Musgrove v. Berryhill
MEMORANDUM Opinion and Order; For the reasons stated, the Claimants motion for summary judgment is granted, and the Commissioners 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 3/7/2018: (yxp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
) No. 17 CV 50117
) Magistrate Judge Iain D. Johnston
Nancy A. Berryhill,
Acting Director of Social Security,
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, 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 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 his
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
below, the Claimant’s motion for summary judgment is granted, and the
Commissioner’s motion is denied. The matter is remanded to the Commissioner.
A. Procedural History
On October 29, 2013, the Claimant filed the applications for disability
alleging a disability onset date of October 29, 2009, due to back problems,
depression, anxiety, and knee problems. R. 59-60. On February 3, 2014, the
applications were denied. R. 17. The Claimant filed requests for reconsideration,
which were denied on October 2, 2014. R. 134, 139. On November 4, 2014, the
Claimant filed a timely request for a hearing. R. 144. The ALJ conducted a video
hearing on February 18, 2016, in Evanston, Illinois. R. 17, 33. Although the
hearing was conducted in Evanston, the Claimant appeared by video in Rockford,
Illinois. R. 17. The Claimant and Vocational Expert Tobey Andre testified at the
hearing. R. 17, 34. In addition, although he did not testify, medical expert Dr. Mark
I. Oberlander, Ph.D. was present at the hearing. R. 17, 35. The ALJ also
considered the Disability Determination Reports prepared by the state agency
consultants dated October 1, 2013, and January 30, 2014. R. 24-25, 59-115.
On May 6, 2016, the ALJ issued a decision denying the claims for benefits. R.
27. On June 6, 2016, the Claimant filed a timely request to review the ALJ’s
decision. R. 13. On March 16, 2017, the Appeals Council denied the review, making
the ALJ’s decision the final decision of the Commissioner. R. 1-5. Thereafter, the
Claimant filed this appeal pursuant to 42 U.S.C. §405(g).
B. Hearing Testimony
Counsel represented the Claimant at his hearing on February 18, 2016. R.
35. At that hearing, the Claimant was asked by the ALJ about past episodes of
bleeding from his face and whether the Claimant had any bleeding episodes since
January 2014. R. 37. The Claimant indicated that he did not have further
episodes. R. 38. The ALJ questioned the Claimant regarding medical treatment
and the Claimant indicated that he had his knees, hips, and back examined by
physicians. R. 38-39. The Claimant indicated that he was told by physicians that
he would eventually need a hip replacement and would need to have both knees
replaced. R. 39. The Claimant further testified that he had surgery on his right
knee for a torn meniscus, but that the knee still had bone-on-bone contact and was
still was painful. R. 39. In regard to pain in his knees, the Claimant testified that
he had learned to deal with the pain. R. 40. The ALJ inquired as to the Claimant’s
ability to walk without pain and the Claimant testified that he was able to walk a
block and a half and back again, but at that point he would begin to feel severe pain
in his knees, back, and left hip. R. 40-41. The ALJ inquired as to why the treating
physician’s notes indicated that the goal was to postpone the knee replacements and
the Claimant indicated that the knee replacements were going to be postponed until
the Claimant lost sufficient weight. R. 41-42. The ALJ asked the Claimant if he
was trying to lose weight so that he could have his knee replacement surgery and
the Claimant indicated that he had lost 20 pounds. R. 42. The ALJ asked the
Claimant why he declined an offer for a referral to a dietician and the Claimant
indicated that he thought he could lose the weight on his own. R. 42. The Claimant
testified that after his surgery he completed six or seven weeks of physical therapy
and that he continued to do physical therapy exercises once or twice a week. R. 41,
44, 48. The Claimant testified that he took ibuprofen and occasionally used a
heating pad for pain. R. 45-46.
The Claimant testified that he needed to use a cane about two to three times
a week due to pain and needed to use a cane to go up and down stairs. R. 44-45.
The Claimant testified that he went to the grocery store about twice a month with a
friend. R. 46. The Claimant also testified that his neighbor did his laundry for him
and performed minor chores for him. R. 46-47. The Claimant testified that he
smoked approximately a pack of cigarettes a day. R. 47. The Claimant testified
that he had a valid driver’s license and a vehicle, and would typically drive to the
grocery store or a friend’s house. R. 47. The Claimant testified that he was able to
dress himself and bathe himself. R. 49. The Claimant indicated that he had
difficulty picking up some things that he dropped on the floor and indicated that it
was a struggle to put on socks and shoes, but that he was able to perform such tasks
on his own. R. 49. In regard to prior work, the Claimant indicated that as a
concrete stone finisher, he poured and framed the concrete, but that he did not read
blueprints. R. 51.
2. Vocational Expert
A vocational expert, Tobey Andre, also testified at the hearing. She
categorized the Claimant’s past work as medium and heavy work that was mostly
skilled. R. 50. Ms. Andre initially indicated that, as a concrete stone finisher, the
Claimant should have been able to read blueprints, which was a transferable skill
from light work. R.50. However, upon questioning of the Claimant by the ALJ, it
was determined that the Claimant performed the job at a much lower level and did
not know how to read blueprints. R. 50-51. The ALJ provided Ms. Andre with a
hypothetical for an individual who could be on his feet up to four hours a day, could
lift 10 pounds frequently, and lift 20 pounds occasionally. R. 52. Ms. Andre
indicated that there were light work jobs at the unskilled level that existed in the
economy that such a person could perform. R. 52-54.
C. Medical Evidence
The record indicates that the majority of the medical evidence was submitted
before the February 18, 2016, hearing. The record also indicates that the Claimant
supplemented the record after the hearing and before the ALJ’s decision. R. 57;
The medical evidence includes emergency room treatment records for a visit
by the Claimant on November 19, 2013. R. 299. The Claimant was treated at the
emergency room for reoccurring nose bleeds. R. 300. The medical evidence also
includes a report from Psychology Consultants, P.C. prepared by John L. Peggau,
Psy.D. R. 310. The report indicates that the Claimant suffered from depression
and anxiety because of his physical condition and because he could not obtain
employment. R. 312. The report diagnosed the Claimant with the following: 305.1
Nicotine Use Disorder-2ppd for 35 years; Morbid Obesity; Polysubstance and
Alcohol Dependence in long remission; 301.9 Unspecified Personality Disorder. R.
The medical evidence also includes a report for a medical examination of the
Claimant on December 20, 2013, prepared by K.P. Ramchandani, M.D. at One
Eleven Medical Clinic. R. 315. The report diagnosed the Claimant with the
following: arthralgia of lumber spine, knee joints, elbow and shoulder joints; post
traumatic arthritis of ankle joints; uncontrolled HTN; and peripheral neuropathy.
R. 317. The report also included range of motion results for the Claimant. R. 31921. The medical evidence also includes reports for X-rays of the Claimant’s right
ankle and right knee on January 10, 2014. R. 323-24. The medical evidence also
includes reports for X-rays of the Claimant’s lumbar spine and right knee on March
4, 2014, and a report for an MRI scan of the Claimant’s lumbar spine on May 12,
2014. R. 367, 369, 371. The record also includes a report of a pre-surgical
orthopedic consultation report and an operative report. R. 379, 381. The medical
evidence also includes emergency room records for the Claimant from January 15,
2014 to January 16, 2014, for hemoptysis, unspecified; tobacco dependence; and
uncontrolled hypertension. R. 326-27. Surgery was also performed to treat the
Claimant’s epistaxis. R. 328.
1. Dannenmaier Records
The medical evidence includes office treatment records from SAMG
Lundholm Orthopedics for the period of May 22, 2014 to July 10, 2014 regarding
treatment by Dr. William C. Dannenmaier. In the notes for a visit on May 22, 2014,
Dr. Dannenmaier indicates that the Claimant reported increasing severe pain in his
low back and had trouble with his knees. R. 453. The notes indicate that the knee
problems were likely aggravated by the Claimant’s morbid obesity. R. 453. The
notes indicate that the Claimant reported difficulty walking and going up and down
stairs, and that he had difficulty bending his legs and flexing his knees. R. 453.
The physical examination indicated that the Claimant was morbidly obese and
could walk only with obvious discomfort. R. 454. The physical examination also
indicated a limited range of motion in the knees, and limited range of motion in the
hips. R. 454. The notes indicate that an X-ray examination of the hips showed mild
arthritic change in both hips with some minor medial joint space narrowing and
spurring in the inferior aspect of the femoral heads. R. 454. The notes further
indicate that the X-ray indicated that the knees had bone-on-bone articulation
medially in both knees. R. 454. Dr. Dannenmaier also ordered an MRI scan of the
Claimant’s knees. R. 454.
In the notes for a visit on June 12, 2014, Dr. Dannenmaier indicated that the
Claimant had osteoarthritis of both knees. R. 398. The notes further indicate that
the Claimant reported pain in both knees, although he reported more pain in the
left knee. R. 398. Dr. Dannenmaier indicated that he ordered an MRI scan of the
Claimant’s knees to determine whether there was a surgically remediable solution
short of knee replacement. R. 398. The notes indicate that the MRI scan showed
significant degenerative changes in the left knee and a bucket handle tear of the
medical meniscus in the right knee. R. 398. Dr. Dannenmaier concluded that
treating the meniscus tear in the right knee might make walking a little easier for
the Claimant. R. 398. Dr. Dannenmaier advised the Claimant to have surgery on
his right knee to repair the meniscus tear, pending the clearance by other
physicians at Crusader Community Health Loves Park (“Crusader Clinic”), who
were also treating the Claimant. R. 398.
In notes for a visit on June 27, 2014, Dr. Dannenmaier indicated that the
Claimant had end-stage arthritis in both knees and that the Claimant complained
of catching and locking in the right knee. R. 394. The notes indicate that a physical
examination of the Claimant showed that the Claimant suffered from morbid
obesity. R. 395. An examination of the right knee indicated pain at the medial and
lateral joint lines and that most of the pain was at the lateral join line. R. 395. Dr.
Dannenmaier advised that he would like to evaluate the right knee
arthroscopically. R. 395. Dr. Dannenmaier also indicated that although knee
replacements were inevitable, it would be preferable to postpone the replacements.
In notes for a visit on July 10, 2014, Dr. Dannenmaier indicated that the
Claimant had surgery on his right knee to repair the meniscus tear and that the
visit was a surgical follow-up visit. R. 389. Dr. Dannenmaier indicated that
findings at the time of the arthroscopy included a medial meniscus tear with a
fragment, which subluxed in and out of the joint space. R. 389. Dr. Dannenmaier
also indicated that the Claimant had degenerative change in the medial femoral
condyle, medial tibial plateau and patellofermoral joint. R. 389. The notes reflect
that at that point, the Claimant was having a lot of swelling in both legs and was
still quite stiff and walking with a crutch. R. 389. Dr. Dannenmaier indicated that
he would refer the Claimant to a physical therapist to increase the Claimant’s
strength, range of motion, and to try and wean the Claimant off the use of a crutch.
2. Crusader Clinic Records
The medical evidence also includes treatment notes from the Crusader Clinic.
The notes for the visit on March 3, 2014, indicate that the Claimant reported pain
in his back and knees. R. 359. There are also records from the Crusader Clinic
dated March 4, 2014, indicating that the Claimant did not pick up his medication
and there are records dated March 5, 2014, indicating that the Claimant had blurry
vision. R. 350-51, 355. The notes for the visit on March 20, 2014, indicate that the
Claimant reported being lightheaded and having a shortness of breath. R. 348. The
Claimant also reported back and knee pain. R. 348.
The notes for the visit on June 25, 2014, indicate that the Claimant had
come to the clinic for a pre-operative physical for his right knee arthroscopic knee
surgery. R.345. The notes indicate that the Claimant was being treated for
meniscal injury, knee pain, HTN hypertension, degenerative arthritis of knees,
morbid obesity, dyslipidemia, and tobacco addiction. R. 346-47.
The notes for a visit on November 26, 2014, indicate that the Claimant
suffered from severe arthritis in his knees and that he had an arthroscopy on the
right knee on July 2, 2014. R. 430. The notes also indicate that the Claimant
reported that the pain in the right knee had improved since the surgery, but that
there was still pain in the knee. R. 430. The Claimant also reported pain in his
back and hips. R. 430. The notes further indicate that the Claimant had a poor diet
and was not interested in seeing a dietician to address his obesity problem. R. 430.
The notes further indicate that the Claimant reported difficulty in exercising due to
pain. R. 430. The notes also indicate that the SLR was negative, that the strength
was 5/5 in both legs, and that the gait was normal. R. 430.
The notes for a visit on April 24, 2015, indicate that the Claimant continued
to experience pain, particularly in his knees. R. 426. The Claimant also indicated
that he was experiencing financial difficulties and was suffering from anxiety and
depression. R. 426. There is also a record from the Crusader Clinic dated May 1,
2015, indicating that the Claimant was informed by phone that his cholesterol and
blood sugar levels had worsened. R. 424. The notes indicate that the clinic offered
to refer the Claimant to a dietician and the Claimant declined. R. 424. The notes
for a visit on October 7, 2015, indicate that the knee replacement surgery was
postponed until the Claimant had lost sufficient weight. R. 421. The notes indicate
that the clinic discussed at length with the Claimant the need to lose weight, but
the Claimant refused to consult with a dietician. R. 422. The notes indicate that
the Claimant suffered from hypertension, obesity, hyperlipidemia, pre-diabetes,
tobacco use disorder, and osteoarthritis of knees, bilateral. R. 421. A record from
the Crusader Clinic dated October 9, 2015, indicates that the Claimant was
informed by phone that his glucose average level was elevated and that he was on
the verge of becoming diabetic. R. 420.
D. ALJ’s Decision
First, the ALJ found that the Claimant met the insured status requirements
of the SSA through June 30, 2014. R. 19. Second, the ALJ found that the Claimant
had not engaged in substantial gainful activity since October 29, 2009. R. 19. Third,
the ALJ found that the Claimant had the following severe impairments:
degenerative joint disease of both knees; mild degenerative lumbar disc disease;
mild osteoarthritic changes of both hips; and obesity. R. 19. Fourth, the ALJ found
that these impairments did not meet or equal one of the listed impairments. R. 20.
Fifth, the ALJ found that the Claimant had a residual functional capacity as
follows: The Claimant could stand/walk at least 4 hours in an 8-hour workday; sit
at least four hours in an 8-hour workday; lift/carry at least at least 10 pounds
frequently; and lift/carry at least 20 pounds occasionally. R. 21. In making her
residual functional capacity determination, the ALJ found that the evidence showed
that the Claimant had surgery on his right knee and that the medical evidence did
not indicate significant further medical treatment. R. 23-25. The ALJ declined to
adopt the opinions of the state agency consultants, finding that the consultants
lacked a complete record, and finding that the consultants gave inadequate
consideration to the Claimant’s obesity. R. 24-25. The ALJ also declined to give
any weight to two of Dr. Dannenmaier’s opinions because the assessments were
made shortly after the doctor first saw the Claimant and were made before the
Claimant’s knee surgery. R. 25.
II. LEGAL STANDARDS
A. Standard of Review
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). This much is clear regarding the standard of review.
If supported by substantial evidence, the Commissioner’s factual findings are
conclusive. 42 U.S.C. §405(g). If the Appeals Council denies a request for review,
the ALJ’s decision becomes the Commissioner’s final decision, reviewable by the
district court. Sims v. Apfel, 530 U.S. 103, 106-07 (2000). But beyond these
axiomatic statements, the courts have provided seemingly conflicting guideposts.
At one end of the spectrum, court opinions have held that the standard of
review is narrow. Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (review is
“extremely limited”). The district court’s review is limited to determining whether
substantial evidence supports the Commissioner’s decision and whether the
Commissioner applied the correct legal standard in reaching the decision. Nelms v.
Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009); Schoenfeld v. Apfel, 237 F.3d 788, 792
(7th Cir. 2001). Substantial evidence exists if there is enough relevant record
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). Indeed, on review, the courts will give the
decision a commonsensical reading and not pick nits. Rice v. Barnhart, 389 F.3d
363, 369 (7th Cir. 2004). Moreover, a decision need not provide a complete written
evaluation of every piece of testimony and evidence. Pepper v. Colvin, 712 F.3d 351,
362 (7th Cir. 2013). If reasonable minds could differ concerning whether a claimant
is disabled, then the court must affirm so long as the decision is adequately
supported. Elder, 529 F.3d at 413.
At the other end of the spectrum, courts, including the Seventh Circuit, have
been careful to emphasize that the review is not merely a rubber stamp. Scott v.
Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). For example, a “mere scintilla” is not
substantial evidence. Id. 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). If the Commissioner’s decision lacks
evidentiary support or adequate discussion of the issues, then the court must
remand the matter. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). 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); Mason v. Colvin, 13 C 2993 2014 U.S. Dist. LEXIS 152938, *19
(N.D. Ill. Oct. 29, 2014) (“In the Seventh Circuit, an ALJ’s decision can be supported
by substantial evidence – or even a preponderance of the evidence, as it is here –
but still will be overturned if the ALJ fails to build a ‘logical bridge’ from the
evidence to her conclusions.” citing Sarchet v. Charter, 78 F.3d 305, 307 (7th 1006). 1
And, unlike most civil litigation in which a decision can be affirmed on any basis in
the record, federal courts cannot do so in Social Security appeals. Compare Parker v.
Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“[T]he Chenery doctrine . . . forbids an
agency’s lawyers to defend the agency’s decision on grounds that the agency itself
had not embraced.”) with Brosted v. Unum Life Ins. Co., 421 F.3d 459, 467 (7th Cir.
2005) (“[W]e can affirm on any basis in the record”). Therefore, the Commissioner’s
To further show the seeming conflict, scores of cases rely upon the “logical bridge” analysis
and language to remand decisions to the Commissioner. See, e.g. Shauger v. Astrue, 675
F.3d 690, 697-98 (7th Cir. 2012); Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011); Villano v.
Astrue, 556 F.3d 558, 562 (7th Cir. 2009). But the “logical bridge” analysis was never meant
to compel a hypercritical approach. Mueller v. Astrue, 860 F.Supp.2d 615, 619 (N.D. Ill.
2012). Indeed, the Seventh Circuit has provided the following pedestrian explanation of
how an ALJ’s decision establishes a logical bridge: “[T]he ALJ must rest its denial of
benefits on adequate evidence contained in the record and must explain why contrary
evidence does not persuade.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
counsel cannot build for the first time on appeal the necessary accurate and logical
bridge. See Parker, 597 F.3d at 925; Toft v. Colvin, 2013 U.S. Dist. LEXIS 72876,
*21 (N.D. Ill. 2013) (“[T]he court’s review is limited to the reasons and logical bridge
articulated in the ALJ’s decision, not the post-hoc rational submitted in the
Commissioner’s brief.”). An exception to the Chenery doctrine is the harmless-error
doctrine, which allows a court to affirm if the outcome on remand is foreordained.
McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (“[W]e will not remand a case
to the ALJ for further specification where we are convinced that the ALJ will reach
the same result.”); see Osmani v. INS, 14 F.3d 13, 15 (7th Cir. 1994) (harmless error
does not require remand “when it is clear what the agency’s decision has to be”);
Sahara Coal Co. v. Office of Workers’ Compensation Programs, 946 F.2d 554, 558
(7th Cir. 1991); see also Parker, 597 F.3d at 924. The harmless error analysis looks
to evidence in the record to see if the court can predict with great confidence what
the result will be on remand. McKinzey, 641 F.3d at 892.
B. Disability Standard
Disability benefits are available to a claimant who can establish that she is
under a “disability” as defined in the SSA. Liskowitz v. Astrue, 559 F.3d 736, 739740 (7th Cir. 2009). “Disability” means an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected . . . to last for a continuous period of not less
than 12 months.” 42 U.S.C. §423(d)(1)(A). An individual is under a disability if she
is unable to perform her previous work and cannot, considering her age, education
and work experience, participate in any gainful employment that exists in the
national economy. 42 U.S.C. §423 (d)(2)(A). Gainful employment is work usually
done for pay or profit, regardless of whether a profit is realized. 20 C.F.R.
The ALJ uses a five-step analysis to determine whether a claimant is
disabled. 20 C.F.R. §404.1520(a)(4)(i – v). Under this analysis, the ALJ must
inquire in the following order: (1) whether the claimant is engaged in substantial
gainful activity; (2) whether the claimant has a severe impairment; (3) whether the
claimant’s severe impairment meets or equals a listed impairment; (4) whether the
claimant can perform past relevant work; meaning whether the claimant can still
work despite the claimant’s physical and mental limitations, which is referred to as
the claimant’s residual functional capacity (“RFC”); and (5) whether the claimant is
capable of performing work in light of the claimant’s age, education and work
experience. Id.; see also Liskowitz, 559 F.3d at 740. After the claimant has proved
that she cannot perform her past relevant work due to the limitations, the
Commissioner carries the burden of showing that a significant number of jobs exist
in the national economy that the claimant can perform. Schmidt v. Astrue, 496 F.3d
833, 841 (7th Cir. 2007).
A. Contentions of the Parties
In asserting that the ALJ’s decision was not supported by substantial
evidence, the Claimant contends that the matter should be remanded for two
reasons. (Dkt. #12: 4). The Claimant argues that the ALJ significantly erred in
giving no weight to Dr. Dannenmaier’s opinions. The Claimant also contends that
the ALJ improperly evaluated the other medical evidence.
The Commissioner contends that the ALJ properly discounted Dr.
Dannenmaier’s opinions because the opinions included legal conclusions and the
opinions predated the Claimant’s knee surgery. The Commissioner also contends
that the ALJ properly considered all other medical evidence including the state
agency consultants’ opinions.
1. Weight Given to Dr. Dannenmaier’s Opinions
The Claimant argues that the ALJ erred in assessing the weight that should
be given to Dr. Dannenmaier’s opinions. Pursuant to the treating physician rule, “a
treating physician’s opinion ‘regarding the nature and severity of a medical
condition is entitled to controlling weight if it is well supported by medical findings
and not inconsistent with other substantial evidence in the record.’” Brown v.
Colvin, 845 F.3d 247, 252 (7th Cir. 2016)(quoting Clifford v. Apfel, 227 F.3d 863,
870 (7th Cir. 2000)); Lalone v. Berryhill, 2017 WL 1019849, at *6 (S.D. Ill.
2017)(stating that “[t]he ALJ must be mindful that the treating doctor has the
advantage of having spent more time with the plaintiff but, at the same time, he or
she may ‘bend over backwards’ to help a patient obtain benefits”)(quoting Hofslien
v. Barnhart, 439 F.3d 375, 377 (7th Cir. 2006)). 2 The ALJ specifically referenced
Dr. Dannenmaier’s opinion on June 12, 2014, that the Claimant was unable to walk
or drive because of his severely arthritic knees, and was therefore substantially
disabled. R. 25. The ALJ also referenced Dr. Dannenmaier’s opinion on June 27,
2014, that the Claimant was unable to perform the type of heavy laboring work he
had performed in the past because of his back and knee pain. R. 25. The ALJ gave
such opinions no weight. R. 25. The ALJ indicated that she gave such opinions no
weight because the opinions were given shortly after Dr. Dannenmaier first
examined the Claimant and because the opinions were given before the July 3,
2014, arthroscopic surgery on the Claimant’s right knee. R. 25.
a. Consideration of Regulatory Factors
The Claimant argues that the ALJ failed to consider the required regulatory
factors in assessing Dr. Dannenmaier’s opinions. In determining the weight that
should be accorded to the opinion of a treating physician, an ALJ must consider the
factors in 20 C.F.R. § 1527(c)(2), which are the following: “(1) the length of the
treatment relationship and the frequency of treatment, (2) the nature and extent of
The treating physician rule was abrogated for claims filed after March 27, 2017. A
treating physician’s opinion is now considered in accordance with prospective regulations in
20 C.F.R. § 404.1520c and 20 C.F.R. § 416.920c. McFadden v. Berryhill, 2018 WL 317282,
at *3 n.1 (7th Cir. 2018). Such prospective regulations are not applicable in this case.
the treatment relationship, (3) the supportability of the physician’s opinion, (4) the
consistency of the opinion with the record as a whole, (5) the physician’s
specialization, and (6) other relevant factors.” Salas v. Colvin, 2016 WL 7209803, at
*6 (N.D. Ill. 2016). The ALJ, in determining not to give any weight to Dr.
Dannenmaier’s opinions, failed to specifically address the above-referenced factors.
The ALJ’s conclusory statement that she “considered opinion evidence in accordance
with the requirements of 20 CFR. 1527” was insufficient. R. 21; see also Scrogham
v. Colvin, 765 F.3d 685, 697-98 (7th Cir. 2014)(stating that “[t]he ALJ . . . should
have addressed these factors in her opinion to enable [the Court] to review whether
she engaged in the correct methodology”). On remand, the ALJ should address the
required regulatory factors in assessing the weight to be given to Dr.
b. Legal Conclusions
The Commissioner argues that the ALJ was not required to accept Dr.
Dannenmaier’s legal conclusion that the Claimant was disabled. It is true that Dr.
Dannenmaier opined in his notes for the June 12, 2014, visit that he believed that
the Claimant was “substantially disabled.” R. 398. The Court recognizes that this
opinion is a legal conclusion, which was ultimately reserved for the Commissioner.
Vossen v. Astrue, 612 F.3d 1011, 1015 (7th Cir. 2010); 20 C.F.R. §404.1527(d)(1).
But the Claimant on appeal is not arguing that the ALJ was required to adopt that
legal conclusion. Rather, the Claimant contends that Dr. Dannenmaier’s factual
opinions, particularly those regarding the impairments in the Claimant’s knees,
should have been given some weight by the ALJ. An ALJ cannot completely
disregard all medical opinions that accompany an improper legal conclusion
reserved for the Commissioner, but must consider the medical opinions and give
those opinions the appropriate weight. See Stroud v. Colvin, 14 CV 52, 2015 U.S.
Dist. LEXIS 13692, *18 (N.D. Ill. 2015) citing Hamilton v. Colvin, 525 F. App’x 433,
438-39 (7th Cir. 2013).
c. Speculation as to Improvement
The ALJ’s main reason for discounting Dr. Dannenmaier’s opinions was that
the opinions predated the Claimant’s knee surgery and the Claimant’s condition
might have significantly improved after his surgery. The ALJ speculated that “the
absence of significant treatment after the surgery suggest[ed] that the claimant
obtained at least some relief.” R. 25. Even if that were a possible inference from
the evidence, it does not provide an adequate basis to take the drastic step of
discounting Dr. Dannenmaier’s opinions in their entirety. 3 The ALJ could and
should have inquired further as to the Claimant’s condition and treatment after the
knee surgery, particularly in light of the evidence in the record indicating that the
The Commissioner argues that the ALJ properly noted that the Claimant was only using
ibuprofen to treat pain after his surgery. (Dkt. #17: 6); R. 24. However, the medical
evidence indicates that the Claimant was taking ibuprofen for pain before he had the knee
surgery and thus the fact that he was taking it after did not indicate any improvement in
his condition. R. 399. In addition, the record actually indicates that the Claimant was
taking a higher dosage of ibuprofen after his surgery than he was taking prior to his
surgery. R. 45, 399-400.
knee surgery was only intended to be a temporary fix and provide a minor
improvement to the Claimant’s knee condition.
The ALJ herself appeared to recognize the absence of a complete record
regarding the post-surgery period. The ALJ acknowledged that there was “scant
evidence about the extent to which that surgery improved the claimant’s ability to
stand/walk, sit and lift/carry. . . .” R. 25. In noting that there were few post-surgery
medical records, the ALJ indicated that there was “limited evidence” regarding how
much the knee surgery improved the Claimant’s knee condition. R. 23. If the ALJ
believed that there were insufficient evidence in the record regarding such a key
issue, the ALJ was duty bound to inquire further and develop the record. See
Minnick v. Colvin, 775 F.3d 929, 938 (7th Cir. 2015)(stating that “[t]he ALJ has a
duty to fully develop the record before drawing any conclusions and must
adequately articulate her analysis so that [the Court] can follow her reasoning”).
Instead, the ALJ speculated in the absence of evidence and made inferences against
the Claimant, concluding that although there was “limited evidence about the
extent to which the arthroscopic knee surgery helped, . . . the record provides
virtually no evidence that it did not.” R. 24. Apparently, the lure of playing doctor
was too much for the ALJ to ignor in this case, as the ALJ’s speculation was not
supported by a medical opinion. As the Seventh Circuit has repeatedly and
consistently held for over two decades, ALJs may not play doctor and speculate on
medical issues, such as causation, absent a supporting medical opinion. Engstrand
v. Colvin, 788 F. 3d 655, 660-61 (7th Cir. 2015); Goins v. Colvin, 764 F. 3d 677, 680
(7th Cir. 2014); Moon v. Colvin, 763 F. 3d 718, 722 (7th Cir. 2014); Blakes v.
Barnhart, 331 F.3d 565, 570 (7h Cir. 2003); Rohan v. Chater, 98 F.3d 966, 970 (7th
Cir. 1996). Dr. Dannenmaier was a specialist who examined the Claimant’s knees
on multiple occasions. The ALJ did not provide sufficient justification to deem all
evidence from such a key source of information irrelevant, particularly in the
absence of medical evidence that contradicted Dr. Dannenmaier’s opinions. The
ALJ also noted that although there was no evidence of physical therapy after the
Claimant’s knee surgery, the Claimant testified that he did pursue such therapy.
R. 24. On remand, the ALJ should fully develop the record regarding the
Claimant’s treatment and condition after the knee surgery.
The Commissioner argues that if there were insufficient evidence as to the
Claimant’s condition or treatment after his surgery, the fault falls upon the
Claimant, not the ALJ, because it is the Claimant’s burden to present evidence to
show he was disabled. But the Claimant presented evidence to show that he was
disabled even after his surgery. The Claimant could not have been not required to
anticipate that the ALJ would speculate that the Claimant’s condition had
improved to such a great extent after his knee surgery that the ALJ would find all
evidence from his treating physician predating the knee surgery to be irrelevant. If
the ALJ concluded that there were an absence of evidence regarding such a key
period, the ALJ should have expanded the record and the Claimant should have
been provided with an opportunity to supplement the record.
d. Dr. Dannenmaier’s Other Opinions
The ALJ was also unclear as to the weight he gave to Dr. Dannenmaier’s
other opinions that were not specifically referenced in the ALJ’s decision. In her
decision, the ALJ specifically referenced the two above-referenced opinions of Dr.
Dannenmaier and then indicated that she gave “th[o]se assessments” no weight. R.
25. But the ALJ did not clearly indicate in general what weight she gave to Dr.
Dannenmaier’s other opinions. The two selected opinions of Dr. Dannenmaier were
not the only opinions that he presented in the medical evidence. For example, Dr.
Dannenmaier opined in the notes for the May 22, 2014, visit that the Claimant had
pain essentially with every step and that ambulation limited his ability to walk. R.
453. The notes also indicate that the Claimant had knee arthritis and that X-rays
showed bone-on-bone articulation medially in both knees. R. 453-54. In the notes
for the June 12, 2014, visit, in addition to the assessments pointed out by the ALJ,
Dr. Dannenmaier opined that he thought the knee surgery to repair the meniscus
tear would only make walking “a little easier.” R. 398. Dr. Dannenmaier did not
indicate that he perceived the knee surgery as a solution to the end state arthritis
in his bilateral knees. Subsequently, Dr. Dannenmaier opined in the notes for the
June 27, 2014, visit that the Claimant’s knee conditions was such that knee
replacement was “inevitable.” R. 395. After the knee surgery, Dr. Dannenmaier
examined the Claimant and in the notes for the July 10, 2014, visit Dr.
Dannenmaier did not indicate that the results of the surgery had caused the doctor
to change his prior opinion that that the Claimant was substantially impaired in
regard to his knees. There was, in fact, evidence in the surgery report itself
indicating that the Claimant would continue to have serious problems with his right
knee even after the surgery. Dr. Dannenmaier indicated, for example, that his
arthroscopic examination of the knee revealed grade 2 and 3 degenerative change.
R. 381. It is unclear from the ALJ’s decision what weight she gave to Dr.
Dannenmaier’s opinions other than the two specifically mentioned by the ALJ. See
Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011)(stating that “[w]hen an ALJ
decides to favor another medical professional's opinion over that of a treating
physician, the ALJ must provide an account of what value the treating physician's
opinion merits”). The ALJ correctly noted in her decision that Dr. Dannenmaier did
not submit specific RFC assessments, but that did not justify giving no weight to
Dr. Dannenmaier’s opinions or excuse the need for the ALJ to indicate the weight
accorded to Dr. Dannenmaier’s opinions. R. 25. On remand, the ALJ should clarify
what weight she gives to each of Dr. Dannenmaier’s opinions or at least provide a
statement indicating cumulatively what weight she is going to give to his opinions.
2. Evaluation of Other Medical Evidence
The Claimant argues that the ALJ failed to properly evaluate other medical
evidence. The Claimant contends that the ALJ gave too much weight to certain
evidence relating to the Claimant’s knees, that the ALJ erred in concluding that the
Claimant had a normal gait, that ALJ failed to properly consider the Claimant’s
obesity, and that the ALJ failed to indicate the weight given to the opinions of the
state agency consultants.
a. Evidence Relating to Claimant’s Knee Condition
The Claimant argues that the ALJ gave too much weight to certain evidence
relating to the Claimant’s knees. Although an ALJ is not required to “discuss every
piece of evidence in the record, the ALJ may not analyze only the evidence
supporting her ultimate conclusion while ignoring the evidence that undermines it.”
Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014)(stating that “[t]he ALJ must
confront the evidence that does not support her conclusion and explain why that
evidence was rejected”). As the Claimant points out, the ALJ in evaluating the
Claimant’s knees appeared to primarily rely on evidence that the straight leg raise
test was negative and that the Claimant had a 5/5 strength rating in both legs. R.
23. The Claimant argues that the straight leg raise test is mostly used to diagnose
nerve issues such as a herniated disc and would not be particularly helpful in
evaluating knees for the type of bone-on-bone degenerative arthritis presented in
this case. There is support for Claimant’s position. See, e.g., Carlantone v. Colvin,
2015 WL 9462956, at *2 n.7 (S.D.N.Y. 2015)(explaining purpose of straight leg raise
test). The Claimant also argues that any leg strength tests would be less relevant
than tests specifically targeting knees or examinations of the knees such as those
performed by Dr. Dannenmaier. The ALJ did not appear to give as much weight to
evidence in the record indicating substantial limitations in the Claimant’s knees.
The ALJ did not adequately explain her decision to give more weight to certain
types of evidence in assessing the Claimant’s knee condition. See Moon v. Colvin,
763 F.3d 718, 722 (7th Cir. 2014)(indicating that “ALJs are required to rely on
expert opinions instead of determining the significance of particular medical
findings themselves”); Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007)(stating
that “an ALJ cannot play the role of doctor and interpret medical evidence when he
or she is not qualified to do so”). To the extent that the ALJ desired to understand
the importance of certain medical tests or findings, the ALJ should have developed
the record further and consulted with a medical expert.
b. Conclusion that Claimant had a Normal Gait
The Claimant argues that the ALJ erred by concluding that the Claimant
had a normal gait after the knee surgery. R. 23. The Claimant points to evidence
in the record that indicates that at times before the knee surgery on his knee the
Claimant did not have a normal gait. For example, the Claimant points out that on
May 22, 2014, Dr. Dannenmaier indicated that the Claimant was walking with
obvious discomfort. R. 454. The Claimant also points out that after his surgery, Dr.
Dannenmaier indicated in the notes for the July 10, 2014, visit that the Claimant
was quite stiff while walking and was walking with one crutch. R. 390. However,
in those same notes, Dr. Dannenmaier indicated that the Claimant’s difficulty in
walking was the result of the surgery, not necessarily any permanent impairment
that impaired the Claimant’s gait. R. 390. The notes also indicate that Dr.
Dannenmaier was going to refer the Claimant to physical therapy to “try to wean
him off the crutch. . . .” R. 390. In the notes for a later visit at the Crusader Clinic
on November 26, 2014, the examination notes indicate that the Claimant had a
normal gait. R. 430. Although as indicated above, there is evidence in the record
indicating that the surgery only provided the Claimant with a temporary and minor
improvement to his knee, the ALJ could reasonably have concluded that the
Claimant had a normal gait after his surgery. Thus, the evidence is not such that
the court can conclude that the ALJ erred in finding that by November 2014, after
the surgery and physical therapy, that the Claimant had a normal gait.
c. Consideration of the Claimant’s Obesity
The Claimant argues that the ALJ failed to properly consider the Claimant’s
obesity. The Claimant argues that the ALJ did nothing more than provide
boilerplate language regarding the Claimant’s obesity. The record, however, clearly
indicates that the ALJ gave considerable thought to the Claimant’s obesity. For
example, the Claimant’s obesity caused the ALJ to reject the opinions of the state
agency consultants. The ALJ found that the state agency consultants “gave
inadequate weight to the effect of the claimant’s persistent morbid obesity on his
capacity to stand/walk.” R. 25. The ALJ accordingly adjusted the Claimant’s RFC
to better account for the Claimant’s obesity. R. 25. The ALJ also gave a detailed
recitation regarding the Claimant’s obesity, indicating the Claimant’s BMI and
indicating that the Claimant falls at the morbid obesity level. R. 24. The ALJ was
not required to discuss in detail every piece of evidence that might have pertained
to the Claimant’s obesity. Thus, the Claimant has not shown that the ALJ failed to
properly consider the Claimant’s obesity.
d. Weight Given to Opinions of State Agency Consultants
The Clamant argues that the ALJ failed to indicate the weight given to the
opinions of the state agency consultants. The Commissioner contends that the ALJ
“partially credited” the opinions of the state agency consultants. (Dkt. #17: 4).
However, the ALJ made no such representation in her decision. The ALJ declined
to adopt the opinions of the state agency consultants, finding that the consultants
did not have a complete record when forming their opinions, and finding that the
consultants failed to properly consider the Claimant’s morbid obesity. R. 25. The
ALJ then fashioned her own set of limitations in regard to the amount of time that
the Claimant could stand/walk and sit in an eight-hour period. R. 25. It is unclear
what weight, if any, the ALJ gave the to the opinions of the state agency
consultants. On remand, the ALJ should specify the weight given to such opinions.
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
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: March 7, 2018
Iain D. Johnston
U.S. Magistrate Judge
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