Klotz v. Commissioner of Social Security

Filing 22

MEMORANDUM AND ORDER, The Commissioner's final decision denying plaintiff'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. Signed by Judge J. Phil Gilbert on 3/15/2018. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MARY KLOTZ,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Case No. 17-cv-492-JPG-CJP

MEMORANDUM and ORDER
In accordance with 42 U.S.C. § 405(g), plaintiff Mary Klotz 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 DIB in May 2013 alleging a disability onset date of August 12, 2011.
(Tr. 276-78.)

The agency denied her application at the initial level and again upon

reconsideration. (Tr. 169-99.) Plaintiff requested an evidentiary hearing, which Administrative
Law Judge (ALJ) Thomas Auble conducted in March 2016. (Tr. 39-96.) ALJ Auble issued an
unfavorable decision thereafter. (Tr. 18-38.) The Appeals Council denied review, rendering the
ALJ’s decision the final agency decision. (Tr. 1-6.) Plaintiff exhausted her administrative
remedies and filed a timely Complaint in this Court (Doc. 1).
Issues Raised by Plaintiff
Plaintiff argues the ALJ erroneously ignored medical evidence related to plaintiff’s right
shoulder impairment; erred in failing to list plaintiff’s affective disorder as a severe impairment;
and improperly assessed plaintiff’s symptoms.

Applicable Legal Standards
To qualify for benefits, a claimant must be “disabled” pursuant to the Social Security Act.
The Act defines a “disability” as 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). The physical or mental impairment must result
from a medically demonstrable abnormality. 42 U.S.C. § 423(d)(3). Moreover, the impairment
must prevent the plaintiff from engaging in significant physical or mental work activity done for
pay or profit. 20 C.F.R. § 404.1572.
Social Security regulations require an ALJ to ask five questions when determining
whether a claimant is disabled. The first three questions are simple: (1) whether the claimant is
presently unemployed; (2) whether the claimant has a severe physical or mental impairment; and
(3) whether that impairment meets or is equivalent to one of the listed impairments that the
regulations acknowledge to be conclusively disabling. 20 C.F.R. § 404.1520(a)(4); Weatherbee
v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011). If the answers to these questions are “yes,” then the
ALJ should find that the claimant is disabled. Id.
At times, an ALJ may find that the claimant is unemployed and has a serious impairment,
but that the impairment is neither listed in nor equivalent to the impairments in the regulations—
failing at step three. If this happens, then the ALJ must ask a fourth question: (4) whether the
claimant is able to perform his or her previous work. Id. If the claimant is not able to, then the
burden shifts to the Commissioner to answer a fifth and final question: (5) whether the claimant
is capable of performing any work within the economy, in light of the claimant’s age, education,
and work experience. If the claimant cannot, then the ALJ should find the claimant to be

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disabled. Id.; see also Simila v. Astrue, 573 F.3d 503, 512-13 (7th Cir. 2009); Zurawski v.
Halter, 245 F.3d 881, 886 (7th Cir. 2001).
A claimant may appeal the final decision of the Social Security Administration to this
Court, but the scope of review here is limited: while the Court must ensure that the ALJ did not
make any errors of law, the ALJ’s findings of fact are conclusive as long as they are supported
by “substantial evidence.”

42 U.S.C. § 405(g).

Substantial evidence is evidence that a

reasonable person would find sufficient to support a decision. Weatherbee, 649 F.3d at 568
(citing Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003)). The Court takes into account the
entire administrative record when reviewing for substantial evidence, but it 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); Moore v. Colvin, 743 F.3d
1118, 1121 (7th Cir. 2014). But even though this judicial review is limited, the Court should not
and does not act as a rubber stamp for the Commissioner. Parker v. Astrue, 597 F.3d 920, 921
(7th Cir. 2010).
The ALJ’s Decision
ALJ Auble determined plaintiff met the insured status requirements through September
30, 2018, and had not engaged in substantial gainful activity since August 12, 2011, the alleged
onset date.

(Tr. 23.)

Plaintiff had severe impairments of small fiber neuropathy, reflex

sympathetic dystrophy, and degenerative joint disease of the right hip. (Tr. 24.) Plaintiff had the
residual functional capacity (RFC) to perform sedentary work with several exceptions. (Tr. 2627.) The ALJ opined plaintiff was capable of performing past relevant work and was therefore
not disabled. (Tr. 32-33.)

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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.
1.

Agency Forms

In her agency forms, plaintiff alleged that chronic regional pain disorder, arthritis, reflex
sympathetic disorder, and twisting of the upper spine limited her ability to work. (Tr. 308.) She
stated she had pain in her right hip and down her right leg that spread to her lower back. She
also experienced numbness of her right thigh, right foot, and right leg. Plaintiff had pain in her
right arm that limited her ability to lift and reach. She had trouble walking, sitting, or standing
for long periods and used a cane or crutches to ambulate at all times. She needed to change
positions frequently throughout the day. Plaintiff suffered from fatigue and decreased energy.
She took Flexeril, Meloxicam, Naproxen, and Percocet, which caused memory problems and
occasional nausea. Plaintiff did not prepare meals because it required too much standing and
weight-bearing and she could not lift pans or bowls. She could not perform household chores or
yard work because those tasks required too much standing, walking, lifting, turning, twisting,
and bending.

She sometimes had difficulty pulling a shirt over her head because of her

restrictions with reaching. (Tr. 311, 316, 322-25, 343, 346, 369.)
Plaintiff worked part time as a phone supervisor for Levy Restaurants. Her employer was
very accommodating, flexible with absenteeism, and allowed her to leave work early and take
extra breaks. Plaintiff needed two to three days to recover after working a shift. (Tr. 317-18,
321, 349.)

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2.

Evidentiary Hearing

ALJ Auble presided over an evidentiary hearing in March 2016 at which plaintiff was
represented by counsel. Plaintiff testified she worked for Levy Restaurants two days per week,
for a total of ten to twelve hours each week. (Tr. 51-52.) She answered phones while sitting
down. (Tr. 62.) Plaintiff unexpectedly missed about two days of work each month due to her
conditions. (Tr. 77.)
Plaintiff had chronic regional pain, arthritis, and reflex sympathetic disorder.

She

experienced pain in her lower back, right hip, and right leg, along with muscle weakness, muscle
spasms, and fatigue. Her feet sometimes went numb and her legs tingled and burned. Her
neurologist diagnosed her with an autoimmune disease, which he believed might have caused
some of her symptoms. Plaintiff had arthritis in her upper back and unexplained pain in her
lower back. (Tr. 62-64.)
Plaintiff explained she had a torn rotator cuff in her right arm, which appeared on an MRI
the previous year. She received injections for her symptoms. Plaintiff had a limited range of
motion on her right side. She previously had issues with her arm from a car accident, and the
rotator cuff tear exacerbated the problem. (Tr. 67-68.)
3.

Medical Records

Plaintiff’s diagnoses throughout the relevant period include complex regional pain
syndrome/reflex sympathetic dystrophy (CRPS/RSD)1 involving the lower extremities, lower
back pain with a myofascial component, right hip pain, right upper extremity pain, small fiber
neuropathy, a history of labral debridement, a right rotator cuff tear, and a right hamstring tear.

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Type 1 CRPS, also known as RSD, “is a form of chronic pain that usually affects an arm or a leg,” “typically
develops after an injury, a surgery, a stroke or a heart attack,” and “is out of proportion to the severity of the initial
injury.” Mayo Clinic, Complex regional pain syndrome, https://www.mayoclinic.org/ diseases-conditions/complexregional-pain-syndrome/symptoms-causes/syc-20371151 (visited Mar. 14, 2018).

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Plaintiff began treating with Dr. Heidi Prather at Washington University in June 2003.
Plaintiff underwent a hip arthroscopy that same month and reported leg pain thereafter. Dr.
Prather diagnosed her with CRPS. Plaintiff received steroid injections and sympathetic nerve
blocks, participated in physical therapy, and tried medications such as Norco, Gabapentin,
Percocet, and Lyrica, with no significant relief in her symptoms. Plaintiff walked with a cane
and used crutches when her symptoms were especially bad.
Plaintiff first reported problems with her right upper extremity on April 8, 2011. She told
Dr. Prather the extremity tingled and burned and was numb. On examination, plaintiff had
painful motion in her shoulder, her external rotation was to twenty degrees with the elbow at the
side, and she had diffuse allodynia through the upper extremity. Dr. Prather noted Tinel’s at the
wrist and elbow, bilaterally, and reflexes at 2+ for biceps, triceps, and brachioradialis. Plaintiff’s
strength was intact but she had sensitivity with all strength testing in the upper extremity. Dr.
Prather planned to obtain an EMG. (Tr. 414-15.)
On April 15, 2011, plaintiff called Dr. Prather’s office and stated her right arm was
tingling and she could not raise it above her shoulder. (Tr. 652.)
Dr. Prather’s office contacted plaintiff on April 18, 2011 to check on her symptoms.
Plaintiff’s right shoulder region was still painful and she had difficulty lifting her arm. She also
experienced numbness, paresthesia, and a cold sensation in her right upper extremity. (Tr. 653.)
On March 3, 2013, plaintiff followed up with Dr. Prather and reported right shoulder
pain.

An ultrasound showed tendinopathy and a partial tear.

Dr. Prather administered a

subacromial injection. (Tr. 589.)
State agency consultant Dr. Vittal Chapa evaluated plaintiff on August 29, 2013. Motor
strength in plaintiff’s upper extremities was 5/5 and she had no muscle atrophy. (Tr. 485-87.)

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On April 24, 2014, plaintiff presented to Dr. Prather and demonstrated pain on palpation
of the right upper trapezius, middle trapezius, and paraspinal of the T6-T9 area. Dr. Prather
assessed plaintiff with myofascial pain and administered trigger point injections. (Tr. 613.)
State agency consultant Dr. Adrian Feinerman evaluated plaintiff on June 10, 2014.
Plaintiff had a decreased range of motion of the right shoulder. Her motor strength was 5/5
throughout. Dr. Feinerman assessed plaintiff with RSD and degenerative joint disease. (Tr. 50107.)
Plaintiff called Dr. Prather’s office on January 26, 2015 and stated the pain in her upper
extremity was worsening and she could not lift anything. (Tr. 594.)
On February 4, 2015, plaintiff presented to Dr. Prather and reported numbness, burning,
tingling, and color changes in the upper extremities. She had pain with shoulder abduction. An
x-ray was normal. On examination, plaintiff demonstrated pain with supraspinatus testing in the
thumb up and thumb down position; full external rotation of thirty degrees bilaterally with the
elbow at the side; and internal rotation to the thoracolumbar junction. Strength testing was 5/5.
Plaintiff had give-way weakness with pain on supraspinatus testing only on the right. Dr. Prather
assessed plaintiff with right shoulder pain and noted, “Assess for possible upper extremity
complex regional pain syndrome.” Dr. Prather planned to obtain an ultrasound of plaintiff’s
shoulder. (Tr. 593.)
On February 10, 2015, a sonogram of plaintiff’s right shoulder showed cuff tendinopathy
with a thin linear intrasubstance tear. (Tr. 778.)
Plaintiff received a prescription for physical therapy on June 2, 2015, for her right
shoulder. (Tr. 704.)
Plaintiff followed up with Dr. Prather on June 3, 2015, and complained her right shoulder

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pain was worsening. She could not lift or abduct to the side. On examination, plaintiff had pain
with shoulder abduction to ninety degrees at the side. She could go fully to 170 degrees on
forward elevation. External rotation with the elbow to the side was 40 with pain, and she had
pain with impingement sign. Dr. Prather diagnosed plaintiff with right shoulder pain and noted,
“Assess for advancement of right rotator cuff tear.” Dr. Prather planned to repeat an ultrasound
of plaintiff’s right shoulder and continue plaintiff’s medications. (Tr. 572.)
A right shoulder sonogram from June 22, 2015, showed a small intrasubstance tear. Dr.
Prather recommended subacromial injections and physical therapy. (Tr. 564-68.)
Plaintiff followed up with Dr. Prather on July 14, 2015, and reported right shoulder pain.
On examination, plaintiff demonstrated pain with impingement of her right shoulder and pain
with Hawkins.

Dr. Prather assessed plaintiff with right shoulder pain with a history of

subacromial bursitis and partial tear. Dr. Prather administered a subacromial space injection and
referred plaintiff to a neurologist. (Tr. 560.)
Plaintiff presented to Dr. Glenn Lopate on November 5, 2015, for right eyelid ptosis. On
physical examination, Dr. Lopate noted no muscle atrophy. Plaintiff’s strength was 5/5 in her
neck extensors, flexors, deltoids, biceps, triceps, wrist extensors, and finger extensors. Plaintiff
was “slightly limited at the right shoulder and right leg due to rotator cuff and RSD
respectively.” (Tr. 822-24.)
Dr. Prather’s last treatment note of record is dated March 2, 2016. Dr. Prather explained
plaintiff had a new diagnosis, confirmed by nerve biopsy, of an unusual small fiber neuropathy
called TSHDS, which causes chronic fatigue and pain in the bilateral lower extremities. Dr.
Prather also noted plaintiff’s history of lumbar radiculopathy and CRPS. Plaintiff’s insurance
was no longer taking on any new patients in plaintiff’s state; Dr. Prather instructed plaintiff to

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call her office once plaintiff had coverage so plaintiff could restart physical therapy. (Tr. 841.)
Analysis
Plaintiff first argues the ALJ erroneously omitted from his decision virtually all of the
evidence pertaining to plaintiff’s right shoulder condition. “[A]lthough an ALJ does not need to
discuss every piece of evidence in the record, the ALJ may not analyze only the evidence
supporting her ultimate conclusion while ignoring the evidence that undermines it.” Moore v.
Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). Moreover, the ALJ must articulate his reasoning
such that the Court can conduct a meaningful review of his decision. Steele v. Barnhart, 290
F.3d 936, 940 (7th Cir. 2002).
The record in the instant case is replete with references to plaintiff’s right shoulder
impairments. In her agency forms, plaintiff stated she experienced pain in her right arm and had
difficulty reaching and lifting. At the evidentiary hearing, plaintiff testified she tore the rotator
cuff in her right arm, which resulted in a limited range of motion. She received injections to
alleviate her pain. Plaintiff explained she initially injured the arm in a car accident many years
before the alleged onset date. However, the rotator cuff tear exacerbated any pre-existing
condition. The medical record also contains both subjective and objective evidence of plaintiff’s
shoulder impairments. Beginning in April 2011, plaintiff began reporting a burning and tingling
sensation along with pain and numbness in her right shoulder. She continued to report these
symptoms throughout the record.

Plaintiff demonstrated pain and sensitivity of the upper

extremity during several physical examinations and physicians noted a limited range of motion
of her right shoulder. Ultrasounds from March 2013 and February and June 2015 evidenced
tendinopathy and a partial tear. Plaintiff received subacromial injections for the shoulder and a
prescription for physical therapy.

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The ALJ made the following references to plaintiff’s shoulder in his written decision:


“On the Function Reports, she alleged inability to stand or walk for extended periods,
right arm issues, leg weakness, inconsistent pain levels, and inability to lift, bend or
crouch without pain. The claimant reported pain in the right arm, right leg, and right
hip.” (Tr. 28) (emphasis added).



“On June 10, 2014, Adrian Feinerman, M.D., evaluated claimant for the state agency.
The claimant reported decreased range of motion in the right shoulder and right hip.”
(Tr. 29) (emphasis added).



“The record reflects slight limitation at right shoulder and right leg due to rotator cuff
and reflex sympathetic dystrophy respect.” (Tr. 29) (emphasis added).

The ALJ’s recitation of the record excludes the overwhelming majority of the evidence
related to plaintiff’s shoulder injury. For instance, he did not mention the subacromial injections,
physical therapy prescription, corroborating sonograms, or objective findings during
examinations. In addition, he misstated that plaintiff reported a limited range of motion to Dr.
Feinerman. Actually, Dr. Feinerman found that plaintiff had a limited range of motion in the
right shoulder based on an examination. Moreover, although the ALJ restricted plaintiff’s
overhead reaching in the RFC, he did not explain why he included the limitation or what
evidence supported the limitation.
By failing to simply acknowledge the evidence, the ALJ deprived the Court of any means
to assess his reasoning process. Moore, 743 F.3d at 1124. The Court is not suggesting the ALJ
should have reached a different conclusion regarding plaintiff’s shoulder impairments. The
error, here, is failing to address all of the relevant evidence. This error, alone, warrants remand.
The Court will therefore not address plaintiff’s remaining arguments.
Conclusion
The Commissioner’s final decision denying plaintiff’s application for social security
disability benefits is REVERSED and REMANDED to the Commissioner for rehearing and

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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: March 15, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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