Adams v. Commissioner of Social Security
Filing
19
OPINION AND ORDER: The ALJ's decision is hereby REMANDED for proceedings consistent with this opinion. Signed by Judge William C Lee on 10/2/2017. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
KENDRICK L. ADAMS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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CIVIL NO. 1:17cv47
OPINION AND ORDER
This matter is before the court for judicial review of a final decision of the defendant
Commissioner of Social Security Administration denying Plaintiff's application for Supplemental
Security Income (SSI) as provided for in the Social Security Act. 42 U.S.C. §416(I). Section
205(g) of the Act provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a
certified copy of the transcript of the record including the evidence upon which the findings and
decision complained of are based. The court shall have the power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he
findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be
conclusive. . . ." 42 U.S.C. §405(g). The law provides that an applicant for disability insurance
benefits must establish an "inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to last for a
continuous period of not less than 12 months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C.
§423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques." 42 U.S.C. §423(d)(3). It is not enough for a
plaintiff to establish that an impairment exists. It must be shown that the impairment is severe
enough to preclude the plaintiff from engaging in substantial gainful activity. Gotshaw v.
Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano,
463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that the burden of proving entitlement to
disability insurance benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir.
1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record
as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.
Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786
(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,
552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,
42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also
Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after consideration of the entire record, the Administrative Law
Judge (“ALJ”) made the following findings:
1.
The claimant has not engaged in substantial gainful activity since September 17,
2013, the application date (20 CFR 416.971 et seq.).
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2.
The claimant has the following severe impairments: degenerative disc disease and
carpal tunnel syndrome (20 CFR 416.920(c)).
3.
The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4.
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in
20 CFR 416.967(b) except he: can stand two hours during the workday; can never
climb ladders, ropes, or scaffolds; can occasionally climb stairs and ramps and
stooping; unlimitedly balance; but never kneel, crouch, or crawl. The claimant
can frequently reach overhead bilaterally and frequently handle, and finger on the
right. He can tolerate frequent exposure to cold, heat, humidity, fumes, odors,
dusts, gases, and other pulmonary irritants; unprotected heights, and moving
mechanical parts. A cane is needed for balancing, walking, and standing. The
claimant can be around co-workers during the day with only occasional
interaction, but no tandem or team tasks and no tasks where one production step
relies on the others. He cannot interact with the public.
5.
The claimant is unable to perform any past relevant work (20 CFR 416.965).
6.
The claimant was born on August 14, 1977 and was 36 years old, which is defined
as a younger individual age 18-49, on the date the application was filed (20 CFR
416.963).
7.
The claimant has at least a high school education and is able to communicate in
English (20 CFR 416.964).
8.
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,”whether or not the claimant has transferable job
skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
9.
Considering 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 (20 CFR 416.969 and 416.969(a)).
10.
The claimant has not been under a disability, as defined in the Social Security Act,
since September 17, 2013, the amended onset date and the date the application
was filed (20 CFR 416.920(g)).
(Tr. 105- 114)
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Based upon these findings, the ALJ determined that Plaintiff was not entitled to SSI
benefits. The ALJ’s decision became the final agency decision when the Appeals Council denied
review. This appeal followed.
Plaintiff filed his opening brief on May 31, 2017. On August 11, 2017, the defendant
filed a memorandum in support of the Commissioner’s decision, to which Plaintiff replied on
August 25, 2017. Upon full review of the record in this cause, this court is of the view that the
ALJ’s decision should be remanded.
A five step test has been established to determine whether a claimant is disabled. See
Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 229091 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test
as follows:
The following steps are addressed in order: (1) Is the claimant
presently unemployed? (2) Is the claimant's impairment "severe"?
(3) Does the impairment meet or exceed one of a list of specific
impairments? (4) Is the claimant unable to perform his or her
former occupation? (5) Is the claimant unable to perform any other
work within the economy? An affirmative answer leads either to
the next step or, on steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than step 3, stops
the inquiry and leads to a determination that the claimant is not
disabled.
Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162
n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature
of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
On September 17, 2013, Plaintiff filed a Title XVI application for Supplemental Security
Income alleging disability beginning June 1, 2001. (AR 103) Plaintiff’s application was denied
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initially, upon reconsideration and in an October 13, 2015 decision following a hearing held by
ALJ Margaret Carey. Id. Plaintiff requested review by the Appeals Council, and the Appeals
Council denied this request on December 9, 2016, leaving the decision of the ALJ as the final
decision of the Commissioner. (AR. 1) This Court has jurisdiction pursuant to 42 U.S.C. §
1383(c).
Plaintiff was born on August 14, 1977. (AR. 69) He was six feet four inches tall and
weighed 275 pounds. Id. Dr. Ashish Ansal, M.D., treated Plaintiff from 2000 through July 16,
2015. (AR. 1132) Dr. Ansal diagnosed Plaintiff with cervical radiculopathy, status post L4-S1
decompression and status post posterior lateral fusion at L5-S1; associated symptoms included
low back pain, neck pain, and paresthesias. (AR. 1132-1133) Dr. Ansal opined that Plaintiff was
able to sit for two hours of an eight hour day and could stand or walk for two hours of an eight
hour day. (AR. 1134) The doctor stated Plaintiff could occasionally lift or carry up to ten pounds
and could occasionally grasp objects, perform fine manipulations with his fingers or hands, and
reach overhead. (AR. 1134-1135) His symptoms would frequently interfere with his attention and
concentration during the workday and symptoms would increase if placed in a competitive work
environment. (AR. 1135) Plaintiff would require unscheduled breaks at unpredictable intervals
throughout the workday. Id.
In August 2014, treating registered nurse practitioner, Dale Benton, RN MS FNP BC,
stated that Plaintiff was diagnosed with cervical radiculopathy, status post L4-S1 decompression
and status post posterior lateral fusion at L5-S1 (AR. 1148); associated symptoms included low
back pain, neck pain, paresthesias to arms and lower legs, and pain when walking further than
150 feet. (AR. 1149) Plaintiff had significant limitations in reaching, handling, and fingering; he
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could only occasionally grasp objects, perform fine manipulations with his fingers or hands, and
reach overhead. (AR. 1150) His symptoms would frequently interfere with his attention and
concentration during the workday and symptoms would increase if placed in a competitive work
environment. Id. Plaintiff would require unscheduled breaks at unpredictable intervals throughout
the workday. Id.
Treating psychiatrist, Dr. Jyoti Warikoo, M.D., diagnosed Plaintiff with major depressive
disorder and panic disorder with symptoms including “sad mood, anxiety, sleep problems” and
pain which affected his functional limitations. (AR. 1171-1172, 1175) He opined that symptoms
would frequently interrupt Plaintiff’s concentration and attention during an eight hour workday;
he would require up to four breaks of 20-30 minutes each at unpredictable intervals. (AR. 1174)
He would be absent up to three times a month due to his impairments. (AR. 1175) He would have
moderate to marked limitations in a number of areas including the following: carrying out
detailed instructions, maintaining attention and concentration, performing at a consistent pace
without rest periods of unreasonable length or frequency, and getting along with coworkers. (AR.
1118) Plaintiff was treated with Vistaril and Celexa for depression and anxiety. (AR. 1108, 1110,
1116, 1123, 1127)
An MRI in May 2006 revealed moderate degenerative disc disease at L4-S1 with
moderate diffuse disc bulges and small central posterior disc protrusions with mild lower lumbar
spine degenerative facet disease. (AR. 457). A lumbar x-ray in January 2013 showed severe
narrowing of the disc at L5-S1 with subchondral sclerosis; when compared to testing from two
years prior, the condition had worsened. (AR, 462) A November 2013 x-ray revealed
straightening of the spine and disc space narrowing at L5-S1; there were moderate to severe
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degenerative changes. (AR. 679) A February 2014 MRI of the lumbar spine showed multilevel
degenerative disc disease with degenerative facet arthropathy. (AR. 682) A CT scan on May 5,
2014 showed significant degenerative changes at L4-S1 with spondylolysis. (AR. 696)
On May 9, 2014 Plaintiff underwent transforaminal lumbar interbody fusion surgery. (AR.
723) He also had laminectomy procedures performed at L4 and L5 with decompression of nerve
roots with the insertion of pedicel screws into L4. (AR. 728) He was in recovery at the hospital
and discharged on May 22, 2014. (AR. 723) He was prescribed a rolling walker, a bath bench and
grab bars. (AR. 726) After the procedure, Plaintiff continued to complain of pain; he had daily
throbbing lower back, left buttock, and left leg pain. (AR. 738)
Plaintiff testified that he lived with his mother in Chicago. (AR. 26) He had a driver’s
license but no longer drove due to back and knee pain. (AR. 27-28) He did not smoke or use
alcohol. (AR. 30) His past work involved labor oriented positions such as laying carpet and
construction jobs requiring heavy lifting. (AR. 31-33) He was unable to work because he could
not sit or stand for more than 15-30 minutes at a time due to shooting pain from his back through
his legs. (AR. 36-37) He was able to walk a half block before needing to rest his legs and back.
(AR. 38) Plaintiff was diagnosed with fibromyalgia that affected his entire body causing muscles
to tighten up preventing him from moving. (AR. 38-39) His hands and fingers cramped when he
attempted to use them. (AR. 39) He had neck pain that radiated to the side of the head and caused
a sharp radiating pain through the arms. (AR. 43) Plaintiff had difficulty reaching and holding his
arms up for very long; his hands and fingers caused him difficulty with tasks such as cutting his
food. (AR. 43-44) He used a cane to walk and stand; on bad days, three days a week, he would
use a walker. (AR. 45) Plaintiff was prescribed pain medication; it caused him to feel drowsy and
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he needed to sleep during the day on a daily basis. (AR. 46)
Plaintiff was not good around people; he would get agitated, nervous, and anxious. (AR.
39-40) He had mood swings and preferred to be alone. (AR. 44) He had difficulty paying
attention and focusing on tasks he had undertaken. (AR. 44) He spent most of his time lying down
or sitting back in a recliner. (AR. 42) His brother and sister came over to “take care of the things
around the house” such as cooking and cleaning. (AR. 42)
The ALJ found that Plaintiff had the severe impairments of degenerative disc disease and
carpal tunnel syndrome; he had the non-severe impairments of obesity, glaucoma, asthma, and
hypertension. (AR. 105) No impairments met or medically equaled the severity of a listed
impairment. (AR. 107) As noted above, the ALJ found that Plaintiff retained the residual
functional capacity (RFC) to perform light work with the following exceptions: he could stand
two hours during the workday; he could never climb ladders, ropes, or scaffolds; he could
occasionally climb stairs and ramps and stoop; he could never kneel, crouch, or crawl; he could
frequently reach overhead bilaterally and frequently handle, and finger on the right; he could
tolerate frequent exposure to cold, heat, humidity, fumes, odors, dusts, gases, and other
pulmonary irritants, unprotected heights, and moving mechanical parts; he required a cane for
balancing, walking, and standing; he could be around co-workers during the day with only
occasional interaction, but no tandem or team tasks and no tasks where one production step relied
on the others; he could not interact with the public. Id. Plaintiff was unable to perform past
relevant work, yet was able to perform other jobs that existed in significant numbers in the
national economy. (AR. 112)
In support of remand, Plaintiff first argues that the ALJ improperly evaluated the treating
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source opinions. The ALJ afforded non-examining State agency medical consultant, Dr. Francis
Vincent, M.D., great weight in determining Plaintiff’s RFC, while giving partial, minimal, and
limited weight to each of three treating source opinions from Dr. Ansal, Dr. Warikoo, and RN
Benton, respectively. (AR. 110-111) Treating source opinions are deserving of controlling weight
when the opinion is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in the case record. See 20
C.F.R 416.927(c)(2). When controlling weight is not given to a treating source, the ALJ is
required to properly analyze the opinion using factors such as the examining and treatment
relationship, length of treatment and frequency of examination, nature and extent of treatment
relationship, supportability, and consistency. 20 C.F.R. 416.927(c)(2)(i)-(6). Plaintiff claims that
these treating source opinions were not evaluated according to the factors listed in 416.927.
As noted, Dr. Ansal diagnosed Plaintiff with cervical radiculopathy, status post L4-S1
decompression and status post posterior lateral fusion at L5-S1. (AR. 1132-1133) He stated that
associated symptoms included low back pain, neck pain, and paresthesias. Id. Dr. Ansal opined
that Plaintiff was able to sit for two hours of an eight hour day and could stand or walk for two
hours of an eight hour day. (AR. 1134) Plaintiff could occasionally lift or carry up to ten pounds
and could occasionally grasp objects, perform fine manipulations with his fingers or hands, and
reach overhead. (AR. 1134-1135) His symptoms would frequently interfere with his attention and
concentration during the workday and symptoms would increase if placed in a competitive work
environment. (AR. 1135) Plaintiff would require unscheduled breaks at unpredictable intervals
throughout the workday. Id.
In affording Dr. Ansal partial weight, the ALJ determined that the two hour standing
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limitation was warranted, but the remainder of the opinion was not supported by objective
evidence. (AR. 111) Plaintiff points out that this was not the case. An MRI in May 2006 revealed
moderate degenerative disc disease at L4-S1 with moderate diffuse disc bulges and small central
posterior disc protrusions with mild lower lumbar spine degenerative facet disease. (AR. 457) A
lumbar x-ray in January 2013 showed severe narrowing of the disc at L5-S1 with subchondral
sclerosis. (AR. 462) When this was compared to testing from two years prior, the condition had
worsened. Id. A November 2013 x-ray revealed straightening of the spine and disc space
narrowing at L5-S1; there were moderate to severe degenerative changes. (AR. 679) A February
2014 MRI of the lumbar spine showed multilevel degenerative disc disease with degenerative
facet arthropathy. (AR. 682) In reviewing this MRI, Dr. Julie Williams, M.D. stated these
“findings correlate with the severity of pain [the patient] reports”. (AR. 690-691) A CT scan on
May 5, 2014 showed significant degenerative changes at L4-S1 with spondylolysis. (AR. 696)
Plaintiff contends that these diagnostic tests were not inconsistent with the limitations discussed
in Dr. Ansal’s opinion despite the ALJ’s claim to the contrary.
Plaintiff notes that physical exams throughout the record also supported Dr. Ansal’s
opinion. State agency consultative examiner, Dr. Dante Pimentel, M.D., examined Plaintiff on
October 28, 2013; he found a reduced range of motion in the bilateral shoulders, hip, knees and in
the lumbar spine. (AR. 649-650) Plaintiff walked with a left-sided limp, and could walk 10-15
feet without a cane, and 20-30 feet with a cane before needing to sit due to pain. (AR. 647) Dr.
Pimentel noted that Plaintiff’s ability to lift, carry and handle objects, and his ability to carry out
work-related activities was impaired due to back pain. (AR. 648) Plaintiff went to a walk-in clinic
in October 2013 for hip and lower extremity pain; physical exam revealed limited range of
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motion in the extremities and the straight leg test elicited pain bilaterally in the upper legs. (AR.
660) Dr. Williams noted that Plaintiff’s lower left back was tender to palpation. (AR. 716)
Similarly, upon exam, Dr. Ansal noted “tenderness to palpation from neck to back to elbows and
knees + trigger points for fibromyalgia”. (AR. 1224) Dr. Herbert Engelhard, III, M.D., examined
Plaintiff prior to his May 9, 2014 surgery; he found that Plaintiff had a “slight weakness of
dorsiflexion and plantar flexion bilaterally with a decreased ankle jerk reflex on the left.” (AR.
1097) He noted that Plaintiff had “a markedly antalgic gait” and that he “assumes a bent over
posture.” Id. Plaintiff argues that these physical exam findings provided significant support to Dr.
Ansal’s opinion on Plaintiff’s limitations in work related abilities. Per 416.927(c)(2), Plaintiff
concludes that Dr. Ansal’s opinion was well-supported by medically acceptable clinical and
laboratory diagnostic techniques and was not inconsistent with the other substantial evidence in
the case record and, therefore, deserved controlling weight.
Treating psychiatrist Dr. Warikoo diagnosed Plaintiff with major depressive disorder and
panic disorder with symptoms such as “sad mood, anxiety, sleep problems” and pain which
affected his functional limitations. (AR. 1171-1172, 1175) He opined that symptoms would
frequently interrupt Plaintiff’s concentration and attention during an eight-hour workday; he
would require up to four breaks of 20-30 minutes each at unpredictable intervals. (AR. 1174) He
would be absent up to three times a month due to his impairments. (AR. 1175) Dr. Warikoo
found that Plaintiff would have moderate to marked limitations in a number of areas including the
following: carrying out detailed instructions, maintaining attention and concentration, performing
at a consistent pace without rest periods of unreasonable length or frequency, and getting along
with coworkers. (AR. 1118) The ALJ afforded Dr. Warikoo’s opinion “minimal weight” because
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the Plaintiff “admitted that his anxiety was well controlled and that his mood improved.” (AR.
111) Yet, Plaintiff testified that he did not do well around other people due to being agitated,
anxious, nervous and depressed. (AR. 39-40) He experienced mood swings and wanted to be
alone; he had difficulty focusing and finishing tasks he had begun. (AR. 44) The treatment notes
that the ALJ cited for controlled anxiety and improved mood contained notes from Dr. Warikoo
describing Plaintiff’s affect as “congruent and constricted”. (AR. 1185, 1190) The ALJ also stated
that mental status exams indicated that Plaintiff was cooperative, oriented, had good insight and
judgment, and had adequate attention, concentration, and memory. (AR. 111) Plaintiff argues that
these qualities displayed at a brief appointment with the doctor did not undermine any of the
limitations about which Dr. Warikoo opined. Moreover, Plaintiff’s diagnosis warranted his
continual treatment with Vistaril and Celexa for depression and anxiety. (AR. 1108, 1110, 1116,
1123, 1127) Plaintiff contends that the ALJ did not offer sound explanations for the weight
afforded to Dr. Warikoo’s opinion and that the opinion was supported and not inconsistent with
other evidence, it was deserving of more weight.
Because this treating psychiatrist was not given controlling weight, the ALJ was still
required to analyze the opinion using factors as noted above: examining and treatment
relationship, length of treatment and frequency of examination, nature and extent of treatment
relationship, supportability, and consistency. 20 C.F.R. 404.1527(c)(1)-(6). Plaintiff argues that
the ALJ did not apply these factors nor explain the weight given to the opinion in any more detail
than comparing it to one statement made by Plaintiff, and the fact that Plaintiff was, among other
things, cooperative at appointments. (AR. 111) Dr. Warikoo treated Plaintiff from April 2014
through September 2015 every eight weeks. (AR. 1171) Plaintiff argues that his diagnosis and
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treatment was not inconsistent with other evidence of record.
In August 2014, RN Benton stated that Plaintiff was diagnosed with cervical
radiculopathy, status post L4-S1 decompression and status post posterior lateral fusion at L5-S1;
(AR. 1148) associated symptoms included low back pain, neck pain, paresthesias to arms and
lower legs, and pain when walking further than 150 feet. (AR. 1149) Plaintiff had significant
limitations in reaching, handling, and fingering; he could only occasionally grasp objects, perform
fine manipulations with his fingers or hands, and reach overhead. (AR. 1150) His symptoms
would frequently interfere with his attention and concentration during the workday and symptoms
would increase if placed in a competitive work environment. Id. Plaintiff would require
unscheduled breaks at unpredictable intervals throughout the workday. Id.
The ALJ determined RN Benton’s opinion deserved limited weight in that there was “no
evidence that the claimant’s attention and concentration would be affected” to the degree as
opined. (AR. 110) Yet, as Plaintiff notes, evidence was found in each of the opinions described
above: both Dr. Warikoo and Dr. Ansal opined to the same difficulties in maintaining attention
and concentration. (AR. 1135, 1174) Furthermore, Plaintiff testified to these difficulties at the
hearing, as stated above. He did not do well around other people due to being agitated, anxious,
nervous and depressed. (AR. 39-40) He experienced mood swings and wanted to be alone and he
had difficulty focusing and finishing tasks he had begun. (AR. 44)
Regardless of what weight the ALJ gave RN Benton’s opinion, the proper analysis was
required. Per the regulations, the ALJ was required to evaluate the examining and treatment
relationship, length of treatment and frequency of examination, nature and extent of treatment
relationship, supportability, and consistency. 20 C.F.R. 416.927(c)(2)(i)-(6). Plaintiff points out
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that RN Benton had treated Plaintiff from 2000 through August 2014 with appointments every six
to eight weeks. (AR. 1148) RN Benton’s opinions on physical limitations were supported and
consistent with the many diagnostic tests and physical exams outlined above and Plaintiff argues
that the limitations caused by Plaintiff’s mental impairments were supported and consistent with
Dr. Warikoo and Plaintiff’s own testimony.
Plaintiff maintains that the opinions of treating sources Dr. Ansal, Dr. Warikoo and RN
Benton were all consistent with each other. Each opined that Plaintiff would require unscheduled
breaks throughout the workday at unpredictable intervals and that Plaintiff’s symptoms would
frequently interfere with his attention and concentration during the workday. (AR. 1135, 1174,
1150) Plaintiff concludes that the ALJ did not properly consider nor weigh these opinions as
required by the regulations, and had the opinions been properly evaluated, Plaintiff would likely
have been found disabled. The vocational expert testified that a person would not be able to work
if requiring breaks outside of the normal allowable breaks. (AR. 52) Plaintiff points out that all
three sources opined that Plaintiff was unable to conform to such a schedule, thus requiring a
determination that Plaintiff was disabled. (AR. 1135, 1174, 1150)
The Commissioner defends the ALJ’s explanation that Dr. Ansal’s opinion deserved only
partial weight because the evidence Plaintiff cited in support of Dr. Ansal’s opinion predated
Plaintiff’s surgery. (Commissioner’s brief, pp. 4-5) Yet, the Commissioner supports the ALJ’s
adoption of Dr. Vincent’s April 2014 opinion, which also predates the surgery. (AR. 96, 110-11)
The Commissioner’s argument contends that the ALJ appropriately relied on Dr. Vincent’s
opinion which was offered prior to the surgery, whereas it was inappropriate to support Dr.
Ansal’s opinion with any pre-surgery evidence. (Plaintiff’s brief, pp. 4, 8-9) This double standard
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is not reasonable support for the ALJ’s explanation. Furthermore, while arguing the surgery to be
of determinative value in Plaintiff’s record, the Commissioner defends the ALJ’s reliance on a
pre-surgery opinion, one that, as the Commissioner acknowledges, asserted that surgery was
unnecessary in the first place. (Commissioner’s brief, footnote 4, pp. 8-9)
Clearly, however, post surgery evidence also supports Dr. Ansal’s opinions. A July 2014
x-ray showed a straightening of the lordosis which “may represent paraspinal muscle spasm”.
(AR. 1102) Nurse Benton and Dr. Ansal’s treatment notes from post surgery through 2015
included the following: back pain “waxes and wanes” and neck pain (AR. 1280); “achy and
sharp” pain and referred to MRI (AR. 1279); diagnosed with “acute neck pain” (AR. 1275);
Plaintiff’s legs buckled, he fell in a store, and requested a wheelchair (AR. 1271); neck pain and
back pain “in the middle of the back” Id.; diagnosed with lower back pain, buttock pain, left leg
pain (AR. 1203, 1212, 1230, 1267, 1256, 1247, 1240, 1310-1311, 1323); chronic pain and neck
pain (AR. 1233, 1242, 1251, 1265); neck pain and back pain which is “severe” and “most of the
time” (AR. 1259); severe, radiating lower back pain (AR. 1208, 1226, 1235, 1244, 1255, 1308);
diagnosed with fibromyalgia and cervical radiculopathy (AR. 1203, 1212, 1230, 1239, 1247,
1310-1311, 1324); “tenderness to palpation from neck to back to elbows to and knees + trigger
points for fibromyalgia” (AR. 1224, 1233, 1242); “worsening right lower back pain, specifically
the hip and right buttock” (AR. 1201, 1208, 1217, 1226, 1340); stable right lower back, hip, and
buttock pain (AR.1306); “back pain: in the upper region, in the middle of the back, in the lower
region” (AR. 1308); diagnosed with chronic back pain (AR. 1321, 1340). Clearly, this significant
evidence post- dating Plaintiff’s surgery undermines the Commissioner’s statement that the “most
significant abnormal findings predate his May 2014 surgery.” (Commissioner’s brief, p. 4)
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The Commissioner again argues a double standard in defending the ALJ’s decision to
afford minimal weight to Dr. Warikoo’s opinion. In particular, the Commissioner argues that ALJ
reasonably discounted the opinion because Plaintiff “admitted his anxiety was well controlled and
his mood improved.” (Commissioner’s brief, p. 6) In the next paragraph, however, the
Commissioner then attacks Plaintiff’s arguments for also pointing to Plaintiff’s own statements
that his mental symptoms were not well controlled and that he continued to experience significant
limitations. Id. While the Commissioner asserts that the ALJ resolved this conflict in the
evidence, no showing of this resolution was ever made. Thus, the ALJ failed to explain she relied
on some of Plaintiff’s statements in evaluating Dr. Warikoo’s opinion and not others. A
conclusive resolution between this conflict was required. Diaz v. Chater, 55 F. 3d 300, 306-307
(7th Cir. 1995)(“That is, the SSA need not accept only physicians' opinions. In fact, if conflicting
medical evidence is present, the SSA has the responsibility of resolving the conflict”); Stephens v.
Heckler, 766 F. 2d 284, 287 (7th Cir. 1985)(“The medical evidence was conflicting...someone
had to resolve the conflict, and under the statute that someone is the Secretary's delegate.”).
The Commissioner argues that “constricted affect” is not evidence of “significant
abnormal limitations” that would support “a need to miss more than three days per month”.
(Commissioner’s brief, p. 7) However, this medical conjecture was not an argument relied upon
by the ALJ and is thus not one to be newly presented in a brief. “[P]rinciples of administrative
law require the ALJ to rationally articulate the grounds for her decision and confine our review to
the reasons supplied by the ALJ. That is why the ALJ (not the Commissioner’s lawyers) must
“build an accurate and logical bridge from the evidence to her conclusion.”” Steele v. Barnhart,
290 F. 3d. 936, 941 (7th Cir. 2002)(citations omitted)(emphasis in original).; See SEC v. Chenery
16
Corp., 318 U.S. 80, 93-95, 63 S. Ct. 454, 87 L. Ed. 626 (1943); Jelinek v. Astrue, 662 F. 3d 805,
812 (7th Cir. 2011) (“We have made clear that what matters are the reasons articulated by the
ALJ). Dr. Warikoo’s opinion was the only examining mental health opinion of record. As a
treating psychiatrist and a specialist, her opinion was deserving of great weight. 20 C.F.R.
416.927(c)(1)-(6); Scott v. Astrue, 647 F. 3d 734, 739 (7th Cir. 2011)(“An ALJ must offer ‘good
reasons’ for discounting the opinion of a treating physician.”)(citations omitted) The
Commissioner contends that the ALJ reasonably determined that Nurse Benton did not adequately
explain his opinions. (Commissioner’s brief, pp. 7-8) However, in support of his opinions, Nurse
Benton discussed Plaintiff’s diagnoses, symptoms, pain levels and locations, and treatments. (AR.
1148-1150) His treatment notes, as noted above, also document support for his opinions.
Plaintiff points out that medical opinions often come in the shape of the form a medical
professional was asked to complete. And in Plaintiff’s case, Nurse Benton filled out the form
fully and completely, and the form was supported by his extensive treatment notes. See Larson v.
Astrue, 615 F. 3d 744, 750-751 (7th Cir. 2010) (“In response, the Commissioner makes much of
the fact that Dr. Rhoades did not explain on the questionnaire his conclusion that Larson had
experienced repeated episodes of decompensation. But in every section on the questionnaire that
allowed for comments, Dr. Rhoades made them; the question dealing with Larson's functional
limitations and episodes of decompensation did not invite further explanation or include space for
comments. Although by itself a check-box form might be weak evidence, the form takes on
greater significance when it is supported by medical records”), citing Mason v. Shalala, 994 F.2d
1058, 1065 (3d Cir.1993); see also Johnson v. Apfel, 189 F.3d 561, 564 (7th Cir.1999) (upholding
ALJ's rejection of physician's check-box form where it was contradicted by evidence in the
17
record). The Commissioner argues that the ALJ had no need to specifically consider the extensive
treatment Nurse Benton provided Plaintiff. (Commissioner’s brief, p.8) However, as Plaintiff
argued in his opening brief, this treatment history, when combined with the consistency and
supportability of Nurse Benton’s opinion with other evidence of record, contributed to a strong,
treating source opinion. However, the ALJ did not provide strong reasoning in rejecting it. Punzio
v. Astrue, 630 F. 3d 704, 710 (7th Cir. 2011)(“...whenever an ALJ does reject a treating source’s
opinion, a sound explanation must be given for that decision.”); 20 C.F.R. 416.927(c)(2)(“We
will always give good reasons in our notice of determination or decision for the weight we give
your treating source's opinion.”).
In the present case, the ALJ failed to adequately explain how the medical record supported
Dr. Vincent’s opinion; he cited isolated facts such as the use of a walking aid to support certain
limitations, but failed to analyze or consider the record as a whole. (AR. 110) Given the great
weight that was afforded to this non-examining physician over three examining treating doctors,
the ALJ was required to offer more explanation than was given. This was especially true, as
Plaintiff argues, given that Dr. Vincent’s opinion was rendered pre-surgery and prior to the
submission of new evidence and the ALJ never asked Dr. Vincent for an updated opinion. Dr.
Vincent’s opinion was given great weight despite its inconsistency with the three treating
physician opinions. Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)(“An 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.”). Moreover,
Plaintiff cited significant evidence submitted subsequent to Dr. Vincent’s opinion that did not
support his outdated opinion. (Plaintiff’s brief, pp. 13-14).
18
In light of all the errors noted above in connection with the appropriate weight to be given
to the various medical opinions, this court must remand this case for further proceedings so that
the medical opinions may be properly analyzed and weighted.
Next, Plaintiff argues that the ALJ erred in failing to properly evaluate his RFC. In
determining Plaintiff’s RFC, the ALJ gave great weight to non-examining State agency medical
consultant, Dr. Vincent. (AR. 110) Yet, Dr. Vincent rendered his opinion on April 18, 2014 (AR.
96) and did not consider any evidence submitted after this date; the evidence of record contained
over 650 pages of medical evidence submitted after April 18, 2014. (AR. 697-1350) Plaintiff
argues that, for this reason, Dr. Vincent’s opinion could not have reasonably been relied upon.
Campbell v. Astrue, 627 F. 3d 299, 309 (7th Cir. 2010) (ALJ erred in relying on State agency
physician when significant evidence was admitted to the record after that review); Childress v.
Colvin, 845 F. 3d 789, 792 (7th Cir. 2017)(State agency opinions that did not have access to the
full medical record were correctly afforded little weight). Furthermore, Plaintiff claims that the
ALJ should have requested an updated State agency opinion or otherwise submitted the latter
evidence to medical scrutiny. Stage v. Colvin, 812 F. 3d 1121, 1125 (ALJ cannot interpret
medical evidence on his own to determine subsequent functional limitations); Moon v. Colvin,
763 F.3d 718, 722 (7th Cir. 2014). (“ALJs are required to rely on expert opinions instead of
determining the significance of particular medical findings themselves.”); Goins v. Colvin, 764 F.
3d 677, 680 (7th Cir. 2014)(ALJ erred when “playing doctor” and interpreted MRI results without
expert input).
As noted above, the record shows that a significant amount of evidence was submitted
after April 18, 2014. A CT scan on May 5, 2014 showed significant degenerative changes at
19
L4-S1 with spondylolysis. (AR. 696) On May 9, 2014 Plaintiff underwent transforaminal lumbar
interbody fusion surgery. (AR. 723) He also had laminectomy procedures performed at L4 and L5
with decompression of nerve roots with the insertion of pedicel screws into L4. (AR. 728) He was
in recovery at the hospital for almost two weeks and discharged on May 22, 2014. (AR. 723) He
was prescribed a rolling walker, a bath bench and grab bars. (AR. 726) After the procedure,
Plaintiff continued to complain of pain; he had daily throbbing lower back, left buttock, and left
leg pain. (AR. 738)
Dr. Vincent’s opinion was also missing analysis of another CT scan in May 2014 that
revealed significant disc disease at L5-S1 with posterior L5 osteophytes that narrowed the
bilateral neural foramen. (AR. 1100) In December 2014 Plaintiff was involved in a car accident
that exacerbated his already existing pain. (AR. 1259) Upon exam in April 2015, Dr. Ansal noted
“tenderness to palpation from neck to back to elbows and knees + trigger points for
fibromyalgia”. (AR. 1224) In June 2015, Plaintiff continued to follow up on his chronic back
pain. (AR. 1201) At an appointment with Dr. Ansal, he stated that pain in his right lower back,
right hip and right buttock was worsening. Id. Dr. Ansal continued to document these complaints
of pain through October 2015. (AR. 1308) Dr. Vincent considered none of this evidence beyond
April 2014; so the ALJ’s residual functional capacity assessment is based on an assumption that
Plaintiff’s condition had not changed despite this significant intervening evidence. This court
agrees with Plaintiff that if the ALJ felt the opinions from three treating sources were insufficient
to document Plaintiff’s condition, the ALJ should have had the file reviewed by a medical expert.
The ALJ’s failure to do so was reversible error. Stage, 812 F. 3d at 1125; Moon, 763 F.3d at 722;
Goins, 764 F. 3d at 680.
20
Next, Plaintiff argues that the ALJ did not properly evaluate his subjective allegations.
The ALJ determined that Plaintiff’s allegations were “less than fully credible”. Plaintiff argues
that the ALJ failed to provide adequate reasoning for this determination. (AR. 109) The ALJ
explained that despite his pain Plaintiff exhibited motor strength of 5/5 at most extremities with
4/5 at the lower left extremity. (AR. 109) Yet, the ALJ offered no support for the implied
contention that pain and strength are synonymous or necessarily correlated; nor did the ALJ
explain which alleged pain she believed to be discounted by the cited strength results. See Grahl
v. Colvin, No. 14–CV–295–JDP, 2015 WL 3645686 at *1 (W.D. Wis. June 10,
2015)(“observations of plaintiff's leg strength does not contradict plaintiff's consistent reports of
back pain”).
The ALJ argued that Plaintiff’s statements that lying down, and taking Morphine and
Norco helped alleviate his pain detracted from his credibility. (AR. 109) Plaintiff contends
however, that all of these facts support an inability to work. Lying down and the inability to work
were supported by the opinions of his treating sources. Dr. Ansal, Dr. Warikoo, and RN Benton
all opined that Plaintiff would require unscheduled breaks throughout the workday at
unpredictable intervals. (AR. 1135, 1174, 1150) Plaintiff testified to the side effects of his
medications; he stated that they caused him to feel drowsy and that he could not stand on his own
at times. (AR. 46) He needed to lie down and sleep throughout the day. Id. Shauger v. Astrue, 675
F. 3d 690, 697 (ALJ failed to adequately consider that the claimant would treat symptoms by
lying down); Martinez v. Astrue, No. 09-cv-62, 2009 WL 4611415, at *12 (N.D. Ind. Nov. 30,
2009)(“the ALJ's failure to address Plaintiff's alleged need to lie down during the day requires
remand because, if accepted, this testimony would appear to preclude a full range of sedentary
21
work, which the ALJ opined that Plaintiff could perform as part of her RFC assessment.”). The
reliance on such drugs for pain relief was a strong argument against full-time employment;
employers would likely not support the use of drugs such as morphine in the workplace.
Furthermore, prescriptions to medications such as Morphine and Norco only support Plaintiff’s
allegations of pain, rather than detract from them.
The Commissioner argues that there was an evidentiary basis to link motor strength and
pain. In support of this argument, however, the Commissioner only cites Plaintiff’s testimony.
(Commissioner’s brief, p. 10) Plaintiff is not a physician and such evidence does not serve to
support a medical conclusion; thus, the ALJ’s medical conclusion was speculation. Martinez v.
Astrue, 630 F. 3d 690, 697 (7th Cir. 2011)(“The etiology of pain is not so well understood, or
people’s pain thresholds so uniform, that the severity of pain experienced by a given individual
can be ‘read off’ from a medical report.”) quoting Johnson v. Barnhart, 449 F.3d 804, 806 (7th
Cir. 2006); Carradine v. Barnhart, 360 F. 3d 751, 751 (7th Cir. 2004)(“Medical science confirms
that pain can be severe and disabling even in the absence of “objective” medical findings, that is,
test results that demonstrate a physical condition that normally causes pain of the severity claimed
by the applicant.”); 20 C.F.R. 416.929(c)(2)(“we will not reject your statements about the
intensity and persistence of your pain or other symptoms or about the effect your symptoms have
on your ability to work...solely because the available objective medical evidence does not
substantiate your statements.”) The Commissioner states that Plaintiff argued error when the
ALJ’s noted that Plaintiff’s pain improved with medication. (Commissioner’s brief, p. 10) This
was not the case; Plaintiff did not argue that the ALJ should not consider the issue, but that the
evidence did not support his finding. (Plaintiff’s brief, p. 15) The Commissioner cites to a May
22
2014 medical record but in so doing, ignores a plethora of evidence subsequent to this date
showing significant pain that supported limitations despite medications.
The ALJ noted that Plaintiff’s desire to improve his guitar skills undermined his
allegations of hand pain. (AR. 109) During therapy sessions with Dr. Barbara Meyer, PhD., in late
2014, Plaintiff mentioned the desire to learn to play guitar. (AR. 1184, 1187, 1189) The context
of the first mention showed he was only interested in doing so, but did not have a guitar; (Ar.
1184) he then stated he had gotten a guitar; (AR. 1187) his final statement about playing the
guitar was again an aspirational statement that he would like to learn how to play and improve.
(AR. 1189) No statements were made about how much time, if any, was being spent on the guitar
nor whether it caused pain to play or if his impairments allowed him to do so. Furthermore, the
ALJ did not ask Plaintiff about this activity during the hearing to explore the issue, thus there was
insufficient evidence to use it to undermine credibility. Even if Plaintiff spent any time playing
guitar, there was not sufficient evidence to attack his allegations of pain, nor allegations of an
inability to work. Carradine v. Barnhart, 360 F. 3d 751, 756 (7th Cir. 2004)(The ALJ “failed to
consider the difference between a person’s being able to engage in sporadic physical activities
and her being able to work eight hours a day five consecutive days of the week.”)
The Commissioner again mischaracterizes Plaintiff’s argument by stating he argued the
ALJ should not have considered his aspirations to learn guitar. (Commissioner’s brief, p. 10)
Rather, Plaintiff argued that a desire to learn guitar, without more, did not support the ALJ’s
finding that it was contrary to hand pain. (Plaintiff’s brief, p. 15) The Commissioner states the
ALJ was reasonable in considering Plaintiff’s “attempts to learn how to play the guitar were
inconsistent with his allegations of hand pain.” (Commissioner’s brief, p. 10) Yet, as Plaintiff
23
argued, there was no evidence to suggest how much time, if any, was spent actually playing
guitar. (Plaintiff’s brief, p. 15) Similar to cases where a claimant suggests a desire to work, a
desire to play guitar is not the same as actually playing the guitar, and an individual’s desire to
play the guitar does not undermine complaints of hand pain. Ghiselli v. Colvin, 837 F. 3d 771,
778 (7th Cir. 2016)(“And here, Ghiselli was not actually working but merely said that she was
looking for work. While a claimant's statements in applying for work following a disability claim
might be relevant to her credibility when the statements undermine the basis for her claim, such is
not the case here. Persisting in looking for employment even while claiming to suffer from a
painful disability might simply indicate a strong work ethic or overly-optimistic outlook rather
than an exaggerated condition. In any case, the ALJ here provided no support for his conclusion
that looking for a new job was inconsistent with Ghiselli's disability claim.”); Ison v. Astrue, 2012
WL 832983 at *9 (N.D. Ill. March 12, 2012)(“Courts in this Circuit and others have
acknowledged that a desire to work, by itself, should not be used as a negative credibility factor
because a desire to work does not necessarily imply an ability to work”). In the present case,
while the Commissioner correctly notes that the ALJ did not equate the notion of learning to play
the guitar to an ability to work full time, the ALJ did not cite to any other physical activities that
supported his determinations. (Commissioner’s brief, p. 10) Thus, noting this one physical
activity to discount Plaintiff’s allegations, especially when Plaintiff was not shown to be actually
playing the guitar at all, was unreasonable and warrants remand.
As noted, the ALJ found that Plaintiff’s allegations of mental impairments were
minimized by the fact that the record had no indication of psychiatric hospitalization. (AR. 109)
However, the ALJ failed to provide a logical connection between this cited evidence and her
24
conclusions. Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004)(holding ALJs must build an
accurate and logical bridge from the evidence to their conclusions). Dr. Warikoo diagnosed
Plaintiff with major depressive disorder and panic disorder involving a “sad mood, anxiety, sleep
problems” and pain which affected his functional limitations. (AR. 1171-1172, 1175) He opined
that symptoms would frequently interrupt Plaintiff’s concentration and attention during an
eight-hour workday; he would require up to four breaks of 20-30 minutes each at unpredictable
intervals. (AR. 1174) He would be absent up to three times a month due to his impairments. (AR.
1175) Dr. Warikoo found that Plaintiff would have moderate to marked limitations in a number
of areas including the following: carrying out detailed instructions, maintaining attention and
concentration, performing at a consistent pace without rest periods of unreasonable length or
frequency, and getting along with coworkers. (AR. 1118) Plaintiff testified that he did not do well
around other people due to being agitated, anxious, nervous and depressed. (AR. 39-40) He
experienced mood swings and wanted to be alone; he had difficulty focusing and finishing tasks
he had begun. (AR. 44) Plaintiff argues that, given the evidence of record regarding mental
impairments, the ALJ’s focus on an absence of evidence of psychiatric hospitalization, without
more explanation, was not sufficient cause to detract from Plaintiff’s credibility.
While inpatient hospitalization can be indicative of serious mental health symptoms, a
lack of hospitalization does not necessarily mean that the individual’s symptoms are not
disabling. The Commissioner characterized Plaintiff’s treatment as conservative, yet never
explained how or why this diminished the severity of his symptoms. See Thomas v. Colvin, No.
13 C 3686, 2015 WL 515240, at *4 (N.D. Ill. Feb. 6, 2015); Martinez v. Astrue, No.
2:10–CV–370–PRC, 2011 WL 4834252, at *8 (N.D. Ind. Oct. 11, 2011)(“The ALJ may “consider
25
conservative treatment in assessing the severity of a condition,” but should cite medical evidence
about what kind of treatment would be appropriate); Brown v. Barnhart, 298 F. Supp. 2d 773,
797 (E.D.Wis.2004) (citing Dominguese v. Massanari, 172 F. Supp. 2d 1087, 1096
(E.D.Wis.2001).
The ALJ also noted Plaintiff’s appearing “motivated in increasing family interactions and
increasing interest in music.” These incidental facts, while included in the ALJ’s argument
against Plaintiff’s credibility, were not rooted or connected to any argument as to why Plaintiff
should be denied disability benefits. Neither do an interest in family music undermine allegations
of an inability to work. The ALJ is required to articulate how and why any cited evidence does or
does not support the ALJ’s claims. See Kinard v. Colvin, No. 13 C 4363, 2015 WL 2208177 at *2
(N.D. Ill. May 7, 2015)(“To the extent the ALJ believed the cited medical evidence detracted
from the veracity of Plaintiff's testimony, he should have said so explicitly and conducted at least
a cursory analysis.); Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th Cir. 2003) (explaining that an
ALJ's credibility finding must "be supported by record evidence and [be] `sufficiently specific to
make clear . . . to any subsequent reviewers the weight [given] to the individual's statements and
the reasons for that weight.'"). Accordingly, the above errors also indicate that a remand is
necessary.
26
Conclusion
On the basis of the foregoing, the ALJ’s decision is hereby REMANDED for proceedings
consistent with this opinion.
Entered: October 2, 2017.
s/ William C. Lee
William C. Lee, Judge
United States District Court
27
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