Hunt v. Commissioner of Social Security

Filing 26

MEMORANDUM AND OPINION. The final order of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Magistrate Judge Clifford J. Proud on 4/15/2015. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARRIN HUNT,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

Civil No. 14-cv-345-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Darrin Hunt seeks judicial
review of the final agency decision denying his application for Disability Insurance
Benefits (DIB) pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in April, 2011, alleging disability beginning on
April 15, 2010. (Tr. 18). After holding an evidentiary hearing, ALJ William E.
Sampson denied the application in a written decision dated September 14, 2012.
(Tr. 18-30).

The Appeals Council denied review, 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.

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This case was referred to the undersigned for final disposition on consent of the parties, pursuant
to 28 U.S.C. §636(c). See, Doc. 10.

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Issues Raised by Plaintiff
Plaintiff raises the following points:
1.

The ALJ erred in weighing the medical opinions.

2.

The ALJ erred in evaluating plaintiff’s credibility.

3.

The RFC assessment was erroneous because of the errors set forth in
the first two points, and because the ALJ failed to consider the effects
of plaintiff’s depression and anxiety.
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).
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).

“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. The Seventh Circuit Court of Appeals
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has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are considered
conclusively disabling. If the impairment meets or equals one of the
listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the
evaluation continues. The fourth step assesses an applicant's residual
functional capacity (RFC) and ability to engage in past relevant work. If
an applicant can engage in past relevant work, he is not disabled. The
fifth step assesses the applicant's RFC, as well as his age, education,
and work experience to determine whether the applicant can engage in
other work. If the applicant can engage in other work, he is not
disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, 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. 20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513 (7th
Cir. 2009).
If the answer at steps one and two is “yes,” the claimant will automatically be
found disabled if he or she suffers from a listed impairment, determined at step
three. If the claimant does not have a listed impairment at step three, and cannot
perform his or her past work (step four), the burden shifts to the Commissioner at
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step five to show that the claimant can perform some other job. Rhoderick v.
Heckler, 737 F.2d 714, 715 (7th Cir. 1984). See also Zurawski v. Halter, 245
F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an “affirmative
answer leads either to the next step, or, on Steps 3 and 5, to a finding that the
claimant is disabled…. If a claimant reaches step 5, the burden shifts to the ALJ to
establish that the claimant is capable of performing work in the national
economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that 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 Mr. Hunt was, in fact, disabled at the relevant time, 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)).
The Supreme Court has defined “substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 91 S. Ct. 1420, 1427 (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.
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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 Sampson followed the five-step analytical framework described above.
He determined that plaintiff had not engaged in substantial gainful activity since the
alleged onset date. He found that plaintiff had severe impairments of late effects of
pedicle screw fixation and discectomy at the L5-S1 vertebral level with a
decompression lumbar laminectomy and foraminotomy.

He further determined

that plaintiff’s impairments do not meet or equal a listed impairment.
The ALJ found that Mr. Hunt had the residual functional capacity (RFC) to
perform work at the light exertional level, with a number of physical limitations.
Based on the testimony of a vocational expert, the ALJ found that plaintiff was not
able to do his past relevant work. He was, however, not disabled because he was
able to do other jobs which exist in significant numbers in the local and national
economies.
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 and is confined to the relevant time
period.
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1.

Agency Forms

Plaintiff was born in 1971, and was 38 years old on the alleged onset date of
April 15, 2010. He is insured for DIB through September 30, 2015. (Tr. 143).
He completed one year of college. He had worked as an assistant manager of a
restaurant and as a factory worker. (Tr. 147).
Plaintiff submitted a Function Report in May, 2011, in which he stated that,
because of back pain, he was unable to stand for more than 1 to 2 hours, or to sit
for longer than 2 hours. He had to lie down for 1 to 2 hours to get relief. He was
unable to lift anything over 10 pounds.

He reported that he did very little

housework or cooking. He lived with his wife and children. He spent the day
watching TV and reading. He walked half a block a day to check the mail. He
went grocery shopping with his wife, but had to lean on the cart or use a motorized
cart. He had a TENS unit which took the edge off his pain. (Tr. 160-167).
2.

Evidentiary Hearing

Mr. Hunt was represented by an attorney at the evidentiary hearing on August
28, 2012. (Tr. 37).
Plaintiff testified that his back pain was worse since he had surgery in April,
2010. He had pain in his low back every day. He took MS-Contin, Flexeril, and
an antidepressant. The medicines reduced his pain but did not eliminate it. He
had to sit with his feet up and lie down throughout the day. (Tr. 40-41). He had
also been depressed since the surgery. He was irritable “from not feeling like a
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man.” (Tr. 45-46).
A dorsal column stimulator had been recommended, but plaintiff’s doctor
had not been able to locate anyone who would accept his medical card (Medicaid)
for that. (Tr. 50).

He also had been unable to find another surgeon to give him a

second opinion after one of the screws in his back broke. (Tr. 39). He would be
willing to have another surgery if he could find a different doctor to do it. (Tr. 51).
Plaintiff had worked at a company that made fertilizer equipment.

He

operated a water jet, which is tool used to cut steel. He had also worked as a
manager of a McDonald’s restaurant. (Tr. 52-54).
A vocational expert (VE) also testified. The ALJ asked the VE a hypothetical
question which comported with the ultimate RFC assessment, that is, a person of
plaintiff’s age and work history who was able to do work at the light exertional level,
limited to only occasional climbing of ramps and stairs, occasional balancing,
stooping, crouching, kneeling and crawling, with no climbing of ladders, ropes or
scaffolds. He was further limited to a total of 2 hours of standing/walking per day
and needed a sit/stand option with the ability to stand for about 5 minutes every
hour. The VE testified that this person could not do any of plaintiff’s past work,
but there were other jobs in the economy which he could do. Examples of such
jobs are telephone information clerk, order clerk and document preparer. (Tr.
56-57).
3.

Medical Treatment

On April 15, 2010, the alleged onset date, Dr. Pradeep Narotam operated on
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plaintiff’s low back. Dr. Narotam noted that Mr. Hunt had a history of chronic low
back pain with pain in his legs, and increasing symptoms of spinal claudication.
An MRI showed a herniated disc with end-plate changes at L5-S1. The surgery
consisted of pedicle screw fixation at L5 and S1, an L5-S1 discectomy, and
decompressive lumbar laminectomy of L5 with foraminotomy of the L5 and S1
nerve roots. (Tr. 518-519).
Three months after surgery, x-rays showed that the hardware was intact with
no instability. Dr. Narotam rated his fusion at grade four. Plaintiff said he had
pain in his low back. Dr. Narotam diagnosed myofascial pain syndrome. (Tr.
543-544).

On July 27, 2010, a nurse practitioner in Dr. Narotam’s office

administered trigger point injections. (Tr. 549). Dr. Narotam’s office reported
that he was “not fit for duty” on July 28, 2010. (Tr. 551).
Mr. Hunt called Dr. Narotam’s office on August 2, 2010, and reported that
Flexeril and Vicodin were not helping with his pain. He was doing physical therapy
exercises. Dr. Narotam indicated that his pain was muscular and that physical
therapy would help. He did not change his medications. (Tr. 554).
In October, 2010, x-rays showed that the hardware was in position. (Tr.
558). At a visit with Dr. Narotam, plaintiff complained of constant low back pain
and said that he “wishes he’d never gotten the surgery.” Plaintiff continued to
smoke, “despite being informed of its deleterious effect on his fusion and on
worsening spine pathology.”

The doctor noted back tenderness on exam, but

straight leg raising was normal and he had no motor or sensory deficits. Dr.
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Narotam indicated that he could return to work with “light duty 15-30 pound lifting
restriction.” (Tr. 561- 562). On the same day, Dr. Narotam’s nurse practitioner
wrote on a form that plaintiff could not return to work until he was seen again. She
wrote “continues with therapy & not able to return to work at full duty at this time.”
(Tr. 560).
The next visit with Dr. Narotam was in April, 2011. Mr. Hunt said that he
still had low back pain and some posterior thigh pain. His gait was steady with no
limp. He had paraspinal tenderness with no claudication or radicular symptoms.
X-rays showed the hardware was in good position.

The diagnoses were

mechanical low back pain and post-laminectomy syndrome.

Dr. Narotam

recommended that he apply low heat to the affected area, 30 minutes on and 30
minutes off. He was to walk several times a day as tolerated. He was to avoid
sitting for more than 30 minutes at a time. He was discharged to his primary care
physician. (Tr. 568-570).
Mr. Hunt’s primary care physician was Dr. David Davis. Plaintiff saw Dr.
Davis regularly following his back surgery.
plaintiff complained of back pain.

Dr. Davis’ records indicate that

Dr. Davis noted diffuse tenderness of the

paraspinal muscles, loss of lumbar lordosis and multiple trigger points.

He

prescribed pain medication including Vicodin, Neurontin and Methadone. He also
prescribed Zanaflex for muscle spasms. (Tr. 362-392).
Dr. David Fletcher performed an independent medical evaluation of plaintiff
on February 14, 2012.

Dr. Fletcher is board-certified in Occupational and
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Preventative Medicine. The record does not reflect who requested that he examine
Mr. Hunt. Dr. Fletcher’s primary diagnosis was failed low back syndrome with
chronic right L5 radiculopathy.

His secondary diagnosis was depression.

He

noted that there was “no evidence of overt symptom magnification.” He concluded
that Mr. Hunt should be limited to lifting only 10 pounds and no repetitive bending
at the waist, and that he have a sit/stand option. He also suggested that he undergo
a functional capacity exam to define his work capacity. (Tr. 670-685).
Chet Clodfelter, a physical therapist, performed a functional capacity exam
on April 10, 2012. Mr. Clodfelter concluded that plaintiff was capable of working
at the light exertional level with some postural limitations.

The limitations

included never “work bent over – standing/stooping,” and only occasional standing,
kneeling, climbing stairs and repetitive squatting. (Tr. 686-695).
In March, 2012, plaintiff saw Dr. Davis for depression and muscle spasms in
his back.

Dr. Davis noted that he appeared uncomfortable and fatigued.

He

prescribed Flexeril for his back and Remeron for his mood swings. (Tr. 654-655).
Two weeks later, Dr. Davis increased the dosage of Remeron. (Tr. 652-653).
Mr. Hunt returned to Dr. Narotam on May 9, 2012. He complained of low
back pain. Dr. Narotam noted that he had a normal gait and sat cross-legged in
the waiting room. On exam, he had paraspinal tenderness, straight leg raising was
limited to 70, and he had no focal neurological deficits.

Dr. Narotam wrote

“Displays symptom exaggeration behavior.” An x-ray showed that the right S1
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screw was fractured, and there was slight retrolisthesis of L5 on S1. 2 Dr. Narotam
rated his fusion as “2 Poor.” He again recommended that Mr. Hunt apply heat for
30 minutes on and 30 minutes off, and walk as tolerated for exercise. He again
noted that plaintiff could “Return to work with light duty 15-30 pound lifting
restriction.” (Tr. 662-669).
Analysis
ALJ Sampson made a glaring error in his review of the medical evidence.
He stated that, after the fractured pedicle screw was discovered in May, 2012, “the
claimant underwent an immediate repair procedure.” He further stated that, after
repair of the screw, “the claimant’s gait was normal, and no abnormalities were
noted.” See, Tr. 27. In fact, the record contains no evidence that the fractured
screw was repaired.
It is entirely unclear why the ALJ thought that the screw was repaired. The
Commissioner acknowledges that there is no evidence of such a repair, but argues
that the ALJ’s error does not require remand because “the discussion of the [screw
repair] surgery itself was not the ALJ’s sole reasoning for finding Plaintiff not
disabled.” See, Doc. 24, p. 18. The Court disagrees.
The ALJ’s misunderstanding of the medical evidence affected his assessment
of plaintiff’s credibility.

The first reason given by the ALJ for his credibility

assessment was that plaintiff’s allegations about his symptoms were “not consistent

2

Retrolisthesis is “backward slippage of one vertebra onto the vertebra immediately below.” See,
medical-dictionary.thefreedictionary.com/retrolisthesis, visited on April 14, 2015.

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with the available objective medical evidence.” See, Tr. 23. In view of the ALJ’s
serious mistake as to the nature of the medical evidence, that conclusion is not
supported by substantial evidence.
The ALJ’s misunderstanding of the medical evidence also affected his
weighing of the medical opinions.

The ALJ gave significant weight to Mr.

Clodfelter’s opinion that plaintiff was capable of light work on a full-time basis.
See, Tr. 28. However, Mr. Clodfelter performed his evaluation one month before
the fractured screw was discovered, and it is unknown whether the screw was
fractured at the time of his evaluation. And, as plaintiff points out, the ALJ failed
to note that Mr. Clodfelter limited plaintiff to never stooping, rather than occasional
stooping.
Further, the ALJ stated that Mr. Clodfelter’s opinion was consistent with the
opinion expressed by Dr. Narotam after the “screw repair.” According to the ALJ,
on the last visit, Dr. Narotam found that plaintiff’s gait was normal, “no
abnormalities were noted,” and plaintiff was “cleared for light duty work.” See, Tr.
27. It is not correct to say that no abnormalities were noted. In fact, Dr. Narotam
noted paraspinal tenderness and straight leg raising limited to 70/70. He also
assessed plaintiff’s fusion as grade “2 Poor.”

(Tr. 664-665). And, as plaintiff

points out, the ALJ ignored the fact that, at that May, 2012, visit, Dr. Narotam also
instructed plaintiff to apply heat to his low back for 30 minutes on and 30 minutes
off. (Tr. 648). The Commissioner attempts to excuse the ALJ’s omission of this
fact by characterizing this instruction as a treatment recommendation rather than a
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functional limitation. However, the ALJ himself did not make that distinction. In
advancing reasons not relied upon by the ALJ, the Commissioner violates the
Chenery doctrine.

See, SEC v. Chenery Corporation, 318 U.S. 80 (1943).

“Under the Chenery doctrine, the Commissioner's lawyers cannot defend the
agency's decision on grounds that the agency itself did not embrace.” Kastner v.
Astrue, 697 F.3d 642, 648 (7th Cir. 2012).
In weighing the medical opinions, the ALJ is not permitted to “cherry-pick”
the evidence, ignoring the parts that conflict with his conclusion.
582 F.3d 672, 678 (7th Cir. 2009).

Myles v. Astrue,

While he is not required to mention every piece

of evidence, “he must at least minimally discuss a claimant's evidence that
contradicts the Commissioner's position.” Godbey v. Apfel, 238 F.3d 803, 808
(7th Cir. 2000). The ALJ’s mistaken view of the medical evidence renders his
weighing of the medical opinions erroneous. See, Scott v. Astrue, 647 F.3d 734,
739 (7th Cir. 2011).
It is well-settled that an ALJ’s decision must build a “logical bridge” from the
evidence to his conclusions. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009),
citing Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). ALJ Sampson failed to
do so here. His decision rests on a fundamentally flawed understanding of the
medical evidence, and is therefore not supported by substantial evidence.
Remand is required where, as here, the decision “lacks evidentiary support or is so
poorly articulated as to prevent meaningful review.” Kastner v. Astrue, 697 F.3d
642, 646 (7th Cir. 2010), citing Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir.
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2002).
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that Mr. Hunt is disabled or that
he 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
Plaintiff’s Motion for Summary Judgment (Doc. 20) is GRANTED.
The Commissioner’s final decision denying Darrin Hunt’s 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.
DATE:

April 15, 2015.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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