Douglas v. Commissioner of Social Security
Filing
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MEMORANDUM AND OPINION. The final order of the Commissioner is reversed and remanded. The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Magistrate Judge Clifford J. Proud on 2/16/2012. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SUSAN DOUGLAS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Civil No. 11-175-CJP
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Susan Douglas is before the Court,
represented by counsel, seeking review of the final decision of the Commissioner of Social
Security denying her Disability Insurance Benefits (DIB).1
Procedural History
Ms. Douglas applied for DIB in September, 2005, alleging disability beginning on
February 5, 2005. (Tr. 120). The application was denied initially and on reconsideration. After
holding a hearing, ALJ Alexander Weir, III, denied the application for benefits in a decision
dated June 16, 2009. (Tr. 9-17). Plaintiff’s request for review was denied by the Appeals
Council, and the decision of the ALJ became the final agency decision. (Tr. 1). Administrative
remedies have been exhausted and a timely complaint was filed in this Court.
Issues Raised by Plaintiff
Plaintiff argues that the ALJ erred in the following respects:
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This case was referred to the undersigned for final disposition upon consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 15.
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1.
He failed to follow agency procedures in that plaintiff’s counsel was not provided
with a “worked up” file or a copy of the consultative examiner’s report prior to
the hearing, which resulted in the denial of due process.
2.
He erred in weighing the medical evidence.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the applicable
statutes. For these purposes, “disabled” means the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). A “physical or
mental impairment” is an impairment resulting from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques. 42 U.S.C. §§ 423(d)(3) and 1382c(a)(3)(C). “Substantial gainful activity” is work
activity that involves doing significant physical or mental activities, and that is done for pay or
profit. 20 C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to determine whether a
claimant is disabled. It must be determined: (1) whether the claimant is presently unemployed;
(2) whether the claimant has an impairment or combination of impairments that is serious; (3)
whether the impairments meet or equal one of the listed impairments acknowledged to be
conclusively disabling; (4) whether the claimant can perform past relevant work; and (5) whether
the claimant is capable of performing any work within the economy, given his or her age,
education and work experience. Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992); see
also, 20 C.F.R. §§ 404.1520(b-f).
This Court reviews the Commissioner’s decision to ensure that the decision is supported
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by substantial evidence and that no mistakes of law were made. The scope of review is limited.
“The findings of the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must determine not
whether Ms. Douglas is, in fact, disabled, but whether the ALJ’s findings were supported by
substantial evidence and whether any errors of law were made. See, Books v. Chater, 91 F.3d
972, 977-78 (7th Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)). This
Court uses the Supreme Court’s definition of substantial evidence, i.e, “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971).
In reviewing for “substantial evidence,” the entire administrative record is taken into
consideration, but this Court does not reweigh evidence, resolve conflicts, decide questions of
credibility, or substitute its own judgment for that of the ALJ. Brewer v. Chater, 103 F.3d 1384,
1390 (7th Cir. 1997). However, while judicial review is deferential, it is not abject; this Court
does not act as a rubber stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d 920, 921
(7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Weir followed the five-step analytical framework described above. He determined
that Ms. Douglas had not been engaged in substantial gainful activity since the alleged onset
date, and that she had severe impairments of back disorder and fibromyalgia. He found that her
mental impairments were not severe. He further determined that these impairments do not meet
or equal a listed impairment. The ALJ found that Ms. Douglas had the residual functional
capacity to perform a full range of work at the medium exertional level. Based on the testimony
of a vocational expert, the ALJ found that Ms. Douglas has the capacity to perform her past work
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as a production supervisor.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in formulating this
Memorandum and Order. The following summary of the record is directed to the points raised
by plaintiff. Because Ms. Douglas does not challenge the ALJ’s findings with respect to her
mental condition, the Court will not describe that evidence.
1.
Agency Forms
Ms. Douglas was born in 1954, and was 49 years old when she allegedly became
disabled. She was last insured for DIB as of December 31, 2009. (Tr. 153).
In her application for benefits, Ms. Douglas said that she became disabled on February 5,
2005. (Tr. 120). In a Disability Report, she said that she became unable to work due to her
condition on February 5, 2004. (Tr. 158).
Ms. Douglas had previously worked for an automotive lighting manufacturer from 1988
through 2004. She worked as a team leader, a supervisor, and a manufacturing manager. (Tr.
177-18).
2.
Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing on May 15, 2009.
(Tr. 32). The hearing was done via video conference. The ALJ was in Los Angeles, California,
and Ms. Douglas and her attorney were in Mount Vernon, Illinois. (Tr. 31).
The ALJ told Ms. Douglas that the evidence that he was going to be looking at “are the
documents in the file that was available for you and your counsel to review before we began.”
(Tr. 33). Plaintiff’s counsel then informed the ALJ that he had not received the entire file.
Specifically, he had not received a copy of the report of a consultative examination which took
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place in January, 2009, although his office had made several requests for it. (Tr. 33). He also
informed the ALJ that he did not receive the “updated disc” and thus did not know what
evidence the record contained. (Tr. 34). The ALJ told counsel that a copy of the report and an
updated disc would be sent to him after the hearing. Counsel asked the ALJ to hold the record
open so that he might review the report and “comment on that if necessary.” The ALJ refused
the request to hold the record open, but did say that he would allow counsel one week in which
to submit argument. (Tr. 34).
The ALJ then began to take testimony from Ms. Douglas. She testified that she
completed high school and had some college credits but no college degree. (Tr. 37). She last
worked for American Lighting in 2004. (Tr. 38). She did work as a “virtual recruiter” in 2006,
using the computer and telephone to recruit job applicants. She did this work part-time from
home. (Tr. 40-41). She stopped doing that work in December, 2008, because she was losing her
contracts to do it. (Tr. 52-53). She then worked part-time as a cashier at a small grocery store.
She was working as a cashier about 15 hours a week at the time of the hearing. The owner let
her take breaks and take off whenever she wanted to. (Tr. 42-43).
Plaintiff testified that she was being treated for high blood pressure, heart problems,
asthma, fibromyalgia and depression. (Tr. 43-44). She was unable to work full-time because of
continuous sciatic and back pain and fibromyalgia pain. She also said she had pulmonary
emboli which caused oxygen deprivation, which resulted in short-term memory loss. (Tr. 45).
She suffers from fatigue. (Tr. 46). She testified that she would no longer be able to do the
recruiting job because of her memory problems. (Tr. 55).
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Heidi Paul testified as a vocational expert.2 She testified that plaintiff’s past work as a
production supervisor is at the light level as it is generally performed, but it was at the medium
level as performed by Ms. Douglas. Her work as a recruiter was sedentary, and her cashier work
was light.
The ALJ asked the VE to assume a person with plaintiff’s education who could do
medium work, with moderate limitation in ability to do complex tasks and in maintaining
attention and concentration. The VE testified that this person would be able to do all of
plaintiff’s past work. (Tr. 58-59).
The ALJ then added the assumption that the person needed a sit/stand option. This
person could not do the production supervisor work, but could do the recruiter and cashier jobs.
(Tr. 59).
The ALJ then asked the VE to assume a person who could do light work with the same
limitations as in the previous hypotheticals. Again, this person could do only the recruiter and
cashier jobs. (Tr. 59-60).
3.
Medical Records
Ms. Douglas fell on ice on February 5, 2004, which caused pain in her low back that
radiated down her legs. (Tr. 359). An MRI on February 24, 2004, showed bulging discs at L3-4
and L4-5, with mild effacement of the canal. (Tr. 358). She was treated by a chiropractor, Dr.
John Hancock. In April, 2004, he wrote a note indicating that she was still unable to work but
did not need an orthopedic consult as she was responding to treatment. (Tr. 374).
Dr. L.A. Phipps, M.D., saw plaintiff at the Family Medical Center in Paris, Illinois, on
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Dr. Paul’s c.v. is located at Tr. 85.
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April 6, 2004. He noted that plaintiff had a “unique, long, complex story.” After she fell on the
ice, she developed bilateral pulmonary emboli, for which she was treated by another doctor. On
exam, her chest was clear and she had regular heart rate and rhythm. Straight leg raising was
negative. Deep tendons reflexes were 2+ and equal. She was tender at L3, L4 and L5. He found
it hard to believe that the minor bulges shown on the MRI were “giving this woman this degree
of pain and difficulty.” He went on to say that he also found it hard to believe that “all of her
problems are not intertwined.” He recommended a CT of her retroperitoneal space, and said he
would not be surprised to find a large hematoma or a mass. (Tr. 562). A CT scan was done,
which was negative. (Tr. 564). In May, 2004, another doctor at the Family Medical Center
noted that she was having “persistent pain to the point where she can hardly function during the
day.” His diagnosis was low back pain with herniated disc. (Tr. 568).
On Dr. Phipps’ referral, Ms. Douglas underwent physical therapy for her low back pain
at Paris Community Hospital beginning on April 20, 2004. She discontinued therapy on May 7,
2004, to do an at-home program for range of motion and stretching. (Tr. 244-251).
Ms. Douglas began seeing another chiropractor, Dr. Michael Bowman, on May 28, 2004.
He treated her every few days from June 1, 2004, through November 27, 2004. (Tr. 432-438).
There were a few weeks in July and August when she was not treated; she apparently took a trip
to Yellowstone National Park during that time. (Tr. 420).
Plaintiff continued to see Dr. Bowman in 2005. On March 14, 2005, an MRI showed
mild degenerative bulging discs at L2-3 and L3-4, and a small to medium sized disc protrusion at
L4-5 with no central canal stenosis. The nerve root did not appear to be compressed. (Tr. 609).
Dr. Bowman wrote a report in June, 2005, in which he said that she had an exacerbation of her
low back pain, and he felt that she “will always be in the path of some lower back pain.” He
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noted that she had every form of conservative care, with only “some tolerable lessening” of her
pain. (Tr. 612-613).
On May 18, 2005, Ms. Douglas saw Christopher Newman, M.D., for diffuse general joint
and muscle aches and pains. On exam, she weighed 222 pounds. She had diffuse tenderness to
palpation on all of her trigger points. His impression was fibromyalgia. He prescribed Flexeril
and a daily aerobic exercise program. (Tr. 641-642). In September, 2005, plaintiff told Dr.
Newman that her fibromyalgia was doing much worse and she had diffuse muscle pain. He
added Cymbalta to the previously prescribed Flexeril and encouraged her to exercise daily. (Tr.
681-682). In October, 2005, plaintiff reported that she was doing a little bit better with her
fibromyalgia and she was trying to get disability. Dr. Newman again counseled her on the
importance of exercise. He referred plaintiff for a functional capacity evaluation in connection
with her application for disability benefits. (Tr. 679-680).
The functional capacity examination was done by physical therapist Karen Huelsmann on
November 1, 2005. Ms. Huelsmann determined that plaintiff was able to do sedentary work.
(Tr. 666-667).
In November, 2008, Dr. Richard Bilinsky, a state agency consultant, completed a
physical RFC assessment form. He concluded that Ms. Douglas was capable of medium work
(able to frequently lift 25 pounds, occasionally lift 50 pounds, sit/stand/walk for 6 out of 8 hours,
unlimited push/pull), limited to only occasional climbing ladders, ropes and scaffolds, stooping
and crouching. (Tr. 717-724).
There are no medical records from the years 2006, 2007 or 2008.
In January, 2009, Vittal Chapa, M.D., performed a consultative examination of Ms.
Douglas. He concluded that she could frequently lift 20 pounds and occasionally lift 50 pounds;
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sit for a total of 8 hours; stand for a total of 4 hours; walk for a total of 3 hours; frequently reach,
handle, finger, feel and push/pull; occasionally operate foot controls; occasionally balance,
stoop, kneel, crouch and crawl; and never climb stairs, ramps, ladders or scaffolds. (Tr. 771785).
Analysis
For her first point, plaintiff argues that she was denied due process at the evidentiary
hearing because her attorney was not furnished with a copy of all of the evidence prior to or at
the hearing. Most notably, plaintiff and her counsel were not given a copy of Dr. Chapa’s
report.
Plaintiff points out that the agency’s Hearing, Appeals, and Litigation Law Manual,
knows as HALLEX, provides that a claimant or her representative are to be furnished with
copies of the evidence before the hearing. Plaintiff’s counsel admits that the HALLEX is a
compilation of policy statements and procedures, and the Seventh Circuit Court of Appeals has
not addressed the issue of whether the HALLEX procedures have the force of law.
Commendably, counsel cites a Seventh Circuit case holding that the POMS Manual, which is an
internal handbook for use by agency employees, does not have the force of law. This suggests
that the Seventh Circuit would likely hold that the HALLEX procedures likewise do not have the
force of law. Other Circuits have so held. See, Doc. 12, pp. 5-6.
This Court agrees that the HALLEX procedures, which are not regulations promulgated
after notice and comment, are not legally binding and cannot, by themselves, be relied upon to
demonstrate error here. See, Schweiker v. Hanson, 450 U.S. 785, 789 (1981). However, that is
not the end of the inquiry.
The Supreme Court has long recognized that a Social Security claimant is entitled to
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procedural due process. See, Richardson v. Perales, 402 U.S. 389, 401-402 (1971). “Due
process requires that a Social Security disability claimant be offered a ‘full and fair’ hearing.”
Davenport v. Astrue, 417 Fed. Appx. 544, 546 (7th Cir. 2011) (internal citation omitted).
Here, plaintiff and her attorney were denied the right to review all of the evidence,
including Dr. Chapa’s report, before or even during the hearing. A hearing at which the claimant
does not have access to the evidence is not a full and fair hearing, and does not comport with the
requirements of due process.
The Commissioner concedes that the ALJ erred by not providing plaintiff’s counsel with
a copy of Dr. Chapa’s report. He argues that the error was harmless in that the ALJ did not rely
on Dr. Chapa’s opinion. See, Doc. 21, pp. 8-9. This argument ignores the fact that Dr. Chapa’s
report was, at least in part, favorable to plaintiff.
Dr. Chapa, who examined plaintiff at the request of the agency, concluded that she had
limitations in her ability to stand and walk, as well as in her ability to climb stairs, ramps,
ladders and scaffolds. Further, Dr. Chapa found that she could lift 20 (not 25) pounds
frequently. These limitations are inconsistent with the ability to do a full range of medium
work. See, 20 C.F.R. §404.1567(c); SSR 83-10 at *6 (“In most medium jobs, being on one’s
feet for most of the workday is critical.”) It was not harmless error to deprive Ms. Douglas of
access to this favorable evidence prior to the hearing.
Ms. Douglas also takes issue with the ALJ’s weighing of the medical evidence. The ALJ
discounted the opinions of her treating chiropractor, the physical therapist who performed a
functional capacity examination, and Dr. Chapa. The ALJ said that he gave weight to the
opinion of Dr. Bilinsky, who did the RFC assessment.
The ALJ is responsible for resolving conflicts in the medical evidence. In so doing, he
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must build an accurate and logical bridge between evidence and the result. Castile v. Astrue,
617 F.3d 923, 929 (7th Cir. 2010). The ALJ errs when he selectively discusses the medical
evidence, ignoring the parts that conflict with his decision. Godbey v. Apfel, 238 F.3d 803, 808
(7th Cir. 2000). The ALJ did just that with respect to Dr. Bilinsky’s RFC assessment.
Dr. Bilinsky was acting as a state agency physician. The ALJ was required by 20 C.F.R.
§404.1527(f) to explain the weight given to his opinion. McKinzey v. Astrue, 641 F.3d 884, 891
(7th Cir. 2011). Dr. Bilinsky opined that Ms. Douglas had postural limitations in that she could
only occasionally stoop, crouch, and climb ladders, ropes and scaffolds. (Tr. 719). The ALJ
acknowledged that Dr. Bilinsky found these limitations. See, Tr. 21. These limitations are
inconsistent with the capacity to do a full range of medium work. In particular, the full range of
medium work requires frequent, not occasional, stooping. SSR 83-10, at *6.
The ALJ ultimately concluded that Ms. Douglas had the RFC to do a full range of work
at the medium level. He said this assessment was “consistent” with Dr. Bilinsky’s opinion. (Tr.
27). However, the ALJ never said why he rejected that part of Dr. Bilinsky’s opinion in which
he found postural limitations that would preclude the full range of medium work. This was
error. Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009).
Because of the ALJ’s errors, this case must be remanded. The Court wishes to stress that
this Memorandum and Order should not be construed as an indication that the Court believes
that Ms. Douglas is disabled or that she should be awarded benefits. On the contrary, the Court
has not formed any opinions in that regard, and leaves those issues to be determined by the
Commissioner after further proceedings.
Conclusion
It is therefore ORDERED that the Commissioner’s final decision denying Susan
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Douglas’ application for social security disability benefits is REVERSED and REMANDED to
the Commissioner for rehearing and reconsideration of the evidence, pursuant to sentence four of
42 U.S.C. §405(g).
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.
DATED: February 16, 2012.
s/ Clifford J. Proud
CLIFFORD J. PROUD
United States Magistrate Judge
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