Billhartz v. Commissioner of Social Security

Filing 29

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 10/26/2018. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DOUGLAS W. B., 1

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Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Case No. 17-cv-1357-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 application for
Disability Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for disability benefits in July 2013, alleging disability as of
December 15, 2012. He later amended his alleged onset date to October 7, 2013.
After holding an evidentiary hearing, ALJ Gwen Anderson denied the application on
January 17, 2017.

(Tr. 65-74).

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

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

The ALJ erred in weighing the opinions of treating physician Dr. Wade
and examining physician Dr. Mannis.

2.

The ALJ failed to consider the effects of radiculopathy in plaintiff’s
lower extremities.
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:

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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.
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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 Anderson followed the five-step analytical framework described above.
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She determined that plaintiff had not worked at the level of substantial gainful
activity since the alleged onset date. He was insured for DIB through December
31, 2017. She found that plaintiff had one severe impairment, degenerative disc
disease of the lumbar spine.
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform work at the light exertional level, limited to occasional climbing of ramps
and stairs; no climbing of ladders, ropes, or scaffolds; no work around hazardous
machinery, unprotected heights, or vibrating equipment; no use of bilateral foot
controls; no exposure to extreme heat or cold; and only simple and routine tasks.
Based on the testimony of a vocational expert, the ALJ concluded that
plaintiff could not do his past relevant work.

However, he was not disabled

because he was able to do jobs which exist in significant numbers in the national
economy.
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 1963. The amended date of onset is the day before his
50th birthday. (Tr. 186). He had attended one year of college. He had worked
as an assembly line worker, truck driver, and yard worker for a hauling business.

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(Tr. 190-191).
Plaintiff said he was unable to work because of back injuries suffered in a car
accident. He said he had pain in his low back and lifting, standing, or sitting too
long hurt him. (Tr. 212).
In June 2014, plaintiff reported that bending, standing, and sitting too long
caused stiffness and pain in his low back and shooting pain down his left leg. He
did a few household chores, such as washing dishes and cutting the grass. He
watched TV and listened to music.

He visited his mother.

He could lift 25

pounds and could walk for 15 to 20 minutes. (Tr. 243-250).
2.

Evidentiary Hearing

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

(Tr. 30-31).

Plaintiff had low back pain since being involved in a rear-end automobile
accident in December 2012. (Tr. 19). He said he was unable to work because of
“chronic, continuous pain in my lower back.” Pain interfered with his sleep. He
took Vicodin four times a day, which caused constipation, bloating, irritability, and
sometimes nausea. He did “small household chores” such as dishes, laundry, and
making beds. (Tr. 22-24). He visited his 80 year old mother. (Tr. 26).
Plaintiff had injections for his back, but they did not help. (Tr. 29).
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 such as
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cleaner, hand packer, and production worker assembler. (Tr. 33-34).
The VE also testified that, if he were limited to sitting for a total of 4 hours,
standing for a total of 2 hours, and walking for a total of 2 hours, and had to change
positions every 20 minutes, he would be limited to less than a full range of
sedentary work. (Tr. 34-35).
3.

Medical Records

Plaintiff was seen in an emergency room following a rear-end automobile
accident in December 2012. He complained of pain in his neck and back. The
impression was neck and back strain. (Tr. 297-300).
An MRI of the lumbar spine was done in February 2013. This study showed
mild disc bulge resulting in mild canal stenosis at L2-3; disc bulge and mild facet
changes contributing to mild canal stenosis at L3-4; and disc bulges but no canal
stenosis at L4-5 and L5-S1. There was near-complete loss of disc height at L5-S1.
(Tr. 404-405).
Plaintiff’s primary care physician was Dr. James Wade.

He was seen

numerous times in Dr. Wade’s office for low back pain in 2013, 2014, and 2015.
The office notes are check-off forms and offer few details.

He was prescribed

Vicodin. (Tr. 418-439, 480-499). In July 2015, Dr. Wade noted sciatica on the
left. (Tr. 485).
Plaintiff saw Dr. James Gornet, an orthopedic specialist, in August 2014.
X-rays of the lumbar spine showed loss of disc height at L5-S1. He recommended
a new MRI. An MRI was done in December 2014. This showed minimal disc
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desiccation with minimal disc bulge at L3-4; mild left neuroforaminal exit stenosis
at L4-5; moderate to severe disc desiccation and vacuum gas phenomenon at
L5-S1, along with mild bilateral neuroforaminal exit stenosis. Dr. Gornet noted
that he may also have an annular tear on the left at L4-5 as well as centrally at
L5-S1. He recommended epidural steroid injections and noted that his hope was
to improve plaintiff “enough to get him back to some type of functional recovery and
work.” Dr. Gornet referred him to Dr. Boutwell for injections. (Tr. 453-457).
Dr. Boutwell, a pain management specialist, administered a left L4-5
epidural steroid injection in January 2015 and a left L5-S1 epidural steroid
injection in February 2015. (Tr. 513-514).
In March 2016, Dr. Wade prescribed Norco for plaintiff. (Tr. 465).
Dr. Wade saw plaintiff on June 14, 2016. Plaintiff said that his back pain
was “to the point that he can’t sleep [and] any activity causes him to be in bed for the
rest of the day due to pain.” On exam, he had pain at 10 degrees of straight leg
raising. He had left leg weakness with numbness and tingling and pain. There
was loss of fine sensation in the left foot. Dr. Wade referred plaintiff to a physical
therapist for functional capacity testing. (Tr. 555-556).
On June 27, 2016, Dr. Charles Mannis, an orthopedic specialist, performed
a consultative physical exam at the request of the agency. Plaintiff was 6’1” tall and
weighed 276 pounds.

His gait and stance were unremarkable.

There was

tenderness of the left low back. Extension was limited to 75 out of 90 degrees and
lateral flexion was limited to 20 out of 25 degrees in both directions. Straight leg
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raising was negative. There was ½ inch atrophy of the left thigh and “definitive
weakness of the left lower extremity musculature.” Hypothesia to pinprick was
noted over the lateral border of the left foot.

The clinical impression was

degenerative disc disease with probable moderate spinal stenosis of the lumbar
spine affecting the left lower extremity.

Dr. Mannis observed that, “Clinical

findings and complaints appear to be consistent with the findings.” (Tr. 520-523;
530).
On Dr. Wade’s referral, a functional capacity evaluation was done on July 1,
2016.

The report is included in Dr. Wade’s records, but the copy is all but

illegible. (Tr. 566-576).
4.

Medical Opinions

In May 2016, Dr. Wade completed a form containing questions about
plaintiff’s functioning. He said that plaintiff could lift 10 pounds, could sit for a
total of less than 2 hours a day, and could stand/walk for a total of less than 2 hours
a day. Plaintiff was limited to occasional reaching in all directions. He could
frequently perform fine and gross manipulations; “frequently” was the highest
category of functioning of the four alternatives given on the form. In his narrative
remarks, Dr. Wade stated “Has constant pain, difficult to sit/stand w/o changing
position. At times his leg gives out completely. Pt. now has depression due to
pain and limitations.” (Tr. 510-511).
Dr. Mannis assessed plaintiff’s RFC by filling out a form on the same day that
he examined plaintiff.

He said that plaintiff could occasionally lift up to 20
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pounds. He did not indicate how much he could frequently lift. He could sit for
20 minutes at a time and for a total of 4 hours a day. He could stand for 20
minutes at a time and for total of 2 hours a day. He could walk for the same
amount of time. He had no limitations in reaching or manipulating. He could
occasionally operate foot controls. He could only occasionally perform postural
activities such as balancing and stooping. Dr. Mannis indicated these limitation
had been present for 4 years. (Tr. 524-529).
Analysis
Plaintiff takes issue with the ALJ’s weighing of the medical opinions.
ALJ Anderson gave “only partial weight” to the opinion of Dr. Mannis.
71).

(Tr.

Dr. Mannis was acting as a state agency consultant when he examined

plaintiff. As such, he is unlikely to exaggerate his disability. Garcia v. Colvin,
741 F.3d 758, 761 (7th Cir. 2013).
As is detailed above, Dr. Mannis concluded that plaintiff has considerable
limitations. According to the VE’s testimony, a person with the limitation assigned
by Dr. Mannis would be limited to less than a full range of sedentary work.
Plaintiff was 54 on the date of the ALJ’s decision, a fact not mentioned by the ALJ.
At plaintiff’s age, with no transferrable skills, he would be deemed disabled even if
were capable of the full range of sedentary work.

See, Medical-Vocational

Guidelines (“Grids”) 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 1.
The ALJ discounted Dr. Mannis’ opinion because it was “somewhat
inconsistent with the totality of the evidence.” She noted that examinations were
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largely unremarkable until 2016; imaging showed only “mild” findings; plaintiff
said he could sit for 30 minutes and did limited yardwork; and he was treated
conservatively with injections and medication.
“[R]ejecting or discounting the opinion of the agency's own examining
physician that the claimant is disabled, as happened here, can be expected to cause
a reviewing court to take notice and await a good explanation for this unusual step.”
Beardsley v. Colvin, 758 F.3d 834, 839 (7th Cir. 2014). The reasons given by the
ALJ here do not add up to a good explanation.

Largely unremarkable

examinations prior to 2016 might undermine Dr. Mannis’ statement that plaintiff’s
limitations had been present for 4 years, but not his opinion as to plaintiff’s RFC at
the time of his exam. The most recent MRI was done in 2014, and, as the ALJ
noted, examinations began showing more positive findings in 2016.

Whether

plaintiff was limited to sitting for 20 or 30 minutes at a time is immaterial as he
would still be limited to less than a full range of sedentary work at 30 minutes.
And, the ALJ impermissibly “played doctor” by concluding that the nature of
plaintiff’s treatment shows that his condition is not as serious as Dr. Mannis
concluded it was. See, Myles v. Astrue, 582 F.3d 672, 677 (7th Cir. 2009). In
addition, the ALJ ignored the fact that Dr. Wade’s findings on his June 2016 exam
were close to Dr. Mannis’ findings.
The ALJ erred in weighing Dr. Mannis’ opinion. The Court must conclude
that ALJ Anderson failed to build the requisite logical bridge between the evidence
and her conclusion as to plaintiff’s RFC. Remand is required where, as here, the
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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).

Accordingly, a detailed analysis of plaintiff’s other arguments is not required. On
remand, the ALJ should properly weigh the opinions of both Dr. Mannis and Dr.
Wade, and consider the combined effect of all of plaintiff’s impairments.
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:

October 26, 2018.

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