Hull v. Berryhill

Filing 22

MEMORANDUM Opinion and Order; Plaintiff's motion for summary judgment is denied, the Commissioner's motion for summary judgment is granted, and the ALJ's decision is affirmed. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 7/31/2019:(yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
MIKE H., 1
on behalf of Mary H.,
Plaintiff,
v.
ANDREW SAUL, 2
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 18 CV 50162
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Plaintiff Mike H., on behalf of his wife and original claimant, Mary H., 3 brings this
action under 42 U.S.C. § 405(g) seeking remand of the decision denying his wife’s social
security benefits. For the reasons below, the Plaintiff’s motion for summary judgment is denied,
the Commissioner’s motion for summary judgment is granted, and the ALJ’s decision is
affirmed.
I. BACKGROUND
Claimant filed for disability benefits on November 5, 2014. She alleged a February 1,
2006 disability onset date caused by cervical spondylosis with myelopathy, coronary artery
disease, and hyponatremia. R. 20, 213. She stopped working because of her impairments on
February 15, 2006. R. 213. Claimant’s date last insured is December 31, 2011. R. 22. On
February 10, 2017, Claimant, represented by counsel, 4 appeared for a hearing before an

Plaintiff’s last name has been redacted in accordance with Internal Operating Procedure 22.
As of June 17, 2019, Andrew M. Saul is the new Commissioner of Social Security. Mr. Saul is
substituted for Nancy A. Berryhill as defendant pursuant to Fed. R. Civ. P. 25(d) and 42 U.S.C. § 405(g).
3
Mary H., the original claimant, passed away on January 8, 2018. See Dkt. 1 at 4. Throughout the
opinion, the Court will refer to her as “Claimant.”
4
Plaintiff’s counsel in this appeal represented Plaintiff at the hearing before the ALJ. R. 20.
1
2

Administrative Law Judge (“ALJ”). At the hearing, she testified about her work history and
various impairments, including difficulty raising her right arm; difficulty manipulating three
fingers on her left hand; and lower back and right leg pain. R. 46–57. Mary’s husband (and now
Plaintiff) Mike H. also testified regarding the effect of Mary’s impairments on her functioning.
R. 61–66.
An impartial medical expert (ME), Dr. Ashok Jilhewar, also testified at the hearing. 5 R.
69. Along with discussing impairments not relevant to this appeal, the ME discussed the record
evidence regarding the Claimant’s left hand. R. 69–82. He testified that after cervical spine
surgery in March 2006 and subsequent physical therapy, Claimant’s left hand was improving.
Additionally, by July 2006, her extensor was working well, and she could fully stretch her pinky
finger on her left hand; therefore, the ME testified that these and other functional improvements
indicated that Claimant did not have a “claw” left hand following her March 2006 surgery. R.
71–72, 76.
After the hearing, the ALJ followed the five-step evaluation process set forth by the
Social Security Administration 20 C.F.R. § 404.1520(a)(4) and found that the Claimant was not
disabled. R. 20, 33. The ALJ specifically found the following: (1) at Step One, that Claimant had
not engaged in any substantial gainful activity between her onset date of February 1, 2006
through December 31, 2011, her date last insured, R. 22; (2) at Step Two, that Claimant had “the
following severe impairments: moderately severe cervical facet joint arthritis at multiple levels
without central canal stenosis, cervical radiculitis with some neurologic deficit, C8-T1
radiculopathy, and status post March 2006 fusion surgery” during the relevant insured period, R.
23; (3) at Step Three, that Claimant did not have an impairment or combination of impairments

5

The ALJ gave the ME’s opinion “great weight” in his final decision. R. 29.

2

that met or equaled any listed impairment, Id.; (4) Claimant had the residual functional capacity
to perform light work as defined in 20 C.F.R. § 404.1567(h) except that she could only
occasionally lift and carry 10 pounds and frequently lift and carry 5 with the upper-left
extremity, could “frequently stoop, crouch, crawl, kneel, and balance,” and occasionally climb
ramps and stairs, but never climb ladders, ropes, or scaffolds. R. 24. The ALJ also found the
Claimant was “restricted from working at unprotected heights, working near heavy equipment, or
operating machinery” but could “frequently reach, handle, and finger with her bilateral upper
extremities,” id.; and (5) at Step Four, the ALJ found that Claimant could perform her past
relevant work as an accounting clerk. 6 R. 32.
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 rehearing.” 42 U.S.C. § 405(g).
The Commissioner’s denial of disability is conclusive when supported by substantial evidence.
Id.; Skinner v. Astrue, 487 F.3d 836, 841 (7th Cir. 2007). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 399–400 (1971). The court may not displace the ALJ’s judgment by
reconsidering facts and evidence, reweighing evidence, or by making independent credibility
determinations. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008); Elder v. Astrue, 529 F.3d
408, 413 (7th Cir. 2008). Similarly, even if reasonable minds could differ on whether a claimant
is disabled, a reviewing court must affirm the ALJ’s decision if it is adequately supported. Simila
v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009).

6

DOT 216.482-010.

3

However, review of an ALJ’s decision is not a rubber stamp of approval. Scott v.
Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (“mere scintilla” not substantial evidence). The
court must critically review the ALJ’s decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir.
2008). The ALJ’s conclusion will not be affirmed where he fails to build a logical bridge
between the evidence and his conclusion, even if evidence exists in the record to support that
conclusion. Berger v. Astrue, 516 F. 3d 539, 544 (7th Cir. 2008); Steele v. Barnhart, 290 F.3d
936, 940 (7th Cir. 2002) (where opinion is “so poorly articulated as to prevent meaningful
review” the case must be remanded). Additionally, courts may not build a logical bridge for the
ALJ. Mason v. Colvin, 13 CV 2993, 2014 U.S. Dist. LEXIS 152938, at *19–20 (N.D. Ill. Oct.
29, 2014).
III. ANALYSIS
Plaintiff argues that the ALJ ignored evidence that Claimant’s left hand became worse,
not better, after surgery, and as a result erroneously concluded at Step Four that she could
perform her past relevant work. Specifically, Plaintiff points to a neurosurgery evaluation from
2008 by Dr. Sean A. Salehi, in which he indicates that Claimant complained of “left hand
weakness and numbness in her fourth and fifth digits in her left hand” and that her left-hand
weakness “has not responded to therapy.” R. 694. Upon Claimant’s examination, Dr. Salehi
indicated normal upper extremity strength “except in the left hand which is significantly
diminished on wrist extension and finger abduction” before recommending surgery. R. 696.
Plaintiff argues that based on Dr. Salehi’s 2008 report, and contrary to the ME’s opinion that
Claimant’s left hand improved after her March 2006 surgery, Claimant’s left hand had gotten
worse after surgery and subsequent physical therapy. Therefore, Plaintiff argues the ALJ erred

4

by relying on the ME’s flawed testimony regarding improvements to Claimant’s left hand when
making his Step Four determination.
Plaintiff also points out that the ALJ relied on the ME’s testimony that the Claimant “had
virtually no restrictions on reaching, handling, and fingering, except she was limited to constant
as opposed to frequent use.” Dkt. 13 at 6. In formulating his opinion, the ME relied in part on
spine surgeon Dr. J. Scott Smith’s post-surgery treatment note from July 19, 2006, that
Claimant’s fingers in her left hand were working well. See R. 26, 70–71. However, Plaintiff
argues that this treatment note “does not appear in the file, based on a diligent search by
counsel.” Dkt. 13 at 6. Thus, Plaintiff contends the ALJ failed to account for the 2008 postsurgery report which rebuts the ME’s testimony regarding her left hand, the ME otherwise relied
on a treatment note that doesn’t exist in the record, and use of the left hand directly effects
Claimant’s ability to perform her past relevant work; therefore, the ALJ erred by
mischaracterizing and cherry-picking the administrative record to support his decision at Step
Four. See Punzio v. Astrue, 630 F.3d 710, 711 (7th Cir. 2011); Steele, 290 F.3d at 940–41; Dkt.
13 at 6.
However, Plaintiff identifies no error warranting remand because these arguments suffer
from the same problem: Plaintiff’s misreading of the record. First, Dr. Salehi’s report, which
Plaintiff states was made in 2008, is in fact dated January 26, 2006. R. 694. 7 Thus, Dr. Salehi’s
report identifying Claimant’s left-hand issues and recommending surgery came approximately
one month before her March 2006 surgery and has no bearing on the ME’s opinion that

Though the date on the report is somewhat difficult to read, Plaintiff’s birth date and her age at the time
were also included in the report, R. 694–95, thus removing all doubt from the conclusion that it was made
in January 2006 rather than sometime in 2008. Regardless, Plaintiff did not realize this fact until the
Commissioner pointed it out in its response brief.

7

5

Plaintiff’s left-hand condition improved after her March 2006 surgery. The ALJ did not address
Dr. Salehi’s 2008 report as described by Plaintiff because no such report exists in the record.
Second, Dr. Smith’s July 19, 2006 post-surgery treatment note, which Plaintiff argues
“does not appear in the file, based on a diligent search by counsel,” can be found on page 698 of
the administrative record. 8 Indeed, the treatment note indicates that several months after surgery,
Claimant was “doing very well,” her triceps strength had almost returned to normal, and despite
some weakness in the third and fourth digits of her left hand, her “extensor digiti minimi” was
“working well and she [had] made quite a bit of progress.” R. 698. Thus, contrary to Plaintiff’s
argument, the treatment note does exist in the record and it substantially supports the ME’s
contention and the ALJ’s finding that Claimant’s left-hand condition improved after the March
2006 surgery.
Aside from these two evidentiary arguments, Plaintiff argues that “a favorable, lesser
standard of disability also applied to Mary’s claim because of her age and work history,” Dkt. 13
at 4. Plaintiff contends that, had the ALJ limited Claimant’s left hand to “occasional” reaching,
handling, and fingering, and then found Claimant unable to perform her past relevant work at
Step Four, Claimant would have been found presumptively disabled under the MedicalVocational Grid Rule 201.14 at Step Five. Id. at 4–5.
This argument identifies no error in the ALJ’s decision. An ALJ must analyze the
applicable Grid rules at Step Five of the sequential evaluation process only if he finds at Step
Four that a claimant cannot perform past relevant work. See Gaffron v. Astrue, 859 F. Supp. 2d
948, 960 (N.D. Ill. 2012). In this case, the ALJ ended his analysis at Step Four because he found

In his testimony before the ALJ, the ME cited the exact record location of the report. R. 70–71. The
Court also notes that the July 19, 2006 post-surgery report (R. 698) exists in the record within four pages
of Dr. Salehi’s January 26, 2006 pre-surgery report (R. 694).
8

6

that, given Claimant’s impairments, she could perform her past relevant work as an accounting
clerk during the relevant timeframe. R. 32. As discussed above, Plaintiff identifies no error in the
ALJ’s Step Four determination, and he otherwise points to no error in the ALJ’s RFC
determination. Therefore, because the ALJ appropriately found that Claimant could perform past
relevant work at Step Four, the ALJ did not err by neglecting to analyze any applicable Grid
rules at Step Five. Additionally, the Grid rules do not create a lesser standard of disability. They
are simply another step in the sequential evaluation process after the ALJ finds a claimant cannot
perform past relevant work.
Realizing his misreading of the record, Plaintiff next attempts to raise a different Step
Four argument regarding Claimant’s left hand in his reply brief. Dkt. 20 at 3, 4 n. 1, 6. Plaintiff
points out that the ALJ erroneously concluded that Claimant’s left hand improved after the
March 2006 surgery by relying on Dr. Smith’s July 19, 2006 report that “[h]er extensor digiti
minimi is working well so she has made quite a bit of progress.” R. 26, 698. The ALJ also relied
on the ME’s opinion that “if [Claimant’s] extensor was working well, she would not have had
claw hand, as she testified, because there would be little to no extension of the fingers with a
claw hand condition.” R. 26. Plaintiff argues that this reasoning is flawed because the “extensor
digiti minimi” is a muscle in the forearm, not the extensor finger. Dkt. 20 at 5. According to
Plaintiff, the ALJ thus misread the record evidence referring to the extensor digiti minimi, and
the ALJ did not appropriately address the physical therapy evidence of Claimant’s “claw” left
hand. Therefore, Plaintiff argues the ALJ failed to build a logical bridge to his conclusion that
Claimant’s left hand worked well enough to perform her past relevant work. Id. at 6.
These arguments are unpersuasive. To begin, Plaintiff raises them for the first time in a
reply brief, thus he has forfeited them. Vincent A. v. Berryhill, 16 C 7136, 2019 U.S. Dist. LEXIS

7

80484, at *13 (N.D. Il. May 13, 2019) (citing Narducci v. Moore, 572 F.3d 313, 324 (7th Cir.
2009)). In any event, they are meritless. First, the ALJ and the ME did not misread or
mischaracterize the treatment notes indicating Claimant’s extensor digiti minimi was working
well. The extensor digiti minimi is defined as a “[muscle] of posterior (extensor) compartment of
forearm; origin, lateral epicondyle of humerus . . . action, extends little finger . . . .” STEDMAN’S
MEDICAL DICTIONARY 1242 (28th ed. 2006) (bold emphasis added). One synonym listed for the
extensor digiti minimi is “extensor [muscle] of little finger.” Id. Therefore, though the extensor
digiti minimi is indeed a muscle in the forearm, the muscle by definition functions to extend the
fifth finger of the hand, making the ALJ’s conclusion that Claimant’s fifth finger was working
well post-surgery an accurate description of Dr. Smith’s July 19, 2006 post-surgery report and
the ME’s opinion, as both indicate that Claimant’s extensor digiti minimi was working well postsurgery. See R. 26, 70–71, 698.
Second, the ALJ appropriately addressed the physical therapy evidence of Claimant’s
“claw” left-hand impairment. The transcript of the hearing before the ALJ reveals that the ALJ
questioned the ME about the physical therapy notes identified by Plaintiff. R. 73–75. The ALJ
also quoted the final therapy note from September 11, 2006, that said “the patient exhibits
increased functional mobility with her left hand and at this time there is no significant change in
her grip strength” while questioning the ME. R. 74, 359. In his decision, the ALJ gave “great
weight” to the ME’s opinion that, after reviewing the physical therapy notes and other medical
evidence, Claimant’s fingers should only be limited to “frequent” use. R.26–29, 70–72, 74, 76–
77. He also explained and adopted the ME’s observation that the same physical therapy notes
showed Claimant’s left-wrist extension had improved from 2/5 at the first visit on May 8, 2006,
to 5/5 by the last visit on September 11, 2006. R. 27. Despite the physical therapy notes

8

indicating some weakness and extension difficulty in the third and fourth fingers in Claimant’s
left hand, the ALJ adopted the ME’s reasoning that because the physical therapy notes otherwise
showed, among other functional improvements in her left hand, Claimant’s extensor had
improved since her first physical therapy visit and was working well, she would not have had a
“claw” hand “because there would be little to no extension of the fingers with a claw hand
condition.” R. 26.
Thus, contrary to Plaintiff’s assertions, the ALJ and ME were aware of and appropriately
addressed these physical therapy notes. R. 26–27. Plaintiff does not otherwise attempt to
challenge the weight given to the ME’s opinion, point to any medical opinion or other evidence
in the record to contradict the ME’s opinion, and neither the ME nor the ALJ mischaracterized
the summary assessments provided by the physical therapist notes or other post-surgery reports
as described above. Plaintiff identifies no Step Four error warranting remand in any of these
newly raised arguments.
IV. CONCLUSION
For these reasons, Plaintiff’s motion for summary judgment is denied, the
Commissioner’s motion for summary judgment is granted, and the ALJ’s decision is affirmed.

Date: July 31, 2019

Magistrate Judge Iain D. Johnston

9