Weatherall-Francis v. Commissioner of Social Security

Filing 26

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 10/3/2018. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTINE W-F., 1

)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Case No. 17-cv-1306-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 her application for
Disability Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for disability benefits in October 2013, alleging disability as
of January 1, 2009. She later amended the onset date to May 1, 2012. After
holding an evidentiary hearing, ALJ Stephen M. Hanekamp denied the application
on April 5, 2017.

(Tr. 11-22).

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.

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. 22.
1

Page 1 of 12

Issues Raised by Plaintiff
Plaintiff raises the following points:
1.

The ALJ erred in not designating her osteoarthritis of the left ankle as
a severe impairment and in failing to consider the effect of that
condition in combination with her other impairments.

2.

The ALJ failed to properly consider RFC in that he ignored the effect of
her osteoarthritis of the left ankle.
Applicable Legal Standards

To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes and regulations. 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:
Page 2 of 12

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
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.
Page 3 of 12

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
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 Hanekamp followed the five-step analytical framework described above.
Page 4 of 12

He determined that plaintiff had not worked at the level of substantial gainful
activity since the alleged onset date and that she was insured for DIB only through
December 31, 2016.

He found that plaintiff had severe impairments of

degenerative disc disease with mild thoracolumbar scoliosis, left greater trochanter
bursitis, left shoulder impingement, mild right carpal tunnel syndrome, and
obesity. He found that her ankle symptoms were not severe impairments because
the evidence did not establish that they had persisted for 12 continuous months.
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform work at the light exertional level, limited to occasional balancing, kneeling,
stooping,

crouching,

crawling,

and

climbing

of

ramps

and

stairs;

no

pushing/pulling of leg controls, but she was able to operate foot pedals; and only
frequent handling and fingering with the right upper extremity.
Based on the testimony of a vocational expert, the ALJ concluded that
plaintiff could do her past work as a retail clerk.
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

Plaintiff was born in 1959 and was 53 years old on the alleged date of onset.
She was 57 years old on the date last insured. (Tr. 171). She had worked as a

Page 5 of 12

retail cashier from 2003 to 2011. (Tr. 175).
In November 2013, plaintiff reported that she had “constant pain” in her
back and left foot. (Tr. 184). She used a CAM walker for her ankle and foot, and
a cane. 3 (Tr. 190).
2.

Evidentiary Hearing

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

(Tr. 30).

Plaintiff worked as a cashier in a retail store. She stopped working because
she was having panic attacks. (Tr. 33-34).
Plaintiff saw a podiatrist for left ankle pain in September 2011.

He

prescribed a CAM walker boot. She still used it when her pain got severe. In
September 2013, the podiatrist offered surgery, which would include fusion of her
ankle. She declined because he offered no guarantee that the arthritis would not
come back and she “would literally have to drag my foot because [her] ankle would
no longer be movable.” (Tr. 37-38).
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 do plaintiff’s past work as it is generally performed at the light
level. (Tr. 45-47).
3.

Medical Records

3

CAM stands for “controlled ankle movement.” A CAM walker is a removable medical boot. See, e.g.,
www.braceability.com/collections/cam-walker-boots, visited on October 2, 2018.

Page 6 of 12

Plaintiff saw Brian Martin, D.P.M., on September 30, 2011, for pain in the
left ankle. Dr. Martin practiced at Next Step Foot and Ankle Center. She was 5’6”
tall and weighed 280 pounds. On exam, she had moderate edema in the left ankle
and limited range of motion.

X-rays showed “a narrowing of the ankle joint,

consistent with osteoarthritis.” She was placed in a CAM walker and prescribed
Feldene for inflammatory control. She was to return in 3 weeks. (Tr. 483).
The next note from Dr. Martin is dated August 21, 2013. Exam “still shows
significant arthritic changes to the left ankle.”

She had “virtually no range of

motion at this time due to these changes.” There was mild edema surrounding the
ankle. She was again advised to use a CAM walker and to take Feldene and use a
topical anti-inflammatory. She returned in a month. The doctor wrote that she
“has been informed of the findings of arthritis in the ankle and surgical options
have been discussed.” She did not want surgery. The doctor informed her that
there were no other options available other than what had already been tried. She
was told to continue to use a topical anti-inflammatory and the “boots and braces
that she was given previously.” (Tr. 484-485).
Dr. Vittal Chapa performed a consultative exam in March 2014. Plaintiff
said she had back pain, diabetes, and high blood pressure. She said she had
osteoarthritis of the left ankle. She had been prescribed a walking boot because of
left ankle pain. She said she could not put weight on the left foot without the
walking boot. On exam, she had a full range of motion of all joints, including the
left ankle. There was no edema in the lower extremities. Dr. Chapa stated that
Page 7 of 12

plaintiff “walks with the walking boot on the left foot.” (Tr. 421-424).
In September 2015, Dr. Martin saw plaintiff for pain in both heels. He
diagnosed plantar fasciitis and tenosynovitis of the foot and ankle. (Tr. 493-495).
Plaintiff was treated at Comprehensive Pain Specialists for lumbar pain
radiating into the left leg in November and December 2015. She was prescribed a
back brace. (Tr. 458-481).
Plaintiff saw Dr. Thouvenot, who also practiced at Next Step Foot and Ankle
Center, Martin, in 2016 for pain in the right foot and ankle. She was diagnosed
with a sprain of the right ankle. (Tr. 486-492).
It is unclear whether the complete records of Next Step Foot and Ankle
Center are in the transcript. Tr. 486 is a note dated August 29, 2016. At the
bottom of that page is the notation “Page 4 of 42,” suggesting that there are 42 pages
of records. However, there are only 13 pages of records from Next Step Foot and
Ankle Center in the transcript.
Analysis
Both of plaintiff’s points concern the ALJ’s consideration of her left ankle
arthritis.
As plaintiff concedes, the failure to designate an impairment as “severe” is
not, standing alone, 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, he must continue on with the analysis. And, at Step
Page 8 of 12

4, he 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 effect of her left
ankle arthritis in combination with her 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). The medical records establish that plaintiff has
arthritis in her left ankle, and she was treated for same.
The ALJ offered insufficient analysis of the effect of plaintiff’s left ankle
arthritis. His brief discussion was imprecise. In fact, the ALJ did not designate
left ankle arthritis as a non-severe impairment; rather, he did not list it as an
impairment at all. See, Tr. 13-14. The ALJ noted that plaintiff saw Dr. Martin in
September 2011 for moderate left ankle edema with mild crepitus; he said that Dr.
Martin diagnosed mild tenosynovitis of the left foot. 4

In fact, Dr. Martin’s

assessment was “Arthritis left ankle, with mild tenosynovitis left foot.” The ALJ
said that there was virtually no range of motion of the left ankle at that visit. Dr.
“Tenosynovitis is inflammation of the lining of the sheath that surrounds a tendon (the cord that
joins muscle to bone).” https://medlineplus.gov/ency/article/001242.htm, visited on October 3,
2018.

4

Page 9 of 12

Martin’s notes indicate that there was limited range of motion in September 2011,
but the observation of virtually no range of motion was made in August 2013. (Tr.
14, 483-484).
The ALJ designated plaintiff’s ankle problems as non-severe “because the
evidence does not support that these impairments persisted 12 continuous
months.” (Tr. 14). That is obviously incorrect as to plaintiff’s left ankle arthritis.
The ALJ gave no other explanation of why he considered her left ankle arthritis to
be non-severe.
The Commissioner agrees that the ALJ dismissed plaintiff’s arthritis as
non-severe because it did not persist for 12 continuous months. She offers no
explanation of how this could possibly be correct. She also argues that the ALJ
adequately assessed plaintiff’s ankle problems by considering the fact that she
declined treatment such as an MRI, physical therapy, and steroid injections. Doc.
25, p. 9. The ALJ and the Commissioner fail to recognize that those suggested
treatments were for plantar fasciitis and right ankle and foot complaints, not left
ankle arthritis.

See, Tr. 486-489, 492-495.

Plaintiff’s failure to accept those

treatment options is not relevant to her left ankle arthritis.
The Commissioner argues that ALJ considered that plaintiff declined
surgery for her left ankle. Plaintiff testified that Dr. Martin suggested surgery to
fuse her ankle joint, and that she refused because he could not guarantee that her
arthritis would not return and because she would have to drag her foot because of
the fusion. Nothing in Dr. Martin’s records refutes plaintiff’s testimony. The fact
Page 10 of 12

that Dr. Martin suggested fusion surgery undercuts the ALJ’s conclusion that her
left ankle arthritis was not a severe impairment.
Plaintiff was in the “advanced age” category (57 years old) on the date last
insured. If she were unable to perform her past work and has no transferrable
skills, even if she were able to perform a full range of work at the light exertional
level

with

no

restrictions,

she

would

be

deemed

disabled

under

the

Medical-Vocational Guidelines (“Grids”), 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table
2. Under the circumstances of this case, it was error to for the ALJ to fail to
meaningfully assess the effect of her ankle arthritis in combination with her other
impairments in determining whether she could do her past work.
The Court must conclude that ALJ Hanekamp failed to build the requisite
logical bridge between the evidence and his 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
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 plaintiff’s application for social
Page 11 of 12

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:

October 3, 2018.

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

Page 12 of 12