Vernia v. Colvin

Filing 21

MEMORANDUM Opinion and Order; The plaintiff's motion for summary judgment is granted, and the defendant's motion for summary judgment is denied. The matter is remanded to the Commissioner. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 7/23/2018:(yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Karen Vernia,
Plaintiff,

)
)
)
) No. 16 C 50364
) Hon. Iain D. Johnston
) Judge Presiding
)
)

v.
Nancy A. Berryhill, Acting Commissioner
of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER
The Claimant brings this action under 42 U.S.C. §405(g), seeking remand of
the decision by Respondent, Nancy A. Berryhill, 1 Acting Commissioner of Social
Security (“Commissioner”), denying the Claimant’s application for disability
insurance benefits under Title II of the Social Security Act (“SSA”) and denying the
Claimant’s application for supplemental security income (SSI) under Title XVI of
the SSA. This matter is before the Court on cross-motions for summary judgment.
(Dkt. #12, 17).
The Claimant argues that the Commissioner’s decision denying her
applications for benefits should be remanded for further proceedings because the
Administrative Law Judge’s (“ALJ”) decision is not supported by substantial
evidence. The Commissioner argues that the ALJ’s decision should be affirmed
because it is supported by substantial evidence. For the reasons set forth more fully

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill is therefore substituted for Acting Commissioner
Carolyn W. Colvin as the defendant in this suit.

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below, the Claimant’s motion for summary judgment is granted, and the
Commissioner’s motion is denied. The matter is remanded to the Commissioner.

I. BACKGROUND
The Claimant’s last date of insured is September 30, 2009. R. 20. In March
2011, the Claimant filed applications for disability alleging a disability onset date of
December 31, 2005, due to neck, back, hip, foot, and shoulder issues, as well as
headaches, depression, and emphysema. R. 20. The claims were denied on June 28,
2011, and again denied upon reconsideration on November 14, 2011. R. 20. Several
state agency consultants evaluated the Claimant’s impairments during this period.
A psychological evaluation was performed by Dr. John Peggau, Ph.D. R. 28. Dr.
Donna Hudspeth, Psy.D. also completed a psychiatric review of the Claimant. R.
29. Dr. Marion Panepinto and Dr. Towfig Arjmand each completed a residual
functional capacity (“RFC”) assessment for the Claimant regarding the Claimant’s
physical impairments. R. 29. On February 27, 2013, a hearing took place before an
Administrative Law Judge (“ALJ”). R. 20. At the hearing Craig Johnson testified
as a vocational expert. R. 20. The record also included two RFC forms completed
by Dr. Michael Maloney, the Claimant’s long-time treating physician. R. 30-31. On
March 8, 2013, the applications were denied. R. 35. The Claimant’s request for
review by the Appeals Council was denied and she subsequently filed a complaint in
federal court.

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On June 5, 2014, while this matter was still pending in federal court, the
Claimant filed an application for Title XVI benefits. R. 1502. The state agency
obtained two medical opinions for the June 2014 application. An opinion was
submitted by Erika Gilyot-Montgomery, Psy.D. regarding the Claimant’s mental
impairments. R. 1502. An opinion was also submitted by Richard Bilinsky, M.D.
regarding the Claimant’s physical impairments. R. 1502. On August 25, 2014, the
application was granted, finding the Claimant disabled as of March 9, 2013. R.
1502.
On April 1, 2015, this court granted the parties’ agreed motion to remand and
remanded the case concerning the original two applications. R. 1498. The Appeals
Council then reviewed prior proceedings to determine if further proceeding were
warranted before the ALJ. On September 11, 2015, the Appeals Council affirmed
the finding that the Claimant was disabled, but found that since the 2014 state
agency determination related only to a Title XVI application, the earliest onset date
would be the date of application, which was June 5, 2014. R. 1502. The Appeals
Council remanded the case to the ALJ to gather further evidence and conduct a
hearing to determine whether the Claimant was disabled before June 5, 2014. R.
1504.
On January 28, 2016, a second hearing was conducted for the March 2011
applications. R. 1355. At the hearing Dr. Allen W. Heinemann, Ph.D. testified as a
non-examining medical expert and Jill Radke testified as a vocational expert. R.
1355. On February 17, 2016, the ALJ issued a partially favorable decision, finding

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the Claimant had the RFC to perform light work, and that the Claimant was
disabled as of March 24, 2014. R. 1362, 1379. The Claimant then filed this appeal
pursuant to 42 U.S.C. §405(g). The Claimant requests a finding that she was
disabled as of December 31, 2005. In the alternative, the Claimant requests a
finding that she was disabled as of March 9, 2013. As another alternative request,
the Claimant seeks to have the ALJ’s decision vacated and have this matter
remanded to the ALJ for further proceedings.
The medical record includes treatment records for the Claimant’s various
physical and mental conditions. The records that are particularly pertinent for this
appeal include the opinions of the various state agency consultants concerning the
Claimant’s physical conditions, as well as the medical record records from Dr.
Maloney, who became the Claimant’s primary physician in 2004 and treated the
Claimant for the variety of physical ailments that she asserts in her applications.
R. 273. Dr. Maloney submitted a RFC assessment on July 17, 2012, and a second
assessment on November 19, 2012. R. 30-31. The medical record also includes
treatment records from Dr. Brian Bear, who performed surgery on the Claimant’s
right shoulder rotator cuff in 2009 and made certain findings concerning the
Claimant’s ability to lift. R. 26, 272, 1366.

II. DISCUSSION
The Claimant argues (1) that the ALJ failed to properly apply the treating
physician rule, (2) that the ALJ erred by substituting her own opinions for the

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opinions of medical experts, (3) that the ALJ failed to properly consider the
statements of the Claimant’s boyfriend and father when determining the Claimant’s
onset date of disability, and (4) that the Claimant exhausted administrative
remedies after the Appeals Council’s remand. It is important to note initially that
the Claimant has not challenged the ALJ’s finding regarding the Claimant’s
mental RFC and that on appeal the Claimant is only challenging the finding
regarding the Claimant’s physical RFC. The Claimant does not argue that any of
the expert opinions concerning her mental health were improperly considered and
instead argues that such expert opinions offered the ALJ no guidance in the
determination of the Claimant’s physical RFC. 2

A. Treating Physician Rule
The Claimant contends that the ALJ failed to properly apply the treating
physician’s rule when assessing the opinions of Dr. Maloney. Under the treating
physician rule, a treating physician’s opinion is entitled to controlling weight if it is
supported by medical findings and consistent with other substantial evidence in the
record. 20 C.F.R. § 404.1527(c)(2); 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

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The Claimant argues that the ALJ placed the greatest weight on Dr. Heinemann’s opinions, but that Dr. Heinemann
was only qualified to give an opinion regarding the Claimant’s psychological impairments. (P. SJ at 9).

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Cir. 2009). To make this determination, the ALJ must apply the checklist of six
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”). Failure to apply the checklist is reversible
error. Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010) (ALJ disregarded
checklist).
Regarding the Claimant’s physical impairments, the Commissioner did not
have any medical examination of the Claimant performed by a state agency
physician before either hearing. Nor did any medical expert testify at the January
28, 2016 hearing regarding the Claimant’s physical conditions. The records from
Dr. Maloney, including his two RFC assessments, address the treatment of the wide
array of the Claimant’s physical impairments over an extended period of time and
provided the most comprehensive look at the Claimant’s physical condition. Yet the
ALJ decided to give little or limited weight to Dr. Maloney’s opinions and
gavesubstantial weight to the opinions of certain non-examining and non-treating
medical experts. R. 1375. To the extent that the ALJ gave great weight to the
opinions of consultants relating to the Claimant’s mental condition, such as Dr.
Heinemann, such experts were not qualified to give opinions concerning the
Claimant’s physical impairments.
In discounting the opinions of Dr. Maloney, the ALJ noted that Dr. Maloney
was not a specialist. R. 1374. The ALJ also found that Dr. Maloney’s opinions were
not entitled to great weight because the ALJ believed them to be based mainly on
the Claimant’s subjective complaints instead of objective findings. R. 1374-75. The

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ALJ also noted that Dr. Maloney had submitted two RFC assessments and that the
most recent form listed less restrictive impairments than the prior assessment. R.
1373-75. The ALJ concluded that because the RCF assessments were inconsistent
they were entitled to lesser weight. R. 1374.
The Claimant acknowledges that Dr. Maloney’s second RFC assessment was
less restrictive than the first RFC assessment, but the Claimant argues that even
based on the second RFC assessment, the Claimant should have been deemed to
have an RFC at the sedentary capacity level. Dr. Maloney indicated that the
Claimant’s maximum ability to lift and carry on an occasional or frequent basis was
10 lbs. R. 1148. Dr. Maloney also indicated that the Claimant was only able to
stand or walk for 3 hours during an 8-hour day. R. 1148. Such restrictions would
suggest a sedentary capacity and, to the extent that the ALJ believed otherwise or
found that it conflicted with other objective medical evidence, it was incumbent on
the ALJ to explain such conclusions. The ALJ indicated that Dr. Maloney’s
opinions “seem” to mainly rely on the Claimant’s subjective complaints. R. 1375.
Such as statement alone indicates an uncertainty on the ALJ’s part that should
have been investigated further. The ALJ also cast doubt on the Claimant’s
subjective complaints and asserted that Dr. Maloney’s opinions were not supported
by objective findings, but the ALJ provided only a cursory analysis and failed to
adequately explain such a conclusion. R. 1373-75.
Dr. Bear was a treating physician who indicated at some point that the
Claimant could lift 20 pounds without restrictions. R. 1366. To the extent that the

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ALJ relied upon Dr. Bear’s opinion (and it is unclear if the she did), the ALJ failed
to acknowledge Dr. Bear’s limited role in the Claimant’s overall treatment. Dr.
Bear solely treated the Claimant on a limited number of occasions during 2009 for
her shoulder injury. The Claimant does not dispute Dr. Bear’s assessment
concerning the functional ability of the Claimant’s shoulder. (P. SJ at 8). Dr. Bear,
however, did not treat the Claimant for her various other physical impairments and
offered no opinion concerning the cumulative effect of those other impairments upon
the Claimant’s ability to perform certain physical tasks. On remand, the ALJ must
properly consider the treating physician rule and give adequate consideration to
both the opinions of treating and non-treating sources.

B. ALJ’s Substitution of Own Opinions for Opinions of Medical Experts
The Claimant argues that the ALJ improperly substituted her own opinions
for the opinions of the medical experts in this case. The Seventh Circuit has
cautioned ALJs that they “must not succumb to the temptation to play doctor and
make their own independent medical findings.” Rohan v. Chater, 98 F.3d 966, 970
(7th Cir. 1996); Israel v. Colvin, 840 F.3d 432, 439 (7th Cir. 2016) (stating that
“[t]here is always a danger when lawyers and judges attempt to interpret medical
reports”); see also Lambert v. Berryhill, 2018 WL 3470994, at *4 (7th Cir. July 19, 2018)
(stating that “ALJs must rely on expert opinions instead of determining the
significance of particular findings themselves”).

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The ALJ gave limited weight to Dr. Maloney’s opinions in part simply
because there were inconsistencies between the two RFC assessments submitted by
Dr. Maloney. R. 1374. The ALJ indicated that the inconsistencies themselves cast
the assessments into doubt because they were “only months apart.” R. 1374. The
Commissioner argues that the ALJ properly found that the “conflict between the
opinions was, in and of itself, a reason to give little weight to the opinions.” (C. SJ
at 5-6). As the ALJ herself noted, the RFC assessments from Dr. Maloney were
completed on July 17, 2012, and November 19, 2012, which was more than four
months apart. R. 30-31, 1373. 3 The ALJ did not point to any medical expert
opinion that would indicate that the Claimant’s condition could not have improved
in that four month period as indicated in the RFC assessments presented by Dr.
Maloney. The ALJ thus failed to support her contention that the inconsistencies
cast doubt on the RFC assessments made by Dr. Maloney. Lambert, 2018 WL 3470994,
at *4 (stating that “[p]hysicians may update their views without being inconsistent if
their later opinions are based on a patient’s changed condition”). The ALJ thus
improperly engaged in her own medical assessment when she found that what she
believed were “significant discrepancies” rendered Dr. Maloney’s opinions less
credible. R. 1373; Lambert, 2018 WL 3470994, at *4.
The ALJ’s logic was also flawed in regard to her decision to adopt the
opinions of Dr. Panepinto and Dr. Arjmand and reject the opinions of Dr. Bilinsky.
All three were non-treating state agency consultants that addressed the Claimant’s
physical condition. The ALJ gave lesser weight to the state agency consultants in
3

The ALJ incorrectly stated in her earlier decision that the two RFC assessments were three months apart. R. 31.

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the subsequent Title XVI proceedings such as Dr. Bilinsky “because the disability
determination did not consider all of the medical evidence in the record.” R. 137576. Yet, neither Panepinto nor Arjmand had at their disposal medical records after
2011 when they made their assessments. R. 92, 118. Indeed, Dr. Bilinsky’s
assessment was made later in August 2014, based on a more complete record. R.
1487. Although the Commissioner is correct that on remand from the Appeals
Council the ALJ was not bound by the Dr. Bilinsky’s opinion or his onset date
finding in the prior agency proceedings, the Claimant is also correct that such
findings are part of the comprehensive record that should have been given due
consideration by the ALJ. The ALJ could not simply discount the opinion from an
expert consultant such as Dr. Bilinsky without giving a more elaborate explanation
for her reasoning. 4
There were glaring examples regarding Dr. Bilinsky’s findings that required
further examination by the ALJ. For example, Dr. Bilinsky found that the
Claimant was only capable of standing/walking for 4 hours out of an 8 hour
workday. R. 1486. 5 Yet the ALJ chose to give greater weight to the opinions of Dr.
Panepinto and Arjmand that indicated that the Claimant was capable of
standing/walking for 6 hours out of an 8 hour workday. R. 91, 118. The ALJ did not
assess Dr. Bilinsky’s opinion and only referenced his opinion in the most general

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The court notes that in the remand decision by the Appeals Council, the Appeals Council questioned whether Dr.
Bilinsky’s findings supported a capacity for light work instead of sedentary work. R. 1502. The Appeals Council,
however, made no specific finding concerning Dr. Bilinsky’s assessment. Dr. Bilinsky concluded that the Claimant
was only able to walk/stand for 4 hours of an 8 hour workday, which would suggest a sedentary capacity.
To the extent that the ALJ desired to examine whether Dr. Bilinsky believed that the Claimant was capable of light
work, the ALJ should have developed the record further on that point.
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Dr. Bilinsky also concluded that the Claimant’s onset date was March 9, 2013. R. 1491.

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terms. The Commissioner argues that the RFC determination itself is not a medical
determination and that it is the ALJ’s job to resolve conflicts in the record. (C. SJ at
9-10). The ALJ, however, failed to adequately explain her decision regarding such
disputes between the medical experts. Absent any such explanation, this court can
only conclude that the ALJ ultimately made the call on such matters based on her
own medical judgment. On remand, the ALJ must refrain from engaging in medical
determinations without the support of medical experts and to the extent that the
ALJ must choose between conflicting opinions, the ALJ must adequately support
her decision rather than relying on her own personal medical assessment.

C. Consideration of Statements by Boyfriend and Father
The Claimant argues that the ALJ failed to properly consider the statements
of the Claimant’s boyfriend, Guy Salvato, and the statements of the Claimant’s
father, George Vernia. The Claimant contends that the statements showed that the
Claimant was disabled before 2013 and that the ALJ ignored such statements. The
ALJ correctly pointed out that Guy Salvato made statements that were inconsistent
with earlier statements made in the case and with statements made by the
Claimant. R. 1361-62, 1376. The ALJ was entitled to take such matters into
consideration. In regard to the statements by the Claimant’s father, the Claimant
indicates that the ALJ have considered the Claimant’s father’s statements relating
to her mental condition. The Claimant, however, has not placed findings concerning
her mental condition at issue in this appeal. (P. SJ at 14). Nor has the Claimant

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shown that the statements from her father regarding her distant past would have
been sufficient to warrant extending the onset date. Therefore, the Claimant has
not shown that the ALJ failed to properly consider the statements made by the
Claimant’s boyfriend and father.

D. Exhaustion of Administrative Remedies
The Commissioner argues that the Appeals Council modified the ALJ’s 2014
decision and that the Claimant has not exhausted her administrative remedies.
According to the Commissioner, in the September 11, 2015, decision remanding this
case, the Appeals Council modified the prior Title XVI award. The Commissioner
contends that the Appeals Council found that the state agency had erred in finding
that the Claimant was limited to sedentary work. Although the Commissioner fails
to specify the basis for such a conclusion, it appears that the Commissioner is
relying upon the reference in the decision to the opinion of Dr. Bilinsky. The
Appeals Council “note[d] that Dr. Bilinsky’s opinion appears to support a funding
that the claimant is limited to a ‘light’ residual functional capacity and not a
‘sedentary’ residual functional capacity, as determined by the State agency.” R.
1502 (emphasis added). The Appeals Council, however, made no specific finding
that the Claimant had a light work capacity. The Appeals Council indicated that
such an inquiry was unnecessary due to the facts and procedural history in the case
at that juncture. R. 1502. The Commissioner also contends that the Appeals
Council found that state agency finding as to the onset date of March 9, 2013, was

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wrong. The Appeals Council merely held that the onset date for the Title XVI claim
before it was limited to the date of application, which was June 5, 2014. R. 1502.
The Commissioner argues that the Claimant was required to exhaust her
administrative remedies by filing an appeal concerning the Appeals Council’s
decision. There was no reason, however, to file such an appeal. The Appeals
Council had already affirmed a finding of disability with an onset date of June 5,
2014. The remand by the Appeals Council specifically ordered the ALJ to conduct a
new inquiry as to a possible earlier onset date for the applications that were
remanded from the district court. Thus, the Claimant was given an opportunity to
be heard in regard to relief that she sought. It would have been premature for the
Claimant to seek an appeal after the Appeals Council remand and would have been
an inefficient use of judicial resources. The Commissioner has thus failed to show
that the Claimant failed to exhaust necessary administrative remedies.
Based on the above, the ALJ erred in part and the Claimant has shown that
the ALJ’s overall decision was not supported by substantial evidence. Therefore,
the Claimant’s motion for summary judgment is granted, and the Commissioner’s
motion for summary judgment is denied. The matter is remanded to the
Commissioner.

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IV. CONCLUSION
For the reasons stated above, the Claimant’s motion for summary judgment
is granted, and the Commissioner’s motion for summary judgment is denied. The
matter is remanded to the Commissioner.

It is so ordered.

Entered: July 23, 2018

________________________
Iain D. Johnston
U.S. Magistrate Judge

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