Forrester v. Commissioner of Social Security
Filing
19
OPINION AND ORDER REVERSING the Commissioner of Social Security's final decision and REMANDING case for proceedings consistent with this opinion pursuant to sentence four of 42 USC section 405(g). Signed by Judge Rudy Lozano on 9/30/2011. (lns)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
BARTON K. FORRESTER
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant,
)
)
)
)
)
)
)
)
)
)
)
No. 1:10-CV-137
OPINION AND ORDER
This matter is before the Court for review of the Commissioner
of Social Security’s decision denying Disability Insurance Benefits
to Plaintiff, Barton K. Forrester.
For the reasons set forth
below, the Commissioner of Social Security’s final decision is
REVERSED and this case is REMANDED for proceedings consistent with
this opinion pursuant to sentence four of 42 U.S.C. section 405(g).
BACKGROUND
On July 5, 2006, Plaintiff, Barton K. Forrester (“Forrester”),
applied for Social Security Disability Benefits under Title II of
the Social Security Act, 42 U.S.C. section 401 et seq. (Tr. 97).
Forrester alleged onset of his disability on December 6, 2004, due
to low back pain, hip pain, arthritis, degenerative disk disease
and depression. (Tr. 97, 121). The Social Security Administration
denied Forrester’s initial application, and also denied his claim
on reconsideration. On September 19, 2008, Plaintiff appeared with
counsel at an administrative hearing before Administrative Law
Judge (“ALJ”) Terry Miller (“Miller”) in Fort Wayne, Indiana.
Plaintiff testified at the hearing, as did Dr. Robert Barkhaus, a
vocational expert (“VE”). On November, 13, 2008, ALJ Miller issued
a decision finding Plaintiff not disabled.
(Tr. 9-17).
Plaintiff requested that the Appeals Council review the ALJ’s
decision, and this request was denied.
(Tr. 1-4).
As a result of
the denial, ALJ Miller’s decision became the Commissioner’s final
decision. See 20 C.F.R. § 422.210(a). Plaintiff has initiated the
instant action for judicial review of the Commissioner’s final
decision pursuant to 42 U.S.C. section 405(g).
DISCUSSION
Facts
Forrester was born on June 22, 1965, and was 39 years old at
the date of the alleged disability onset, and 43 at the time of the
ALJ’s decision.
(Tr. 16, 23).
equivalency diploma (GED).
Forrester has a high school
(Tr. 26).
His past relevant work
includes work as a finisher, groover, line leader, metal stamper,
oven operator, and slitter operator.
(Tr. 122).
Forrester’s last
job required him to handle large, cumbersome, heavy rolls of paper,
2
weighing 300 to 400 pounds, and he was required to crawl on the
floor for a significant portion of the day.
(Tr. 27).
The medical evidence can be summarized as follows:
Forrester began experiencing lower back pain around May 2004,
and was prescribed pain medication as treatment. (Tr. 169-70). In
December 2004 Forrester was instructed by Dr. Nianjung Tang to
limit his work to include only occasional bending or stretching,
and to not lift greater than 10 pounds.
(Tr. 268).
Forrester treated with numerous physicians over the course of
his alleged disability, and received instructions on multiple
occasions to limit his bending, twisting, and stretching, and to
also limit his lifting to less than 25 pounds.
263).
(Tr. 253, 258, 261,
In January of 2005, Forrester’s lifting was limited to not
more than 15 pounds.
(Tr. 265).
On October 13, 2005, Forrester
had an anterior lumbar fusion and discectomy at the L4-5 level.
(Tr. 28).
Three days after his successful back surgery Forrester
was discharged from the hospital.
(Tr. 183).
Thereafter, he was
placed on an exercise program by Dr. Michael Arata.
(Tr. 247).
Dr. Arata then released Forrester from his care and cleared him to
work without restrictions, after noting that Forrester’s spine
looked “very good.”
(Tr. 245-46).
Since July 2007, Forrester has
sought medical care from a low cost / free clinic, and the
treatment notes do not provide many detailed objective findings.
(Tr 14).
3
Dr. Brian Allen Adams performed a consultive examination on
August 28, 2006.
(Tr. 349-54).
Dr. Adams observed that Forrester
had difficulty getting on and off the exam table and up and out of
a chair.
(Tr. 350).
Dr. Adams reports the following as well:
Gait is slow but steady. He does require the
assistance of assistive device that being a
cane, use of stability that he uses in short
and long distances. He also uses it to help
get in and out of a chair. It is medically
required. It is use [sic] at all times.
(Tr. 351).
Dr. Adams noted that his exam revealed that “gait and
station are slightly unsteady with the assistance of a cane [and]
[t]he patient is only able to walk on his heels and toes with a
cane and squat with a cane at 100%.”
(Tr. 351).
He also noted
that Forrester could walk heel-to-toe with a cane.
(Tr. 351).
Furthermore,
motion
the
report
notes
decreased
Forrester’s lower back and hips.
range
(Tr. 351).
of
in
Dr. Adams further
noted that Forrester had limitations in his ability to sit, walk,
stand, bend, and crouch and that his lifting was limited to 25 to
30 pounds. (Tr. 352).
Dr. Montoya reviewed the medical records in this case and
completed
finding
a
that
physical
the
residual
record
functional
supported
the
capacity
following
assessment
limitations:
Occasionally lift and/or carry 20 pounds, frequently lift and/or
carry 10 pounds, stand and/or walk 6 hours in an 8 hour workday,
sit 6 hours in an 8 hour workday, and unlimited pushing and/or
pulling.
(Tr. 355-362).
Dr. Montoya also noted that the record
4
supported the following postural limitations: only occasional
climbing
of
ramps
and
stairs,
balancing,
stooping,
kneeling,
crouching, or crawling, and never climbing ladders ropes and
scaffolds.
(Tr. 357).
Dr. Montoya recommended Forrester avoid
concentrated exposure to hazards such as machinery and heights.
(Tr. 359).
He found no manipulative or communicative limitations.
(Tr. 359).
Forrester also complains of depression.
Forrester treats his
symptoms of depression with an antidepressant medication.
(Tr.
153-155). He received a psychiatric evaluation from Dr. William A.
Shipley in July 2006 and was deemed to have no severe mental
impairment.
(Tr. 235-48).
Forrester described his typical day to the ALJ as very
sedentary, noting that he lies down about three times a day, for
three to four hours per time.
(Tr. 30).
Forrester reports being
able to walk 200 to 300 feet at a time, before requiring a brief
break.
(Tr. 33).
Forrester testified that he always walks with a
cane, and that at times the pain in his lower back and legs
requires him to use a
walker.
(Tr. 34).
Forrester also testified
that he uses the cane to pull himself “out of bed and off the
chairs and things like that.”
(Tr. 35).
Forrester alleges that
his activities of daily living are limited as a result of his
impairments, and that he relies extensively on his girlfriend, with
whom he lives, to perform routine tasks around the home. (Tr. 40).
5
After
hearing
Forrester’s
testimony
at
the
hearing
on
September 19, 2008, ALJ Miller posed a number of hypothetical
questions
to
VE
Barkhaus.
(Tr.
47-
49).
For
the
first
hypothetical, the ALJ asked the VE to assume an individual with the
same age, educational background and work experience as Forrester,
as well as these additional limitations:
sit, stand, walk six out of eight hours each
[workday]. Lift, carry, push, pull 20 pounds
occasionally, 10 pounds frequently.
Usual
definition of light work. With the additional
limitations as follows, occasional climbing
ramps
and
stairs,
balancing,
stooping,
kneeling, crouching. Never climbing ladders,
ropes or scaffolds.
Avoid concentrated
exposure to hazards, and what I mean by that,
work at unprotected heights and around
dangerous, moving machinery.
Let’s give
simple, routine, repetitive task limitations
also. Also lastly, sit/stand at will option.
(Tr. 47).
In response to this hypothetical, the VE testified that
this individual could not perform the work that Forrester has
performed in the past, but could perform a number of jobs including
electrical accessories assembler, small product assembler, and
laundry folder.
(Tr. 47).
For his second hypothetical question, the ALJ asked the VE to
include the same limitations that were included in the first
hypothetical, but also the use of a cane for steadiness and
balancing
when
standing
or
walking.
With
this
additional
limitation, the VE testified that no light jobs could be performed.
(Tr. 48).
6
The following exchange then occurred:
Q: So we’re down to sedentary work?
A: Yeah, un-huh, sedentary work.
Q: Any sedentary work which would
accommodate that additional limitation?
A: Yes. Jobs in the sedentary category
could include that of an addresser which there
are approximately 75 in the region. That of
an order clerk which there would be 150. Or
that of a telephone clerk which there would be
100.
(Tr. 48).
The record was closed (Tr. 49) and on November 13, 2008, ALJ
Miller issued his decision finding that Forrester had not been
under a disability within the meaning of the Social Security Act
from December 6, 2004, through the date of his decision.
Review of Commissioner’s Decision
This Court has authority to review the Commissioner’s decision
to deny social security benefits.
42 U.S.C. § 405(g).
“The
findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive....”
Id.
Substantial evidence is defined as “such relevant evidence as a
reasonable
mind
might
find
adequate
to
support
Richardson v. Perales, 402 U.S. 389, 401 (1971).
a
decision.”
In determining
whether substantial evidence exits, the Court shall examine the
record in its entirety, but shall not substitute its own opinion
for the ALJ’s by reconsidering the facts or re-weighing evidence.
Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003).
7
With that in
mind, however, this Court reviews the ALJ’s findings of law de novo
and if the ALJ makes an error of law, the Court may reverse without
regard
to
findings.
the
volume
of
evidence
in
support
of
the
factual
White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999).
As a threshold matter, for a claimant to be eligible for
disability insurance benefits under the Social Security Act, the
claimant must establish that he is disabled.
To qualify as such,
the claimant must be unable 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 has lasted
or can be expected to last for a continuous period of not less than
twelve months.”
determine
42 U.S.C. §§ 423(d)(1)(A) and 1382(a)(1).
whether
a
claimant
has
satisfied
this
To
statutory
definition, the ALJ performs a five step evaluation:
Step 1:
Is the claimant performing substantial gainful activity?
If yes, the claim is disallowed, if no, the inquiry
proceeds to step 2.
Step 2:
Is
the
claimant’s
impairment
or
combination of
impairments “severe” and expected to last at least twelve
months? If not, the claim is disallowed; if yes, the
inquiry proceeds to step 3.
Step 3:
Does the claimant have an impairment or combination of
impairments that meets or equals the severity of an
impairment in the SSA’s Listing of Impairments, as
described in 20 C.F.R. § 404, Subpt. P, App. 1? If yes,
then the claimant is automatically disabled; if not, then
the inquiry proceeds to step 4.
Step 4:
Is the claimant able to perform his past relevant work?
If yes, the claim is denied; if no, the inquiry proceeds
to step 5, where the burden of proof shifts to the
Commissioner.
8
Step 5:
Is the claimant able to perform any other work within his
residual functional capacity in the national economy? If
yes, the claim is denied; if no, the claimant is
disabled.
20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v); see
also Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).
The
ALJ
found
that
Forrester
had
not
engaged
in
any
substantial gainful work from the onset date of his alleged
disability
through
Additionally,
the
the
ALJ
date
noted
of
the
that
decision.
while
(Tr.
Forrester
had
11-13).
severe
impairments, he had no impairment or combination of impairments
that met or medically equaled any of the impairments included in
the Listing of Impairments at 20 C.F.R. pt. 404, subpt. P, app. 1
(Id.). The ALJ found that while Forrester could not perform any of
his past relevant work given his disability, he could perform a
significant number of other jobs in the national economy, and
therefore, was not disabled.
(Tr. 16-17).
More specifically, the ALJ found that Forrester has the
residual functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(a) requiring a sit/stand option at will; use of
cane for steadiness in balance when standing or walking; only
occasional
crouching,
climbing
and
of
kneeling;
ramps/stairs,
no
climbing
of
balancing,
ropes,
stooping,
ladders,
and
scaffolds; avoid concentrated exposure to hazards such as work at
unprotected heights or around dangerous moving machinery; and
involving only simple, repetitive, routine tasks.
9
(Tr. 13).
Relying on the testimony of the VE, the ALJ further found that
“[c]onsidering the claimant’s age, education, work experience, and
residual
functional
capacity,
there
are
jobs
that
exist
in
significant numbers in the national economy that the claimant can
perform.”
(Tr. 16).
In reaching this decision, the ALJ noted the
following:
[T]he Administrative Law Judge asked the
vocational expert whether jobs exist in the
national economy for an individual with the
claimant’s age, education, work experience,
and residual functional capacity.
The
vocational expert testified that given all of
these factors the individual would be able to
perform the requirements of representative
occupations such as addresser (75 jobs in the
relevant economic region in which the claimant
resides); order clerk (150 jobs in the
region); and telephone clerk (100 jobs in the
region).
The vocational expert stated that
the relevant region is the northeastern region
of Indiana. The vocational expert testified
that, in the State of Indiana, the number of
jobs would be 5 or 6 times these numbers.
Pursuant to SSR 00-4p, the vocational expert’s
testimony is consistent with the information
contained in the Dictionary of Occupational
Titles, with the exception of the sit/stand
option, which is not recognized by this
publication. However, the undersigned finds
the vocational expert’s testimony to be
reasonable, including the testimony regarding
the sit/stand option, based on the vocational
expert’s experience in the vocational field.
(Tr. 17).
Thus, Forrester’s claim failed at step five of the
sequential analysis, and the ALJ found that the claimant had not
been under a disability, as defined in the Social Security Act,
from December 6, 2004, through the date of his decision.
10
Forrester believes that the ALJ committed an error by relying
on the VE’s testimony to support his conclusion that Forrester is
able to perform other work within his residual functional capacity
in the national economy.
He also asserts that the jobs cited by
the ALJ in his decision are not a “significant number.”
Lastly,
Forrester argues that the ALJ improperly minimized the Consultive
Examiner’s observations regarding Forrester’s use of a cane.
ALJ’s Use of VE Testimony
Forrester
argues
that
the
ALJ
erred
at
step
5
of
the
sequential analysis because he failed to include all limitations he
ultimately included in Forrester’s residual functional capacity in
a
third
hypothetical
question
directed
to
the
VE
and
then
erroneously relied on that testimony to support his finding at step
five of the sequential analysis.
The ALJ’s hypotheticals and the
VE’s responses to those hypotheticals have been set forth in detail
above.
Forrester contends that the “inherent reason” that the VE
answered that there were no jobs that the hypothetical individual
could perform in response to the second hypothetical (the one that
added the use of a cane for steadiness and balancing when standing
or walking) is “because the work identified required bilateral
manual dexterity.
When the worker was ‘standing’ in the ‘standing
phase’ of the sit-stand at will option, he could not perform the
11
work if one hand was occupied with a cane.”
(DE 15 at 11).
Forrester criticizes the ALJ for stating his last hypothetical
to the VE in a curt form: “So we’re down to sedentary work?”
15 at 11).
(DE
Forrester then argues that “[s]ince the specifics of
the third hypothetical were not set forth, the only reasonable
interpretation was that the ALJ was referring to sedentary work as
defined in SSR 83-12, without the sit-stand at will option.”
15 at 11).
(DE
According to Forrester:
[t]he stated residual functional capacity in
the decision was never asked to the Vocational
Expert. If the ALJ had asked a hypothetical
that included sedentary with a sit-stand at
will option and use of a cane for steadiness
and balancing when standing or walking, logic
would have forced the Vocational Expert to
answer the “other work” question “No” for the
very same reason that governed his response in
the second hypothetical, i.e. the jobs
required bilateral manual dexterity.
(DE 15 at 11).
This Court agrees with Forrester that the ALJ stated his third
hypothetical rather curtly.1 This Court also agrees with Forrester
that it would be improper to apply the VE’s testimony regarding
available positions under one residual functional capacity to a
different
residual
functional
capacity.
1
This
Court
is
not,
The Commissioner suggests that this question was not a
“hypothetical” at all, but a clarification of the ramifications
of the limitation added to the second hypothetical question.
Whether it is characterized as a third hypothetical or a
clarification of the second hypothetical is irrelevant, as it has
no impact on the meaning of the dialogue between the ALJ and the
VE.
12
however, persuaded that this occurred in this case.
The ALJ’s first hypothetical included a sit/stand at will
option.
The ALJ’s second hypothetical was identical but added the
use of a cane for steadiness and balancing when standing or
walking.
Accordingly, when the ALJ asked the VE, “[s]o we’re down
to sedentary work?”, that question can be inferred to include a
sit/stand at will option.
The ALJ’s follow-up question made it
clear that the ALJ wanted to be certain the VE had included the
further limitations regarding the use of the cane included in the
second hypothetical, the limitation that caused the VE to testify
that the hypothetical individual would not be able perform any
light jobs.
If, as Forrester contends, it is the combination of the use of
the cane and the sit/stand at will option that prevented the VE
from concluding that the individual described in the ALJ’s second
hypothetical could perform a significant number of jobs, then the
VE was clearly aware that the ALJ had included the sit/stand at
will option in his first and second hypotheticals.
The ALJ never
asks the VE to consider any hypothetical without a sit/stand at
will option.
Forrester’s suggestion that the VE could not have
inferred that the ALJ’s question regarding sedentary work was to
include a sit/stand at will option is not persuasive. A reasonable
reading of the transcript suggests that the VE was aware that the
ALJ’s hypothetical individual needed a sit/stand at will option,
13
and with this knowledge, opined that the jobs of addresser, order
clerk and telephone clerk were available to such an individual.
Accordingly, Forrester’s argument fails.
Number of Jobs
Forrester argues that the ALJ also erred at step five of the
sequential analysis because the number of jobs identified as jobs
Forrester could perform is not significant.
Forrester relies on
Lee v. Sullivan, 988 F.2d 789 (7th Cir. 1993).
Appeals
for
the
Seventh
Circuit,
in
Lee,
The Court of
found
that
1,400
positions was a significant number. In support of its finding, the
Court cited to a number of cases finding that even fewer positions
would support a finding that a significant number of positions
existed.
The Court noted that:
In Hall v. Bowen, 837 F.2d 272, 275 (6th Cir.
1988), the Sixth Circuit found 1,350 positions
were a significant number of jobs. In Barker
v. Secretary of Health & Human Services, 882
F.2d 1474, 1479 (9th Cir. 1989), the Ninth
Circuit found 1,266 positions were within the
parameters of a significant number of jobs.
The Tenth Circuit, while refusing to draw any
bright line, found 850-1,000 potential jobs
were a significant number of jobs in Trimiar
v. Sullivan, 966 F.2d 1326, 1330-32 (10th Cir.
1992).
See also Jenkins v. Bowen, 861 F.2d
1083, 1087 (8th Cir. 1988) (500 jobs are
significant number); Allen v. Bowen, 816 F.2d
600, 602 (11th Cir. 1987) (174 positions are
significant number); Nix v. Sullivan, 744
F.Supp. 855, 863 (N.D. Ill. 1990) (675 jobs
are significant number), aff’d, 936 F.2d 575
(7th Cir. 1991).
14
Lee, 988 F.2d 789 (7th Cir. 1993).
Lee, which Forrester relies on,
cites approvingly to a case which finds that even as few as 174
positions is a significant number.
In Liskowitz v. Astrue, the
Seventh Circuit likewise noted that “[a]s few as 174 jobs has been
held to be significant . . . and it appears to be well-established
that 1,000 jobs is a significant number.”
Cir. 2009).
argument
that
449 F.3d 736, 743 (7th
Forrester offers no authority that supports his
the
number
of
jobs
the
VE
testified
would
be
available, 325 in the region, and five or six times that many in
the state, is not substantial.
In fact, Seventh Circuit precedent
suggests the opposite.
Minimization of the Consultive Examiner’s Observations
The entirety of Forrester’s argument with regards to the
minimization
of
the
consultive
examiner’s
observations
follows:
Finally, the ALJ improperly minimizes
without adequate explanation the Consultive
Examiner’s observations and conclusions about
the cane.
The Consultative Examiner stated
about the cane:
Gait is slow but steady.
He does
require the assistance of assistive
device that being a cane, use of
stability that he uses in short and
long distances. He also uses it to
help get in and out of a chair. It
is medically required. It is used
at all times. ... (R. 351).
The additional use of a cane to get in and out
15
is
as
of a chair every time there was a change in
the sitting or standing position would affect
the pace at which the Plaintiff would be able
to perform a job and would further erode the
improperly
used
and
already
very
thin
occupational base.
(DE 15 at 12).
The ALJ accepted Forrester’s testimony that he needs to use a
cane for steadiness in balance when standing or walking, although
his opinion expresses some reservation about whether the medical
record actually established that Forrester needed to use a cane.
(Tr. 13-14).
However, as Forrester points out, the ALJ does not
specifically address the use of the cane for getting in and out of
a
chair.
Unfortunately,
Forrester
points
to
no
authority
establishing the ALJ’s obligation to do so, and Forrester has
produced nothing, other than his attorney’s argument, to suggest
that the use of a cane to assist in getting in and out of a chair
would significantly affect the pace at which the sedentary jobs at
issue
could be performed or that it would significantly erode the
occupational
base.
Although
Forrester’s
development
of
his
argument is less than full, this case was decided at step 5 of the
sequential analysis and the burden of establishing that Forrester
is able to perform other work within his residual functional
capacity rests with the Commissioner.
The Commissioner’s brief addresses Forrester’s argument in a
footnote as follows: “Plaintiff also argues that the ALJ did not
adequately accommodate his need to use a cane (Pl.’s Br. at 12),
16
but
the
ALJ
explicitly
included
such
a
limitation
in
the
hypothetical question he posed to the vocational expert (Tr. 48).”
The Commissioner’s response completely misses the point. The Court
found neither Forrester’s brief nor the Commissioner’s response
particularly helpful in deciding the issue raised, but the issue
was raised and the Court must give it consideration.
It has been noted that “even when medically required, the use
of a cane does not rule out the ability to perform sedentary work.”
Harris v. Astrue, No. CV 08-2726 AJW, 2009 WL 2912655 (Sept. 8,
2009 C.D. Cal.); see also SSR 96-9p.
However, SSR-96-9p directs
that, where a hand-held assistive device is medically necessary,
“it may be especially useful to consult a vocational resource in
order to make a judgment regarding the individual’s ability to make
an adjustment to other work.”
That is precisely what the ALJ did,
and the vocational expert testified that a significant number of
positions
remained
that
the
hypothetical
individual
with
Forrester’s residual functional capacity could perform even with
the use of the cane for steadiness in balance when standing or
walking. However, a VE is only required to answer the hypothetical
questions posed to him, and here, the ALJ did not include a
limitation with regards to using a cane to get in and out of a
chair.
SSR 96-9p makes it clear that the reason the testimony of
a VE is needed is because whether or not the occupational base is
significantly eroded will depend on the precise nature of the need
17
to use a cane.
SSR 96-9p provides in part as follows:
For example, if a medically required hand-held
assistive device is needed only for prolonged
ambulation, walking on uneven terrain, or
ascending or descending slopes, the unskilled
sedentary
occupational
base
will
not
ordinarily be significantly eroded. . . . On
the other hand, the occupational base for an
individual who must use such a device for
balance because of significant involvement of
both lower extremities (e.g., because of a
neurological impairment) may be significantly
eroded.
SSR 96-9p at 6.
20 C.F.R. section 404.1527 provides that, “[r]egardless of its
source, we will evaluate every medical opinion we receive.
Unless
we give a treating source’s opinion controlling weight under
paragraph (d)(2) of this section, we consider all of the following
factors in deciding the weight we give to any medical opinion.”
The regulations then list seven factors to be considered, including
the examining relationship, treatment relationship, supportability
of the opinion, consistency with other evidence, specialization of
the physician, and other factors.
It is well-established that an
ALJ’s decision must always give good reasons for the weight given
to the opinions of treating physician’s.
C.F.R. 404.1527(d)(2).
SSR 96-2p; see also 20
The regulations also make it clear that,
“[u]nless a treating source’s opinion is given controlling weight,
the administrative law judge must explain in the decision the
weight
given
to
the
opinions
of
a
State
agency
medical
or
psychological consultant or other program physician, psychologist,
18
or other medical specialist, as the administrative law judge must
do for any opinions from treating sources, nontreating sources, and
other nonexamining sources who do not work for us.”
20 C.F.R. §
404.1527(f)(2)(ii).
In the ALJ’s decision, he does not discredit the opinions of
any of Forrester’s treating physicians, but he also does not
explicitly state that he is giving controlling weight to them. The
ALJ noted that at the time Forrester was dismissed from Dr. Arata’s
care, “there [was] no indication in the record that the claimant
was still using a cane or walker or that he needed one” and that
“[t]here are not many records since that time.”
(Tr. 14).
He
further notes that Forrester receives care through a local low
cost/free clinic, and their treatment records “do not give much in
the way of detailed objective findings.”
(Tr. 14).
In this case,
because the ALJ’s residual functional capacity included the use of
a cane for steadiness in balance when standing or walking, it
appears that the ALJ gave more weight to the opinion of Dr. Adams,
a consultative examiner, than to Forrester’s treating physicians.
Yet, the ALJ also appears to not fully credit Dr. Adams’ opinion
regarding the use of the cane because the ALJ does not include the
need to use a cane to get in and out of a chair in Forrester’s
residual functional capacity.
In fact, a reading of the opinion
suggests that the ALJ might have been mistaken regarding what
exactly
Adams’
opinion
said.
The
19
ALJ
writes
that
“[t]he
consultative examination of Dr. Adams appears to show that the
claimant is not as limited as alleged at the hearing.
The
consulting physician did not see the medical reason for the cane,
other than to ensure steadiness in standing and walking, which
findings [sic] is adopted and set forth in the residual functional
capacity.”
(Tr. 15).
It is possible that the ALJ just overlooked
this one short sentence in the record.2
the
ALJ
could
have
rejected
(or
It is also possible that
did
reject)
Adams’
opinion
regarding the need to use a cane to get in and out of the chair as
too brief, conclusory, and inadequately supported by clinical
findings.
It
is
likewise
possible
that
the
VE’s
testimony
regarding available positions would not have been altered by the
inclusion of the need for the cane to get in and out of a chair in
the residual functional capacity, but this Court does not have the
benefit of expert testimony on this subject.
Although
this
Court
“may
not
re-weigh
the
evidence
or
substitute [its] judgment for that of the ALJ, the ALJ must at
least minimally articulate his analysis with enough detail and
clarity
to
permit
meaningful
appellate
review.”
Bradley
v.
Barnhart, 175 Fed. Appx. 87 (7th Cir. 2006) (citing Boiles v.
Barnhart, 395 F.3d 421, 425 (7th Cir. 2005).
The ALJ’s decision
need not address every piece of evidence, but must “build an
2
It is noted that Forrester’s counsel did nothing to bring
this evidence to the ALJ’s attention at the hearing.
20
accurate and logical bridge from the evidence to his conclusion.”
Clifford v. Apfel, 227 F.3d 863 (7th Cir. 2000).
The ALJ’s
decision offers little explanation of the weight given to Dr.
Adams’ opinions.
The ALJ’s decision does state that “[t]he
undersigned has also considered opinion evidence in accordance with
the requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-6p and 063p.” Although the ALJ’s decision offers assurance that he followed
the relevant regulations and social security rulings, the decision
itself does not demonstrate his adherence.
Unfortunately, this
Court can not read ALJ Miller’s mind, and neither can this Court
speculate as to whether the inclusion of the use of the cane to get
in and out of the chair would have altered the VE’s testimony.
ALJ
Miller’s decision does not provide this Court with sufficient
detail for this Court to find that he has built an accurate and
logical bridge from the evidence to his conclusion.
Accordingly,
remand to the Social Security Administration is required.
Remand
Forrester requests that this Court reverse the Commissioner’s
decision denying him benefits and award past-due and future Social
Security
Disability
benefits.
In
the
alterative,
Plaintiff
requests that this cause be remanded and that a new hearing be held
before a new ALJ.
Because of the nature of the error, remand is
more appropriate than an award of benefits.
21
Furthermore, there is
nothing in ALJ Miller’s opinion which suggests any bias that would
prevent
him
from
continuing
to
preside
over
this
matter.
Accordingly, this Court declines to order that further proceedings
take place before a new ALJ.
That is a decision best left to the
Social Security Administration.
CONCLUSION
For the reasons set forth above, the Commissioner of Social
Security’s final decision is REVERSED and this case is REMANDED for
proceedings consistent with this opinion pursuant to sentence four
of 42 U.S.C. section 405(g).
DATED: September 30, 2011
/s/Rudy Lozano, Judge
United States District Court
22
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