Thomas v. Saul
MEMORANDUM Opinion and Order: Plaintiff's motion for summary judgment, Dkt. 12, is granted, the Commissioner's motion for summary judgment, Dkt. 20, is denied, and the decision of the ALJ is reversed and remanded. See Attached Order. Signed by the Honorable Margaret J. Schneider on 11/17/2021. Mailed notice. (jxk)
Case: 3:20-cv-50076 Document #: 28 Filed: 11/17/21 Page 1 of 6 PageID #:1571
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Commissioner of Social Security, 1
Case No.: 20-cv-50076
Magistrate Judge Margaret J. Schneider
MEMORANDUM OPINION AND ORDER
Plaintiff’s motion for summary judgment, Dkt. 12, is granted, the Commissioner’s motion
for summary judgment, Dkt. 20, is denied, and the decision of the ALJ is reversed and remanded.
A. Procedural History
Plaintiff Jesse T. (“Plaintiff”) filed an application for supplemental social security income
benefits on November 21, 2014. R. 409-16. Her application was denied initially on April 23, 2015
and upon reconsideration on August 15, 2015. R. 253, 259. Following a hearing held on February
27, 2017, Administrative Law Judge (“ALJ”) Robert Asbille issued an opinion denying benefits
on May 30, 2017. R. 233-47. Plaintiff appealed the decision to the Appeals Council, and on
February 28, 2018 the Appeals Council remanded the case, mainly because the ALJ did not give
proper consideration to Plaintiff’s residual functional capacity (“RFC”). R. 250.
On remand, the same ALJ held a second hearing on February 19, 2019. R. 29-60. Ann
Monis, Psy.D., testified as an impartial medical expert. Id. On March 6, 2019, the ALJ issued his
written opinion denying Plaintiff’s claims for supplemental security income. R. 10-28. Plaintiff
appealed the decision to the Appeals Council, which denied Plaintiff’s request for review. R. 1-6.
Plaintiff now seeks judicial review of the ALJ’s March 6, 2019 decision, which stands as the final
decision of the Commissioner. Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007).
B. Medical History
Plaintiff has a medical history of lower extremity impairments as well as carpal tunnel. As
a result of a slip and fall accident, on August 30, 2014, Plaintiff fractured her right tibia and
underwent open reduction with internal fixation. R. 646. As of September 9, 2014, orthopedist
Kevin Draxinger noted that the surgical wound appeared to be well-healed, Plaintiff no longer
Kilolo Kijakazi has been substituted for Andrew Saul. Fed. R. Civ. P. 25(d).
Case: 3:20-cv-50076 Document #: 28 Filed: 11/17/21 Page 2 of 6 PageID #:1572
wore the knee immobilizer, and her pain was fairly well controlled with hydrocodone. Id. In
October 2014, she started physical therapy. R. 604. As of October 22, 2014, she was wearing a
long leg knee brace to walk and her physical therapist, Pamela J. Finley, PTA, noted that she had
some improved knee flexion, although overall it was still decreased.
On January 22, 2015, Plaintiff went to the emergency room due to knee pain. R. 725. She
stated that while walking in her kitchen, she felt the screws from the surgery were coming loose
in her knee. Id. Ultimately on June 17, 2015, the hardware was removed. R. 781. In October
2015, Plaintiff underwent arthroscopy. R. 931. As of November 10, 2015, Dr. Draxinger noted
that she was doing a little better bending her knee but that she still had some slight decreased range
of motion. R. 932. On December 8, 2015, Dr. Draxinger noted that on physical exam Plaintiff’s
range of motion was improving, but that she was still walking with a cane and taking pain
medication. R. 934.
Thereafter, on December 13, 2016, she had a total knee replacement followed by 4 weeks
of physical therapy. R. 935, 824-893. As of December 29, 2016, her physical therapist noted that
she was continuing to use a walker, and that she had a very stiffened knee and heel-toe pattern. R.
882. On January 24, 2017, Plaintiff had an additional surgery on her knee, and she was again
prescribed physical therapy. R. 1019, 1026. As of February 20, 2017, physical therapy records
show that Plaintiff continued to have difficulty with knee flexion, and she needed continued
therapy to increase her knee strength and overall function. R. 1034. On February 21, 2017,
Plaintiff reported to Dr. Dammann Gregory that she continued to experience swelling and pain,
and he recommended continuing physical therapy for an additional four weeks. R. 1058-59.
On September 5, 2017, Plaintiff underwent another surgery of the right knee. R. 1073-74.
Dr. Andrew Blint noted that by this time she had exhausted physical therapy, and that he indicated
her for right knee surgery. R. 1073. On September 12, 2017, Dr. Blint recommended aggressive
physical therapy, and noted that the knee problem would likely recur if the patient did not put in
effort to bend her knee. R. 1076. On September 26, 2017, Plaintiff followed up with Dr. Blint
again, who noted that she had made very mild improvement in her range of motion. R. 1079-80.
By October 17, 2017, Dr. Blint found that that swelling might have been limiting her range of
motion, and stated that if it did not improve, he would refer her to an arthroplasty specialist. R.
1082. As of November 17, 2017, Dr. Blint noted that the knee had failed both operative and nonoperative measures, and he referred her to Dr. Howard Weiss for genicular nerve blockade with
radiofrequency ablation. R. 1085.
On January 9, 2018, Dr. Blint again articulated that “the patient has failed pretty much all
measures from conservative to surgical,” and recommended that she receive an opinion from UW
Madison regarding arthrofibrosis and chronic pain. R. 1088. Records from a January 11, 2018
visit to Dr. April Moore, who appears to be Plaintiff’s family practitioner, show that Plaintiff had
symptoms from a recent nerve block injection with Dr. Weiss. R. 1174-75. 2 On March 5, 2018
she was seen by Dr. Moore to be prescribed Norco to treat knee pain she described at a level 9 out
of 10. R. 1180. On October 9, 2018, Dr. Blint assessed Plaintiff as having “chronic pain [and]
significant functional limitations after right total knee arthroplasty by an outside surgeon.” Dr.
Blint further stated that she needed to seek care from a joint replacement specialist. R. 1207.
The record does not contain medical records from treatment by Dr. Weiss.
Case: 3:20-cv-50076 Document #: 28 Filed: 11/17/21 Page 3 of 6 PageID #:1573
At a January 11, 2018 appointment with Dr. Moore, Plaintiff complained of paresthesia
and pain of both upper extremities and Dr. Moore indicated she may have a “component of carpal
tunnel” and had her try wrist braces. R. 1174-75. On February 14, 2018, Plaintiff was assessed
by Dr. Blint with bilateral hand pain, and signs and symptoms of carpal tunnel syndrome, and he
recommended that she obtain EMG nerve conduction study testing. R. 1091. As of May 22, 2018,
Dr. Blint diagnosed her with carpal tunnel syndrome by physical examination and
electrodiagnostic testing, and he recommended surgery based on the failure of conservative
measures including use of a brace, anti-inflammatory measures, and activity modification. R.
On November 10, 2018, Plaintiff underwent an internal medicine consultative exam by Dr.
Afiz Taiwo. R. 1219-21. He noted that she was able to get on and off the exam table with
difficulty, that she used a cane to walk 50 feet, and was unable to perform toe/heel walk. R. 1221.
In his notes, Dr. Taiwo also indicated that Plaintiff was unable to walk on toes, walk on heels,
squat and rise, or tandem walk. R. 1223. Dr. Taiwo found that she had a history of right tibia
fracture leading to “gait dysfunction”. R. 1222.
Plaintiff also has a history of depression and anxiety. In October 2017, Plaintiff was found
to have depressive feelings, anhedonia, decreased appetite, feelings of guilt, and repetitive and
intrusive thoughts about her childhood traumas. R. 1068. In November 2018, Plaintiff underwent
a clinical psychology consultative examination and psychologist John Zagotta diagnosed her with
a persistent depressive disorder. R. 1215.
At the ALJ hearing on February 19, 2019, Plaintiff testified that she had trouble walking.
R. 37. She stated that she would experience a lot of pain with walking and that could not bend her
knee. Id. Plaintiff further stated that it had gotten to the point where she could hardly walk at all,
and that she used a cane for assistance. R. 37-38. She also testified that she was unable to do
housework due to her knee pain, she had trouble sleeping, and that her aunt and her daughter would
wash her clothes for her and do her food shopping. R. 38. In addition, she stated that the farthest
she had walked in a month was a half block, and that she typically spent her days on the couch
elevating her leg. R. 39. She also stated that she had trouble sitting for extended periods because
she had to elevate her leg due to her knee pain. R. 39-40. She claimed that she had felt depressed
for two years as well, since her mother had passed away. R. 42.
C. The ALJ’s Decision
In his decision denying Plaintiff’s claim for benefits, the ALJ went through the five-step
analysis for determining whether a person is disabled under the Social Security Act. See 20 C.F.R.
§ 416.920(a)(4). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity. R. 15. At step two, the ALJ found that Plaintiff had the following severe impairments:
bilateral knee arthritis, obesity, anxiety, and depression. Id. At step three, the ALJ found that
Plaintiff had no impairment or combination of impairments that met or medically equaled the
severity of one of the listed impairments, paying particular attention to listings 1.02A, 1.03, 12.04,
and 123.06. R. 18.
Case: 3:20-cv-50076 Document #: 28 Filed: 11/17/21 Page 4 of 6 PageID #:1574
Prior to step four, the ALJ determined that Plaintiff had the RFC to perform sedentary work
except that she could lift or carry less than 10 pounds frequently and 10 pounds occasionally; could
stand or walk for two hours and sit for 6 hours in an 8-hour day; could never climb ladders, ropes,
or scaffolds; could occasionally perform postural activities; could understand, remember, and carry
out simple instructions; could not perform at hourly quotas but could do end of day quotas; and
could adapt to routine changes in the work environment. R. 19. At step four, the ALJ found that
Plaintiff had no past relevant work. R. 20. Finally, at step five, the ALJ found there were jobs
that existed in significant numbers in the national economy that she could have performed. R. 20.
Because of these findings, the ALJ found that Plaintiff was not disabled. R. 21.
STANDARD OF REVIEW
The reviewing court reviews the ALJ’s determination to establish whether it is supported
by “substantial evidence,” meaning “’such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir. 2014)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “more than a
mere scintilla.” Wright v. Kijakazi, No. 20-2715, 2021 WL 3832347, at * 5 (7th Cir. 2021).
“Whatever the meaning of ‘substantial’ in other contexts, the Supreme Court has emphasized, ‘the
threshold for such evidentiary sufficiency is not high.’” Id. (quoting Biestek v. Berryhill,
__U.S.__, 139 S.Ct. 1148, 1153 (2019)). As such, the reviewing court takes a limited role and
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), and “confines its
review to the reasons offered by the ALJ.” Green v. Astrue, No. 11 CV 8907, 2013 WL 709642,
at * 7 (N.D. Ill. Feb. 27, 2013).
The court is obligated to “review the entire record, but [the court does] not replace the
ALJ’s judgment with [its] own by reconsidering facts, re-weighing or resolving conflicts in the
evidence, or deciding questions of credibility. [The court’s] review is limited also to the ALJ’s
rationales; [the court does] not uphold an ALJ’s decision by giving it different ground to stand
upon.” Jeske v. Saul, 955 F.3d 583, 587 (7th Cir. 2020). The court will only reverse the decision
of the ALJ “if the record compels a contrary result.” Gedatus v. Saul, 994 F.3d 893, 900 (7th Cir.
2021) (citations and quotations omitted). Additionally, “[a]n ALJ need not mention every piece
of medical evidence in her opinion, but she cannot ignore a line of evidence contrary to her
conclusion.” Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014) (citing Arnett v. Astrue, 676
F.3d 586, 592 (7th Cir. 2012)).
Plaintiff argues that remand is proper because the ALJ erred in three ways: (1) the listings
analysis, (2) the RFC assessment, and (3) the treating physician rule. Because the Court finds error
with the ALJ’s listings analysis, the ALJ’s decision is reversed and remanded on that basis. The
remaining two arguments need not be addressed.
First, Plaintiff challenges the ALJ’s finding that Plaintiff’s impairments did not meet or
medically equal listing 1.02A. She argues that the ALJ failed to evaluate the evidence and should
have provided a medical expert to facilitate meaningful judicial review. “In considering whether
Case: 3:20-cv-50076 Document #: 28 Filed: 11/17/21 Page 5 of 6 PageID #:1575
a claimant’s condition meets or equals a listed impairment, an ALJ must discuss the listing by
name and offer more than a perfunctory analysis of the listing.” Minnick v. Colvin, 775 F.3d 929,
935 (7th Cir. 2015) (internal citation omitted). The listing at issue here (1.02A) requires the
involvement of a single lower extremity major peripheral weight-bearing joint resulting in inability
to ambulate effectively, meaning the ability to sustain “a reasonable walking pace over a sufficient
distance to carry out activities of daily living,” including traveling without the need of a
companion. 20 C.F.R. Part 404, Subpart P, Appendix 1, 1.00B2b.
The ALJ provided the following explanation for why Plaintiff did not meet this listing:
“The claimant may require use of an assistive device, but she is able to perform all necessary
activities of daily living. Thus, the listing is not met.” R. 17. This reasoning is only two sentences
and is a barebones conclusion. Plaintiff argues that this discussion was inadequate. The ALJ did
not explain how he interpreted 1.02A or what evidence he relied on. In short, there was no analysis
of the record evidence to support the ALJ’s conclusion. This is “the very type of perfunctory
analysis” the Seventh Circuit has “repeatedly found inadequate to dismiss an impairment as not
meeting or equaling a Listing.” Minnick, 775 F.3d at 935 (7th Cir. 2015) (internal citation
In its response brief, the Commissioner argues that the ALJ expressly found that the
evidence did not establish the inability to ambulate effectively. The listings define effective
ambulation as follows:
To ambulate effectively, individuals must be capable of sustaining
a reasonable walking pace over a sufficient distance to be able to
carry out activities of daily living. They must have the ability to
travel without companion assistance to and from a place of
employment or school.
Therefore, examples of ineffective
ambulation include, but are not limited to, the inability to walk
without the use of a walker, two crutches or two canes, the inability
to walk a block at a reasonable pace on rough or uneven surfaces,
the inability to use standard public transportation, the inability to
carry out routine ambulatory activities, such as shopping and
banking, and the inability to climb a few steps at a reasonable pace
with the use of a single hand rail. The ability to walk independently
about one’s home does not, in and of itself, constitute effective
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(B)(2)(b)(2). However, the ALJ’s decision did not
actually analyze whether Plaintiff could ambulate effectively—at step three or anywhere else in
the ALJ’s analysis. Zellweger v. Saul, 984 F.3d 1251, 1254-55 (7th Cir. 2021) (A reviewing court
can consider an “ALJ’s step-three determination in light of elaboration and analysis appearing
elsewhere in the decision.”) Under the Chenery doctrine, this Court must confine its review to the
grounds on which the ALJ made his finding. See Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir.
2010) (internal citation omitted) (“The Chenery doctrine ‘provides an assurance that the object of
the court’s review is the product of a body or official to whom Congress delegated authority. That
constraint in turn polices the conditions for judicial deference to agency action.’”). The
Case: 3:20-cv-50076 Document #: 28 Filed: 11/17/21 Page 6 of 6 PageID #:1576
Commissioner further argues that the ALJ relied on Dr. Taiwo’s finding that plaintiff needed a
cane to assist ambulation. However, Dr. Taiwo only stated that Plaintiff needed a cane to assist
ambulation; he did not opine as to whether Plaintiff would be able to carry out the activities of
daily living. Meanwhile, as the ALJ acknowledged, Plaintiff testified that she had severe pain
which limited her ability to perform household activities, her aunt washed clothes for her, food
shopping was done by friends or her daughter, her knee was swollen and in constant pain, she had
difficulty if she stood, or sat for long periods of time, and that she needed to keep her leg elevated.
R. 19. The ALJ’s decision recited this information but declined to credit it, finding that it was “not
entirely consistent with the medical and other evidence.” Id. Yet, the ALJ did not analyze or
explain any of this medical or other evidence that led him to this determination. As described
above, the record is replete with evidence that Plaintiff was dealing with significant knee pain that
her doctors credited and treated. Nonetheless, the adequacy of the ALJ’s credibility determination
is not at issue at this point. The Court points this out only because this is the only part of the ALJ’s
decision discussing Plaintiff’s physical condition that could have been the basis for the ALJ’s
determination that Plaintiff “is able to perform all necessary activities of daily living.” This
perfunctory analysis is inadequate and requires a remand.
Having found that a remand is warranted on this first argument, the Court concludes that it
is not necessary to evaluate the remaining arguments. The Court notes, however, that on remand,
the ALJ should provide a more in-depth evaluation of Plaintiff’s RFC supported by the evidence
of record. In addition, the ALJ was not clear on how Plaintiff’s mental limitations impacted the
residual functional capacity. On remand from the Appeals Council, the ALJ was directed to assess
how Plaintiff’s limitation in interacting with others affected her ability to deal, specifically, with
the public, co-workers, or supervisors. R. 250. However, the ALJ did not address this aspect of
Plaintiff’s limitation. On remand, the ALJ should examine this issue more closely.
For these reasons, Plaintiff’s motion for summary judgment is granted, the Commissioner’s
motion is denied, and the decision of the ALJ is reversed and remanded for further consideration.
Date: November 17, 2021
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?