Horr v. Commissioner of Social Security

Filing 28

OPINION AND ORDER: This case is REMANDED to Social Security for further proceedings consistent with this order. Signed by Chief Judge Philip P Simon on 3/12/2015. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
SHARON HORR,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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1:13-CV-358

OPINION AND ORDER
An administrative law judge denied Sharon Horr’s application for Social Security
disability insurance benefits. Horr claims that the ALJ erred when she ignored the
opinion of Horr’s treating physician who wasn’t even referenced in the ALJ’s opinion.
A remand is required so that the ALJ can fully evaluate the treating physician’s opinion.
BACKGROUND
Readers looking for a more extensive discussion of Horr’s medical record are
directed to the detailed summaries in the ALJ’s decision [R. 16-29] and in Horr’s
opening brief [DE 20 at 7-11]. Rather than simply reiterating those summaries, I will
give a brief overview of the history of Horr’s disability claim.
Horr has a large number of impairments but the only ones relevant here are
issues relating to her severe back problems. Horr’s treatment for back pain is evidenced
in the record as early as September of 2005. [R. 493.] Horr underwent her first spinal

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surgery in 2006 to fuse her L5-S1 joint to alleviate leg and lower back pain. [R. 488.]
Dr. Robert M. Shugart, M.D., an orthopedist with Fort Wayne Orthopedics, LLC,
performed the surgery and served as her primary spine doctor throughout the rest of
the record. On September 12, 2006, Horr returned to Shugart for a follow-up visit.
Shugart opined that, although Horr was still having leg pain and spasms, her wound
and x-rays looked good and scheduled a check-up in 8-12 weeks. [R. 488.] At that
check-up on January 20, 2007, Shugart found that Horr’s symptoms had improved and
that she was doing well. [R. 243.] He gave her the OK to pursue chiropractic treatment.
In June 2011, Horr returned to Shugart with a resurgence of back pain. [R. 333.]
This time the pain was in her upper extremities, neck, and shoulders. [Id.] Shugart
noted that images of Horr’s cervical spine demonstrated muscular strain and showed
moderate degenerative changes in the discs at levels C4-C5 and C6-C7. [R. 333-334.]
Over the next two months, Horr’s examinations results, x-rays, MRI, and a failed
cervical epidural intervention indicated she needed further surgery. [R. 390-93.] At the
end of July 2011, Shugart performed an anterior cervical decompression surgery to fuse
Horr’s 4-5 and 5-6 cervical vertebrae. [R. 409.]
On November 9, 2011, Horr visited Dr. Daniel Roth, D.O., a pain management
specialist, for follow up treatment regarding her continued back pain. [R. 524.] Upon
initial examination, Roth concluded that Horr’s neck and lower back surgeries had
failed. [R. 526.] Dr. Roth also found Horr had various points of cervical tenderness,
trigger points, positive Spurling’s Test, decreased range of motion, and painful range of
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motion. [Id. at 525-26.] He found evidence of chronic cervical and lumbar
radiculopathy, arthropathy, and bilateral sacroiliitis. [Id.] Roth created a treatment
plan that included injections for cervical, lumbar, and sacral inflammation and pain.
[Id. at 526] He started Horr’s treatment with a November 15, 2011, bilateral cervical
facet injection procedure to alleviate her neck, shoulder, and arm pain. [R. 472.] At the
January 4, 2012, follow-up, Horr reported that the injection had improved her pain
symptoms by 80%, but the pain had evidently returned as she reported at that time that
her pain was a 7 on a pain scale of 0-10. [R. 521.] Horr’s cervical examination results
were the same as in November 2011, and Dr. Roth confirmed his previous diagnoses.
[Id. at 521-22.]
Horr applied for disability insurance benefits in February 2012, alleging a
disability onset date of May 20, 2008. She last met the Social Security Act’s
requirements for date of last insured on September 30, 2011. The ALJ conducted a
hearing on August 20, 2012. [R. 19.] Shortly after the hearing, Horr faxed the records of
her visits with Dr. Roth to the ALJ after that hearing. [See e.g. R. 521.] The ALJ admitted
them into the record but never addressed them in her written opinion denying benefits.
[R. 16-39.] In the opinion denying benefits, the ALJ found that Horr had a multitude of
severe impairments but that she nonetheless retained a residual functional capacity that
allowed her to do a number of jobs in national economy. But to repeat, no mention was
made by the ALJ of Dr. Roth’s opinion.

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DISCUSSION
If an ALJ’s findings of fact are supported by “substantial evidence,” then they
must be sustained. See 42 U.S.C. § 405(g). Substantial evidence consists of “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). Review of the ALJ’s findings is deferential. Overman v.
Astrue, 546 F.3d 456, 462 (7th Cir. 2008). In making a substantial evidence
determination, I must review the record as a whole, but I can’t re-weigh the evidence or
substitute my judgment for that of the ALJ. Id.
Horr objects to the ALJ’s decision on four grounds: 1) the ALJ erred by not
incorporating the limiting effects of chronic infections, cervical spine movements, and
migraine triggers; 2) the ALJ improperly evaluated obesity; 3) the ALJ erred by failing
to provide an explanation that Horr has exhibited no “period of disability”; and 4) the
ALJ failed to acknowledge and give controlling weight to Dr. Daniel Roth, Horr’s
treating osteopathic doctor.
From my perspective, there is simply no getting around the final issue —
ignoring Dr. Roth’s opinion. It appears that the parties assume that he's a treating
physician, so I'll assume the same. And on that basis, I must remand because an ALJ
cannot completely ignore the opinion of a treating physician with no explanation.
A treating physician’s opinion is entitled to controlling weight if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
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not inconsistent with other substantial evidence” in the record. 20 C.F.R. §
404.1527(d)(2); see White v. Barnhart, 415 F.3d 654, 658 (7th Cir. 2005). Once wellsupported contradicting evidence is introduced, however, the treating physician’s
opinion is no longer entitled to controlling weight and becomes just one more piece of
evidence for the ALJ to weigh. Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). This
rule takes into account the treating physician’s advantage in having personally
examined the claimant and developed a rapport, while controlling for the biases that a
treating physician may develop such as friendship with the patient. Oakes v. Astrue, 258
Fed.Appx 38, 43-44 (7th Cir. 2001); Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir.
2001). If an ALJ decides not to give controlling weight to a treating physician’s opinion,
however, she must explain her reasons for doing so. Scott v. Astrue, 647 F.3d 734, 740
(7th Cir. 2011). Failure to do so is cause for remand. Id.
The Commissioner doesn’t appear to take issue with the fact that Roth is a
treating physician. Instead, the Commissioner argues that the treating physician rule
shouldn’t apply here because Roth’s opinion isn’t really a medical opinion because he
doesn't opine on Horr's limitations. [DE 26 at 7.] First, I don't think that's factually
accurate because his notes detail a number of different, seemingly functional test results
(normal gait, normal heel/toe, normal reflexes, etc.). [R. 522, 525-526.] But even so, the
regulations don't require a physician to opine on limitations. In fact, they caution
against doing so since "disability" is a question ultimately left to the Commissioner. 20
C.F.R. § 404.1527(a)(2), (d)(1). Medical opinions are statements about the nature and
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severity of impairments including symptoms, diagnosis and prognosis, what you can
still do, and restrictions. 20 C.F.R. § 404.1527(a)(2). Roth went through Horr's history in
detail, administered a thorough examination including a discussion of her symptoms,
and then detailed his "impressions" where he diagnosed Horr with various conditions.
He then formulated a treatment plan. He went on to administer treatment and then
saw Horr again at a follow-up visit to determine whether that treatment was effective.
To me, there is little doubt that Roth’s opinions are relevant medical evidence and
constitute a medical opinion.
Having found that Roth gave a medical opinion, and assuming that Roth is a
treating physician, the ALJ erred in ignoring his opinion without any explanation. Roth
examined Horr and put forth the following impressions of her condition: failed neck
and lower back surgery, chronic cervical radiculopathy at C7 and C8, cervical facet
arthropathy bilateral, lumbar radiculopathy and arthropathy, and sacroiliitis. [R. 526.]
The ALJ didn’t mention this evaluation, even though it was within the record and was
one that Roth, a pain specialist who had treated Horr, was entirely competent to offer.
Roth also administered cervical facet injections to treat Horr’s back pain. [R. 472.] The
ALJ didn’t address this treatment, either. Not only did the ALJ fail to explain why she
discounted Roth’s opinion, she failed to mention his opinion at all, leading me to
wonder whether she even evaluated it. While it is true that Dr. Roth did not see Horr
until a month and a half after the last insured date, Dr. Roth’s opinion still sheds some
light on whether Horr was disabled during the insured period. Estok v. Apfel, 152 F.3d
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636, 640 (7th Cir. 1998) (opinions of treating physicians should be given weight if
corroborated by evidence from the insured period, even if opinions rendered after date
of last insured); Lavoie v. Colvin, No. 13-C-2560, 2015 WL 393414, at *8 (N.D.Ill. Jan. 27,
2015) (remanding to evaluate treating physicians’ opinions offered after date of last
insured, but pertaining to condition existing during claim period).
To utterly ignore Dr. Roth’s opinion is problematic on two levels. First, as I
mentioned above, an ALJ’s failure to explain why she is discounting a treating
physician’s opinion is cause for remand. Scott, 647 F.3d at 740. Second, an ALJ must
build a logical bridge from the evidence to the conclusion. Groves v. Apfel, 148 F.3d 809,
811 (7th Cir. 1998). In other words, even though the evidence relied on by the ALJ to
reach her conclusions may constitute contradicting evidence such that she could
discount Roth’s opinion, the ALJ must explain why that’s the case. Here, the ALJ
simply didn’t address Roth’s opinion at all, much less determine how much weight to
afford it. And in the absence of any reasons for discounting, or indeed, any mention of
Roth’s opinion, I can’t affirm her decision. See Scott, 647 F.3d at 740. Maybe Roth’s
impressions will do nothing to change the final outcome here, but the ALJ must at least
explain why that’s the case.
Because this issue is enough for remand, there is no need to discuss the other
issues raised by Horr at this time. But the ALJ should address Horr’s other arguments
as appropriate. In addition, the ALJ may determine that Dr. Roth’s opinion can be
discounted by the fact that Horr didn’t even see her until after the last insured date. But
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given how close in time the Dr. Roth’s treatment was to Horr’s last insured date, it was
an error to fail to address it all.
CONCLUSION
For the reasons stated above, this cause is REMANDED for further proceedings
consistent with this order.
SO ORDERED.

ENTERED: March 12, 2015

s/Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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