Martin v. Commissioner of Social Security

Filing 20

MEMORANDUM AND ORDER, The Commissioners final decision denying Beverly J. Martins 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. Signed by Judge J. Phil Gilbert on 8/27/2015. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BEVERLY J. MARTIN,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Civil No. 14-cv-1082-JPG-CJP

MEMORANDUM AND ORDER
GILBERT, District Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Beverly J. Martin is before the Court,
represented by counsel, seeking review of the final decision of the Commissioner of Social
Security denying her Supplemental Security Income Benefits (SSI) pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in February, 2012, alleging disability beginning on December
5, 2011. (Tr. 26). After holding an evidentiary hearing, ALJ Patricia Witkowski Supergan
denied the application for benefits in a decision dated May 14, 2014. (Tr. 26-36). After the
Appeals Council denied review, the May 14, 2014, decision became the final decision of the
Commissioner subject to judicial review. Administrative remedies have been exhausted and a
timely complaint was filed in this Court.
Issues Raised by Plaintiff
Plaintiff raises the following points:
1. The ALJ erred in weighing the medical opinions of Dr. Parks, plaintiff’s primary care
physician.
2. The ALJ did not give an adequate rationale for her credibility analysis.

3. The ALJ’s finding that plaintiff could frequently reach, handle, finger and feel was not
supported by substantial evidence.
Applicable Legal Standards
To qualify for SSI, a claimant must be disabled within the meaning of the applicable
statutes.1 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 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
1

The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42 U.S.C. § 23,
et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are found at 42 U.S.C. §§ 1382
and 1382c, et seq., and 20 C.F.R. pt. 416. As is relevant to this case, the DIB and SSI statutes are identical.
Furthermore, 20 C.F.R. § 416.925 detailing medical considerations relevant to an SSI claim, relies on 20
C.F.R. Pt. 404, Subpt. P, the DIB regulations. Most citations herein are to the DIB regulations out of
convenience.

2

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 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
3

supported by substantial evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court
must determine not whether Ms. Martin 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, 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 Supergan followed the five-step framework described above. She determined that
Ms. Martin had not been engaged in substantial gainful since the date of her application. She
found that plaintiff had severe impairments of carpal tunnel syndrome, degenerative disc disease
of the cervical spine, rheumatoid arthritis, obesity and anxiety. She further determined that
plaintiff’s impairments do not meet or equal a listed impairment.
The ALJ found plaintiff had the residual functional capacity to perform work at the
sedentary level, limited to occasional climbing of ramps and stairs; no climbing of ladders, ropes
or scaffolds; and occasional balancing, stooping, kneeling, crouching and crawling. She was
limited to frequent reaching in all directions and frequent handling, fingering and feeling with the
4

right upper extremity.2 She was limited to occasional exposure to extreme cold and to hazards
such as moving machinery and unprotected heights. Lastly, she was limited to unskilled work
that can be learned by demonstration or in 30 days or less, of a simple, routine and repetitive
nature.
Based on the testimony of a vocational expert, the ALJ found that plaintiff was not able to
do her past work. However, she was not disabled because she was able to do other work that
exists in significant numbers in the regional 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 1965 and was 46 years old on the alleged onset date of December 5,
2011. (Tr. 200).
In January, 2013, Ms. Martin submitted a Function Report. She lived with her elderly
mother and two daughters. Her daughters were then 16 and 10 years old. She said that her
rheumatoid arthritis caused stiffness and pain. She had neck pain which caused headaches. She
did simple household chores like laundry and vacuuming, but this took her all day. Her children
helped her. She made simple meals with the help of her mother. She had problems with sitting,
walking, standing, reaching, using her hands, and concentrating. (Tr. 241-254).
Plaintiff had been employed as a social worker and a special education supervisor. She
2

The agency defines occasional as “occurring from very little up to one-third of the time.” Frequent is
defined as “occurring from one-third to two-thirds of the time.” SSR 83-10, 1983 WL 31251, *5-6.

5

stopped working in April 2008 because she “was a teacher and they cut back.” (Tr. 204-205).
2.

Evidentiary Hearing

Ms. Martin was represented by an attorney at the hearing. (Tr. 54).
Plaintiff testified that she stopped working because she developed coccydynia and
rheumatoid arthritis. (Tr. 56). She was unable to say why she chose December 5, 2011, as the
date of the onset of her disability. (Tr. 57).
Ms. Martin did a little cooking. Her older daughter, then 17 years old, did the grocery
shopping. (Tr. 59). She did not use a computer. (Tr. 61). She said that she was unable to
work because she “can’t function.” She could not sit, stand, bend her neck, or stoop. She had
anxiety attacks and could not concentrate or focus. She had lost about 50 pounds in the last 2
years because her medication made her nauseous. She was incontinent and had to wear protective
undergarments. She had pain in all her joints, including her fingers. (Tr. 64-66). She had
difficulty using her hands such that she could not open a bottle or jar. (Tr. 69).
Dr. Ezike testified as an independent medical expert. He did not examine plaintiff, but did
review her records. He testified that her main impairments were cervical degenerative disc
disease, carpal tunnel syndrome, polyarthralgia, hypertension, rheumatoid arthritis, and alcoholic
liver disease. (Tr. 76). He testified that, in his opinion, she had the residual functional capacity
(RFC) to do light work (occasionally lifting 20 pounds and frequently lifting 10 pounds), sit for 6
hours a day, stand/walk for 4 to 6 hours a day, and should have a sit/stand option. She was limited
to occasional postural activities. As to manipulative limitations, Dr. Ezike testified that she was
limited to frequent repetitive wrist motions with the right hand such as keyboarding and typing,
and she was limited to frequent reaching, handling, grasping and feeling on the right, with no
limitations of the left upper extremity. (Tr. 77-78).
6

A vocational expert (VE) also testified. The ALJ asked him a series of hypothetical
questions. (Tr. 85-87). One question corresponded to the ultimate RFC findings previously
described. The VE testified that this person could not do plaintiff’s past work, but she could do
other work which exists in significant numbers in the regional and national economies. Examples
of such jobs are information clerk, weight tester and surveillance system monitor. (Tr. 85-88).
If plaintiff were limited to only occasional handling and fingering, the jobs that the VE
identified would be eliminated. (Tr. 89).
3.

Medical Treatment

On a referral from primary care physician Jeffrey Parks, M.D., plaintiff was seen by Dr.
Alex Befeler at the St. Louis University Liver Center in April 2012. Dr. Befeler wrote a letter to
Dr. Parks summarizing his visit. Dr. Befeler saw her for elevated liver chemistries. He noted
that she was hospitalized in January 2012 after a 6 month period of binge drinking. She had been
sober since then. He also noted that she had a history of chronic coccygeal pain and she
complained of diffuse joint aches. He concluded that she had alcoholic liver disease, but he did
not see any clear evidence of underlying cirrhosis or advanced liver disease. (Tr. 383-384).
On April 20, 2012, plaintiff complained to Dr. Parks of joint pain, burning feet and bad
headaches. She said she had trouble putting on a shirt and getting out of the bathtub. She also
said she got confused more easily and had mood swings. She was “seen w[ith] her mother who
agrees w[ith] this hx [history].” On exam, she had a full range of motion of the spine and
extremities. Dr. Parks prescribed Prednisone. (Tr. 554-557). In May 2012, she reported that
she felt better on steroids, but her symptoms returned when she stopped taking Prednisone. She
also complained of confusion, thinning hair and splitting nails. Dr. Parks again prescribed
Prednisone and advised her to be seen by a rheumatologist as he suspected rheumatoid arthritis.
7

(Tr. 551-553).
In June 2012, Ms. Martin was seen by Dr. Humayun Beg, a rheumatologist. Labwork
showed negative ANA and rheumatoid factor, but her sed rate was significantly elevated. She
had been on Prednisone for 3 months, which gave her symptomatic relief. On exam, she had full
strength in all extremities. She had trace synovitis in the finger joints and +1 synovitis in the
wrists. 3

There was no synovitis or tenders in the knees, ankles or toe joints.

Dr. Beg

recommended additional testing and x-rays. (Tr. 458-459).
Dr. Parks prescribed Paxil for depression in July 2012. (Tr. 536-537). In August, Dr.
Parks noted that her weight was up to 195 pounds. (Tr. 533).
Plaintiff returned to Dr. Beg in August 2012. He diagnosed her with rheumatoid arthritis.
She had bilateral symmetrical joint swelling in the wrists and metacarpophalangeal joints in the
fingers. Labwork showed elevated inflammatory markers. Dr. Beg prescribed Methotrexate and
advised her to taper down her dosage of Prednisone. (Tr. 454-455). X-rays of the lumbar spine
showed mild degenerative disc disease at L5-S1. (Tr. 501). Cervical spine x-rays showed severe
degenerative disc disease at C5-6 and C6-7. (Tr. 490). Copies of those x-ray reports were sent to
Dr. Parks. (Tr. 624-631).
In October 2012, Dr. Beg found no synovitis in the hands, wrists, ankles or toe joints.
Plaintiff complained of mild hand arthralgias. Dr. Beg increased the dosage of Methotrexate.
(Tr. 451).
Plaintiff saw Dr. Parks in January 2013 for neck pain which radiated down her left arm.
She had a full range of motion of the spine and a negative Spurling’s Test. Strength was full
throughout. Dr. Parks prescribed Medrol and an MRI of the cervical spine. (Tr. 511-513). On
3

“Synovitis is an inflammation of the joint lining, called synovium.” http://www.hss.edu/
condition-list _synovitis.asp, visited on August 21, 2015.

8

January 28, 2013, Dr. Parks noted that the MRI showed bulging discs at C5-6 and C6-7 with neural
foraminal narrowing. He referred her to Dr. Sonjay Fonn for her neck. He also noted that
plaintiff’s plantar fasciitis persisted with no changes. He suggested a podiatry consult, but she
was unable to afford it. Dr. Parks gave her an injection in her foot and prescribed orthotics and
Neurontin. (Tr. 693-695).
Dr. Fonn, a neurosurgeon, saw plaintiff on March 14, 2013. He concluded that she had
cervical spondylosis. He recommended that she undergo a series of 3 epidural steroid injections
at C5-6 and C6-7. He stated that, if she were not any better after that, “she may be a candidate for
surgical intervention which will probably be a fusion” at C5-6 and C6-7. Dr. Fonn sent a copy of
his office note to Dr. Parks. (Tr. 911-913).
Later in March 2013, plaintiff told Dr. Parks that she did not like Dr. Fonn and would not
return to him. (Tr. 688).
On March 20, 2013, an EMG ordered by Dr. Parks showed moderate right median
neuropathy at the wrist (carpal tunnel syndrome). (Tr. 871-874).
Plaintiff was scheduled to have carpal tunnel surgery in June 2013. However, she had
been having heart palpitations and Dr. Parks ordered Holter monitoring. On June 3, 2013, he
diagnosed atrial fibrillation. He advised her to cancel her surgery and to see a cardiologist. (Tr.
674-676).
In November 2013, plaintiff saw Dr. Parks for a cat bite and increase of her joint pain in the
cold weather. She said that her rheumatologist no longer accepted her insurance (Medicaid).
She was taking Methotrexate and Prednisone, but her pain was not controlled. Her weight was
down to 174 pounds. Dr. Parks increased the dosage of Methotrexate and prescribed Celebrex.
He told her to return in one week for a plantar fasciitis injection. (Tr. 659-662). Both heels were
9

injected with Kenalog on November 15, 2013. (Tr. 656-658).
In December 2013, Dr. Parks saw her for management of her rheumatoid arthritis. He had
previously referred her to an internal medicine specialist for this, but she had not been able to see
him. She had also not seen a specialist for her neck pain. She complained of neck pain and more
frequent migraines associated with nausea and photophobia. She also complained of increased
anxiety. Dr. Parks increased the dosage of Neurontin of her antidepressant medication. He
again noted that she needed to be seen by a specialist for her neck and for her rheumatoid arthritis.
(Tr. 652-654).
Dr. Amjad Roumany, a rheumatologist, saw Ms. Martin for her rheumatoid arthritis in
January 2014. She complained of increasing discomfort and pain, mainly in her hands, knees and
ankles. She said she had swelling at times in her hand and knees. She weighed 165 pounds. On
exam, she had no evidence of synovitis in the joints of the upper or lower extremities. She did
have diffuse myofascial tender points in her elbows, knees, second rib area, trapezius muscle area
and lumbar spine area. Dr. Roumany asked her to decrease the dosage of Prednisone for two
weeks and then to discontinue it. She was to continue to take Methotrexate. He wanted to
evaluate her further “to see if she has underlying chronic arthritis.” (Tr. 884-885).
Ms. Martin returned to Dr. Roumany on February 26, 2014. She told the doctor that she
felt worse after stopping Prednisone. She had difficulty ambulating, especially in the morning,
and stiffness and some swelling in her hands as well as increased pain in her hands, knees and
shoulders. On exam, she had no synovitis in the joints of the extremities. Her gait was normal
and she had a full range of motion. She had “squeeze tenderness” of the joints in her fingers and
“noticeable decrease in fist formation bilaterally.” She also had significant discomfort with range
of motion of both shoulders. Dr. Roumany copied Dr. Parks on his office notes. (Tr. 882-883).
10

Plaintiff was seen by Dr. Gerson Criste in March 2014. He noted that she had chronic
neck pain with radiation to the scalp and bilateral shoulders. She was neurologically intact on
exam, but had “significant degenerative changes” and significant reversal of cervical lordosis. He
recommended facet joint steroid injection. He said he would consider a series of cervical epidural
steroid injections, and, if conservative treatment failed, he would refer her to neurosurgery. (Tr.
920).
In April 2014, Dr. Criste administered bilateral C4-5 and C5-6 facet joint injections under
fluoroscopy. Ms. Martin indicated that she was “concerned” about the physical therapy that he
prescribed because she did not have the resources to drive to therapy and pay the co-pay. He
encouraged her to attend at least a few sessions so that she could learn how to do the exercises.
He also increased her Tramadol dosage at her request. (Tr. 922-923).
4.

Consultative Medical Examination

Dr. Adrian Feinerman, a specialist in internal medicine, examined plaintiff at the request of
the agency on June 18, 2012. He reviewed medical records consisting of a history and physical
note and a hospital discharge note regarding treatment for hypothyroidism, alcohol abuse and GI
bleeding, and a CT and x-ray of the abdomen.

Ms. Martin told Dr. Feinerman that she had joint

pain for about a year, primarily in her hands, knees, hips, shoulders, ankles, wrists, neck and lower
back. Physical examination was normal. She had a full range of motion of the spine and all
joints. There was no redness, warmth, thickening or effusion of any joint. Grip strength was full
and equal. Sensory examination was normal. Fine and gross manipulation were normal. She
was able to “lift, carry, and handle objects without difficulty.” The exam lasted 23 minutes. Dr.
Feinerman did not offer an opinion as to plaintiff’s RFC. (Tr. 397-408).

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5.

Medical Opinions

Based on a review of the medical records, state agency consultant G.A. Gotway, M.D.,
opined that plaintiff could do a full range of work at the light exertional level, with no manipulative
limitations. His report was dated June 28, 2012. (Tr. 423-430). In January 2013, a second state
agency consultant reviewed new medical records, including the records relating to rheumatoid
arthritis and the cervical MRI showing “severe DDD,” but reaffirmed the opinion that she could do
a full range of light work. (Tr. 642-644).
Dr. Parks completed a form entitled “Liver Report” that was submitted to him by the
agency in July 2012. The form asked questions about liver functioning, and Dr. Parks’ answers
were mostly in the negative. He indicated that his diagnosis was “polyarthralgias,” suggesting
that the Liver Report form was not particularly relevant to his treatment. He indicated that Ms.
Martin had “severe limitations on standing, sitting, walking, lifting, carrying, handling &
travelling.” (Tr. 436-439).
In February 2014, Dr. Parks signed a form entitled “Medical statement regarding illnesses,
physical abilities and limitations for Social Security disability claim.” This form was also signed
by Micah Oakley, a physician’s assistant who worked with Dr. Parks. This form indicated
diagnoses of rheumatoid arthritis, arthralgias, migraine headache, plantar fasciitis, cervical disc
herniation and cervical spine stenosis, lumbar disc herniation and annular tear. Under treatment,
Dr. Parks indicated that she was seeing a neurosurgeon and physiatrist and a rheumatologist. He
indicated that she could sit and stand for only 15 minutes at a time, could never raise either arm
over her shoulder, and could only occasionally perform manipulations with either hand. (Tr.
880-881).

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6.

Records not before the ALJ

The transcript contains medical records that were not before the ALJ. As of the time the
ALJ issued her decision, the medical records consisted of Exhibits 1F through 25F, i.e., Tr. 272
through 923. See List of Exhibits attached to ALJ’s decision, Tr. 39-41. Plaintiff submitted the
additional records to the Appeals Council, which considered them in connection with her request
for review. See AC Exhibits List, Tr. 4. Thus, the medical records at Tr. 924-928, designated by
the Appeals Council as Exhibit 26F, were not before the ALJ.
The medical records at Tr. 924-928 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).
Analysis
Plaintiff first argues that the ALJ erred in weighing the opinions of Dr. Parks.4
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
4

Dr. Parks also rendered an opinion as to plaintiff’s mental limitations. (Tr. 440-443). As plaintiff’s
argument focuses on the opinions regarding her physical condition, the Court will not discuss the
psychiatric report in any detail.

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medical findings 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). It 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 her conclusion. Myles v. Astrue, 582 F.3d 672, 678 (7th Cir.
2009). While she is not required to mention every piece of evidence, the ALJ “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 gave “minimal weight” to the opinions rendered by Dr. Parks in July 2012.
These opinions consist of the “Liver Report” and a psychiatric report. The ALJ’s discussion
mostly concerned the psychiatric report. The only observation relevant to the Liver Report is,
“His treatment notes fail to document such severe limitations and it appears that his opinions are
14

sympathetic and based on the claimant’s subjective complaints.” (Tr. 34).
The ALJ gave “little or no weight” to the February 2014, opinion. While acknowledging
that the report had been signed by Dr. Parks as well as by PA Oakley, she said that she gave the
opinion “no weight as he [the physician’s assistant] is not an acceptable medical source and the
issue of disability is an opinion reserved for the Commissioner. Given the lack of overall support
in the record, this too would appear to be a sympathetic opinion and thus entitled to little or no
weight.” (Tr. 34).
There are several problems with the ALJ’s consideration of Dr. Parks’ opinions. First, she
dismissed the 2014 opinion because she considered it to be the opinion of a physician’s assistant,
who is not an “acceptable medical source.” See 20 C.F.R. § 404.1513(a). However, Dr. Parks
signed the report as well as Mr. Oakley, and the ALJ gave no reason for not considering the report
as expressing the opinion of Dr. Parks.
Even if the 2014 report represented only the opinion of the physician’s assistant, the ALJ
would have been wrong to simply dismiss it for that reason, as she did. The opinions of providers
who are not acceptable medical sources are not “medical opinions” and are not entitled to any
special weight under § 404.1527(c). SSR 06-03p, 2006 WL 2329939, at *2. See 20 C.F.R.
§ 404.1527(a)(2) (“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources. . . .)” This does not mean, however, that the ALJ may simply ignore
such opinions. The ALJ is required to consider “all relevant evidence” and may, as appropriate,
consider the factors set forth in § 404.1527(c) in the process of weighing the opinions of
nonacceptable medical sources. SSR 06-3p, at * 4-5.
The second reason given for dismissing the February 2014 opinion was that the issue of
disability is reserved for the Commissioner. However, while the legal conclusion of whether a
15

claimant is entitled to benefits is a question for the Commissioner, the “answer to the question
depends on the applicant’s physical and mental ability to work full time, and that is something to
which medical testimony is relevant and if presented can’t be ignored.” Garcia v. Colvin, 741
F.3d 758, 760 (7th Cir. 2013). And, the ALJ did not consistently apply this rationale to her
weighing of the medical opinions. She gave Dr. Ezike’s opinion “great weight” despite her view
that the issue of disability is reserved to the Commissioner. See Bjornson v. Astrue, 671 F.3d 640,
648 (7th Cir. 2012) (criticizing an ALJ for applying the “issue reserved to the Commissioner”
rationale to the opinion of a treating doctor but not to a state agency consultant).
The overarching problem with the ALJ’s weighing of Dr. Parks’ opinions, along with the
other medical opinions, is that she failed to analyze them in any meaningful way. She dismissed
Dr. Parks’ opinions with the blanket statement that his notes did not document such severe
limitations and his opinions are “sympathetic” and based on plaintiff’s subjective complaints.
She did not explain why she viewed his opinion as sympathetic, other than the obvious fact that his
opinions supported Ms. Martin’s claim. It is true that treating doctors sometimes “bend over
backwards” to help a patient get benefits. Hofslien v. Barnhart, 439 F.3d 375, 377 (7th Cir.
2006). However, that assumption cannot be made of every treating doctor, and the ALJ did not
point to anything in this record indicating that Dr. Parks was doing so.
The ALJ’s blanket statement that Dr. Parks’ treatment notes do not document severe
limitations is likewise unexplained. The Commissioner points out that the ALJ stated that Dr.
Parks’ records “consistently documented full strength and motor functions.” Doc. 19, p. 5. That
is accurate. However, Dr. Parks was also aware of the results of the x-rays, cervical MRI and
nerve conduction study, along with the observations and conclusions of the specialists to whom he
referred Ms. Martin in his role as her primary care physician. His report referred to the fact that
16

she was seeing a neurosurgeon and a rheumatologist. (Tr. 880). The ALJ never explained the
basis for her conclusion that Dr. Parks’ “treatment notes,” which included the test results and
reports from specialists, failed to support his opinions.
Plaintiff’s third point, which is related to her first point, challenges the ALJ’s RFC finding
with regard to plaintiff’s ability to use her arms and hands. Dr. Parks’ records reflect that Ms.
Martin suffered from carpal tunnel syndrome, degenerative disc disease in the cervical spine, and
rheumatoid arthritis. The ALJ found that she did, indeed, suffer from those conditions, but
concluded that she was able to do sedentary work, limited (as relevant here) to frequent use of her
right upper extremity.

Dr. Parks, however, thought that she was limited to occasional

manipulations with both hands and could never reach overhead with either arm.
The agency defines occasional as “occurring from very little up to one-third of the time.”
Frequent is defined as “occurring from one-third to two-thirds of the time.” SSR 83-10, 1983 WL
31251, *5-6. According to the VE’s testimony, if plaintiff were limited to only occasional
fingering and handling, she would not be able to do the sedentary jobs which he identified. (Tr.
89). This is consistent with guidance from the agency: “Most unskilled sedentary jobs require
good use of the hands and fingers for repetitive hand-finger actions.

Any significant

manipulative limitation of an individual’s ability to handle and work with small objects with both
hands will result in a significant erosion of the unskilled sedentary occupational base.” SSR
96-9P, 1996 WL 374185, p. 8.
The ALJ did not explain the basis for her conclusion that Ms. Martin was capable of
frequent fingering and handling. The Commissioner’s argument points to Dr. Feinerman’s exam,
which showed full strength and that plaintiff was able to perform gross and fine manipulations.
However, according to Dr. Ezike’s testimony, a person with normal strength may still have
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“difficulties with fingering and feeling.” (Tr. 81). Further, that exam occurred in June 2012, and
lasted a total of only 23 minutes. Dr. Feinerman’s exam provides only scant support for the
conclusion that Ms. Martin is capable of handling, fingering and feeling for up to two-thirds of the
workday.
The ALJ also relied on Dr. Ezike’s opinion. She said that she gave his opinion “great
weight.” Dr. Ezike testified that plaintiff was capable of frequent handling, grasping and feeling,
as well as frequent wrist motions such as keyboarding. (Tr. 78). He also testified that Ms.
Martin was able to lift 20 pounds occasionally and 10 pounds frequently. (Tr. 77). This
corresponds to work at the light exertional level, not the sedentary level.

20 C.F.R.

§ 404.1567(b). The ALJ erroneously stated that Dr. Ezike testified that plaintiff was limited to
sedentary work. (Tr. 34). She mischaracterized his opinion, and her statement that she gave
great weight to his opinion is incorrect. In fact, she rejected his opinion because she concluded
that plaintiff was limited to only sedentary work. She gave no reason for rejecting his opinion as
to plaintiff’s exertional limitations but accepting it as to her manipulative limitations. Therefore,
her conclusion that plaintiff could frequently use her hands is not supported by substantial
evidence. See Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011) (ALJ failed to build a logical
bridge from the evidence to her conclusion where “the primary piece of evidence that she relied on
does not support the propositions for which it is cited”).
The Court also concludes that the credibility analysis was erroneous.
The credibility findings of the ALJ are to be accorded deference, particularly in view of the
ALJ’s opportunity to observe the witness. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000).
SSR 96-7p requires the ALJ to consider a number of factors in assessing the claimant’s credibility,
including the objective medical evidence, the claimant’s daily activities, medication for the relief
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of pain, and “any other factors concerning the individual’s functional limitations and restrictions
due to pain or other symptoms.” SSR 96-7p, at *3.
“[D]iscrepancies between objective evidence and self-reports may suggest symptom
exaggeration.” Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008). At the same time, however,
social security regulations and Seventh Circuit cases “taken together, require an ALJ to articulate
specific reasons for discounting a claimant’s testimony as being less than credible, and preclude an
ALJ from ‘merely ignoring’ the testimony or relying solely on a conflict between the objective
medical evidence and the claimant’s testimony as a basis for a negative credibility finding.”
Schmidt v. Barnhart, 395 F.3d 737, 746-747 (7th Cir. 2005), and cases cited therein.
Here, it appears that the ALJ found that plaintiff was not credible because she perceived
that plaintiff’s complaints were not supported by objective evidence (Tr. 31) and her testimony
that she relied heavily on her daughter’s assistance was not supported by the record (Tr. 33).
Plaintiff correctly argues that there was objective evidence in the record in the form of
x-rays, cervical MRI and nerve conduction studies that supported plaintiff’s complaints. The ALJ
never explained why, in the face of that evidence, she concluded that plaintiff’s complaints were
not supported by objective evidence. The ALJ is required to give “specific reasons” for her
credibility findings. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). It is not enough just to
describe the plaintiff’s testimony; the ALJ must analyze the evidence. Ibid. See also Terry v.
Astrue, 580 F.3d 471, 478 (7th Cir., 2009) (The ALJ “must justify the credibility finding with
specific reasons supported by the record.”). Because ALJ Supergan failed to do so here, the
credibility analysis cannot stand.
Because of the above errors, this case must be remanded. “If a decision ‘lacks evidentiary
support or is so poorly articulated as to prevent meaningful review,’ a remand is required.”
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Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012) (citing Steele v. Barnhart, 290 F.3d 936, 940
(7th Cir. 2002)). See also Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009) (“[A] denial of
benefits cannot be sustained where an ALJ failed to articulate the bases of his assessment of a
claimant’s impairment.”).
The Court wishes to stress that this Memorandum and Order should not be construed as an
indication that the Court believes that Ms. Martin was 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
The Commissioner’s final decision denying Beverly J. Martin’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: August 27, 2015
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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