Kurcz-Ruhweidel v. Commissioner of Social Security

Filing 25

OPINION AND ORDER Pursuant to sentence four of 42 U.S.C. §405(g), this case is REVERSED and REMANDED to the Commissioner for further proceedings consistent with this opinion. The Clerk shall enter judgment to that effect in favor of plaintiff Henry Ruhwiedel. Signed by Chief Judge Philip P Simon on 3/11/13. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
HENRY RUHWIEDEL,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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NO. 2:12CV60-PPS

OPINION AND ORDER

Sylvia Kurcz-Ruhwiedel filed an application for disability insurance benefits under Title
II of the Social Security Act. An Administrative Law Judge denied Ruhwiedel’s application
based on his finding that she was not under a disability within the meaning of the Social Security
Act from January 5, 1995 (the date on which she claims her disability began) through the date
she was last insured. Ruhwiedel appealed that decision but has since passed so her husband
Henry Ruhwiedel has been substituted as the proper party-plaintiff.1 [DE 24]
Because Ruhwiedel’s request for review by the Appeals Council was denied, the ALJ’s
decision serves as the final determination of the Commissioner. Although the ALJ found that
Sylvia suffered from severe impairments, he found that they did not meet or medically equal one
of the listed impairments in the Social Security regulations so as to conclusively establish
disability. [DE 11, p.21]. The ALJ went on to find that through the date Sylvia was last insured,
she retained the residual functional capacity to perform sedentary work, including her past
relevant work as a human resources manager. [DE 11, pp. 21-24]. This decision must be

1

What was apparently a misspelling of the couple’s surname has also been corrected,
from “Ruhweidel” to “Ruhwiedel.”

affirmed if “supported by substantial evidence.” 42 U.S.C. §405(g). Rice v. Barnhart, 384 F.3d
363, 369 (7th Cir. 2004); Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Ruhwiedel now

offers a number of challenges to the Commissioner’s adverse determination. At least one
challenge requires me to remand this case for further proceedings.
The Administrative Record
Sylvia filed her application for benefits in August 2009, claiming that she had been
disabled beginning January 5, 1995, when she suffered a heart attack. [DE 11, p. 18]. Sylvia
testified at the hearing that she had not worked since the fourth quarter of 1993. [DE 11, p. 37].
She identified her medical complaints as involving weakness (in terms of both stamina and upper
body strength), shortness of breath, and heart palpitations (later addressed by heart surgery in
May 2004). [DE 11, p.44]. Sylvia acknowledged that she had been able to bathe and dress
herself, to drive as needed several times a week to medical and rehabilitation appointments, to do
light housework, to shop with her husband with the use of a “cart”, and to engage in her hobby
of painting. [DE 11, p.48-50].
Sylvia testified that she was capable of sitting for up to an hour (and then needing to
stretch), standing for 5 to 10 minutes, only “very limited” walking, and lifting less than 5
pounds. [DE 11, p. 51]. Because Sylvia couldn’t walk “any great distance,” she used a walker
from time to time, and in a store or mall would use an electric cart if one was available. [DE 11,
p.53]. It is unclear why it took her 14 years to file her disability claim. All that she said at the
hearing was that she was unaware of the possibility of social security disability and was
therefore simply uninformed. [DE 11, pp.54-55].

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Sylvia claimed to have seen her cardiologist, Dr. Beiser, every few months in 1995
following her heart attack, and then every 3 to 6 months thereafter as her primary treating
physician, apparently until he moved his practice at some later time. [DE 11, p.40]. The opinion
of Sylvia’s subsequent treating cardiologist, Dr. Brigham, is not at all helpful to demonstrate that
Sylvia was disabled as of 1999, because Brigham started treating Sylvia in 2005, and his 2007
opinion was based on her “current medical condition.” [DE 11, p.109].
In an effort to shore up her evidence of disability, Sylvia consulted her previous
cardiologist, Dr. Beiser, on December 1, 2009 in connection with her appeal of the denial of
benefits. Thereafter Dr. Beiser provided Sylvia a letter describing her cardiac condition and
treatment history, beginning with her heart attack in January 1995 through the later major heart
surgery in 2004. [DE 11, pp.243, 345-347]. Dr. Beiser expressed his opinion “that this patient
has been completely and totally disabled and unable to perform any meaningful work since 1995
and is an excellent candidate for social security disability.” Id.
Sylvia also testified to treatment between 1995 and 1999 by an internist, Dr. AdamsMiller, for such issues as arthritis and migraine headaches. [DE 11, pp.41-42]. No records are
available from Dr. Adams-Miller, whom Sylvia indicated has since stopped practicing medicine.
Id.
The ALJ’s Rejection of the Treating Physician’s Opinion
The parties agree on the principle that in order to be eligible for disability benefits, Sylvia
was required to establish that she was disabled prior to the date she was last insured (as defined
in the Social Security Act). 42 U.S.C. §423(c)(1); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d
345, 351-52 (7th Cir. 2005). There appears to be a disagreement about whether the date Sylvia

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was last insured is March 31, 1999 (as the Social Security Administration says) or December 31,
1999 (as Sylvia contended), but in either event it was roughly a decade prior to her application
for benefits, which she filed in 2009. Having waited ten years past the termination of her
covered status before seeking benefits, Sylvia faced the difficulty of mustering sufficient medical
evidence and other persuasive proof to support the necessary finding that she was disabled a
decade before.
Sylvia attempted to mount this hurdle by consulting Dr. Beiser, the cardiologist who had
treated her during the relevant period from 1995 to 1999, and obtaining his opinion that she had
been disabled during the time in question. Ruhwiedel challenges the ALJ’s analysis of Dr.
Beiser’s opinion, contending that it did not comply with applicable regulatory requirements and
provided an inadequate explanation of the basis for rejecting the opinion. An ALJ must give a
treating physician’s opinion controlling weight where the opinion is well supported by medical
findings and is consistent with substantial evidence in the record. Larson v. Astrue, 615 F.3d
744, 749 (7th Cir. 2010); Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008); Hofslien v. Barnhart,
429 F.3d 375, 376 (7th Cir. 2006).
Dr. Beiser was Sylvia’s treating cardiologist from her heart attack in 1995 until he moved
out of state, apparently some time after the lapse of Sylvia’s insured status. Sylvia visited Dr.
Beiser in his Appleton, Wisconsin office in December 2009 for a consultation concerning her
application for disability benefits. Dr. Beiser generated a three-page narrative report at that time
in which he reviews Sylvia’s medical history and expresses the opinion that:
Mrs Ruhwiedel has been completely disabled and unable to perform any
meaningful work since her initial myocardial infarction in 1995 due to a
combination of ischemic cardiomyopathy, moderately severe aortic and mitral
valve regurgitation documented on serial Doppler echocardiograms in 1995,
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1997, and 1998, as well as to her marked restrictive lung disease associated with
her scoliosis. She, of course, continues to be completely disabled at the present
time and unable to perform any type of meaningful work for which she has been
trained with college degrees in human resources. Based upon these facts, this
patient is entitled to Social Security disability payments.
[DE 11, p.347.]2
“An ALJ who does not give controlling weight to the opinion of the claimant’s treating
physician must offer ‘good reasons’ for declining to do so.” Larson, 615 F.3d at 749, citing 20
C.F.R. §404.1527(d)(2). An ALJ cannot disregard medical evidence and substitute his own
unqualified opinion. Larson, 615 F.3d at 749; Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir .
2007).
The ALJ’s decision has this to say about Dr. Beiser’s opinion:
Dr. Beiser opined that the claimant is disabled and should qualify for Social
Security benefits. There is no documentation to support his conclusion. The
stress test done in December 1995 shows she could tolerate some exercise without
complaints. Additionally, statements that a claimant is ‘disabled’, ‘unable to
work’, can or cannot perform a past job, meets a Listing, or the like are not
medical opinions but are administrative findings dispositive of a case, requiring
familiarity with the Regulations and legal standards set forth therein. Such issues
are reserved to the Commissioner, who cannot abdicate his statutory
responsibility to determine the ultimate issue of disability (20 CFR
§404.1527(e)(2)).
[DE 11, p.23.] The ALJ is largely dismissive of Dr. Beiser’s opinion because much of it is stated
in terms of what he regards as quasi-legal conclusions. But the Seventh Circuit has been critical
of such an approach, observing that the regulations do not support ignoring opinions of this kind,
but instead merely give the final responsibility for disability determination to the Commissioner.
Bjornson, 671 F.3d at 647-48.

2

Dr. Beiser’s report is in the administration record a second time, at pages 449-451.
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The Commissioner’s brief response on this issue is to echo the ALJ’s assertion that there
is “no documentation” to support Dr. Beiser’s conclusion, and to argue that Dr. Beiser’s opinion
was rendered 10 years after the relevant time period and “without the support of any timerelevant treatment notes, clinical examination findings, or diagnostic test results.” [DE 17, pp.78.] This is inaccurate, as the administrative record contains reports of the three echocardiograms
to which Dr. Beiser refers [DE 11, pp. 499-500, 501, 503], as well as some additional stress tests
and echocardiograms from the insured period [DE 11, pp.502, 505, 507].
The ALJ’s own brief nod to the record focuses on only one of the three tests Dr. Beiser
cites, the December 1995 stress test which reflects that Sylvia remained “asymptomatic without
any episodes of chest pains or shortness of breath” even with a moderately intensive workload
[DE 11, p.503]. But the other two tests Dr. Beiser refers to, echocardiograms occurring later in
the relevant period, reflect the moderately severe regurgitation resulting from Sylvia’s heart
damage and refer to her experiencing “recent increasing shortness of breath and fatiguability
with a murmur of mitral regurgitation.” [DE 11, pp. 501, 499-500]. The administrative record
overall well supports the medical facts reviewed by Dr. Beiser concerning Sylvia’s scoliosis, her
1995 heart attack and subsequent history of cardiomyopathy.
The ALJ’s dismissive and inaccurate comments do not satisfy the “good reasons”
standard for his rejection of Dr. Beiser’s opinions concerning Sylvia’s ability to work. Even
where the ALJ articulates good reasons for rejecting a treater physician’s opinion, he must
determine what weight if any the opinion is due, considering various factors identified in the
regulations. Larson, 615 F.3d at 751; Campbell, 627 F.3d at 308. The ALJ failed to do this as
well, appearing to dismiss Dr. Beiser’s view entirely without further discussion. The ALJ’s

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failure to adequately articulate sound reasons for rejecting the treating physician’s opinion
requires remand of this case for further consideration by the Social Security Administration.
Mueller v. Astrue, 2012 WL 3575274, *4 (Aug. 21, 2012); Harlin v. Astrue, 424 Fed.Appx. 564,
*1 (June 13, 2011).
I remand somewhat reluctantly, as a number of reasons for discounting Dr. Beiser’s
opinion can be found in the administrative record. But on judicial review, neither the
Commissioner nor the court can salvage an ALJ’s opinion by supporting it with reasons that the
ALJ did not articulate. Campbell v. Astrue, 627 F.3d 299 (7th Cir. 2010); Larson, 615 F.3d at
749; Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010). Surprisingly, the Commissioner has not
invoked harmless error but perhaps it’s because the Seventh Circuit has looked askance at a
“broad conception of harmless error” in the social security context. Roddy v. Astrue, 705 F.3d
631, 637 (7th Cir. 2013); Martinez v. Astrue, 630 F.3d 693, 694 (7th Cir. 2011). Nevertheless, on
remand, the Commissioner might consider whether Beiser’s opinion that Sylvia was entirely
disabled between 1995 and 1999 is inconsistent with other substantial evidence in the record. For
example, as the ALJ remarked, the December 15, 1995 stress test was essentially negative with
no exercise-provoked chest pain, and the report found that Sylvia “remains asymptomatic” since
June of 1995 [DE 11, p.503]. A previous stress test on June 15, 1995 had also found no chest
pain provoked by exercise and reported fairly good exercise capacity [DE 11, p.507].
Echocardiograms later in the relevant period report Sylvia’s heart condition unchanged as of
November 1996, December 1997 and December 1998 [DE 11, pp. 502, 501, 499].
What’s more, Dr. Beiser’s report on a cardiology consultation on September 25, 2002
seems inconsistent with his later willingness to assess Sylvia as disabled dating back to her heart

7

attack in 1995. The September 2002 report refers to Sylvia’s January 1995 angioplasty and
states that “[a]n excellent result was obtained,” and that Sylvia “actually did well and has
remained quite stable until recently where she has shown evidence of progressive and now
moderately severe cardiomyopathy.” [DE 11, p.521]. Used in September 2002, Dr. Beiser’s
“until recently” language would seem likely to suggest that from 1995 through 1999 Sylvia was
still “well,” “stable” and enjoying the “excellent result” of the 1995 angioplasty.
After Sylvia visited the Cleveland Clinic prior to her surgery there in 2004, a Dr. William
Stewart issued a letter/report that contained descriptions of Sylvia’s cardiac history, indicating
that following her January 1995 heart attack and angioplasty, she “recovered and did very well
with no subsequent similar pains,” that she was “found to have some leaky valve problems, not
felt to be severe, and had yearly echo[cardiogram]s.” [DE 11, p.246]. Dr. Stewart’s report goes
on to describe the symptoms in summer 2002 that led Sylvia to further medical attention for her
heart. This description is of shortness of breath “on exertion with housework, 1 flight of stairs,
walking 150-200 ft on level ground, lifting – especially in humid or very cold weather,” but with
“no associated chest pain, pressure, palpitations, nausea, vomiting, diaphoresis [i.e., sweating],
dizziness or loss of consciousness.” Id. Although surgery was recommended at that time, Sylvia
reportedly refused and “opted for medical management.” Id. This report appears to cast some
doubt on the credibility of Sylvia’s testimony that she was disabled by shortness of breath,
limited mobility and palpitations as far back as 1999 and even earlier.
In the Medical and Job Worksheet submitted with her disability claim in September
2009, Sylvia noted that she “made a good recovery from the heart attack” and that with regular
cardiac evaluations “valve leakage did not become an issue for concern until about 2001.” [DE

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11, p.105]. As of September 20, 2005, the report of Sylvia’s treating cardiologist, Dr. Gary
Brigham, indicated that following a “complicated course” after her bypass surgery in 2004,
Sylvia was “currently able to ambulate well on her own without assistance.” [DE 11, p.443].
Sylvia herself repeatedly dated her current state of disability to the aftermath of her 2004 heart
surgery and other more recent conditions. [DE 11, pp. 104, 105, 108, 111].
The administrative record also contains several indications that, although perhaps not on
someone else’s payroll, Sylvia was capable of, and engaged in, gainful work during the period
she claimed to have been disabled. Sylvia reported that at the time of the January 1995 heart
attack, she was “not working out of the home.” [DE 11, p.105]. She made no attempt to re-join
the work force between her claimed onset of disability in January 1995 through her last date of
insured status in 1999, testifying that she “was disabled” and “was not able to seek
employment.” [DE 11, p.38]. At the hearing, she told the ALJ that she had not done any work
since the fourth quarter of 1993 because she was (and remained) unable to work due to her
medical condition. [DE 11, p.37]. But the record contains notations in reports by both of her
cardiologists (Dr. Beiser’s dated Sept. 2002 and Dr. Brigham’s in Sept. 2005) with references to
Sylvia operating a restaurant and a dog kennel. [DE 11, pp. 521, 444.]3 One of these is from Dr.

3

Sylvia’s obituary in the Northwest Indiana Times newspaper reports that she was the coowner of Westwind Kennels in Crown Point, Indiana. See http://www.legacy.com/obituaries/nwitimes/obituary.aspx?pid=158483556 (accessed 1/31/2013). The website of Westwind Kennels contains an
“About Us” page with the following information on Sylvia and Henry Ruhwiedel:
Sylvia and Henry Ruhwiedel are a team of Dog Behavior Consultants that have
outstanding training coupled with extensive experience in hands-on training in
Northwest Indiana.
Sylvia has two Masters degrees in Human Resources and Human Development
and holds multiple diplomas from Penn Foster College including: Dog Behavior
and Training, Veterinary Technician. In addition, Ms. Ruhwiedel holds two
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Beiser himself, despite his later opining that Sylvia had been unable to perform any meaningful
work since 1995.
All these matters are within the administrative record for the Commissioner’s review on
remand, and can be considered (and cited) as appropriate in connection with a new determination
about the weight to give Dr. Beiser’s opinions concerning whether Sylvia was disabled in the
pertinent time frame. Because remand is necessary on the ALJ’s analysis of the treating
cardiologist’s opinion, I need not address Ruhwiedel’s other arguments. Eskew v. Astrue, 462
Fed.Appx. 613, 615 (7th Cir. 2011) (given the court’s remand on one of claimant’s arguments, it
“need not address [her] remaining arguments”); Fike v. Astrue, 2012 WL 1200670, at *10, n.6
(N.D. Ind. 2012). In reevaluating Sylvia’s application, the ALJ should in turn also revisit his
determinations as to Sylvia’s credibility and her RFC as appropriate and necessary. Some of my
observations above may be relevant to those matters as well.
I note that before me the Commissioner concedes one shortcoming in the administrative
proceedings, namely that the ALJ did not give Ruhwiedel notice of all the information
concerning the availability of counsel required by the 7th Circuit’s decision in Thompson v.
Sullivan, 933 F.2d 581, 584 (7th Cir. 1991). [DE 17, p.5]. See also Binion v. Shalala, 13 F.3d
243, 245 (7th Cir. 1994). Remand is not automatic as a result of this deficiency, but is required

diplomas in Pet Grooming.
Henry Ruhwiedel, BS, B/M, CPBE, APDT, and Sylvia have over Seventeen years
of practical experience in training client dogs at Westwind Kennels. Sylvia has
also done in-home training for several years in Illinois as well as working as a
veterinary technician. Sylvia and Henry have written and taught a class in small
animal care at Indiana University for several years.
See http://dogkennel.org/ (accessed 2/13/13).

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only if the ALJ did not develop a full and fair record. See Ratulowski v. Astrue, 380 Fed.Appx.
552, 554 (7th Cir.2010), citing Skinner v. Astrue, 478 F.3d at 841–42 (7th Cir. 2007); Binion, 13
F.3d at 245–46. In light of the other basis for remand, I don’t address Ruhwiedel’s contentions
about ways in which the ALJ failed to develop a full and fair record, other than to note that the
record made at the hearing on the requirements of Sylvia’s past relevant work as a human
resources manager could rightly be called “skimpy.”4 As needed, the Commissioner will have an
opportunity to beef up the record in that area, as well as to consider the credibility of Sylvia’s
testimony that she was unaware of the existence of social security disability benefits, despite
having master’s degrees in Human Resources and Human Resources Management, and having
worked for more than 20 years as a human resources manager. [DE 11, pp.54-55, 152].
Conclusion
Pursuant to sentence four of 42 U.S.C. §405(g), this case is REVERSED and
REMANDED to the Commissioner for further proceedings consistent with this opinion. The
Clerk shall enter judgment to that effect in favor of plaintiff Henry Ruhwiedel.
SO ORDERED.
ENTERED: March 11, 2013

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

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The ALJ did not inquire of Sylvia about the demands of her past relevant work, and
from the Vocational Expert merely obtained the testimony that such work is classified as skilled
and sedentary. [DE 11, p.59]. The ALJ may determine (and explain) that the documentary record
provided all the necessary information on the job’s demands.
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