Caban v. Commissioner of the Social Security Administration

Filing 32

OPINION AND ORDER: REVERSING AND REMANDING case to Commissioner of Social Security. Signed by Judge Robert L Miller, Jr on 9/30/2014. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
LUIS E. CABAN,
Plaintiff
vs.
CAROLYN W. COLVIN,1
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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CAUSE NO. 1:13-CV-67 RLM

OPINION AND ORDER
Luis Caban seeks judicial review of the latest decision of the Commissioner
of Social Security denying his applications for disability insurance benefits and
Supplemental Security Income under the Social Security Act, 42 U.S.C. §§ 423
and 1381 et seq. The court has jurisdiction over this action pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). For the reasons that follow, the court reverses and
remands this case to the Social Security Administration for further proceedings.
The extensive procedural history in this case is well-documented, and
needn’t be repeated here. Mr. Caban has applied for disability insurance benefits
and SSI three times: (1) on March 30, 2006 asserting disability as of October 31,
2005; (2) on December 17, 2008 asserting disability as of November 15, 2008; and
(3) on July 1, 2010. All three applications were denied. When this court vacated
the ALJ’s November 19, 2008 decision denying Mr. Caban’s original applications

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Carolyn W. Colvin, the Acting Commissioner of Social Security, has been substituted
as the named defendant, pursuant to Fed. R. Civ. P. 25(d)(1).

(A.R. 21-35) and remanded for further proceedings in July 2010, see Caban v.
Astrue, Cause No. 1:09-cv-192 (J. VanBokklen) (N.D. Ind. July 29, 2010) (A.R.
698-720), the Appeals Council ordered the Administrative Law Judge to “associate
all the claim files . . . offer [Mr. Caban] an opportunity for a hearing, take any
further action needed to complete the administrative record, and issue a new
decision.” (A.R. 650-51). The ALJ conducted a new hearing and issued a decision
on September 21, 2011 finding that Mr. Caban wasn’t disabled at any time from
October 31, 2005 through the date of his decision, and denied his applications for
benefits.
The ALJ found that Mr. Caban had severe physical and mental
impairments, but “only his obesity, his degenerative disc disease and his affective
disorder caused ongoing limitations that lasted at least 12 months,” and that his
impairments alone and in combination didn't meet or equal the requirements of
a listed impairment (specifically Listings 1.04 and 12.00 et seq.), or preclude him
from performing his past relevant work as a general clerk, automobile sales
representative, and industrial sales representative.
When the Appeals Council denied Mr. Caban’s request for review, the ALJ's
decision became the final decision of the Commissioner of Social Security. Jones
v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). Mr. Caban appealed for a second
time, arguing that the ALJ’s findings concerning the medical evidence and his
credibility, residual capacity, and ability to perform past relevant work aren’t
sufficiently explained or supported by the evidence. The court agrees.
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The issue before this court isn’t whether Mr. Caban is disabled, but whether
substantial evidence supports the ALJ’s decision that he is not. Scott v. Astrue,
647 F.3d 734, 739 (7th Cir. 2011); Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir.
2009). Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389,
401 (1971); Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). In reviewing the
ALJ’s decision, the court can’t reweigh the evidence, make independent findings
of fact, decide credibility, or substitute its own judgment for that of the
Commissioner, Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009); Powers v.
Apfel, 207 F.3d 431, 434-435 (7th Cir. 2000), but “conduct[s] a critical review of
the evidence, considering both the evidence that supports, as well as the evidence
that detracts from, the Commissioner’s decision.” Briscoe v. Barnhart, 425 F.3d
345, 351 (7th Cir. 2005). The ALJ isn’t required “to address every piece of evidence
or testimony presented, but he must provide a ‘logical bridge’ between the
evidence and the conclusions so that [the court] can assess the validity of the
agency’s ultimate findings and afford the claimant meaningful judicial review.”
Jones v. Astrue, 623 F.3d at 1160. The ALJ didn’t do so in this case.
The ALJ didn’t identify or address Mr. Caban’s non-severe impairments and
the effect they might have had on his ability to engage in work-related activity,
steadfastly asserting that he wasn’t required to do so or had previously decided
that they weren’t substantiated or didn’t limit Mr. Caban’s ability to engage in
work-related activity. He is mistaken.
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The regulations might not require an ALJ to specifically identify which
impairments are severe and which are non-severe at the second step of the
evaluation process, but he must consider all of the claimant’s impairments —
including impairments that are not severe — in determining the claimant’s
residual functional capacity at the fourth step. See Castile v. Astrue, 617 F.3d
923, 927 (7th Cir. 2010) (the ALJ must consider the aggregate effects of all of the
claimant’s impairments in the residual functional capacity assessment, including
those which are non-severe); 20 C.F.R. 404.1520(e), 404.1545, 416.92(e) and
416.945; SSR 96-8p. If the impact of non-severe impairments isn’t fully
considered, the decision must be reversed. Denton v. Astrue, 596 F.3d 419, 423
(7th Cir. 2010). The ALJ hasn’t done what’s required. He simply incorporated by
reference the discussion of the evidence in the two prior administrative decisions
issued in this case, “except, of course, insofar as they have been vacated,” leaving
it to the court to scour the record in search of relevant findings relating to Mr.
Caban’s many impairments. Even it were proper for the court to undertake such
an endeavor, the medical evidence presented at the hearing in 2011 indicates that
Mr. Caban’s condition might have deteriorated. For the reasons that follow, the
ALJ’s discussion of that evidence and his reliance on past findings regarding the
severity of Mr. Caban’s impairments in 2008 and 2010 is insufficient and
unsupported.
The ALJ rejected in whole, or in part, the opinions of virtually every treating,
consulting, and examining medical source (Drs. Lazoff, Bretz, Dwyer, Sohail,
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Kamineni, Boen, Von Bargen), as well as the state agency’s reviewing physicians,
because they weren’t sufficiently supported by objective findings and/or weren’t
consistent with a functional capacity evaluation that was completed by Gina
Smith, a registered occupational therapist, on November 28, 2006 (finding that
Mr. Caban retained the capacity to perform a restricted range of light work activity
on a full-time basis (A.R. 257-310)) or with the ALJ’s subjective belief that Mr.
Caban was exaggerating his symptoms and was capable of working.
Dr. Lazoff and Dr. Bretz were treating physicians, and as such their
opinions were entitled to “controlling weight” if they were “well supported by
medical findings and not inconsistent with other substantial evidence in the
record.” Clifford v. Apfel, 227 F.3d at 870; see also 20 C.F.R. § 404.1527(d)(2).
When a treating source’s opinion isn’t given controlling weight, the ALJ must
consider the following factors in deciding what weight to give it: “the length,
nature, and extent of the treatment relationship; frequency of examination; the
physician’s specialty; the types of tests performed; and the consistency and
support for the physician’s opinion.” Campbell v. Astrue, 627 F.3d 299, 308 (7th
Cir. 2010; 20 C.F.R. § 404.1527(c)(2). There’s no indication that the ALJ
considered those factors in this case.
The ALJ’s assessment of the consulting and examining physicians’ opinions
is similarly flawed. He found that they weren’t supported by objective findings and
were inconsistent with other evidence (Ms. Smith’s 2006 functional capacity
evaluation and the “credible portions” of Dr. Lazoff’s 2007 opinions (those portions
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that were consistent with Ms. Smith’s evaluation)). But “[a]n ALJ can reject an
examining physician’s opinion only for reasons supported by substantial evidence
in the record; a contradictory opinion of a non-examining physician does not, by
itself, suffice.” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003).
The ALJ speculated that Mr. Caban might have exaggerated his symptoms
and limitations and that his treating and consulting physicians might have relied
on his subjective complaints in assessing the severity of his impairments. Having
found fault with virtually all of the treating and consulting physicians’ opinions,
the ALJ substituted his own medical judgment for theirs and concluded that Mr.
Caban wasn’t disabled, effectively making himself the doctor. His findings in that
regard are inadequate.See Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir. 2006);
Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000); Green v. Apfel, 204 F.3d 780
(7th Cir. 2000).
While a claimant bears the burden of proving disability, the ALJ in a Social
Security hearing has a duty to develop a full and fair record. See Smith v. Apfel,
231 F.3d 433, 437(7th Cir. 2000); Luna v. Shalala, 22 F.3d 687 (7th Cir. 1994);
Thompson v. Sullivan, 933 F.2d 581, 585 (7th Cir. 1991). If the basis of the
physicians’ opinions wasn’t readily discernable or the ALJ needed clarification, he
"ha[d] a duty to solicit additional information to flesh out" their opinions. Barnett
v. Barnhart, 381 F.3d 664, 669 (7th Cir. 2004). He didn’t do that, and his findings
with respect to those opinions and the severity of Mr. Caban’s impairments aren’t
adequately supported by the record and are insufficient.
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To the extent the ALJ’s decision regarding the severity of Mr. Caban’s
impairments and his residual functional capacity was premised on his assessment
of Mr. Caban’s credibility, it too is insufficient. The regulations do not “require
objective medical evidence to corroborate statements about the intensity,
persistence, and functional effects of pain or other symptoms,” Pope v. Shalala,
998 F.2d 473, 482 (7th Cir. 1993), nor do they “require a finding of disabled every
time a claimant states that she feels unable to work.” Id. at 486. The ALJ must
evaluate a claimant’s subjective complaints in light of all the evidence, including
the claimant’s work history, the medical evidence, the claimant’s testimony and
general demeanor, personal observations, and other factors such as the nature,
location, onset, duration, frequency, radiation and intensity of any pain,
precipitating and aggravating factors; the type, dosage, effectiveness, and adverse
effects of any pain medication; treatment for relief of pain; daily activities and
functional restrictions. S.S.R. 88-13; Pope v. Shalala, 998 F.2d 473, 485-486 (7th
Cir. 1993). The ALJ didn’t do that in this case.
The ALJ found that Mr. Caban’s statements about the severity and limiting
effects of his impairments weren’t credible primarily because they weren’t
supported by objective medical evidence. But as the court has previously
determined, the ALJ’s assessment of the medical evidence was inadequate.
Whether Mr. Caban’s statements are credible and whether he is capable of
performing his past relevant work or other jobs are questions for the ALJ, not the
court. Simila v. Astrue, 573 F.3d at 513; Powers v. Apfel, 207 F.3d at 434-435.
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The court’s job is to assure that a logical bridge connects the evidence and the
ALJ’s finding, see Giles ex rel. Giles v. Astrue, 483 F.3d 483, 486 (7th Cir. 2007),
and the bridge isn’t complete in this case.
Neither substantial evidence or an adequate discussion of the issues
support the ALJ’s findings with respect to the severity and limiting effects of Mr.
Caban’s impairments. When, as here, the court can’t see an “accurate and logical
bridge between the evidence and the result,” remand is required. Sarchet v.
Chater, 78 F.3d 305, 307 (7th Cir. 1996).
Accordingly, the final decision of the Commissioner of Social Security is
REVERSED and the matter REMANDED.
SO ORDERED.
ENTERED:

September 30, 2014

/s/ Robert L. Miller, Jr.
Judge
United States District Court

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