Buecher v. Commissioner of Social Security

Filing 27

MEMORANDUM AND OPINION. The Commissioner's final decision denying plaintiff's application for social security disability benefits 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 9/12/2018. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THOMAS D. B., 1

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Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Case No. 17-cv-834-CJP 2

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff, represented by counsel,
seeks judicial review of the final agency decision denying his applications for
Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI)
Benefits pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for disability benefits in February 2013, alleging disability as
of February 3, 2013. He later amended the onset date to November 22, 2014.
After holding an evidentiary hearing, ALJ Janice E. Barnes-Williams denied the
application on May 4, 2016. (Tr. 22-35). The Appeals Council denied review, and
the decision of the ALJ became the final agency decision. (Tr. 1). Administrative

The Court will not use plaintiff’s full name in this Memorandum and Order in order to protect her
privacy. See, Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.
2
This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 21.
1

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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 not designating his degenerative disc disease and
neuropathy as severe impairments and in failing to consider the effects
of those conditions in combination with his other impairments.

2.

The ALJ failed to develop the record by obtaining a medical opinion
regarding his degenerative disc disease and neuropathy.
Applicable Legal Standards

To qualify for DIB or SSI, a claimant must be disabled within the meaning of
the applicable statutes and regulations. 3 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
3

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.

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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 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); Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will automatically be
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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).
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 plaintiff 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. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003). This Court uses the Supreme Court’s definition of substantial
evidence, i.e., “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. Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003). However, while
judicial review is deferential, it is not abject; this Court does not act as a rubber
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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 Barnes-Williams followed the five-step analytical framework described
above. She determined that plaintiff had not worked at the level of substantial
gainful activity since the alleged onset date and that he was insured for DIB through
March 31, 2018. She found that plaintiff had severe impairments of history of
traumatic brain injury; seizure disorder; anxiety disorder; depressive disorder;
and alcohol abuse.
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform work at all exertional levels, limited to occasional climbing of ramps and
stairs; no climbing of ladders, ropes, or scaffolds; no balancing; occasional
stooping; no exposure to temperature extremes, excessive vibration, or hazards
such as unprotected heights or moving machinery.

He was also limited to

performing simple, routine, repetitive tasks which may involve detailed instructions
but not complex tasks; no public interaction; and only occasional interaction with
coworkers.
Based on the testimony of a vocational expert, the ALJ concluded that
plaintiff could not do his past work, but he was not disabled because he was able to
do other jobs which exist in significant numbers in the national economy.
The Evidentiary Record

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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. As no issue is raised with regard to
plaintiff’s mental impairments, the Court will not discuss his mental health
treatment.
1.

Agency Forms

Plaintiff was born in 1959 and was 55 years old on the alleged date of onset.
(Tr. 248). He had worked as a furniture mover, factory laborer, and store clerk.
(Tr. 266).
In March 2013, plaintiff reported that he had difficulty with dressing and
bathing because of being off balance, headache, and lower back pain. He prepared
easy meals and did laundry and dishes. He watched television. He had trouble
with activities such as lifting, squatting, bending, walking, and sitting.

(Tr.

271-278).
2.

Evidentiary Hearing

Plaintiff was represented by an attorney at the evidentiary hearing in
February 2016.

(Tr. 42).

Plaintiff amended his alleged onset date to November 22, 2014, which was
the date of an emergency room visit for seizures. (Tr. 45-47).
Plaintiff was living at an Adult Rehabilitation Center run by the Salvation
Army. He moved there voluntarily because of alcohol issues. It was a 6 month

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program. He could not work at a real job while living there, but he did volunteer
work at the Center such as hanging up clothes and working in the kitchen. (Tr. 5053).
Plaintiff testified that he could not work because of his balance problems,
decreased hearing, and seizures. He could not drive or operate machinery. (Tr.
57). He had stopping drinking alcohol, but still had balance problems.

This

started with his traumatic brain injury. (Tr. 59-60).
A vocational expert (VE) also testified. The ALJ asked him a hypothetical
question which corresponded to the ultimate RFC findings. The VE testified that
this person could not do plaintiff’s past work, but he could do other jobs at the
medium and light exertional levels. He had no transferrable skills. (Tr. 67-72).
3.

Medical Records

Plaintiff fell down the stairs at home while intoxicated in February 2013,
suffering a traumatic brain injury. He was hospitalized for about 12 days. CT
scans showed degenerative joint disease in the cervical and lumbar spine.

(Tr.

346-349). He was evaluated by a neurosurgeon, Dr. Sonjay Fonn, the next month.
On exam, sensation was intact throughout to light touch and pinprick. Dr. Fonn
concluded he had a resolved subarachnoid hemorrhage and released him from
care. (Tr. 401-403).
Plaintiff had a seizure related to alcohol withdrawal in May 2013. (Tr. 430).
He was prescribed Keppra for seizure control in June 2013. (Tr. 465). He had
another seizure in May 2014 after not having taken his medication for a few days.
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(Tr. 549).
Plaintiff’s primary health care provider was Dr. Patel at Southern Illinois
Healthcare Foundation. In June 2014, Dr. Patel noted that he had a “long history
of falls, maybe a seizure history unsure if separate for [sic] alcohol related.” She
performed a neurological exam, which was normal.

He had no sensory loss.

Musculoskeletal exam was also normal, with a full range of motion and normal
strength and stability in all extremities. Dr. Patel referred him for a neurological
consultation. (Tr. 658-660).
Plaintiff was seen by a neurologist, Dr. Reddy, in August 2014. The exam
was generally unremarkable.

Sensation was intact.

Dr. Reddy diagnosed a

seizure disorder and recommended he take 1000 mg of Keppra twice a day. An
electroencephalogram was normal. (Tr. 712-724).
Dr. Adrian Feinerman examined plaintiff at the request of the agency in
September 2014. Plaintiff complained of dizziness, poor balance, and decreased
hearing since his brain injury in February 2013. He said that squatting or bending
made him dizzy, but he was able to walk, stand, sit, and do fine and gross
manipulations without difficulty. On exam, he had a full range of motion of the
cervical and lumbar spines. Ambulation was normal without an assistive device.
Straight leg raising was negative.

Muscle strength was normal throughout.

Sensory exam was normal to vibration, touch, and pinwheel. (Tr. 510-520).
Plaintiff went to the emergency room on November 22, 2014, complaining of
a seizure. He said that he took 500 mg of Keppra twice a day. Exam was normal.
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Sensation was normal and his gait was steady. He was not displaying seizure
activity. He was told to increase the dosage of Keppra. (Tr. 718-720).
Dr. Patel saw plaintiff for a “disability evaluation” in December 2014.
Plaintiff said he had a seizure at work in November 2014. He had not taken his
Keppra the day before. He was laid off from his job because he was not able to
drive a forklift. He was “awaiting his disability.” He said he had numbness in his
toes and “always feels off balance.” On exam, gait, station, and ambulation were
normal. Muscle strength and tone were normal. He had decreased sensation to
pinprick in both lower extremities. (Tr. 630-632).
At about 11:00 p.m. on February 12, 2015, plaintiff went to the emergency
room at Gateway Regional Medical Center. He was intoxicated and said he wanted
help with his alcoholism. He had no physical complaints. On exam, he had a full
range of motion. Motor strength was full. He had no spinal tenderness. Sensory
exam was grossly intact. He was observed for a time and was discharged around
noon on February 13, 2015.

(Tr. 675-681).

Plaintiff returned to the emergency room at Gateway Regional on the
afternoon of February 16, 2015. He was intoxicated. (Tr. 682). He said that he
was having suicidal thoughts. He complained of pain in the low back and right
ankle. (Tr. 700). Plaintiff said that he had ankle pain for about two weeks and
low back pain at times. He said he fell on the snow. (Tr. 703). X-rays of the
lumbar spine showed advanced degenerative disc disease and facet arthropathy at
the lower levels. X-rays of the cervical spine showed degenerative changes with
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narrowing of the disc spaces from C3 to C7. (Tr. 685-686).

At about 9:00 p.m.,

he said he wanted to go home, but was told that his alcohol level was too high for
him to be discharged. He was discharged shortly after midnight on the next day.
(Tr. 701-702). The diagnosis was alcohol intoxication. (Tr. 683, 705).
Plaintiff was seen by a doctor at Southern Illinois Healthcare Foundation in
March 2015.

He had been discharged two days earlier from an inpatient

psychiatric hospitalization at St. Elizabeth’s Hospital for alcohol detox.

The

doctor indicated that he was intoxicated and the purpose of the visit was unclear.
(Tr. 626-628).
The records from the inpatient hospitalization at St. Elizabeth’s are not in the
transcript. However, there are some radiology reports from St. Elizabeth’s in the
records of Southern Illinois Healthcare Foundation. On March 3, 2015, x-rays of
the lumbar spine showed moderate arthritis in the lumbar spine which had
worsened compared to an x-ray from 2008. (Tr. 641). On May 8, 2015, a CT of
the lumbar spine showed posterior disc bulge at L1-2, disc bulge resulting in at
least moderate spinal canal stenosis at L4-5, and focal advanced degenerative disc
disease at L5-S1. (Tr. 636).
Plaintiff was seen by Dr. Hellenga at Southern Illinois Healthcare Foundation
in October 2015. His blood pressure was uncontrolled, so his medication was
adjusted. He said he had no seizures since he was compliant with Keppra. He
said he was doing well and had no concerns or complaints.

He ambulated

normally. Motor strength and tone were normal. He had normal movement of all
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extremities. (Tr. 617-618).
In December 2015, plaintiff was living at a Salvation Army residential facility.
He was seen by Dr. Armbruster for numbness in his toes, seizure disorder, and
hypertension. He said his seizures were controlled when he took Keppra. His
last seizure was in November 2014. He said he had numbness and pins/needles
sensation in all of his toes for the past year. In the review of systems, he denied
back pain and neck pain. On exam, his gait was normal. He had normal strength
of the ankles, knees, and hips. Sensation was intact to monofilament over the feet
except for the ball of the left foot. The impression was seizure disorder, well
controlled; alcohol dependence, in remission; hypertension; and neuropathy. Dr.
Armbruster noted that there are various causes of neuropathy, including past
alcohol abuse. She wanted to do further testing after reviewing his past medical
records. (Tr. 734-739).
4.

State Agency Reviewers’ Opinions

In October 2014, Lenore Gonzalez, M.D., assessed plaintiff’s RFC based on a
review of the records.

In her opinion, plaintiff was able to do work at all

exertional levels, limited to no climbing of ladders, ropes, or scaffolds, and no
exposure to hazards such as heights or machinery. (Tr. 108-110).
Analysis
Plaintiff first argues that the ALJ erred in finding that his lumbar
degenerative disc disease is not a severe impairment and in failing to mention his

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neuropathy at all.
The failure to designate lumbar degenerative disc as a severe impairment, by
itself, is not an error requiring remand. At step 2 of the sequential analysis, the
ALJ must determine whether the claimant has one or more severe impairments.
This is only a “threshold issue,” and, as long as the ALJ finds at least one severe
impairment, she must continue on with the analysis. And, at Step 4, she must
consider the combined effect of all impairments, severe and non-severe.
Therefore, a failure to designate a particular impairment as “severe” at Step 2 does
not matter to the outcome of the case as long as the ALJ finds that the claimant has
at least one severe impairment. Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir.
2012), citing Castile v. Astrue, 617 F.3d 923, 927-928 (7th Cir. 2010).
Plaintiff is correct, though, that the failure to consider the effects of his
degenerative disc disease and neuropathy in combination with his other
impairments requires remand.
“When assessing if a claimant is disabled, an ALJ must account for the
combined effects of the claimant's impairments, including those that are not
themselves severe enough to support a disability claim.” Spicher v. Berryhill, 898
F.3d 754, 759 (7th Cir. 2018).

Although back pain did not figure largely in

plaintiff’s medical treatment, it was mentioned in the records, and objective studies
confirm that he had degenerative disc disease.

The ALJ seemingly gave no

consideration to the effects of degenerative disc disease after dismissing it as a
nonsevere impairment at Step 2. And, the ALJ never mentioned neuropathy at all,
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even though it was detected by two different doctors. Because plaintiff “raised the
condition to the ALJ . . . and produced medical evidence to support the diagnosis, .
. . the ALJ was required to at least consider the assertion. Spicher, Ibid.
The Commissioner argues that the ALJ’s consideration of neuropathy was
sufficient because she noted that he had a normal physical exam with no numbness
in October 2014 and he denied numbness in January 2016. See, Doc. 26, p.4.
However, the ALJ did not rely on that evidence to decide that neuropathy had no
effect even in combination with plaintiff’s other impairments. Rather, the ALJ
failed to mention the evidence of neuropathy at all. The ALJ’s decision cannot be
upheld based upon the Commissioner’s after-the-fact rationalization. Hughes v.
Astrue, 705 F.3d 276, 279(7th Cir. 2013) (“Characteristically, and sanctionably,
the government's brief violates the Chenery doctrine…..”); McClesky v. Astrue, 606
F.3d 351, 354 (7th Cir. 2010) (It is “improper for an agency's lawyer to defend its
decision on a ground that the agency had not relied on in its decision....”).
Plaintiff also argues that the RFC assessment was without substantial
support because no medical expert considered effects of plaintiff degenerative disc
disease and neuropathy.

The ALJ gave “significant weight” to Dr. Gonzalez’

opinion, but Dr. Gonzalez did not see the lumbar x-rays and CT scan which
indicated that his lumbar degenerative disc disease had progressed, or Dr.
Armbruster’s records regarding neuropathy.

Both the ALJ and Dr. Gonzalez

concluded that plaintiff was able to perform work at all exertional levels. However,
Dr. Gonzalez’ opinion does not provide substantial support for the RFC
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assessment.
In Stage v. Colvin, 812 F.3d 1121 (7th Cir. 2016), the Seventh Circuit held
that the ALJ erred in accepting a reviewing doctor’s opinion where the reviewer did
not have access to later medical evidence containing “significant, new, and
potentially decisive findings” that could “reasonably change the reviewing
physician's opinion.”

Stage, 812 F.3d at 1125.

In a later case, the Seventh

Circuit reiterated the rule. “An ALJ should not rely on an outdated assessment if
later evidence containing new, significant medical diagnoses reasonably could have
changed the reviewing physician’s opinion.” Moreno v. Berryhill, 882 F.3d 722,
728 (7th Cir. 2018), as amended on reh'g (Apr. 13, 2018). See also, Lambert v.
Berryhill, 896 F.3d 768, 776 (7th Cir. 2018).
The Commissioner argues that the ALJ fulfilled her limited duty to develop
the record here and that plaintiff points to no evidence post-dating Dr. Gonzalez’
review that would have been likely to change the doctor’s opinion. On the contrary,
plaintiff identifies the x-rays and CT scan of the lumbar spine and the diagnosis of
neuropathy based on Dr. Armbruster’s findings on exam. Dr. Gonzalez concluded
that plaintiff was capable of work at all exertional levels. It is likely that the later
evidence would have changed that conclusion.
Plaintiff was 55 years old on the amended alleged onset date. He was in the
“advanced age” category.

With no transferrable skills, even if he were able to

perform a full range of work at the light exertional level with no restrictions, he
would be deemed disabled under the Medical-Vocational Guidelines (“Grids”), 20
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C.F.R. Pt. 404, Subpt. P, App. 2, Table 2. Under the circumstances of this case, it
was error to rely on the opinion of a state agency reviewer who was not aware of
significant medical evidence.
The Court must conclude that ALJ Barnes-Williams failed to build the
requisite logical bridge between the evidence and her conclusion.

Remand is

required where, as here, the decision “lacks evidentiary support or is so poorly
articulated as to prevent meaningful review.” Kastner v. Astrue, 697 F.3d 642,
646 (7th Cir. 2012).
The Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that plaintiff is disabled or that
he should be awarded benefits. On the contrary, the Court has not formed any
opinions in that regard, and leaves those issues to be determined by the
Commissioner after further proceedings.
Conclusion
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.
IT IS SO ORDERED.
DATE:

September 12, 2018.

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

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