Loos v. Commissioner of Social Security
Filing
25
MEMORANDUM AND OPINION. The final decision 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 5/26/2016. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JONATHAN J. LOOS,
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)
)
)
)
)
)
)
)
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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
Civil No. 15-cv-215-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Jonathan J. Loos seeks
judicial review of the final agency decision denying his application for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits
pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in December 2011, alleging disability beginning
on November 1, 2010.
(Tr. 12).
After holding an evidentiary hearing, ALJ
Michael Hellman denied the application on November 18, 2013. (Tr. 12-20). 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
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. 12.
1
1
Through counsel, plaintiff raises the following points:
1.
The ALJ failed to include in his RFC assessment all mental limitations
assigned by the state agency consultant.
2.
The ALJ erred in finding that plaintiff had no medically determinable
physical impairments.
3.
The ALJ erred in assessing the credibility of plaintiff and his aunt.
Applicable Legal Standards
To qualify for DIB or SIS, a claimant must be disabled within the meaning of
the applicable statutes. 2 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.
2
The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42
U.S.C. § 423, 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
In a DIB case, a claimant must establish that he was disabled as of his date
last insured. Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997).
It is
not sufficient to show that the impairment was present as of the date last insured;
rather plaintiff must show that the impairment was severe enough to be disabling as
of the relevant date. Martinez v. Astrue, 630 F.3d 693, 699 (7th Cir. 2011).
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 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
3
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 supported by substantial
evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must
determine not whether Mr. Loos 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
4
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 Hellman followed the five-step analytical framework described above.
He determined that Mr. Loos was insured for DIB through September 30, 2014,
and that he had not engaged in substantial gainful employment since the alleged
date of disability. 3 He found that plaintiff had severe impairments of generalized
anxiety disorder, panic disorder, posttraumatic stress disorder, depression, and
attention deficit disorder. He further determined that plaintiff’s impairments do
not meet or equal a listed impairment.
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform work at all exertional levels, with the following mental limitations:
•
•
Work environment free of fast-paced production requirements;
•
3
Simple, routine and repetitive tasks;
Only simple, work-related decisions with few, if any, workplace
changes;
The date last insured is relevant only to the DIB claim.
5
•
Only occasional interaction with the public, co-workers and
supervisors.
Based on the testimony of a vocational expert (VE), the ALJ found that
plaintiff was not disabled because he was able to do his past relevant work as a
hand packager.
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 1979, and was 31 years old on the alleged onset date.
(Tr. 186).
Plaintiff had a ninth grade education. He was in special education classes.
He worked in the past as a dry wall hanger, a laborer in a paint reclamation plant,
and a line worker in a food packaging factory. (Tr. 191).
Mr. Loos submitted a Function Report that was completed on his behalf by
his ex-wife, Amanda Loos.
This report stated that he had trouble with
comprehension and following instructions and had limited memory.
He had
increased anxiety and could not handle stress or crowds. Amanda Loos came to
his house every morning to give him his medicine. She came back at noon and he
showered while she was there. His children visited him every 2 to 3 days. He did
household chores but they took him a long time because he stopped and started.
6
He “barely” left his house because of his anxiety. He could not stand, sit or walk
for long because of back pain. (Tr. 175-185).
Plaintiff’s aunt, Annette Miner, submitted a report stating that plaintiff was
“slow to understand directions” and had limited reading ability. He worked slowly
and got agitated with hard tasks. Any exertion caused him back pain. He could
not handle stress and had panic attacks. (Tr. 204-211).
2.
Evidentiary Hearing
Mr. Loos was represented by an attorney at the evidentiary hearing on
October 31, 2013. (Tr. 28).
Plaintiff testified that he had been living with his parents for about the past
year. He had gotten divorced in 2004. His children were 15 and 12 at the time of
the hearing. He and his ex-wife shared custody. (Tr. 32-33).
Mr. Loos last worked in November 2010. He had an accident in which he
smashed his foot. After his worker’s compensation claim was finished and he
returned to work, he was fired. He filed for unemployment compensation. He
looked for work while he was getting unemployment compensation. (Tr. 46-47).
Plaintiff testified that he was unable to work because his anxiety got worse the
older he got. It was hard for him to be around groups of people. When he was
anxious, it was hard for him to talk and he felt like he may throw up. At his jobs,
he always had a friend who did the thinking and told him what to do, and he was the
muscle. He took medicine and went to counseling. (Tr. 48-49).
He took Xanax, which helped calm him down, but it was still very hard for
him to function in public or in crowds. This was prescribed by his family doctor.
7
(Tr. 49-50).
His anxiety kept him from doing “almost everything.”
He had
difficulty understanding things and concentrating. He had ADHD. He had an
abusive childhood. He has posttraumatic stress. (Tr. 53-54).
Mr. Loos testified that he did not do much on a typical day. He lay around
and watched TV. He did not cook. He did more when his kids were there. He
attended some of their sporting events if they were not too crowded. His only
responsibility in the household was to keep his room picked up. (Tr. 53-59). The
thought of doing something, like coming to the hearing, made him “almost
physically sick” for two or three days. (Tr. 64).
Mr. Loos also testified that his knees and back were “blowed out.” He said
he had “severely bad” pain throughout his body. (Tr. 62). He had car wrecks and
head injuries in the past. Dr. Davidson had not done any tests or studies because
“we pretty much know why it’s all there.” Plaintiff believes that his pain is from
arthritis because it is all old injuries and there is nothing that can be done except to
take medication. (Tr. 67-68).
Annette Miner, plaintiff’s aunt, testified that she brought him to her house
two or three times a week to give him and his parents “a change of pace.” He ate at
her house and watched TV. (Tr. 69-70). She testified that Mr. Loos had not been
anywhere except with his wife, mother or herself in the past year. She said he was
“very slow” and was only able to get jobs because she or his mother knew
somebody, and he was only able to keep jobs because he worked with a friend.
(Tr. 73-75).
A vocational expert (VE) also testified. The ALJ asked the VE a hypothetical
8
question which comported with the ultimate RFC assessment, that is, a person of
plaintiff’s age and work history who was able to perform work at all exertional
levels, limited to only simple, routine and repetitive tasks; a work environment free
of fast-paced production requirements; only simple, work-related decisions with
few, if any, workplace changes; and only occasional interaction with the public,
co-workers and supervisors. The VE testified that this person would be able to do
plaintiff’s past work as a hand packager. He would also be able to do other work
such as sorter and small parts assembler. If this individual were, in addition to
the mental limitations, limited to sedentary work, he would be able to do the jobs of
nut sorter, inspector and final assembler. The VE did not give DOT numbers of
the jobs she cited. (Tr. 81-84).
4.
Medical Treatment
Plaintiff alleges that he became unable to work on November 1, 2010.
The earliest medical record is from primary care physician Robert Davidson,
dated January 5, 2010. Plaintiff was already an established patient; it was noted
that he had anxiety. He also complained of memory loss since a motor vehicle
accident. (Tr. 272). An MRI of the brain ordered by Dr. Davidson was negative.
(Tr. 322).
The records establish that Dr. Davidson regularly prescribed methadone and
Xanax for Mr. Loos. 4 In general, Dr. Davidson’s office notes are brief and contain
Methadone is a narcotic drug used as a pain reliever and as part of drug addiction detoxification
and maintenance programs and is only available from certified pharmacies. http://www.drugs.com/
methadone.html, visited on May 24, 2016. Xanax is used to treat anxiety disorders, panic
disorders, and anxiety caused by depression. http://www.drugs.com/xanax.html, also visited on
May 24, 2016.
4
9
little detail.
Mr. Loos went to the emergency room after having a seizure in June 2010.
He had run out of Xanax and methadone. The diagnosis was drug withdrawal with
seizure. (Tr. 393-394).
In July 2010, Dr. Davidson noted that plaintiff worked the night shift and it
was hard for him to sleep in the day. His parents monitored his medications daily.
Dr. Davidson prescribed a pain patch. In September 2010, plaintiff’s foot was
injured when a door fell on it at work. He had a nondisplaced fracture of the
second metatarsal bone of the right foot. He was given a note for light duty with no
weight bearing.
(Tr. 267-277).
On November 12, 2010, Dr. Davidson noted that plaintiff had been sent
home from work because his supervisor was afraid he was sick. He had a head
cold. On November 24, 2010, Dr. Davidson released him to return to regular duty.
(Tr. 265-266). On December 22, 2010, the office note reflects that plaintiff had
run out of medicine early and had a seizure. His mother was to control the supply
of his medications. Plaintiff’s mother called Dr. Davidson on January 11, 2011,
and said she had discovered that, when plaintiff stayed at her house, he had gotten
into the pills. (Tr. 265).
Plaintiff complained to Dr. Davidson of pain in his neck, back and legs on
January 21, 2011. He prescribed OxyContin and Percocet. The note says that
they discussed pain control and refers to “not narcotic” and “withdrawal.” The
doctor wrote a prescription for “mail order w/c pharmacy.” Plaintiff then called
the office; the message slip says “Work Comp Co. did not receive script for
10
methadone in mail yet – Pt states that he won’t get meds until day after they receive
it. He is requesting more methadone.” Dr. Davidson authorized the prescription.
(Tr. 263-264).
Plaintiff complained of trouble sleeping in April 2011. He was not working
and was on unemployment.
Dr. Davidson prescribed Trazodone.
They
discussed methadone; plaintiff was taking 4½ pills per day. (Tr. 262).
Mr. Loos left a message for Dr. Davidson stating that he had a 4-wheeler
accident and had been given Percocet in the emergency room.
He wanted
something stronger. Dr. Davidson wrote, “No – he is on methadone – trying to get
off narcotics.” (Tr. 262).
Plaintiff had x-rays in the emergency room following his 4-wheeler accident.
X-rays of the right elbow, right ankle and right foot were negative. (Tr. 308).
On June 10, 2011, Dr. Davidson noted that plaintiff was not working and
“doesn’t sleep.” He was taking 4½ methadone pills a day. He was to continue on
that dosage. (Tr. 261). On July 6, 2011, plaintiff reported that he was “doing
some work on [the] side” and he had soreness and pain. Dr. Davidson noted that
“Amanda monitors his meds.” He recommended that plaintiff try to decrease to 4
methadone pills a day on his own and see how it goes, but he wrote the prescription
for 4½. (Tr. 261).
In August 2011, Dr. Davidson wrote the following note:
Heat exhaustion. Shoes melted on roof. 150 lb [illegible]. Works
hard. 110 lb sheets dry wall. Doing good on meds. Stay on 4½.
(Tr. 260).
11
In November 2011, Dr. Davidson prescribed Adderall for ADD. (Tr. 259).
In December 2011 and January 2012, Dr. Davidson noted “much back pain.” He
also noted that plaintiff’s back pain “flares up periodically” and that he had a motor
vehicle accident in 2005. (Tr. 258).
Dr. Davidson continued to see plaintiff regularly through September 2013.
The office notes mainly reflect Dr. Davidson’s efforts to get plaintiff to taper off of
methadone. He prescribed a fentanyl patch which was helpful in that regard. 5
(Tr. 373, 423-432). In September 2012, plaintiff was off methadone completely
and was still using the patch. His grandmother had recently died and his ex-wife
was “suing for custody.”
He had “extreme anxiety.”
(Tr. 430).
However, in
October 2012, Dr. Davidson noted that plaintiff was doing better and had started
seeing a counsellor. (Tr. 429).
Mr. Loos began seeing a counsellor at the H Group in November 2012. (Tr.
473). In December 2012, plaintiff reported that he was able to be out with his
children when they visited him on the weekends and to do laundry and chores
around the house, and to “do some basic weight training at home to keep fit.” The
counsellor noted that plaintiff needed a lot of time to process things “due to his
brain injury” and that he talked almost nonstop during their sessions. (Tr. 469).
In January 2013, plaintiff had run out of his medications early and “doesn’t
remember how.” Dr. Davidson prescribed 24 Percocet tablets to last him until the
Fentanyl patch is used for “[m]anaging severe chronic pain. Fentanyl patch is only for use when
continuous, around-the-clock treatment is needed for a long time. It is only for use when other pain
treatments do not treat your pain well enough or you cannot take them. Fentanyl patch should only
be used by patients who have already been taking other narcotic pain medicine on a regular schedule
and are tolerant to its effects.” http://www.drugs.com/cdi/fentanyl-patch.html, visited on May 24,
2016
5
12
prescription for the pain patch was due to be refilled. He was also taking Xanax
again and was to discontinue Adderall. (Tr. 428). In March 2013, Dr. Davidson
discussed reducing the strength of the pain patch.
(Tr. 427).
In May 2013,
plaintiff said he ran out of Xanax early and had an anxiety attack. He had been
tapering down on the pain patch. Later that month, plaintiff called Dr. Davidson
and said he had been hospitalized. (Tr. 426).
Mr. Loos was hospitalized from May 18 to May 21, 2013, on a certificate for
involuntary admission because he was disoriented and hallucinating.
He had
recently stopped using methadone and was trying to decrease his use of a fentanyl
patch and Ativan.
However, he had hurt his leg and increased his use of
medications, which caused him to run out early. The diagnosis was drug-induced
psychotic disorder with withdrawal reaction. He was discharged on Celexa, and
was to follow up with counseling and medication management by a psychiatrist
through the H Group. (Tr. 417-418).
Plaintiff was seen by Psychiatric Advanced Practice Nurse Maggie Ackerman
through the H Group. After his discharge from the hospital in May 2013, she
increased his dosage of Celexa and directed him to continue to take the medications
prescribed by his primary care physician. (Tr. 482).
In June 2013, Dr. Davidson noted that plaintiff saw a psychiatrist in the
hospital and “feels much better.” In August 2013, Dr. Davidson for the first time
used the “SOAP” method of note taking. For objective observations, he recorded
that plaintiff was alert and oriented x 3, was calm, had no depressive symptoms and
his anxiety was under control. The relevant diagnoses were chronic anxiety and
13
ADD. (Tr. 425).
Plaintiff was hospitalized from September 5 to September 9, 2013. The
admitting note indicates that he was having “vague suicidal thoughts but without
plan.” He had a history of alcohol and substance abuse but had been sober for 2
years. He had a DUI at the age of 18 and another DUI about 7 years prior to
admission, when he had a motor vehicle accident. He had been on opiate pain
medication since the accident. He admitted to having problems with abusing his
pain medications and had gone through a substance abuse program at one point.
He felt that his depression had been worsening for about 3 months and he was
nearly crippled with anxiety. Physical exam showed that he no joint tenderness,
deformity or swelling and he had a full range of motion in all extremities.
Neurological exam was normal. His weight was described as normal. On mental
status exam, he was oriented to time, person, place and situation. Recent and
remote memory were good. His affect was dysthymic and his flow of thought was
tangential. Concentration and attention were fair. Thought content was within
normal limits. Intellect was below average and insight and judgment were poor.
The diagnoses were major depressive disorder, recurrent, severe without
psychosis; PTSD; opioid dependence; benzodiazepine dependence; and history of
substance abuse, in remission. The doctor suggested discontinuing Celexa and
Adderall as his symptoms had worsened since he had been taking them. She
noted that the two drugs may be “working against each other” as one is a stimulant
and one is a sedative.
(Tr. 492-497).
Adderall and Celexa were tapered and
discontinued, and plaintiff was started on Fentanyl and Xanax, which he had done
14
well on in the past. Within 48 hours, all suicidal thoughts were gone and his
mood, anxiety and agitation were better. By the time of discharge, he was smiling,
interacting appropriately and was sleeping better through the night.
(Tr.
498-501).
On September 19, 2013, Dr. Davidson noted that plaintiff had been
hospitalized with increased anxiety from September 6 to September 9. His Xanax
had been refilled by the psychiatrist. Dr. Davidson’s objective observations were
that plaintiff was alert and oriented, and was less anxious than previously. He
weighed 215 pounds. (Tr. 424).
Mr. Loos saw APN Ackerman on October 7, 2013. He complained of feeling
lightheaded and “tingling,” as well as depressive symptoms. She instructed him to
discontinue his previous psychiatric medications and to start taking Prozac. She
advised him to get an appointment with his primary care physician as soon as
possible. (Tr. 476-477).
5.
Dr. Davidson’s Opinion
Dr. Davidson stated in a report that plaintiff could occasionally lift 20
pounds and frequently lift 10 pounds.
He said plaintiff was limited to
standing/walking for a total of 2 hours a day and that he had no limitations in
sitting.
He also had limitations in using his arms and hands.
He could
occasionally kneel but could never climb, balance, crouch, crawl or stoop. Dr.
Davidson said that his conclusions were supported by medical/clinical findings of
chronic low back pain; previous fractures of right leg, both arms and cervical spine;
and previous surgery on the right knee. (Tr. 485-488).
15
6.
Consultative Physical Exam
Adrian Feinerman, M.D., performed a consultative physical exam at the
request of the agency in February 2012. Plaintiff complained of back pain since
2001 and neck pain since 2004, of unknown origin. He had never had back or
neck surgery. He also complained of pain in his knees and elbows, and said he
“hurts all over, all the time.”
On exam, plaintiff was 5’11” and weighed 246
pounds. There was no deformity of the spine and no redness, warmth, thickening
or effusion of any joint. Grip strength was strong and equal. Motor strength was
normal throughout, and he had no muscle atrophy or spasm. Neurological exam
was normal. Plaintiff had a full range of motion of the spine and of all joints.
Straight leg raising was negative.
Ambulation was normal.
Plaintiff seemed
confused and rambled. The diagnostic impression was degenerative joint disease
and chronic pain syndrome. (Tr. 331-339).
7.
Mental RFC Assessment
Based on a review of the records, a state agency consultant assessed
plaintiff’s mental RFC in March 2012. Dr. DiFonso concluded that plaintiff had
generalized anxiety disorder and a history of intellectual deficit. She concluded
that plaintiff’s cognitive and attentional skills are adequate to perform simple
one-two step work tasks, but that his symptoms of anxiety moderately limit his
ability to manage detailed tasks. (Tr. 360-363).
Analysis
Plaintiff first argues that the ALJ erred in that he gave great weight to Dr.
DiFonso’s opinion but failed to adopt all restrictions found by Dr. DiFonso in the
16
Mental RFC Assessment. Specifically, Dr. DiFonso found that plaintiff was limited
to one-two step work tasks. The Commissioner argues that any error here is
harmless because the job of nut sorter can be performed by a person who is limited
to one-two step tasks.
The Dictionary of Occupational Titles (“DOT”) specifies a “reasoning level”
for each job. A limitation to simple, repetitive, one or two step tasks corresponds
to Reasoning Level 1:
Apply commonsense understanding to carry out simple one- or two-step
instructions. Deal with standardized situations with occasional or no
variables in or from these situations encountered on the job.
Dictionary of Occupational Titles, Appendix C, 1991 WL 688702.
The VE did not give DOT numbers for the jobs that she testified about, but
there is only one nut sorter job listed in the DOT. That is DOT 521.687-086. The
job description is as follows:
Removes defective nuts and foreign matter from bulk nut meats: Observes
nut meats on conveyor belt, and picks out broken, shriveled, or wormy nuts
and foreign matter, such as leaves and rocks. Places defective nuts and
foreign matter into containers.
DOT, 521.687-086 NUT SORTER, 1991 WL 674226.
The DOT specifies that the job of nut sorter is performed at the sedentary
exertional level and requires Reasoning Level 1. Ibid.
The VE testified that a person with the RFC assessed by the ALJ and who was
limited to sedentary work would be able to do the nut sorter job. She testified that
there are 1400 nut sorter jobs in the state of Illinois. 6 The ALJ’s RFC assessment
6
Plaintiff has not raised an issue as to the VE’s estimate of the number of jobs in the state of Illinois.
17
limited plaintiff to simple, routine and repetitive tasks, with no fast-paced
production requirements, involving only simple work-related decisions with few, if
any, workplace changes.
The VE did not testify about the Reasoning Level
required by the nut sorter job, and she was not asked whether a person who was
limited to simple one-two step tasks could do the job. See, Tr. 81-84.
The doctrine of harmless error applies in judicial review of administrative
decisions. Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). An ALJ’s error is
harmless where, having looked at the evidence in the record, the court “can predict
with great confidence what the result on remand will be.” McKinzey v. Astrue, 641
F.3d 884, 892 (7th Cir. 2011). In McKinzey, the ALJ erred in not discussing the
opinion of a state agency physician. However, the Seventh Circuit held that the
error was harmless because “no reasonable ALJ would reach a contrary decision
on remand” based on that opinion. Ibid. In contrast, the doctrine does not apply
where a review of the record only establishes that 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.” Spiva, 628 F.3d at 353. If all that
can be said is that the ALJ might reach the same conclusion after carefully
considering the entire record, then the error cannot be deemed harmless. Ibid.
The Court agrees that any error in failing to include a limitation to one-two
step tasks is harmless. In view of the DOT description of the nut sorter job and the
VE’s testimony, there is no doubt that, had the ALJ included a limitation to one-two
step tasks in the hypothetical question, the VE would have testified that the
hypothetical person could do the job of nut sorter. In his reply brief, plaintiff faults
18
the Commissioner for attempting to act as a vocational expert. She might have a
point if the VE had given no testimony at all regarding the nut sorter job, and the
Commissioner, starting from scratch, aruged that plaintiff could work as a nut
sorter based on her own independent review of the DOT. However, on this record,
the Court is confident that, on remand, if the ALJ added a limitation to one-two step
tasks to the present RFC assessment, he or she would find that plaintiff was able to
do the job of nut sorter.
Plaintiff’s second and third points are related. Plaintiff argues that the ALJ
erred in determining that he had no medically determinable physical impairments,
and he also erred in assessing plaintiff’s credibility.
Dr. Feinerman diagnosed plaintiff with degenerative joint disease and
chronic pain syndrome. Dr. Feinerman was acting as a state agency consultant
and he examined plaintiff at the request of the agency. The ALJ rejected those
diagnoses because there were “no clinical or diagnostic findings in the record to
support these diagnoses.”
Citing to 20 C.F.R. §404.1508, the ALJ stated that
“Symptoms alone do not give rise to medically determinable impairments.” (Tr.
15).
The ALJ failed to consider that plaintiff was prescribed narcotic pain
medications on an ongoing basis throughout the period in question. The ALJ
mentioned pain medication only once: in the last paragraph on Tr. 18, he stated
that plaintiff testified that “he suffered from pain, but that there was nothing that
could be done for him other than to take medications.” The ALJ rejected plaintiff’s
claim of pain because Dr. Davidson did not order x-rays or run tests.
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The Seventh Circuit has made it clear that an ALJ may not reject a claimant’s
allegation of pain solely because it is not supported by objective evidence:
It is understandable that administrative law judges want diagnostic
confirmation of claims of pain. Without such confirmation the administrative
law judge has to determine the applicant's credibility, and it is often very
difficult to determine whether a witness is telling the truth—especially when
as in this case he has an incentive to exaggerate. But as numerous cases (and
the Social Security Administration's own regulation) make clear, an
administrative law judge may not deny benefits on the sole ground that there
is no diagnostic evidence of pain but only the applicant's or some other
witness's say so: “an individual's statements about the intensity and
persistence of pain or other symptoms or about the effect the symptoms have
on his or her ability to work may not be disregarded solely because they are
not substantiated by objective medical evidence.” SSR 96–7p(4); see, e.g.,
Pierce v. Colvin, 739 F.3d 1046, 1049–50 (7th Cir. 2014); Carradine v.
Barnhart, 360 F.3d 751, 753 (7th Cir. 2004).
Hall v. Colvin, 778 F.3d 688, 691 (7th Cir. 2015).
Further, the ALJ was required by 20 C.F.R. §404.1529(c)(3) to consider
plaintiff’s use of pain medication in evaluating the intensity and persistence of his
symptoms. And, he was required to consider plaintiff’s use of pain medication in
assessing his credibility. See, SSR 96-7p, 1996 WL 374186. The ALJ’s failure to
do so here was error.
It is true, as the ALJ noted, that 20 C.F.R. §404.1508 states that a physical
impairment must be established by medical evidence and not only by the claimant’s
statements.
However, the ALJ was too quick to conclude that there was no
medical evidence to support plaintiff’s claim of a physical impairment.
The
medical records and Dr. Davidson’s report establish that plaintiff had at least one
serious motor vehicle accident and he suffered injuries, including fractures, in the
past. Dr. Davidson’s notes suggest a link between the motor vehicle accident and
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plaintiff’s complaints of pain. The portions of Dr. Davidson’s notes that are in the
transcript do not contain any reports of spinal x-rays or other studies of his spine.
It is evident, though, that Dr. Davidson was treating plaintiff before the earliest
office note in the transcript. The content of the earliest office note indicates that
Dr. Davidson had been prescribing narcotic pain medication for plaintiff for some
time. Plaintiff related his pain to arthritis from his old injuries, and testified that
Dr. Davidson had not done any tests or studies because “we pretty much know why
it’s all there.” In these circumstances, it was error for the ALJ to dismiss plaintiff’s
claims of physical pain as unsupported by medical evidence without evaluating this
evidence. It is error for an ALJ to discuss only evidence supporting his conclusion
while ignoring evidence that undermines it. Scrogham v. Colvin, 765 F.3d 685,
698 (7th Cir. 2014).
“The ALJ simply cannot recite only the evidence that is
supportive of her ultimate conclusion without acknowledging and addressing the
significant contrary evidence in the record.” Moore v. Colvin, 743 F.3d 1118,
1124 (7th Cir. 2014).
The Seventh Circuit has observed that it is improbable that health care
providers would prescribe drugs if they believed that the patient was faking his
symptoms. Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004). Here, Dr.
Davidson prescribed narcotic pain medications for Mr. Loos for an extended period
of time.
This suggests that Dr. Davidson, at least, believed that Mr. Loos
experienced pain. The ALJ mentioned only in passing that plaintiff took pain
medication. He failed to explain how he reconciled the repeated prescriptions for
narcotic pain medications with his conclusion that plaintiff did not have a medically
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determinable physical impairment which caused him pain.
The ALJ is “required to build a logical bridge from the evidence to his
conclusion.”
Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015)(internal
citation omitted). ALJ Hellman failed to do so here. As a result, his decision is
lacking in evidentiary support and must be remanded. 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 Mr. Loos was disabled
during the relevant period 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
The Commissioner’s final decision denying Jonathan J. Loos’ 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 26, 2016.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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