Hill v. Colvin

Filing 19

MEMORANDUM Opinion and Order; For the reasons given, plaintiffs motion for summary judgment is granted, the governments motion is denied, and the decision of the ALJ is remanded for further consideration. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 7/29/2015: (yxp, )

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

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No. 13 CV 50306
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Plaintiff Christy Hill brings this action under 42 U.S.C. § 405(g), seeking reversal of the
decision denying her social security benefits. As explained below, the case is remanded for
further consideration.
BACKGROUND
On November 17, 2010, plaintiff filed her disability applications alleging that she
suffered from postural hypotension, vasodepressor syncope, septal infarct, non-alcoholic fatty
liver disease, irritable bowel syndrome, depression, obesity (body mass index of 33.7), and
gastroperesis. Dkt. #14 at 1. From 2010 until mid-2012, plaintiff saw a number of doctors,
including a gastroenterologist, several cardiologists, and her regular physician. She also visited a
sleep clinic. (Some of these visits are discussed more below.) In June 2011, she was interviewed
by consulting psychologist Mark B. Langgut who diagnosed her with major depressive disorder
(moderate) and generalized anxiety disorder. R. 677.
On June 29, 2012, a hearing was held before an administrative law judge (“ALJ”).
Plaintiff, then 48 years old, testified that she graduated from high school, was 5’ 7” and weighed

213 pounds, and lived in a house with two of her children, who were 16 and 17 years old. R. 3133. When the ALJ asked why she could not work, plaintiff stated:
Because there are times that I can’t even get out of bed. I’m either extremely
dizzy, and just, you know, there’s not much I can do. My kids have to do the
housework, sometimes; a lot of times because [with] just that physical exertion I
can faint.
R. 33. She testified that she was dizzy every day: “If I’m in an upright position too long, it gets
really bad.” R. 39.
She testified that her stomach problems made it difficult to work because she did not
know when she had to use the restroom and because she had to vomit “quite a bit.” R. 34.
Plaintiff also testified about her daily activities, the numerous medications she was taking, some
of her doctor visits, and some of her work history. Her last job was a telemarketer selling Uverse for AT&T sometime in 2008 or 2009. R. 35-38. A vocational expert testified. No medical
expert was called.
On August 31, 2012, the ALJ denied her applications. The ALJ found that plaintiff
suffered from the severe impairments of history of septal infarct, postural hypotension, fatty liver
disease, delayed emptying syndrome, and depression. R. 14. The ALJ found that plaintiff did not
meet any listings. In the residual functional capacity (“RFC”) analysis, the ALJ summarized
plaintiff’s doctor and hospital visits from 2010 and to 2012 and found that she could perform the
full range of exertional activities except that she could not work on ladders, ropes and scaffolds;
could not use heavy equipment or work at unprotected heights; could only do occasional
balancing, stooping, crouching, crawling, or kneeling; and needed to do unskilled work. R. 16.
DISCUSSION
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.
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§ 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 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). And, as the Seventh Circuit has repeatedly held, the federal courts
cannot build the logical bridge on behalf of the ALJ. See Jensen v. Colvin, 2013 U.S. Dist.
LEXIS 135452, *33-34 (N.D. Ill. 2013).
Plaintiff’s opening brief contains two formal arguments, intertwined with a few more
half-formed arguments. All the arguments are superficial and poorly developed. As this Court
has pointed out previously to counsel, this presentation makes the Court’s job more difficult and
raises the recurring question of whether these arguments have been waived. 1 In her first
argument, plaintiff asserts that the ALJ failed to assess her maximum RFC by incorrectly finding
1

The government, however, in this case has not argued that these arguments should be

waived.
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that she could perform the full range of work at all exertional levels, a finding plaintiff describes
as being “too generalized” and “internally inconsistent.” Dkt. #14 at 5. Based on the long
quotation of the hearing transcript that plaintiff included in her brief, the Court infers that she is
focusing mostly on her dizziness. In her second argument, she asserts that the ALJ should have
called a mental health expert to testify at the hearing to reconcile Dr. Langgut’s finding that she
had moderate major depressive order.
Despite counsel’s cursory presentation, this Court finds (based more on its own
independent review of the record, which the Seventh Circuit requires) that a remand is warranted
because the ALJ failed to fully explain his reasoning and rested his decision on at least one
significant factual error. The Court will focus its analysis on plaintiff’s postural hypotension and
resulting dizziness and syncope (the medical term for fainting) allegedly caused by this
condition.
To summarize the key facts, plaintiff at some point was diagnosed with postural
hypotension, also known as orthostatic hypotension. According to the Mayo Clinic’s website,
postural hypotension “is a form of low blood pressure that happens when you stand up from
sitting or lying down,” and it “can make you feel dizzy or lightheaded, and maybe even faint.”
See www.mayoclinic.org/diseeases-conditions/orthostatic-hyoptension (visited July 28, 2015)
(hereinafter “Mayo Clinic Website”). The original diagnosis seems to have been made by the
OSF Hospital and cardiologists working there. 2 In June 2010, perhaps in conjunction with the
OSF Hospital testing, plaintiff was given a tilt table test, which is used to evaluate the cause of
syncope. See Mayo Clinic Website. Plaintiff tested positive, a result that the government
acknowledges shows that plaintiff “may have experienced substantial dizziness.” Dkt. # 17 at 3.
2

Neither the parties nor the ALJ provided specific details about who the doctors were
who conducted these tests and made these initial diagnoses.
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On March 15, 2011, plaintiff was evaluated for a second opinion by Dr. Justin T. Mao, a
cardiologist at Midwest Heart Specialists. R. 603. Dr. Mao found that OSF Hospital had
performed a thorough review (“a pretty extensive workup”) and agreed with their
recommendations for medication and other treatment options. He only made a few minor tweaks
and suggestions. Here is the relevant portion from his notes:
Syncope – So far I agree with everything that has been done at OSF. They have
done a pretty extensive workup including stress Echo, cath, and event monitor all
of which have been unrevealing. From the tilt table test report it seems pretty
indicative of neurocaridogenic syncope and her symptoms sound pretty classic.
She is on all the right medications and at this point I am going to increase the
florinef to .2 mg daily to see if this helps further. I also instructed her to increase
her fluid intake (she only drinks about 2-3 bottles of water a day)[.] I will have
her f/u with my APN in 1 month to see if there is any change. If not, I will have
my APN increase her midodrine to 10mg tid.
R. 605. This paragraph was not quoted nor summarized in the ALJ’s opinion.
Thereafter, plaintiff saw other doctors for other issues, including visits with her regular
doctor. She sometimes complained about the syncope and dizziness and other times did not
mention them.
The ALJ reviewed this evidence in a mostly chronological narrative interspersed with
occasional commentary. Based on this commentary, the ALJ seemed to believe that plaintiff’s
dizziness and syncope were not serious. He generally referred to these symptoms as being “nonacute” and “episodic” and concluded that they were less frequent in the fall of 2011 than they
were before, thus hinting at an improvement narrative. He stated that Dr. Mao “endorsed the
[earlier] treatment options presented and identified no new sources of medical restriction,”
suggesting that the doctor did not find her condition serious. R. 17. The ALJ also noted that in
certain doctor visits, such as one for a toothache, she did not complain about dizziness and
syncope. Overall, the ALJ’s comments suggest he believed plaintiff received only minor

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treatment which was inconsistent with her claim that on some days the dizziness prevented her
from getting out of bed. Id. The ALJ also stated: “In point of fact, the claimant takes no syncope
or postural dizziness medication.” 3 Id. The ALJ relied on this fact in discounting plaintiff’s
credibility, stating that “she is not able to provide accurate and specific detail.” Id.
However, the Court finds that the latter factual premise—that plaintiff was taking no
medications for postural hypotension—is not supported by the record. As noted above, the
doctors at OSF prescribed medications for plaintiff’s postural hypotension and related symptoms.
Later, Dr. Mao independently concluded that plaintiff was then on “all the right medications.” R.
605 (emphasis added). He identified these medications as being midodrine and florinef (also
known as fludrocortisone). The Mayo Clinic website identifies these two medications as being
the ones generally prescribed for postural hypotension. 4 There are other references in the record
confirming that plaintiff was taking these medications. See, e.g., R. 733 (list of current
medications as of 8/26/11). It is true that plaintiff did not mention these two medications at the
hearing, but she was testifying from memory and stated, after describing a few of her
medications, that “I don’t remember the rest.” R. 31. This seems to be a weak basis for
concluding that she was taking no dizziness or syncope medications. Thus, contrary to the ALJ’s
statements, there is little evidence to suggest that plaintiff was refusing to take the recommended
medications. Without any medical testimony or evidence to support his belief, the ALJ seemed to
believe that there were other treatments or medications that plaintiff could pursue and was not

3

This conclusion seems to be based on the fact that, in her testimony at the hearing, when
asked to recall what medications she was then taking, plaintiff did not mention any medications
for dizziness and syncope.
4
Specifically, the website states: “Several medications, either used alone or together, can
be used to treat orthostatic hypotension. For example, the drug fludrocortisone is often used to
help increase the amount of fluid in your blood, which raises blood pressure. Doctors often use
the drug midodrine (ProAmatine) to raise standing blood pressure levels.”
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doing so. Moreover, the ALJ has failed to identify what these treatments and medications were.
Dr. Mao’s notes certainly give the impression that she was doing all she could do based on the
known medical evidence. As for whether there were any other treatments, plaintiff testified that
her doctors told her “there’s really not much they can do because my blood pressure is so low,
and my heart rate is so extreme.” R. 43. She also stated that she had to be taken off certain
medications because of her stomach problems (gastroparesis). Id. The ALJ never acknowledged
this evidence in his opinion.
For these reasons, the Court finds that a remand is warranted. The ALJ’s unsupported
claim that plaintiff was taking no medications could have played a significant role not only in the
ALJ’s bottom-line conclusion that plaintiff’s symptoms were not serious but it also could have
affected the ALJ’s credibility finding. See Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014)
(remanding because the ALJ’s credibility determination “misstated some important evidence and
misunderstood the import of other evidence”); Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir.
2006) (an ALJ may not base a credibility determination on “errors of fact or logic”).
Having found that these errors are sufficient to justify a remand, the Court will only
briefly comment on other possible errors. In reviewing the ALJ’s opinion alongside the medical
record, the Court is concerned that the ALJ relied too much on his own review of the medical
literature without having a supporting medical opinion. See Moon v. Colvin, 763 F.3d 718, 722
(7th Cir. 2014) (the ALJ should “rely on expert opinions instead of determining the significance
of particular medical findings themselves”); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)
(“ALJs must not succumb to the temptation to play doctor and make their own independent
medical findings.”).

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To support his conclusions, the ALJ relied on two medical opinions. First, the ALJ
referred, very briefly, to Exhibit 6F, a Physical Residual Functional Capacity Assessment form
completed by Dr. Victoria Dow. R. 19, 512-519. Dr. Dow, who did not examine plaintiff,
acknowledged that plaintiff reported that she could not stand for more than five minutes before
she became dizzy and that she needed to sit often when cooking or shopping. R. 517. Although
Dr. Dow found that these statements were partially credible, she then included no exertional
limitations. In particular, in answering the question on how long plaintiff could stand on the job,
Dr. Dow included no limitations. R. 513. This means that she concluded that plaintiff could
stand for the entire eight hours of a normal work day, as the question contains possible answers
such as standing for less than two hours in an eight-hour day, standing at least two hours, or
standing about six hours. The stark difference between plaintiff’s assertion that she could not
stand for more than five minutes and Dr. Dow’s opinion that plaintiff could stand for the entire
eight hours at least requires further explanation. Dr. Dow did not include any explanation on this
form, and it is difficult for this Court to interpret what she meant by stating that plaintiff was
partially credible. The ALJ did not analyze any details in this report.
Second, the ALJ also briefly referred to a report from Dr. Zoiopoulos. Here is the ALJ’s
entire analysis: “One cardiologist, [Lynn Zoiopoulos], M.D., expressly declined or omitted
correlating these symptoms with inability to work (1F/6), which would tend to imply that the
claimant retains substantial measures of work capacity despite a small septal infarction and a
history of vasodepressor syncope, otherwise referred to as postural hypotension.” R. 18. Dr.
Zoiopoulos completed a form entitled Cardiac Report (Ex. 1F). The ALJ cited to page 6 of this
report, thus indicating that it was the doctor’s answer to question 15 that the ALJ was relying on.
However, this question, which contains two parts, was left blank, raising a question as to what

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the doctor’s silence was meant to convey. The first part asked the doctor to describe any “serious
limitations” in the plaintiff’s ability to do daily activities of living. The second part asked the
doctor to describe the patient’s ability to do work-related activities such as standing. If the
doctor’s failure to answer the first part suggests by negative implication that she believed
plaintiff had no serious limitations, then this same approach would mean that the doctor also
believed that plaintiff had no ability to do any work-related activity. In short, these are
contradictory, making it hard to extract any clear opinion from this one question on a form filled
out by a non-examining doctor. Moreover, on this same form, Dr. Zoiopoulos answered “yes” to
whether plaintiff had “Syncope” and “Near syncope (lightheadedness).” R. 241
In light of this sparse medical opinion testimony, the Court encourages the ALJ on
remand to call an impartial medical expert, who could help on a number of levels. For one thing,
an expert could provide more background on the medical terms and how the symptoms relate to
each other. As one example, it was unclear to the Court what the relationship was between
dizziness and syncope. At various points, the ALJ noted that plaintiff reported having one but
not the other. Was this significant? Did the diagnoses depend on plaintiff having both
symptoms?
A related but important point is the frequency of these symptoms. The ALJ believed it
was telling that plaintiff’s symptoms were “episodic” and “non-acute.” But the ALJ never
explained what he specifically meant by these phrases or whether they were findings inconsistent
with postural hypotension. Why would it matter if the condition was merely chronic and not
acute? The ALJ also did not pinpoint, or even given a range as to, the frequency of the
symptoms. Do these symptoms typically wax and wane such that it would not be unusual for
them not to be present on some doctor visits for other issues? Were there other treatments

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available that plaintiff was not pursuing, as the ALJ seems to suggest? An expert could help
provide a baseline and context. If there was not much else that could be done, then this might
cast a different light on why plaintiff was not going to the doctor as often as the ALJ believed
she should be doing if her symptoms indeed were serious. 5 An expert could also help in
considering whether plaintiff’s postural hypotension may be related to, or exacerbated by, her
other conditions such as her gastric problems, obesity (which the ALJ never analyzed), and
mental health issues.
The Court finds that the above issues are enough to order a remand, and the Court will
not further examine plaintiff’s additional arguments for remand, none of which would
individually be sufficient to justify a remand. However, the ALJ nonetheless should review all
these issues again with fresh eyes. In remanding this case, the Court is not indicating any
opinion on the final outcome.
CONCLUSION
For the reasons given, plaintiff’s motion for summary judgment is granted, the
government’s motion is denied, and the decision of the ALJ is remanded for further
consideration.

Date: July 29, 2015

By:

___________________________
Iain D. Johnston
United States Magistrate Judge

5

See generally, Juan J. Figueroa, Jeffrey R. Basford, and Phillip A. Low, “Preventing
and treating orthostatic hypotension: As easy as A, B, C,” Cleveland Clinic Journal of Medicine,
at p. 1 (May 2010) (located at http://www/ncbi.nlm.nih.gov/pmc/articles) (“Orthostatic
hypotension is a chronic, debilitating illness that is difficult to treat.”).
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