Smith v. Commissioner of Social Security
Filing
39
OPINION AND ORDER: the Court ADOPTS IN PART and MODIFIES IN PART the Report and Recommendation [ECF No. 36] and OVERRULES IN PART and SUSTAINS IN PART the Defendant's Objection [ECF No. 37]. The Commissioner's decision is REVERSED and this case is REMANDED for further proceedings in accordance with this Opinion and Order. Signed by Judge Theresa L Springmann on 9/7/11. (jcp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JILL M. SMITH,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Administration,
Defendant.
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CASE NO.: 1:10-CV-163-TLS
OPINION AND ORDER
The Plaintiff, Jill M. Smith, brought this action pursuant to 42 U.S.C. § 405(g) seeking
review of the Commissioner’s final decision denying her October 29, 2003, application for
Supplemental Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C.
§ 1382c(a)(3), and her November 18, 2003, application for Disability Insurance Benefits (DIB)
under Title II of the Social Security Act, 42 U.S.C. § 423(d). On June 3, 2010, this Court
referred the matter to Magistrate Judge Roger Cosbey for a report and recommendation. On
December 14, 2010, the Plaintiff filed her Opening Brief [ECF No. 22] which she corrected on
December 22 [ECF No. 23], and on March 28, 2011, the Defendant filed his Memorandum in
Support of Commissioner’s Decision [ECF No. 29]. On April 26, the Plaintiff filed a Reply Brief
[ECF No. 34]. On May 16, Magistrate Judge Cosbey filed a Report and Recommendation [ECF
No. 36] recommending that the Commissioner’s decision be reversed and the matter be
remanded to the Administration Law Judge (ALJ) for further proceedings to consider the
Plaintiff’s use of a nebulizer and its impact, if any, on his findings that she could perform a
significant number of jobs in the economy despite the limitations caused by her impairments.
On May 26, the Defendant filed his Objection to the Magistrate Judge’s Report and
Recommendation [ECF No. 37] requesting that the Court affirm the ALJ’s decision. The
Defendant maintains that because substantial evidence supports the ALJ’s finding concerning the
Plaintiff’s residual functional capacity (RFC) and his inclusion of no environmental limitations,
the Magistrate Judge erroneously found that the ALJ “played doctor” in finding that the record
as a whole did not support the Plaintiff’s testimony regarding her need for a nebulizer or the
frequency with which she needed to use a nebulizer.
Because the Defendant has objected to the Magistrate Judge’s Report and
Recommendation, this Court must “make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1); see also Fed. R. Civ. P. 72(b)(3). The Court may “accept, reject, or modify, in
whole or in part, the findings or recommendation made by the magistrate judge.” Id.
BACKGROUND
The Plaintiff was involved in a severe car accident in January 2000. The Plaintiff filed
applications for SSI and DIB alleging that she had become disabled on October 19, 2000, from
injuries suffered in the accident, and also because she suffers from fibromyalgia, insulindependent diabetes, frequent urination, frequent diarrhea, asthmatic bronchitis, and morbid
obesity. Her applications were denied, and on September 20, 2006, she appeared with counsel
and testified at a hearing before ALJ Steven Neary. The Plaintiff’s sister and a vocational expert
(VE) also testified. The ALJ denied the Plaintiff’s claim. After the Appeals Council reversed the
ALJ’s decision and remanded for a new hearing, a second hearing was held on April 9, 2008, at
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which the Plaintiff and the VE testified. On July 30, 2009, the ALJ issued a written decision
denying the Plaintiff’s claim a second time. Applying the familiar five-step process for
determining whether an applicant meets the definition of disability contained in the Social
Security Act, see Craft v. Astrue, 539 F.3d 668 (7th Cir. 2008); 20 C.F.R. § 404.1520, the ALJ
found that the Plaintiff had not engaged in substantial gainful activity since her alleged onset
date, had severe impairments that did not meet a listing, and maintained the RFC to perform
sedentary work as defined in 20 C.F.R. § 404.1567(a) and 416.967(a) except as reduced by
occasional postural maneuvers involving climbing, crawling, stooping, crouching, and kneeling
with standing and walking limited to no more than fifteen minutes at a time or one hour out of an
eight-hour work day. The ALJ determined, based on the testimony of a VE, that this RFC did not
permit the Plaintiff to perform her past relevant work, but that she perform other jobs that existed
in significant number in the economy, specifically as a document preparer, callout operator, or
charge account clerk. The ALJ thus denied the Plaintiff’s DIB and SSI claims at step five of the
analysis.
On April 2, 2010, the Appeals Council denied the Plaintiff’s request for review. The
ALJ’s decision therefore became the final decision of the Commissioner, see 20 C.F.R. §
404.981, and the Plaintiff initiated a timely action for judicial review. In her Opening Brief, the
Plaintiff advanced several arguments: (1) that substantial evidence did not support the ALJ’s
finding that the Plaintiff has no limitations on her ability to do sustained reaching, handling, or
fingering; (2) that the ALJ’s analysis of the babysitting work the Plaintiff did with her daughter
was legally flawed; (3) that the ALJ relied on the wrong legal standard at step five of the
analysis; (4) that the RFC finding did not include accommodations for the effects of treatment;
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(5) that the ALJ erred by failing to award at least a period of disability and failing to explain his
conclusion that there had been no twelve-month period in which the Plaintiff was unable to
sustain full time work; (6) that the ALJ made his own independent medical determination
regarding the Plaintiff’s asthma when he discounted the effects of treatment on her RFC; and (7)
that the ALJ committed legal error when he required the Plaintiff to provide objective support
for symptoms such as pain, stiffness, and fatigue despite having a diagnosis of fibromyalgia. The
Plaintiff requested that the Court reverse her case with instructions to the SSA to calculate and
award disability benefits back to the date of her vehicle accident, January 14, 2000, or,
alternatively, reverse and remand with instructions to correct all of the errors identified by the
Plaintiff in her Brief.
On May 16, 2011, the Magistrate Judge submitted a Report and Recommendation. The
Magistrate Judge considered the Plaintiff’s argument that the ALJ “played doctor” when he
concluded that it was not necessary for her to use a nebulizer six times a day as a breathing
treatment. Finding merit in the Plaintiff’s argument, the Magistrate Judge noted that no medical
expert opined that the treatment was unnecessary and the ALJ appeared to have indulged in his
own lay view of the Plaintiff’s need, or lack thereof, for the nebulizer treatments prescribed by
the Plaintiff’s doctor, Dr. Thomas Miller. The Magistrate Judge further reasoned that the
evidence was significant to the ALJ’s findings because the VE testified that there would not be
any jobs available for a hypothetical individual of the Plaintiff’s age, experience, education, and
limitations who, among other things, needs to take time out of the workday to use, and recover
from the side effects of, a nebulizer. The Magistrate Judge concluded that the court had “no
assurance that the ALJ’s consideration of [the Plaintiff’s] regular use of a nebulizer throughout
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the day, a treatment which takes fifteen minutes and ostensibly causes fifteen minutes of after
effects, constitutes mere harmless error.” (Report and Recommendation 15–16, ECF No. 36.)
The Magistrate Judge also found it problematic that the ALJ did not include an environmental
limitation in the Plaintiff’s RFC because an ALJ is required to evaluate restrictions to avoid
exposure to odors and dust on an individual basis as these could erode the occupational base
depending on the facts in the case record. Because the Magistrate Judge recommended a remand
to consider the Plaintiff’s use of a nebulizer and its impact, if any, on the step five analysis, the
Magistrate Judge did not address the Plaintiff’s other challenges to the ALJ’s findings.
On May 26, the Defendant filed his Objection to the Magistrate Judge’s Report and
Recommendation [ECF No. 37]. The Defendant argues that substantial evidence supports the
ALJ’s finding regarding the Plaintiff’s use of a nebulizer and his inclusion of no environmental
limitations in the RFC. The Defendant submits that the Plaintiff did not show that her asthma and
related breathing impairments were disabling, that no physician opined as to the severity of the
breathing problems or the limitations they presented, that a prescription for inhalers does not
speak to the frequency of their use, and that the ALJ was not required to fully credit the
Plaintiff’s testimony that the severity of her breathing problems necessitated frequent inhaler
use. The Defendant asserts that the ALJ’s hypothetical thus accurately identified the limitations
credibly supported by the record. The Defendant also argues that the Court should not accept the
Magistrate Judge’s finding regarding environmental limitations because the jobs the VE testified
the Plaintiff could perform do not have any environmental factors and, accordingly, any err in
not assessing environmental limitations was harmless.
On June 3, the Plaintiff filed her Response to Defendant’s Objections to Magistrate
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Judge’s Report [ECF No. 38]. The Plaintiff argues that the Magistrate Judge’s findings with
respect to her sixth argument before the Court is correct and requires reversal. She maintains that
if the Court determines otherwise it should resolve her remaining arguments on their merits.
Regarding the Plaintiff’s need to nebulize, the Plaintiff contends that the ALJ made
impermissible lay inferences when he second-guessed medical advice that no other doctor
contradicted, overlooked the rule that disability applicants must follow the medical advice of
their doctors, and failed to include in the RFC finding all of the effects of treatment and the
limitations or restrictions imposed by the mechanics of treatment.
DISCUSSION
A reviewing court will affirm the denial of disability benefits so long as the ALJ’s
decision is supported by substantial evidence, meaning evidence “sufficient for a reasonable
person to accept as adequate to support the decision,” and the court will not reweigh evidence or
substitute its judgment for that of the ALJ. Ketelboeter v. Astrue, 550 F.3d 620, 624 (7th Cir.
2008) (internal citation omitted). The ALJ must build a “logical bridge” between the evidence
and his conclusions. Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004). Even if “reasonable
minds could differ” about whether a claimant is disabled, the Court will affirm the ALJ’s denial
of benefits so long as the decision has adequate support. Elder v. Astrue, 529 F.3d 408, 413 (7th
Cir. 2008).
To receive disability benefits under the Social Security Act, a claimant must be
“disabled” as defined by the Act. 42 U.S.C. § 423(a)(1)(E). A claimant qualifies as disabled if he
is unable to “engage in any substantial gainful activity by reason of any medically determinable
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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). Moreover, a claimant’s physical or mental impairment or impairments must be of
such severity that he is not only unable to do his previous work but cannot, considering his age,
education and work experience, engage in any other kind of substantial gainful work which
exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
A claim of disability is determined under a five-step sequential analysis. Craft, 539 F.3d
at 673.
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
[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.
Id. at 674. The applicant bears the burden or proof in each of the first four steps. Briscoe v.
Barnhart, 425 F.3d 345, 352 (7th Cir. 2005). The government bears the burden of proof at the
fifth step and must present evidence establishing that the applicant possessed the RFC to perform
work that exists in a significant quantity in the national economy. 42 U.S.C. § 423(d)(2)(A);
Liskowitz v. Astrue, 559 F.3d 736, 740 (7th Cir. 2009).
Here, the findings being challenged are those related to the ALJ determination of the
Plaintiff’s RFC, which is the work the Plaintiff could still do despite her physical impairments
and limitations, 20 C.F.R. § 404.1454(a), 416.945(a), and the resulting hypothetical questions
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posed to the VE to determine if the Plaintiff could perform work that exists in significant
numbers in the national economy. The Plaintiff argues that the ALJ’s RFC assessment and his
conclusion that she could perform a restricted range of sedentary work on a regular and
continuing basis did not take into account the limits imposed by her medically-recognized
breathing impairments. The Plaintiff claims that the ALJ erred because he did not consider her
doctors repeatedly prescribing the breathing treatments she used; their repeated diagnoses of
bronchitis and asthma related bronchitis; and her side effects from the prescribed treatments.
The Defendant argues that the ALJ reasonably considered the Plaintiff’s breathing
difficulties when he recounted the evidence at length, including findings showing no acute lung
disease; the lack of any referral to a lung specialist; her repeated treatment for bronchitis and
asthma-related bronchitis; her prescriptions for several inhalers and the frequency with which
she used them, including her testimony at a second hearing that she used a nebulizer three times
a day, down from the six times to which she testified during her first hearing; her testimony that
she was jittery up to thirty minutes after she used her nebulizer; and the lack of any medical
opinion indicating that her breathing problems were disabling or severe. The Defendant argues
that the fact inhalers were prescribed does not mean that the Plaintiff was required to use them
with the frequency to which she testified or that the ALJ was required to fully credit her
testimony that she needed to use her inhaler as frequently as she did.
In his decision rejecting the Plaintiff’s claim, the ALJ made the following analysis of her
breathing related complaints:
As to the claimant’s breathing related complaints the evidence reflects an October
16, 2001, complaint of dyspnea, but chest x-rays showed no active pulmonary
disease, and was reportedly diagnosed with bronchitis, which use of an antibiotic and
Proventil improved her symptoms including dyspnea (Exhibit 5F, pages 3-4, 5-6).
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Treatment records of treating family physician Dr. Miller for the period May 21,
2002, through February 26, 2008, reflect only 9 episodes of diminished breath
sounds (several only slightly diminished) associated with congestion,
sinusitis/bronchitis and a sore throat and use of an inhaler with later prescription
records showing use of several related medications (Exhibit 16F, pages 6- 8, 14, 37;
24F; 26F; 26F, pages 1, 3, 11-16, 38; 27F, pages 1-2, 5-6). February 27, 2004,
complaints of asthma and wheezing were addressed via chest x-ray in comparison
with a prior April 11, 2003, chest x-ray and revealed minimal cardiomegaly with
clear lungs and no evidence of acute disease (Exhibit 14F, page 4). Examination on
February 28, 2004, reflected no pulmonary or breathing related deficits (Exhibit
15F). While the claimant appears to have used inhalers and other related medications
for breathing related deficits caused by colds/upper respiratory infections,
sinusitis/bronchitis (asthmatic bronchitis) and possibly allergies, objective findings
do not reflect significant deficits or active pulmonary disease, there was no referral
for this condition nor is there evidence for a formal breathing disorder beyond those
cited, nor even administration of a pulmonary function study. The overall evidence
of record as a whole also does not reflect or support the claimant’s testified to
frequency of or even use of a nebulizer for her alleged severity of related symptoms.
There is no opinion that these findings are disabling or even severe and as such the
ALJ gives more weight to the minimal objective findings than to the claimant’s
testimony for significant deficit, as the objective evidence does not reasonably
support greater functional deficit than that acknowledged herein by the ALJ in
limiting the claimant to sedentary work, which type of work is primarily performed
within an indoor clean air environment free of pulmonary irritants and would
accommodate both these noted limitations and subjective allegations for shortness
of breath that are only minimally reflected within the overall evidence of record.
(R. at 28–29.)
The Court finds that the ALJ sufficiently explained why the RFC does not include an
additional environmental limitation to avoid exposure to odors or dust. This is a modification of
the Magistrate Judge’s findings. Although the medical evidence includes diagnoses of asthma
and asthmatic bronchitis, the record does not contain any medical opinion regarding the severity
of the Plaintiff’s breathing problems or suggesting that certain environmental factors triggered or
exacerbated these problems. Nor did the Plaintiff testify to any environmental conditions that
were problematic. This explains the ALJ’s decision not to include environmental limitations in
her RFC, but to instead conclude that the restriction to sedentary work, “which type of work is
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primarily performed within an indoor clean air environment free of pulmonary irritants” would
accommodate her breathing related problems. (R. at 29.) This was proper in light of the record.
See Nelms v. Astrue, 553 F.3d 1093, 1099 (7th Cir. 2009) (holding that even though the ALJ did
not explicitly address the need to avoid concentrated exposure to dust, pollen, fumes, odors, and
gases, he adequately addressed restriction on outside work in warm environments when he noted
that the sedentary and light categories of work contained numerous jobs). The assumption that
some sedentary work exists in the national economy that does not present a threat of
concentrated exposure to dust, pollen, fumes, gases, odors or poor ventilation is not so
unreasonable as to warrant reversal. See, e.g., Britton v. Astrue, 521 F.3d 799, 802 (7th Cir.
2008) (noting the testimony of vocational expert that the list of sedentary jobs within claimant’s
RFC would be available in the same numbers even with the further limitations of “no exposure
to concentrated fumes, dust, environmental type irritants”). Moreover, while restrictions to avoid
exposure to odors or dust must be evaluated on an individual basis as they could significantly
erode the occupational base, see SSR 96-9p, the jobs identified by the VE in this case do not
have environmental factors, see Dictionary of Occupational Titles (DICOT) 249.587-018,
Document Preparer (4th ed. 1991), 1991 WL 672349; DICOT 237.367-014, Call-Out Operator
(4th ed. 1991), 1991 WL 672186; DICOT 205.367-014, Charge-Account Clerk, 4th ed. 1991,
1991 WL 671715.1 Thus, even if the ALJ erred in failing to include a restriction related to the
Plaintiff’s asthma in her RFC, the error was harmless and would not affect the outcome or
1
The DICOT is a publication from the Department of Labor containing standardized
occupational information. See Donahue v. Barnhart, 279 F.3d 441, 445 (7th Cir. 2002). If an ALJ relies
on VE testimony in making his decision, he must ask the VE whether his testimony conflicts with
information provided in the DICOT. The ALJ in this case posed the appropriate question and the VE
answered that his testimony was consistent with the DICOT. (R. at 746.)
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require remand. See Keys v. Barnhart, 347 F.3d 990, 994 (7th Cir. 2003) (noting that the doctrine
of harmless error is fully applicable to judicial review of administrative decisions).
The Magistrate Judge’s findings and conclusion were not limited, however, solely to the
ALJ’s findings regarding environmental factors. After conducting a de novo review, the Court
accepts the Magistrate Judge’s finding that, “as far as is discernable from the record, the ALJ
simply indulged in his own lay view of [the Plaintiff’s] need, or lack thereof, for the nebulizer
treatments prescribed by Dr. Miller, as no medical expert opined that they were unnecessary.”
(Report & Recommendation 15, ECF No. 36.) The ALJ did not construct a logical bridge
between the evidence and the RFC with respect to the Plaintiff’s treatments for asthma and other
breathing related deficits, particularly her need to nebulize. The Plaintiff was prescribed
medications and treatments for her breathing impairments, including nebulization. At the time of
the second hearing, the Plaintiff testified that she was using the nebulizer three times per day,
that each breathing treatment took fifteen minutes to administer, and that she felt dizzy and
shaky for another fifteen minutes after the treatment was completed. This was consistent with the
testimony she offered at the first hearing with the exception that the number of times she needed
to nebulize each day had decreased. The Defendant argues that the fact that the Plaintiff’s doctor
prescribed inhalers does not mean that he required the Plaintiff to use them with the frequency to
which she testified or that the ALJ had to fully credit the Plaintiff’s testimony that her breathing
problems were of such severity that she needed to use her inhalers as frequently as she did.
The ALJ was required, however, to provide an adequate bridge between the nebulizer
testimony and his conclusions regarding the Plaintiff’s RFC. The ALJ’s statement that the
“overall evidence of record as a whole does not reflect or support” the Plaintiff’s “testi[mony]
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[regarding the] frequency of or even use of a nebulizer for her alleged severity of related
symptoms” did not provide such a bridge. The ALJ did not appear to acknowledge Dr. Miller’s
diagnosis of asthma and prescribed treatment when he determined that she did not even need to
use a nebulizer. An ALJ must avoid substituting his own opinion for that of a treating physician
without relying on medical evidence or authority in the record. 20 C.F.R. § 404.1527(d)(2).
When evidence in opposition to the presumption is introduced, the rule drops out and the treating
physician’s evidence is just one more piece of evidence for the ALJ to weigh. Hofslien v.
Barnhart, 439 F.3d. 375, 377 (7th Cir. 2006) (citations omitted). The ALJ did not point to other
substantial evidence in the record that contradicted the evidence from the Plaintiff’s treating
physician. Although the ALJ stated that the objective findings did not reflect significant deficits
or active pulmonary disease, and that chest x-rays only showed minimal cardiomegaly with clear
lungs and no evidence of acute disease, these findings do not address the asthma or the need to
nebulize. The Plaintiff is not arguing that her breathing impairments were disabling, only that
when the limitations caused by her breathing impairments are considered in combination with
her other limitations, she is not able to perform even sedentary work. When assessing RFC, an
ALJ must consider limitations and restrictions imposed by all of an individual’s impairments,
even those that are not severe. SSR 96-8p; Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009).
In addition, an ALJ is required to include in his RFC finding “all the effects of treatment, [and
the] limitations or restrictions imposed by the mechanics of treatment (e.g., frequency of
treatment, duration, disruption to routine, side effects of medication).” SSR 96-8p. The ALJ also
noted that Dr. Miller’s treatment records for the period May 21, 2002, through February 26,
2008, reflected only nine episodes of diminished breath sounds. However, this does not
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undermine the evidence in the record supporting a need to nebulize as doing so may have
actually helped the Plaintiff avoid doctor visits that would have resulted in diminished breath
sounds. In fact, in response to a diagnosis of bronchitis in November 2007, the Plaintiff stated
that she was not using her inhaler as frequently as she should because it made her very jittery.
The objective medical evidence does not tend to prove one way or another the credibility of the
Plaintiff’s testimony regarding the frequency with which she needed to use a nebulizer, yet it is
all the ALJ relied upon to discredit her statements. And, in rejecting her need to nebulize at all,
the ALJ made his own independent medical findings. This led the ALJ to make conclusions
regarding the Plaintiff’s work-related functions without regard to the frequency or length of time
the Plaintiff would have to spend away from work as a result of her breathing impairments and
the need to nebulize. The limitation related to an indoor clean air environment free of pulmonary
irritants, which the ALJ reasoned was already accounted for in the restriction for sedentary work,
was not a sufficient substitute for these findings because it does not address any nonexertional
restrictions that would be caused by the need to nebulize during the work day.
The ALJ’s assessment of the Plaintiff’s need to nebulize in relation to her RFC is not
harmless error. A hypothetical posed to a VE must include “all limitations supported by medical
evidence in the record.” Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009). The VE testified
that an individual with the Plaintiff’s age, education, and work experience and RFC identified by
the ALJ would be capable of performing jobs as a document preparer, call-out operator, and
charge account clerk. When the ALJ asked the VE to assume the same age, education, and work
experience, but to include limitations consistent with the Plaintiff’s testimony, he responded that
there would be no jobs available: “With those limitations, your Honor, there would be no jobs
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[that] could be performed, according to testimony, frequent need to alternate sit and stand. And
that she is nebulizing throughout the day. She has after effects.” (R. at 746.)
Because it is not possible for the Court to track the ALJ’s reasoning with regard to her
need to nebulize and the impact of this need in combination with her other conditions and
treatments, the Court cannot affirm the Commissioner’s final decision as one that is supported by
substantial evidence. The Magistrate Judge concluded:
Being unable to discern how—apart from substituting his own judgment for that of
a medical witness—the ALJ reached his determination that [the Plaintiff] does not
need to use a nebulizer to manage her breathing conditions, the use of which may
impact the number of sedentary jobs that she is able to perform, the undersigned
Magistrate Judge recommends that the Commissioner’s final decision be reversed
and remanded for further proceedings.
(Report & Recommendation 16, ECF No. 36.) The Court adopts this finding and
recommendation.
CONCLUSION AND ORDER
For the reasons stated above, the Court ADOPTS IN PART and MODIFIES IN PART
the Report and Recommendation [ECF No. 36] and OVERRULES IN PART and SUSTAINS IN
PART the Defendant’s Objection [ECF No. 37]. The Commissioner’s decision is REVERSED
and this case is REMANDED for further proceedings in accordance with this Opinion and Order.
SO ORDERED on September 7, 2011.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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