Inboden v. Colvin
Filing
29
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 5/20/2015. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KIMBERLY D. INBODEN,
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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
Civil No. 14-cv-915-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Kimberly D. Inboden seeks
judicial review of the final agency decision denying her 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
September 1, 2009. (Tr. 20). After holding an evidentiary hearing, ALJ Michael
Scurry denied the application in a written decision dated March 21, 2013. (Tr.
20-32). 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.
Issues Raised by Plaintiff
Plaintiff raises the following points:
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. 20.
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1
1.
The ALJ erred in not giving appropriate weight to the opinions of
plaintiff’s treating physician, Dr. Amar Sawar, and to the state agency
consultants.
2.
The ALJ erred in assessing plaintiff’s credibility and her residual
functional capacity (RFC).
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
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
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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
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
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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 Ms. Inboden 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. 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 Scurry followed the five-step analytical framework described above. He
determined that plaintiff had not worked at the level of substantial gainful activity
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since the alleged onset date and that she was insured for DIB through December 31,
2013. He found that plaintiff had severe impairments of lumbar, cervical and
thoracic degenerative disc disease, lupus, obesity, fibromyalgia, migraine, celiac
disease, GERD, Sjogren’s disease, pain disorder, adjustment disorder and major
depressive disorder. 2 He further determined that these impairments do not meet
or equal a listed impairment.
The ALJ found that Ms. Inboden had the residual functional capacity (RFC)
to perform work at the light exertional level, with a number of limitations. Based
on the testimony of a vocational expert, the ALJ found that plaintiff was not able to
do her past relevant work. She was, however, not disabled because she 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.
1.
Agency Forms
Plaintiff was born in 1974, and was almost 34 years old on the alleged onset
date of September 1, 2009. She was insured for DIB through December 31, 2013.
(Tr. 147).
She had completed two years of college.
(Tr. 151).
A prior
Sjogren's disease “is a disorder of your immune system identified by its two most common
symptoms — dry eyes and a dry mouth.” The condition “often accompanies other immune system
disorders, such as rheumatoid arthritis and lupus.” See, http://www.mayoclinic.org/
diseases-conditions/sjogrens-syndrome/basics/definition/CON-20020275, visited on May 18, 2015.
2
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application for benefits had been denied on June 1, 2007. (Tr. 147).
In her initial Disability Report, plaintiff said she was unable to work because
of a number of problems including fibromyalgia, lupus, neuropathy, bulging discs
and migraines. She was 5’2” tall and weighed 261 pounds. She said she stopped
working on September 12, 2019, because of her condition. (Tr. 150-151).
Plaintiff had worked in the past as a certified nurse’s assistant and a home
health aide. She also did factory work. (Tr. 172).
Ms. Inboden submitted a Function Report in May, 2011, in which she said
joint pain made it hard to get around and her constant pain required medication,
which made her fatigued. On a typical day, she got her kids off to school, fixed her
breakfast, took her medicine, took a bath, planned her day’s activities, made lunch,
took more medicine, and took a nap. When her children got home from school,
she tried to assist with chores and supper, and went along with her spouse on
errands, if possible. Her medicines caused drowsiness. (Tr. 181-182). She said
that she could not lift more than 10 pounds and had to rest after walking 30 feet.
She took medications for anxiety and depression. (Tr. 188-189).
In September, 2011, plaintiff reported that she had tried many things to
combat her fatigue, without success. Her head was foggy and she was drowsy all
hours of the day. She could not turn, twist or bend because of her back. (Tr.
214).
2.
Evidentiary Hearing
Ms. Inboden was represented by an attorney at the evidentiary hearing on
February 4, 2013. (Tr. 41).
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Plaintiff lived with her husband and 12 year old daughter. Her older son
and stepson had moved out in the last year. (Tr. 50).
Plaintiff testified that she was diagnosed with fibromyalgia in 2009. She had
tried physical therapy, aqua therapy and medication, but they only relieved her pain
for a time. (Tr. 60-61).
On a typical day, plaintiff did not do much. She took several rounds of
medications during the day, which made her drowsy. She took a nap after lunch.
(Tr. 61-62). She testified that she could not work while taking her medications
because she had a hard time concentrating and her medicines made her “very, very
drowsy.” (Tr. 70).
A vocational expert (VE) also testified. The ALJ asked the VE a hypothetical
question which corresponded to 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 ladders, ropes and scaffolds, no
concentrated exposure to hazards such as unprotected heights, and limited to
semi-skilled, less than complex tasks; she was able to maintain concentration,
persistence and pace for such tasks with no more than average production
standards.
The VE testified that this person could not do any of plaintiff’s past work, but
there were other jobs in the economy which she could do. Examples of such jobs
are office helper, cashier and janitor/housekeeper. (Tr. 81-82).
3.
Medical Treatment
Ms. Inboden went to the emergency room after a car accident on December
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11, 2009. She denied pain in her head, neck or back. She was diagnosed with a
sprained right foot. (Tr. 307-313). On December 22, 2009, she began seeing a
chiropractor for low back pain.
She was treated by the chiropractor through
September 3, 2010, with some improvement in her low back pain. (Tr. 848-868).
She had a hysterectomy in January, 2010. (Tr. 356).
Dr. Tibrewala, a gastroenterologist, saw plaintiff in July, 2010, for symptoms
of GERD. Plaintiff told the doctor that she was sleeping well, and she denied
headaches or seizure activity. On exam, she had no swelling of the extremities.
The doctor noted that she had a normal range of motion of the musculoskeletal
system with no bone or joint tenderness. (Tr. 381-382).
Ms. Inboden went to the emergency room for a severe headache on August
31, 2010. A CT scan of the head was normal. The diagnosis was acute migraine
headache. She was treated with medication and released. (Tr. 634).
In January, 2011, she returned to Dr. Tibrewala complaining of diarrhea for
the last 5 to 6 months.
Plaintiff denied a history of depression.
The doctor
ordered testing to rule out inflammatory bowel disease. (Tr. 385-386). In April,
2011, Dr. Tibrewala noted that Ms. Inboden had been diagnosed with celiac disease
and irritable bowel syndrome. The doctor prescribed medication, and she was to
follow-up with Dr. Wachter, her primary care physician. (Tr. 383-384).
Dr. Amar Sawar, a neurologist, began treating plaintiff on November 30,
2010. She presented with a number of complaints, including fatigue, body aches
and stiffness, headaches, numbness and tingling of both hands, low back pain
radiating into the right leg, and headaches. She also complained of Raynaud’s
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phenomenon, consisting of bluish to purple discoloration upon exposure to cold.
Dr. Sawar’s assessment was lupus, fibromyalgia, common migraine and Raynaud’s
disease.
He ordered diagnostic testing and prescribed medication, including
Topamax. 3 (Tr. 656-658). An MRI of the head, performed in December, 2010,
was normal.
(Tr. 615).
In January, 2011, Dr. Sawar performed a nerve
conduction sturdy and EMG which suggested bilateral carpal tunnel syndrome.
(Tr. 982-986). At the next visit, in March, 2011, she said she had not had a
recurrence of migraines. She complained of joint pain and swelling in her hands
and dry eyes, mouth and skin. Examination showed tenderness and swelling of
both wrists and tender points in the trapezius area and the knees. Dr. Sawar
prescribed Prednisone and Cymbalta, and ordered an eye exam. If the eye exam
was okay, he would prescribe Plaquenil. 4 (Tr. 655). In May, 2011, she reported
that her body aches and stiffness had improved. He told her to continue taking
Cymbalta and Plaquenil. (Tr. 654).
Ms. Inboden saw Dr. Brandon Scott, a neurosurgeon, on March 10, 2011, for
law back pain. She said she had low back for several years, and it had gradually
gotten worse in the last six months. She complained of pain radiating into her
right thigh, along with numbness and tingling.
On exam, she had full motor
strength in the upper and lower extremities and she ambulated well. Recent and
remote memory and attention were intact. Cranial nerves and sensation were
intact. An MRI study showed degenerative disc disease at L4-5 and L5-S1, with no
Topamax is an anti-seizure medication which is also prescribed to prevent migraines.
http://www.drugs.com/ topamax.html, visited on May 19, 2015.
4
Plaquenil is used to treat symptoms of lupus and rheumatoid arthritis. http://www.drugs.com/
plaquenil.html, visited on May 19, 2015.
3
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nerve root impingement. Dr. Scott did not recommend surgery. He referred her
for pain management and physical therapy. (Tr. 894-895).
Plaintiff was seen by a physician’s assistant at Southern Illinois Pain
Management on April 26, 2011. Ms. Inboden complained of pain in her anterior
thighs, posterior neck, right scapula region and in her mid and low back. She
indicated this pain had existed for 6 to 8 months. She was in physical therapy,
which helped somewhat, and was using a TENS unit. She said she was also being
treated for fibromyalgia.
On exam, she weighed 267 pounds.
She had poor
attention to hygiene. Her mood and affect were normal. Her gait was normal.
Lumbar range of motion was normal with pain on flexion. She had tenderness of
the lumbar spine on palpation with no tenderness of the sciatic notches or
sacroiliac joints. Muscle strength was full. Sensation was normal in the legs. An
MRI of the lumbar spine from December, 2010, showed disc desiccation at L4-S1
and mild disc bulge at L4-5 and L5-S1. There was no nerve root impingement or
central canal stenosis.
The PA scheduled her for a lumbar epidural steroid
injection. (Tr. 369-371).
The injection was done on May 19, 2011. (Tr. 675). Ms. Inboden returned
to Southern Illinois Pain Management on May 31, 2011.
She said that “the
injection did wonders for her pain.” She was able to “bend over and touch her toes
for the first time.” (Tr. 673).
Plaintiff underwent two psychological examinations on May 31, 2011. A
licensed clinical social worker performed a psychosocial assessment on a referral
from Southern Illinois Pain Management.
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Plaintiff indicated that she had
“struggled with depression since she was diagnosed with arthritis at age 19.” She
was taking Cymbalta and felt her mood was stable. She denied suicidal ideation or
panic attacks. She denied feelings of hopelessness, helplessness, worthlessness
and uselessness.
She demonstrated good short term memory and denied
problems with long term memory. Plaintiff described her concentration as poor
and said she was easily distracted and had difficulty multitasking. The diagnoses
were major depressive disorder, recurrent, with mild features, and pain disorder
associated with both psychological factors and a general medical condition. (Tr.
671-672).
Fred Klug, Ph.D., performed a consultative psychological examination on
May 31, 2011, at the request of the agency. She told him that she had no history of
mental health treatment but was currently taking psychotropic medication. Her
dress, hygiene and grooming were appropriate.
She was oriented and her
attention span was adequate. Concentration was good. Short term and long term
memory were intact and she reported that her memory was good. Reasoning was
good, ability to do simple calculations was poor, and abstract thinking was fair.
Judgment was good, but insight was only fair. She had goal-directed and relevant
thought processes. She reported feeling depressed a couple of times a week since
her father died in early March, 2011. Dr. Klug diagnosed pain disorder associated
with psychological factors and a medical condition. (Tr. 665-668).
Adrien Feinerman, M.D., performed a consultative physical exam on June
10, 2011. Plaintiff complained of joint pain, primarily in her hands, elbows and
shoulders, and low back and neck pain. She also complained of headaches for the
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past 6 months, controlled by medication. She had a history of bilateral carpal
tunnel syndrome without surgery, and had been diagnosed with lupus at age 19.
She had been diagnosed with celiac disease in the past year and complained of
diarrhea. On exam, Dr. Feinerman noted that she had scratches on her arms and
legs from working in roses. She weighed 270 pounds, and was 5’2” tall. Muscle
strength was normal, with no spasm or atrophy. She had a full range of motion,
and no warmth, redness, thickening or effusion of any joint.
manipulations were normal.
Straight leg raising was normal.
Fine and gross
Sensation was
intact for pinprick, vibration and soft touch. Memory and concentration were
normal. Dr. Feinerman concluded that plaintiff was able to sit, stand and walk
normally, and that she was able to lift, carry and handle objects without difficulty.
(Tr. 681-690).
In August, 2011, plaintiff called Dr. Wachter, her primary care physician, and
reported that the state (i.e., Medicaid) would no longer pay for Cymbalta.
He
prescribed Effexor instead. (Tr. 1038).
In November, 2011, Ms. Inboden returned to Dr. Sawar with a complaint of
left knee pain with a giving away sensation upon walking. He ordered an MRI of
the knee to rule out a meniscal tear. She also told him that she had been taking
Prozac instead of Cymbalta because her insurance would not pay for Cymbalta.
Her body aches and stiffness had improved.
(Tr. 981).
The MRI showed no
internal derangement or other significant abnormality. (Tr. 970). She returned
in February, 2012, and no knee complaints were noted. She said she had carpal
tunnel surgery on the right, which resolved the numbness and tingling in her right
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hand. Her last migraine had been four months ago. She complained of fatigue.
On exam, strength was full in all extremities and sensation was intact.
Joint
examination showed no swelling or tenderness, and she had a full range of motion.
She had no spinal tenderness. Dr. Sawar told her to continue with Prozac and
Plaquenil, as well as Celebrex as needed for joint pain. (Tr. 980).
In March, 2012, plaintiff consulted Dr. Scott regarding neck and head pain.
A cervical MRI showed a broad based disc herniation at C4-5 with no
neuroforaminal narrowing. Dr. Scott did not recommend surgery. He suggested
physical therapy and a possible injection at C5-6 from a pain center. (Tr. 893).
Ms. Inboden saw Dr. Sawar again in June and October, 2012. In June, she
complained of right shoulder pain, dry mouth and burning and itching of her eyes.
Her body aches and stiffness were well controlled. On exam, she had tenderness
over the right subacromial bursa.
Dr. Sawar diagnosed right subacromial
bursitis, rule out rotator cuff tear. He recommended a shoulder MRI. (Tr. 978).
The MRI showed a partial tear but no retracted full thickness tear or bony rotator
cuff outlet impingement. (Tr. 969). When she returned in October, she said she
was having migraines about 2 times a week. Her dry mouth had improved with
medication.
Physical examination was normal except for tenderness over the
upper trapezius, lateral epicondyle and bilateral greater trochanter. She had no
spinal tenderness. (Tr. 977-978).
Dr. Roland Barr performed right carpal tunnel release surgery in October,
2011. In February, 2012, she had “excellent healing” and was able to return to
normal activity.
Dr. Barr noted that she had been wearing a wrist brace for
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bowling.
(Tr. 1130).
Plaintiff returned to Dr. Barr for treatment of her right
shoulder pain in October, 2012. He reviewed her MRI and diagnosed rotator cuff
tendonitis with possible partial rotator cuff tear. He recommended an injection
and a trial of physical therapy. (Tr. 1120-1121). He subsequently scheduled her
for arthroscopic surgery on December 6, 2012. (Tr. 1116). The operative and
postoperative records were not submitted to the ALJ.
The last record of treatment by Dr. Sawar is from January, 2013.
Ms.
Inboden saw Dr. Sawar for blurring in her right eye. She had already scheduled an
appointment with an ophthalmologist. She also complained of excessive daytime
sleepiness and loud snoring.
She denied headache or dizziness.
On exam,
strength was full in the extremities and sensation was intact. She had tenderness
over the upper trapezius, lateral epicondyle and bilateral greater trochanter. Dr.
Sawar told her to stop taking Plaquenil until she was cleared by an
ophthalmologist. (Tr. 1151).
4.
Dr. Sawar’s Opinion
In October, 2011, Dr. Sawar completed a form entitled “Medical Source
Statement – Fibromyalgia.” He said that Ms. Inboden met the American College of
Rheumatology criteria for fibromyalgia and that her prognosis was poor.
In
response to a question that asked him to identify the clinical findings, laboratory
and test results that show the patient’s medical impairments, Dr. Sawar wrote “no
specific markers for fibromyalgia.”
The next question asked him to check off
which of a list of symptoms the patient had. He checked a total of 17 symptoms,
including 11 tender points, chronic fatigue syndrome, irritable bowel syndrome,
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“frequent, severe headaches,” anxiety, panic attacks and depression. He indicated
that emotional factors contributed to the severity of Ms. Inboden’s pain. He noted
that she had medication side effects of drowsiness and “foggy head.” Dr. Sawar
said that plaintiff could stand/walk and sit for a total of less than 2 hours a day, that
she would need to take unscheduled breaks during the day, and that she should
elevate her feet during prolonged sitting. He indicated that she had “significant
limitations with reaching, handling or fingering,” but did not answer a question
which asked him to state the percentage of the day that plaintiff could do these
activities. He said that plaintiff would have good days and bad days, and that
flare-ups could last for weeks, and she may be totally bedridden for some days.
(Tr. 741-745).
5.
RFC Assessment
In July, 2011, a state agency consultant evaluated plaintiff’s physical RFC
based upon a review of the records. Dr. Julio Pardo concluded that plaintiff could
do work at the light exertional level, i.e., frequently lift 10 pounds, occasionally lift
20 pounds, sit for a total of 6 hours a day, and stand/walk for a total of 6 hours a
day, with unlimited ability to push/pull and operate hand and/or foot controls. She
was limited to only occasional climbing of ladders, ropes and scaffolds and should
avoid concentrated exposure to unprotected heights and dangerous machinery “due
to vertigo and blurry vision.” Dr. Pardo stated that he gave “considerable weight”
to Dr. Feinerman’s report of his consultative examination. (Tr. 711-718).
6. Medical Records Not Before the ALJ
The transcript contains medical records that were not before the ALJ.
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Plaintiff submitted the additional records to the Appeals Council, which considered
them in connection with her request for review. See, AC Exhibits List, Tr. 5.
Thus, the medical records at Tr. 1152-1222, designated by the Appeals Council as
Exhibits 44F to 50F, were not before the ALJ.
The medical records at Tr. 1152-1222 cannot be considered by this Court in
determining whether the ALJ’s decision was supported by substantial evidence.
Records “submitted for the first time to the Appeals Council, though technically a
part of the administrative record, cannot be used as a basis for a finding of
reversible error.” Luna v. Shalala, 22 F3d 687, 689 (7th Cir. 1994). See also,
Getch v. Astrue, 539 F.3d 473, 484 (7th Cir. 2008); Rice v. Barnhart, 384 F.3d
363, 366, n. 2 (7th Cir. 2004).
Analysis
Ms. Inboden first argues that the ALJ erred in not assigning controlling
weight to Dr. Sawar’s opinion.
The opinions of treating doctors are not necessarily entitled to controlling
weight. Rather, a treating doctor’s medical opinion is entitled to controlling weight
only where it is supported by medical findings and is not inconsistent with other
substantial evidence in the record. Clifford v. Apfel, 227 F.3d 863 (7th Cir. 2000);
Zurawski v. Halter, 245 F.3d 881 (7th Cir. 2001).
20 C.F.R. §404.1527(c)(2) states, in relevant part:
Generally, we give more weight to opinions from your treating sources,
since these sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
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alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling
weight. [Emphasis added]
Obviously, the ALJ is not required to accept a treating doctor’s opinion;
“while the treating physician’s opinion is important, it is not the final word on a
claimant’s disability.” Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996)(internal
citation omitted).
If is the function of the ALJ to weigh the medical evidence,
applying the factors set forth in §404.1527. Supportability and consistency are
two important factors to be considered in weighing medical opinions. See, 20
C.F.R. §404.1527(c). In a nutshell, “[t]he regulations state that an ALJ must give a
treating physician's opinion controlling weight if two conditions are met: (1) the
opinion is supported by ‘medically acceptable clinical and laboratory diagnostic
techniques[,]’ and (2) it is ‘not inconsistent’ with substantial evidence in the record.”
Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010), citing §404.1527(d).
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).
ALJ Scurry gave “little weight” to the opinion because, first, Dr. Sawar
“indicated that she would have significant limitations with reaching, handling or
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fingering, but did not specify such limitations.”
The ALJ also observed that
surgery had resolved plaintiff’s carpal tunnel symptoms.
However, the carpal
tunnel surgery occurred after Dr. Sawar filled out the form. The second reason
given by the ALJ was that the other physical limitations assigned by Dr. Sawar in
activities such as standing, walking, lifting and carrying were not “supported by the
evidence of record to the degree that Dr. Sawar noted” and that there was no
evidence to support his opinion that plaintiff would have repeated episodes of
decompensation. (Tr. 30).
The medical records before the ALJ total 847 pages.
The length of the
records is not, of course, an indication of the seriousness of plaintiff’s condition.
However, the ALJ’s review of the medical evidence is relatively brief and mainly
highlights portions of the record that support the ALJ’s conclusion. For instance,
the ALJ failed to note that plaintiff went to the emergency room for a severe
headache in August, 2010, and that Dr. Sawar prescribed Topamax for migraine
headache in November, 2010. (634, 656-658). He stated that “examinations have
revealed no swelling or tenderness of the joints.” (Tr. 27). He failed to note that
Dr. Sawar detected tenderness and swelling of both wrists and tender points in the
trapezius area and the knees in March, 2011. (Tr. 655). He also failed to note
that Dr. Sawar documented a complaint of fatigue in February, 2012, and that Ms.
Inboden told Dr. Sawar that she was having migraines about twice a week in
October, 2012. (Tr. 980, 977-978).
The main reason given by the ALJ for assigning “little weight” to Dr. Sawar’s
opinion was that it was not supported by the evidence. That analysis cannot be
18
credited, however, where it rests upon a highly selective review of the medical
evidence. Scrogham v. Colvin, 765 F.3d 685, 696 (7th Cir. 2014).
Further, having determined that Dr. Sawar’s opinion was not entitled to
controlling weight, the ALJ was required to consider the checklist of factors set
forth in §404.1527. Scrogham, 765 F.3d at 697-698. This is not to say that there
must always be an explicit discussion of the regulatory factors if it is otherwise
evident that the ALJ considered them. Here, though, it is not apparent that ALJ
Scurry did so.
The ALJ’s review of the medical records emphasized the negative or mild
results of x-rays, CT scans and MRI studies without any apparent consideration of
the relationship between those studies and the conditions that Dr. Sawar was
treating. Dr. Sawar is a neurologist who treated Ms. Inboden for fibromyalgia,
lupus and headaches. “Fibromyalgia is a syndrome involving chronic widespread
and diffuse pain throughout the body, frequently associated with fatigue, stiffness,
skin tenderness, and fragmented sleep.” Estok v. Apfel, 152 F.3d 636, 637, n. 1
(7th Cir. 1998). According to the National Institutes of Health website, “’[t]o be
diagnosed with fibromyalgia, you must have had at least 3 months of widespread
pain, and pain and tenderness in at least 11 of 18 areas,’ including arms (elbows),
buttocks, chest, knees, lower back, neck, rib cage, shoulders, and thighs.” Farrell
v. Astrue, 692 F.3d 767, 770 (7th Cir. 2012), citing http:// www.ncbi.nlm.nih.gov/
pubmedhealth/PMH0001463/.
The fact that, for example, MRI studies showed
only mild degenerative disc disease in plaintiff’s back is of questionable relevance to
the conditions that Dr. Sawar was treating. In short, the ALJ’s selective review of
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the medical evidence and superficial analysis of the nature of Dr. Sawar’s treatment
demonstrate that he did not adequately consider the regulatory factors.
Plaintiff’s other point is that the ALJ erred in assessing her RFC.
Recognizing that the RFC assessment required an evaluation of plaintiff’s
credibility, plaintiff includes an attack on the ALJ’s credibility analysis under this
point.
Plaintiff first argues that the ALJ erred in not accounting for her “severe
impairment” of migraine headaches in his RFC assessment. RFC is “the most you
can still do despite your limitations.” 20 C.F.R. §1545(a). In assessing RFC, the
ALJ is required to consider all of the claimant’s “medically determinable
impairments and all relevant evidence in the record.” Ibid.
The ALJ found that plaintiff’s migraines are a severe impairment at Step 2.
‘A severe impairment is an impairment or combination of impairments that
“significantly limits [one’s] physical or mental ability to do basic work activities.”
20 C.F.R. §404.1520(c).
In considering plaintiff’s migraine headaches, the ALJ noted only that a CT
scan of the head was normal and an MRI of the brain was unremarkable. (Tr. 27).
However, diagnostic studies such as CT scans and MRI are not used to diagnose or
evaluate the severity of migraines. Rather, they are used to rule out the presence of
other medical conditions that might be causing headaches, such as tumors,
infections or brain damage. See, http://www.mayoclinic.org /diseases-conditions
/migraine-headache/basics/tests-diagnosis/CON-20026358, visited on May 19,
2015.
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The Commissioner concedes that the ALJ’s discussion of the evidence
related to plaintiff’s migraines is lacking. She argues that the error is harmless
because, based on her review of evidence not mentioned by the ALJ, the result
would have been the same. See, Doc. 25, p. 18.
In relying on evidence not mentioned 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).
Her argument also “seem[s]
determined to dissolve the Chenery doctrine in an acid of harmless error.” Spiva
v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). The Seventh Circuit’s observation in
Spiva is applicable to this case:
The government seems to think that if it can find enough evidence in
the record to establish that the administrative law judge might have
reached the same result had she considered all the evidence and
evaluated it as the government's brief does, it is a case of harmless
error. But the fact that the administrative law judge, had she
considered the entire record, might have reached the same result does
not prove that her failure to consider the evidence was harmless. Had
she considered it carefully, she might well have reached a different
conclusion.
Spiva, 628 F.3d at 353.
Because the ALJ’s other errors require remand, it is unnecessary to analyze
plaintiff’s challenge to the credibility determination in detail.
The credibility
determination rested in large part on the ALJ’s perception that plaintiff’s
allegations were not supported by the objective medical evidence. As the ALJ
ignored evidence that supported plaintiff’s claims, the credibility determination will
21
have to be revisited on remand.
In addition, the ALJ stated that Dr. Sawar
indicated that plaintiff “has not exhibited any specific markers for fibromyalgia.”
(Tr. 29). This is a misreading of Dr. Sawar’s report. Dr. Sawar clearly stated that
Ms. Inboden meets the American College of Rheumatology criteria for fibromyalgia
and that she had 11 tender points.
His remark (“no specific markers for
fibromyalgia”) was in response to a question that asked him to identify the “clinical
findings, laboratory and tests results that show your patient’s impairments.” (Tr.
741). The Commissioner agrees that the doctor’s remark meant that there are no
specific markers for fibromyalgia, not that plaintiff did not exhibit the markers for
the disease. See, Doc. 25, p. 5. Further, as the ALJ found that plaintiff does, in
fact, suffer from fibromyalgia, the meaning of the ALJ’s statement is unclear.
The ALJ is required to build a logical bridge from the evidence to his
conclusions.” Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009).
ALJ Scurry
simply failed to do so here. Instead, he erred by presenting only a “skewed version
of the evidence.” Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). As a
result, his decision is lacking in evidentiary support and must be remanded.
Minnick v. Colvin, 775 F.3d 929, 938-939 (7th Cir. 2015); Kastner v. Astrue, 697
F.3d 642, 646 (7th Cir. 2012).
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that Ms. Inboden was disabled at
the relevant time, or that she should be awarded benefits for the period in question.
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.
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Conclusion
The Commissioner’s final decision denying Kimberly D. Inboden’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:
May 20, 2015.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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