. §404.1527(c)(2). Under this section, a
treating physician’s opinion is entitled to controlling weight if it is supported by

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medical findings and consistent with other substantial evidence in the record. Id.;
Moore v. Colvin, 743 F.3d 1118, 1127 (7th Cir. 2014).
If the ALJ does not give the treating physician’s opinion controlling weight,
the ALJ cannot simply disregard it without further analysis. Campbell v. Astrue,
627 F.3d 299, 308 (7th Cir. 2010). Instead, the ALJ must determine what specific
weight, if any, the opinion should be given. Moss v. Astrue¸ 555 F.3d 556, 561 (7th
Cir. 2009). To make this determination, the ALJ must apply the checklist of factors
set forth in 20 C.F.R. § 404.1527(c)(2). Campbell, 627 F.3d at 308 (referring to the
factors as a “required checklist”); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir.
2008). 2 Failure to apply checklist is reversible error. Larson v. Astrue, 615 F.3d
744, 751 (7th Cir. 2010) (ALJ disregarded checklist); Moss, 555 F.3d at 561 (“the
choice to accept one physician’s opinions but not the other’s was made by the ALJ
without any consideration of the factors outlined in the regulations”). Similarly,
ALJs commit reversible error by simply stating that they considered the checklist
without showing in their decisions that they did, in fact, consider them. See
Campbell, 627 F.3d at 308 (“Here, the ALJ’s decision indicates that she considered
opinion evidence in accordance with [the checklist]. However, the decision does not
explicitly address the checklist of factors as applied to the medical opinion
evidence.”). In other words, ALJs must show their work.

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The factors are: (1) the length of treatment; (2) the nature and extent of the treatment
relationship; (3) the supportability of the medical opinion; (4) the consistency of the opinion with
the record as a whole; (5) the physician's degree of specialization; and (6) other factors which
tend to support or contradict the opinion. 20 C.F.R. § 404.1527(c)(2)(i)-(ii), (c)(3)-(6).
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Here, the ALJ twice relied on the opinions of the two state consulting
physicians, neither of whom treated or examined Ms. Carson. At step three, where
the ALJ concluded that Ms. Carson’s spinal impairment did not meet or equal
Listing 1.04, the ALJ stated that the opinions of the two agency consultants “have
been considered” and that those consultants reached the “same conclusion” as did
the ALJ. The ALJ did not consider, at this step, the opinion of Ms. Carson’s treating
physician, Dr. Ashaye, nor did the ALJ consider any other medical evidence. At step
four, the ALJ again relied on the two agency consultants. However, the ALJ did
acknowledge Dr. Ashaye’s opinion, but found that it should only be given “some
weight” – i.e. implicitly finding that it should not be given controlling weight. The
ALJ’s entire explanation is set forth in the following paragraph:
All medical opinions present in the record were considered in
accordance with the regulations (20 CFR 404.1527(d-e), 416.927(d-e))
and SSR 96-2p. First, the record contained a few hand written notes
from Dr. Ashaye. On October 27, 2010, Dr. Ashaye stated that the
claimant needed help at home at the present time because of medical
limitations from her lumbar radiculitis (Ex. 12F/10). On December 2,
2010, Dr. Ashaye wrote a note stating that the claimant had severe
lumbar radiculitis with degenerative joint disease of the lumbosacral
spine (Ex. 11F). Dr. Ashaye stated that the claimant’s condition was
getting worse with severe excruciating pain in both legs and buttocks
to the extent that the claimant was sleeping on a chair. Dr. Ashaye
stated that the claimant’s pain medications had been increased
without any beneficial effect. Dr. Ashaye stated that the claimant was
unable to do house chores and cannot stand for long. These notations
[from] Dr. Ashaye were considered and given some weight; however,
the treating relationship is not sufficient to overcome the weight of the
evidence, the generally unremarkable clinical findings, and the lack of
explanation provided. Regardless, Dr. Ashaye did not provide any
specific information regarding the claimant’s ability to perform work
related activities. Instead, I agree with the Disability Determination
Services opinion. I found the limitations imposed by the Disability
Determination Services to be persuasive and consistent with the
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medical evidence, and based the limitations in the claimant’s residual
functional capacity on their reports.
R. 24-25.
This paragraph fails in several respects to comply with the treating physician
rule as discussed above. First, the ALJ did not explain why Dr. Ashaye’s opinion
was not given controlling weight. It is undisputed that he was a treating physician.
Specifically, the ALJ did not analyze (i) whether Dr. Ashaye’s the opinion is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques” or
(ii) whether it consistent with the “other substantial evidence” in the record. 20
C.F.R. § 404.1527(c)(2). This by itself is reversible error. Clifford v. Apfel, 227 F.3d
863, 870-71 (7th Cir. 2000) (reversing and remanding because the ALJ failed to
determine whether the treating physician’s findings were entitled to controlling
weight).
Second, the ALJ did not specifically explain what weight she gave to Dr.
Ashaye’s opinion, stating only that it deserved “some” weight, nor did she apply the
checklist. There is no dispute that the ALJ did not explicitly apply any of the
checklist factors, as they are not mentioned by name or analyzed individually. No
finding was made, for example, about the length of the treating relationship or the
number of times Dr. Ashaye saw Ms. Carson. No analysis was made as to how Dr.
Ashaye’s opinion fits in with the record as a whole.
The government asserts that it is “readily apparent that the ALJ was aware
of and considered” these factors. Dkt. 28 at p.6. This Court disagrees. Although
the ALJ should have known of these factors, as is evidenced by a citation to
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Section 404.1527, nothing in the above paragraph (or the rest of the ALJ’s opinion)
suggests that the ALJ was somehow implicitly applying these factors. The ALJ
provided almost no analysis in the above paragraph and instead only asserted, in
conclusory fashion, that the treating relationship was not sufficient to overcome the
“weight of the evidence, the generally unremarkable clinical findings, and the lack
of explanation.” How did the ALJ come to this conclusion? The first half of the
paragraph refers to evidence from Dr. Ashaye. Among other things, he noted that
plaintiff had severe lumbar radiculitis with degenerative joint disease, that her
condition was getting worse with severe excruciating pain in both legs, and that
pain medications, which had been increased, were not working. In light of this
evidence, it is not clear why the ALJ concluded that the clinical findings were
“unremarkable.” Further, this Court cannot assess the vague qualification that the
findings were “generally” unremarkable. In sum, the ALJ fails to make any
connection between the first half of the paragraph, which summarizes some of the
medical evidence, and the second, which announces a conclusion. The ALJ thus
failed to build a “logical bridge” to enable this Court to trace the path of her
reasoning. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). A reviewing court
simply accept an ALJ’s assertion that it knew the law and correctly applied it.
Because this case will be remanded, and because the issue of the weight to be
given the treating physician’s opinion is fundamental to the overall analysis, the
Court will not address the remaining arguments offered by Ms. Carson. On

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remand, however, the ALJ should fully explore all the limitations imposed by the
combination of conditions from which Ms. Carson suffers.
IV. CONCLUSION
For the reasons given, plaintiff’s motion for summary judgment is granted,
the government’s motion is denied, and the case is remanded to the Commissioner
for further proceedings consistent with this opinion.

Date: November 21, 2014

By:

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___________________________
Iain D. Johnston
United States Magistrate Judge