Warner v. Berryhill

Filing 21

MEMORANDUM Opinion and Order; Plaintiffs motion for summary judgment 11 is granted, and the Commissioners motion 16 is denied. The decision of the ALJ is remanded for further proceedings consistent with this opinion. (See attachment for full detail). Signed by the Honorable Iain D. Johnston on 2/15/2019: (yxp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Jody W.,
Plaintiff,
v.
Nancy A. Berryhill, Acting
Commissioner of Social Security,
Defendant.

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Case No. 17 CV 50290
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Plaintiff Jody W. brings this action under 42 U.S.C. § 405(g), seeking a remand
of the decision denying her social security disability benefits. For the reasons set
forth below, the Court is compelled to remand the case despite the apparent weakness
of Plaintiff’s claim. The Court is unsure whether the administrative law judge viewed
Plaintiff’s case as so weak that a medical expert was not needed at the hearing. If
that was the thought process, it backfired. Had a medical expert provided testimony
(at a hearing or later) that supported the administrative law judge’s assumptions, a
remand would have been unlikely.
I. BACKGROUND 1
On May 13, 2014, Plaintiff filed an application for disability insurance
benefits. R. 148. Plaintiff alleged a disability beginning on May 10, 2012 because of
her panic and anxiety disorder.

R. 148 (May 2014), 169 (May 2014); R. 205

The following facts are only an overview of the medical evidence provided in the
administrative record.

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(July 2014); R. 214 (September 2014); R. 226 (February 2015). Her husband reported
the same impairments in July 2014 and August 2015. R. 180, 239. It was not until
Plaintiff filed a disability report in October 2015 that she first reported seeing her
primary care physician for knee pain. R. 250-51. However, Plaintiff still did not
include knee pain as part of her disability application. R. 250 ("Since you last told us
about your medical conditions, do you have any NEW physical or mental conditions?
No."). Nevertheless, Plaintiff's counsel raised the issue of knee pain in her prehearing brief to the Administrative Law Judge ("ALJ"). R. 270.
Plaintiff first reported knee pain to her primary care physician in
September 2015 during her yearly physical. R. 366. Plaintiff reported that she had
been suffering from left knee pain since September 2014. R. 366. Shortly thereafter,
she was referred to an orthopedist. R. 356. Plaintiff informed her orthopedist that
she had been suffering from bilateral knee pain since September 2013. R. 356.
Plaintiff was taking Aleve to manage her pain. R. 356. At her September 2015
appointment, Plaintiff received steroid injections in both knees and a prescription
cream for her pain. R. 358-59. Plaintiff reported minimal relief from her injections
and only temporary relief from the cream. R. 351. In November 2015, Plaintiff's
orthopedist recommended physical therapy and an MRI to determine whether
Plaintiff would benefit from surgery. R. 352. Plaintiff declined because she was
leaving for the winter and stated she would follow up with her orthopedist in spring.
R. 352. No additional treatment records were provided.

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On September 13, 2016, Plaintiff, represented by the same attorney
representing her in this appeal, testified at a hearing before an ALJ. R. 39-63.
Plaintiff was then 57 years old. Plaintiff testified that she had pain and swelling in
both knees. R. 47, 56. She had braces for her knees but was unable to wear the brace
on her right knee because it put pressure on her tibia. R. 47. Plaintiff wore her left
knee brace if she was going "to be real active" such as going to the grocery store,
taking her dog for a short walk and cleaning her house. R. 48. However, Plaintiff
needed to take breaks from her activities and elevate her legs to reduce swelling. R.
48. Plaintiff was unable to kneel or climb stairs. R. 48, 51.
Plaintiff had a topical cream that she put on her knees every morning and
night that relieved her pain for a "couple hours." R. 49. She also took Advil and
Tylenol as needed. R. 49. In 2015, Plaintiff received injections in both of her knees,
but claimed they only relieved her pain for about a week. R. 49-50. Plaintiff was also
under the impression that her doctor did not recommend surgery on her knees. R.
56.
Plaintiff testified that she left her cashier job in 2012, in part, because she
could not stand for more than two hours at a time. R. 44. In 2015, Plaintiff was able
to walk three miles a day in her pool, but she was no longer able to walk that far. R.
52-53. Plaintiff also testified that she had not done yardwork since approximately
2013 or 2014. R. 52. Plaintiff traveled to Florida in the winter because of the arthritis
in her knees. While in Florida, Plaintiff cleaned her sister's hair salon twice a week
for a couple hours. R. 43.

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The ALJ also heard testimony from Susan Entenberg, a vocational expert
("VE"). The VE testified that Plaintiff's past work as a sterile processor, identified as
DOT 079.374-022, was categorized as light work, but medium as performed by
Plaintiff. R. 59. The VE testified that an individual with an RFC the same as
Plaintiff's would be able to perform work as a sterile processor as generally
performed. R. 59-60. However, the VE noted that the job required "standing and
walking the entire day." R. 60. The VE confirmed that her testimony was consistent
with the Dictionary of Occupational Titles ("DOT"). R. 61.
The ALJ did not call an impartial medical expert at the hearing and ultimately
denied Plaintiff’s request for benefits. R. 20-32. The ALJ found that Plaintiff had
the following severe impairments: degenerative joint disease of the knees bilaterally
and panic attacks. R. 22. The ALJ determined that Plaintiff’s impairments did not
meet or medically equal a listed impairment. R. 22. The ALJ concluded that Plaintiff
had the residual functional capacity (“RFC”) to perform light work with certain
restrictions and could perform her past work as a sterile processor as generally
performed. R. 24, 31.
II. 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). 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

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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). 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). 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). Moreover,
federal courts cannot build a logical bridge on behalf of the ALJ. See Mason v.
Colvin, No. 13 C 2993, 2014 U.S. Dist. LEXIS 152938, at *19-20 (N.D. Ill. Oct. 29,
2014).
III. DISCUSSION
On appeal, Plaintiff challenges the ALJ's determination that she could
perform light work despite suffering from degenerative joint disease in both of her
knees. Specifically, Plaintiff faults the ALJ for failing to call an impartial medical
expert at the hearing to opine on her knee pain and physical limitations. The Court
agrees that the RFC is not supported by substantial evidence.

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A claimant's RFC is the maximum work that she can perform despite any
limitations. 20 C.F.R. § 404.1545(a)(1). "Although the responsibility for the RFC
assessment belongs to the ALJ, not a physician, an ALJ cannot construct his own
RFC finding without a proper medical ground and must explain how he has reached
his conclusions." Amey v. Astrue, No. 09 C 2712, 2012 U.S. Dist. LEXIS 12962, at
*40 (N.D. Ill. Feb. 2, 2012). "The RFC assessment must include a narrative
discussion describing how the evidence supports each conclusion, citing specific
medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations)." SSR 96-8p, 1996 SSR LEXIS 5, at *19.
Here, the ALJ determined that Plaintiff had the RFC to perform light work
in that she could stand and/or walk approximately six hours in an eight-hour
workday and could sit for approximately six hours in an eight-hour workday; she
might never climb ladders, ropes or scaffolds, but could occasionally climb ramps
and stairs, occasionally crouch, and never kneel or crawl; and she must stand or
walk every hour after being seated. R. 24. Based on this RFC, the ALJ determined
that Plaintiff had the capacity to perform her past relevant work as a sterile
processor as generally performed (light work). R. 31.
The ALJ constructed this RFC without the benefit of any medical opinions
relating to Plaintiff's knees or physical abilities generally. See Murphy v. Colvin,
759 F.3d 811, 818-19 (7th Cir. 2014) (finding the ALJ's RFC determination
inadequate without a medical opinion or functional assessment to discredit the
plaintiff's testimony that she was unable to perform light work). Plaintiff's treating

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physicians did not provide any opinions about her physical limitations. The stateagency consultants only evaluated Plaintiff's mental impairments. 2 Additionally,
the ALJ failed to call a medical expert at the hearing. See Brown v. Berryhill, No.
16 CV 50389, 2018 U.S. Dist. LEXIS 58640, at *2, 14 (N.D. Ill. Apr. 2, 2018)
(remanding where the ALJ determined the plaintiff's RFC without the benefit of a
medical opinion, a consultative examination or an impartial medical expert).
This left the ALJ with only Plaintiff's testimony and the medical records
relating to her knee pain. Even with this evidence, it is not clear how the ALJ
determined Plaintiff's specific limitations, especially that Plaintiff could be on her
feet six hours in an eight-hour workday.
The ALJ limited Plaintiff to light work, noting that Plaintiff's physical
examinations showed no knee impairments before September 2015, despite
Plaintiff's conflicting reports that she had left knee pain since September 2014 and
bilateral knee pain since September 2013. R. 29. The ALJ also noted that Plaintiff
maintained normal gait and station in 2014 and 2015. R. 28. In 2015, Plaintiff also
reported the ability to complete household chores and yard work, despite testifying
that she gave up yard work in 2013 or 2014. R. 28.
The ALJ further noted that Plaintiff's treatment for her knees was limited
and consisted primarily of the use of prescription medications. R. 29. The ALJ also

It is not surprising that the state-agency consultants opined only on Plaintiff's mental
impairments because they rendered their decisions in September 2014 and
September 2015, before Plaintiff had even reported knee pain to her doctors. R. 64-70, 7279.

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faulted Plaintiff for failing to follow up with physical therapy or an MRI
recommended by her orthopedist. R. 29.
Certainly, these are all legitimate concerns to consider when formulating
Plaintiff's RFC and could cause a reasonable person to question Plaintiff’s
credibility. In reviewing this evidence, the Court is not saying that Plaintiff would
be unable to perform light work.
But the testimony and medical records alone do not support a finding that
Plaintiff can be on her feet for six hours a day. See Murphy v. Colvin, 759 F.3d 811,
818-19 (7th Cir. 2014) (finding that a report of a normal gait alone does not support
a finding that the plaintiff could walk or stand six hours out of an eight-hour
workday). Additionally, failing to follow up on medical care to evaluate the need for
surgery cuts against Plaintiff's alleged disability. However, the ALJ did not explore
this at the hearing and therefore failed to determine if there was a good reason why
Plaintiff did not seek this medical treatment. See Shauger v. Astrue, 675 F.3d 690,
696 (7th Cir. 2012) ("[A]n ALJ must first explore the claimant's reasons for the lack
of medical care before drawing a negative inference.").
This is not a case where the record was devoid of any evidence relating to
Plaintiff's physical impairments. Plaintiff's counsel not only alerted the ALJ to the
knee impairments in her pre-hearing memorandum, but Plaintiff's testimony at the
hearing focused on her knee pain. There was also enough evidence in the record for
the ALJ to determine that Plaintiff's degenerative joint disease was a severe
impairment. However, there was no opinion evidence to support the ALJ's

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determination that Plaintiff could perform light work. See Brown, No. 16 CV 50389,
2018 U.S. Dist. LEXIS 58640, at *14 (remanding where the ALJ did not rely on any
medical opinion and interpreted the meaning of "normal findings" and how they
related to the plaintiff's specific symptoms as a layperson). The ALJ should have
postponed his decision to seek a medical opinion on Plaintiff's physical abilities and
any restrictions resulting from her knee pain, such as a functional capacity
assessment or an impartial medical expert to testify at a second hearing. The
failure to do so in this case requires a remand. See Suide v. Astrue, 371 F. App'x
684, 690 (7th Cir. 2010) ("Although Suide shares the blame for failing to clarify the
record discrepancy regarding the length of Dr. Orris's treatment, it was the ALJ's
responsibility to recognize the need for further medical evaluations of Suide's
conditions before making her residual functional capacity and disability
determinations."); Green v. Apfel, 204 F.3d 780, 781-82 (7th Cir. 2000) (finding the
ALJ improperly "played doctor" where he relied on his own analysis of the plaintiff's
medical records instead of having a physician examine the plaintiff or his records).
In addition to the problems with an unsupported RFC, the Court is also
concerned with the ALJ's determination that Plaintiff had the RFC to work as a
sterile processor. The VE testified that the job required "standing and walking the
entire day," but the ALJ explicitly found that Plaintiff could only be on her feet for
approximately six hours in an eight-hour workday. R. 60, 24. This discrepancy was
not explained in the ALJ's decision or at the hearing.

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The Commissioner overlooks this discrepancy and instead maintains that the
ALJ accommodated Plaintiff's inability to stand for long periods of time by allowing
her to alternate between standing and sitting. Defendant's Brief at 4, Dkt. 16.
This is incorrect for two reasons. First, the RFC only allowed for Plaintiff to stand
after being seated for an hour, not alternate between standing and sitting. Second,
the sterile processor job, which the ALJ determined Plaintiff could perform, would
require Plaintiff to stand for long periods of time without relief.
This was made explicit at the hearing. The ALJ asked the VE if an
individual could perform the plaintiff's past work if they "needed to stand or walk
after being seated for one hour." R. 60. The VE responded "yes, since you're
standing and walking the entire day. So you're, you're not sitting." R. 60.
Although the VE agreed that the position was considered light work, she
unequivocally found that the job would require an individual to be on their feet the
entire workday. See 20 CFR § 404.1567(b) (stating that light work typically
"requires a good deal of walking or standing"); SSR 83-10, 1983 SSR LEXIS 30, at
*14 ("[T]he full range of light work requires standing or walking, off and on, for a
total of approximately 6 hours of an 8-hour workday. Sitting may occur
intermittently during the remaining time."). Therefore, the requirements of
Plaintiff's former work exceeded her RFC limits. Such a finding is detrimental to
the ALJ's disability determination because in finding Plaintiff could perform her
past relevant work, the ALJ did not proceed to step five.

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The Court is aware that the record before the Court relating to Plaintiff's
knee impairments does not make a strong case that she was disabled under the
regulations. The ALJ's concerns about the lack of treatment and objective evidence
and Plaintiff's conflicting account of her daily activities and symptoms are
supported by the record and should be accounted for in the RFC determination.
Nevertheless, this does not excuse the ALJ from building a logical bridge between
the evidence in the record and his conclusions.
Accordingly, a remand is required to determine Plaintiff's RFC with the
benefit of a supporting medical opinion, either from Plaintiff's treaters, the stateagency physicians or an independent medical expert. After determining Plaintiff's
RFC, the ALJ should determine whether Plaintiff can perform her past relevant
work or other work in the national economy.
Although this case is being remanded, the Court must point out a trend
where counsel are failing to raise issues with the ALJs and Appeals Council and
seem to be saving their arguments for this Court. See James E. v. Berryhill, No. 17
CV 50295, 2019 U.S. Dist. LEXIS 21521, at *6 (N.D. Ill. Feb. 11, 2019) ("One
unfortunate but recurring aspect in disability appeals brought to this Court is that
arguments raised here often were not raised during the administrative hearing
even though they could have been raised there."). This is of particular concern in
this case where Plaintiff was represented by the same attorney representing her in
this appeal. Although counsel mentioned bilateral knee osteoarthritis in her prehearing brief before the ALJ, she made no effort to request medical opinion evidence

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on the issue. R. 270. Additionally, when given the opportunity to raise any issues
at the beginning of the hearing, counsel instead decided to stand on her pre-hearing
memorandum. R. 42. See Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) ("[A]
claimant represented by counsel is presumed to have made his best case before the
ALJ.") (quoting Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007)). On remand,
counsel should be sure to raise all issues with the ALJ where they can be resolved
in the first instance.
IV. CONCLUSION
For the reasons stated in this opinion, Plaintiff’s motion for summary
judgment [11] is granted, and the Commissioner’s motion [16] is denied. The
decision of the ALJ is remanded for further proceedings consistent with this
opinion.

Date: February 15, 2019

By:

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______________________
Iain D. Johnston
United States Magistrate Judge