Townsend v. Commissioner of the Social Security Administration
Filing
25
OPINION AND ORDER: Court REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter for further proceedings consistent with this Opinion and Order. Signed by Magistrate Judge Paul R Cherry on 6/9/2014. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CATHERINE A. TOWNSEND,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
)
)
)
)
)
)
)
)
)
CAUSE NO.: 2:12-CV-516-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Catherine A.
Townsend on December 12, 2012, and a Plaintiff’s Brief in Support of her Motion to Reverse the
Decision of the Commissioner of Social Security [DE 16], filed on June 18, 2013. Plaintiff requests
that the June 23, 2011 decision of the Administrative Law Judge denying her claims for disability
insurance benefits be reversed for an award of benefits or remanded for further proceedings. On
September 26, 2013, the Commissioner filed a response, and Plaintiff filed a reply on October 10,
2013. For the following reasons, the Court grants Plaintiff’s request for remand.
PROCEDURAL BACKGROUND
On August 20, 2009, Plaintiff filed an application for disability insurance benefits, alleging
an onset date of September 13, 2009. The application was denied initially on December 8, 2009, and
upon reconsideration on March 17, 2010. Plaintiff timely requested a hearing, which was held on
May 6, 2011, before Administrative Law Judge (“ALJ”) Michael Hellman. In appearance were
Plaintiff, her attorney Thomas J. Scully III, and vocational expert Pamela Tucker. The ALJ issued
a written decision denying benefits on June 23, 2011, making the following findings:
1.
The claimant meets the insured status requirements of the Social Security Act
through December 31, 2014.
2.
The claimant has not engaged in substantial gainful activity since September
13, 2009, the alleged onset date (20 CFR 404.1571 et seq.).
3.
The claimant has the following severe impairments: systemic lupus
erythematosus, rheumatoid arthritis, obesity, nephritis, and bilateral carpal
tunnel syndrome (20 CFR 404.1520(c)). Hypertension, lipid metabolism
disorder, and lymph node situation are not severe impairments within the
meaning of the Social Security Act.
4.
The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526).
5.
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform medium work as defined in 20
CFR 404.1567(c) except she must avoid moderate exposure to extreme cold,
concentrated exposure to extreme heat, and concentrated exposure to high
humidity.
6.
The claimant is unable to perform any past relevant work (20 CFR
404.1565).
7.
The claimant was born [in 1960] and was 49 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date. The
claimant subsequently changed age category to closely approaching
advanced age (20 CFR 404.1563).
8.
The claimant has at least a high school education and is able to communicate
in English (20 CFR § 404.1564).
9.
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).
10.
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 §§ 404.1569 and
404.1569(a)).
2
11.
The claimant has not been under a disability, as defined in the Social Security
Act, from September 13, 2009, through the date of this decision (20 CFR §
404.1520(g)).
(AR 23-31).
On October 16, 2012, the Appeals Council denied Plaintiff’s request for review, leaving the
ALJ’s decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. On
December 12, 2012, Plaintiff filed this civil action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)
for review of the Agency’s decision.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
FACTS
A. Medical Background
Plaintiff was born in 1960 and was 50 years-old on the date that the ALJ issued his decision.
At approximately the time of the hearing, Plaintiff’s height was five-feet, four-inches, and she
weighed as much as 222 pounds.
On April 1, 2009, Plaintiff presented at the office of her family doctor, Dr. A. Tallamraju,
M.D., with tingling, numbness, pain, and stiffness in the wrists bilaterally; swelling of the hands
with pain bilaterally; and a rash on the face that spread behind the ears. Dr. Tallamraju ordered a
battery of tests, including a blood workup, X-rays of the wrists, and an EMG of the upper
extremities. Results of the blood test were suggestive of systemic lupus erythematosus (“lupus”).
The EMG revealed significant delay in the right and left median conduction velocities, an absence
3
of the left median sensory palmar response, increased right median ulnar palmar difference,
significant delay in the left motor distal latency, and chronic denervation changes in bilateral
abductor pollicis brevis muscles. These findings were consistent with left severe median
mononeuropathy across the wrist and right moderate to severe median mononeuropathy across the
wrist.
Dr. Tallamraju referred Plaintiff to rheumatologist Dr. Anita Zachariah, M.D., who examined
Plaintiff on May 7, 2009, and observed swelling in Plaintiff’s hand, right wrist, and proximal
interphalangeal (“PIP”) joints. Plaintiff reported feeling fatigued. Plaintiff reported bilateral
shoulder, knee, and wrist pain as well as joint swelling. Dr. Zachariah observed normal bilateral
upper extremities except that Plaintiff’s hand was swollen. Dr. Zachariah prescribed Prednisone and
Plaquenil.
On May 20, 2009, Dr. Zachariah diagnosed rheumatoid arthritis with synovitis. Dr.
Zachariah noted that Plaintiff did not complain of fatigue. Her elbow and wrist joints were normal
to inspection and palpation, and she had full range of motion and normal stability; however, her
hand was swollen and she had PIPs with synovitis in both hands.
On June 17, 2009, Plaintiff saw Dr. Zachariah. Plaintiff had no complaints of fatigue. Dr.
Zachariah noted that Plaintiff’s hand was swollen, her elbow joint and wrist were normal to
inspection and palpation, she had full range of motion and normal stability, but she had PIPs with
synovitis in both hands.
At a July 2, 2009 visit to Dr. Zachariah, Plaintiff reported feeling fatigued. Dr. Zachariah
noted elbow joint and hand swelling. The wrist was normal, and Plaintiff had full range of motion
and normal stability. Plaintiff had PIPs with synovitis in both hands and pain in her knees. Dr.
4
Zachariah continued Plaquenil and prescribed a course of Prednisone, recommending that Plaintiff
consider rituximab at a later date if she was not improving.
On August 10, 2009, Plaintiff reported to Dr. Zachariah that she felt fatigued. She had no
swelling in her upper extremities and had full range of motion and normal stability. Dr. Zachariah
noted that the PIPs with synovitis in both hands were “markedly improved.” Plaintiff’s ankles were
diffusely swollen.
At the October 6, 2009 visit to Dr. Zachariah, Plaintiff reported no fatigue, and Dr. Zachariah
found no swelling of the elbow joint, wrist, or hand. PIPs with synovitis were noted in the 3rd and
4th right PIP, but were improving. There was no diffuse ankle swelling.
On November 4, 2009, Plaintiff saw Dr. Tallamraju for her hypercholesterolemia,
hypertension, and medication refills. On the visit report, Dr. Tallamraju noted that Plaintiff suffers
from lupus, that she was under the care of a rheumatologist, and that she denied any symptoms of
lupus.
On November 13, 2009, Dr. Kanayo K. Odeluga performed a consultative examination of
Plaintiff. Plaintiff complained of stiffness, swelling, and pain in her joints, especially joints of the
knee and hand. She stated that the pain was worse at night and when standing. Plaintiff described
the pain as aching, intermittent, and moderate in intensity. She told Dr. Odeluga that she has
difficulty walking and climbing stairs. She obtains relief with the medication prescribed by her
doctors. Dr. Odeluga’s impressions were psoriatic arthritis, lupus, hypertension, bilateral carpal
tunnel, and obesity. Dr. Odeluga found that Plaintiff had normal muscle tone and power on upper
and lower limbs and trunk as well as normal grip strength and fine finger manipulation, including
the ability to zip, button up, and pick up coins. Dr. Odeluga found that Plaintiff had no difficulty in
5
performing getting on and off the exam table, tandem walking, walking on toes, walking on heels,
and hopping and that she had mild difficulty squatting.
On December 7, 2009, Dr. J. Sands completed a physical residual functional capacity
assessment, listing the primary diagnosis as “lupus/ra/CTS bil/obesity.” (AR 357). Dr. Sands gave
Plaintiff an RFC for medium exertional work, finding that she could occasionally lift or carry 50
pounds, frequently lift or carry 25 pounds, stand and/or walk 6 hours in an 8-hour work day, sit for
a total of 6 hours in an 8-hour workday, and had the unlimited ability to push and/or pull. Dr. Sands
based the opinion on the April 1, 2009 negative bilateral hand x-ray, the May 7, 2009 negative
bilateral wrist x-ray, the April 24, 2009 abnormal bilateral hand EMG suggestive of left severe
median mononeuropathy and right moderate to severe median mononeuropathy that showed bilateral
carpal tunnel syndrome, and the October 14, 2009 range of motion that was within normal limits.
Dr. Sands also cited Dr. Odeluga’s November 13, 2009 finding of full range of motion that included
the hands and wrists, normal sensation, no anatomic deformity, normal gait, 5/5 strength of all joints,
negative straight leg raises, and normal fine finger manipulation. Dr. Sands found Plaintiff partially
credible because her allegations were not consistent with the medical evidence of record.
Dr. Zachariah prescribed the anti-inflammatory medication methotrexate. On December 16,
2009, Plaintiff reported “doing better” with less pain and stiffness. Plaintiff felt the methotrexate was
helping with the swelling but that she still experienced occasional joint stiffness. Plaintiff had no
complaints of fatigue.
At that visit, Dr. Zachariah noted that blood test results in December 2009 were very high
for inflammation. Blood test results continued to be “highly abnormal” through January 7, 2010. Dr.
6
Zachariah referred Plaintiff to a nephrologist who diagnosed class III focal sclerosing
glomerulonephritis consistent with lupus nephritis after performing a kidney biopsy.
On January 19, 2010, Plaintiff was diagnosed with an enlarged right axilla lymph node.
In March 2010, Dr. Zachariah decreased the dosage of methotrexate after blood test results
continued to be abnormally high.
On March 16, 2010, Dr. B. Whitley reviewed all the evidence in the file and affirmed Dr.
Sands’ assessment as written.
At a May 4, 2010 visit, Plaintiff had no complaint of fatigue, no elbow swelling, and full
range of motion and normal stability. However, Dr. Zachariah noted swelling of the wrist and hand
as well as synovitis of the PIP joints.
At a May 18, 2010 visit, Plaintiff had no complaint of fatigue. Dr. Zachariah noted no
swelling of the elbow joint, wrist, or hand and that Plaintiff had full range of motion with normal
stability. Dr. Zachariah noted that Plaintiff’s synovitis had improved.
On May 20, 2010, Dr. Zachariah prescribed rituximab, another anti-inflammatory
medication.
On June 23, 2010, Plaintiff had no complaint of fatigue. Dr. Zachariah observed no swelling
of the elbow joint, wrist, or hand and noted that Plaintiff had full range of motion and normal
stability in the upper extremities. Dr. Zachariah noted that Plaintiff’s synovitis improved.
On July 21, 2010, Plaintiff had no complaint of fatigue but reported joint stiffness for 5
minutes. Dr. Zachariah observed no swelling of the elbow joint, wrist, or hand and noted that
Plaintiff had full range of motion and normal stability in the upper extremities. Dr. Zachariah again
7
noted that Plaintiff’s synovitis had improved, but noted slight synovitis in the third PIP in both hands.
On November 9, 2010, Dr. Zachariah examined Plaintiff and noted continued synovitis in
the third and fourth right PIP. The visit report notes that Plaintiff “states she is feeling fine.” Plaintiff
reported no fatigue or joint pain.
In February 2010, Plaintiff reported to Dr. Zachariah that she experienced one hour of
stiffness in the morning but that she had no joint swelling. Dr. Zachariah noted that the
musculoskeletal exam was normal, noting “slight fullness” but no synovitis.
On May 14, 2010, Dr. Zachariah submitted a “Lupus (SLE) Residual Functional Capacity
Questionnaire” in which she stated that Plaintiff’s lupus produced a malar rash over the cheeks;
non-erosive arthritis affecting the hands, wrists, and knees; renal involvement; and a positive test
for ANA. Dr. Zachariah checked the boxes for severe fatigue, poor sleep, and hair loss. Dr.
Zachariah opined that Plaintiff’s symptoms would “seldom” be severe enough to interfere with
attention and concentration and that Plaintiff could tolerate moderate work stress. Dr. Zachariah
indicated that Plaintiff’s lupus was moderate to severe. Dr. Zachariah gave Plaintiff the following
limitations. Plaintiff was able to sit for two hours at one time, stand and walk for more than two
hours at one time, sit for a total of less than two hours in an eight hour day, and stand and walk for
a total of four hours in an eight hour day. Plaintiff needed to take unscheduled breaks every four
hours and needed to rest for four hours before returning to work. She could occasionally lift and
carry less than ten pounds and could never lift and carry ten pounds or more. She could occasionally
twist but could never stoop, crouch, or climb ladders or stairs. She needed to avoid even moderate
exposure to extreme cold and concentrated exposure to extreme heat and high humidity. Her
impairments were likely to produce both good and bad days and she was likely to miss two days of
8
work each month. Dr. Zachariah opined that Plaintiff did not have any significant limitations in
doing repetitive reaching, handling, or fingering.
B. Hearing Testimony and Reports Submitted to the Administration
Plaintiff testified that she had recently reduced the number of hours she worked each week
to twelve because of full-body soreness and fatigue. The soreness and feelings of extreme fatigue
began in 2009 and were accompanied by stiffness. She woke up feeling like “cardboard,” unable to
move her arms or to walk. (AR 46). She experienced flare-ups of stiffness which occurred when her
joints swelled and her movement was further limited. Rheumatoid arthritis and lupus caused pain
in the feet, knees, hips, wrists, and hands. Plaintiff testified that she was treated with Prednisone
when a flare-up occurred but that her doctor gave her other medication because of the effect
Prednisone could have on her liver and kidneys. Furthermore, Prednisone upset Plaintiff’s stomach.
Other medications that doctors prescribed to treat rheumatoid arthritis and lupus caused Plaintiff to
feel dizzy and light-headed. No medication provided complete relief, as even with medication,
Plaintiff experienced swelling and difficulty bending and climbing stairs. She suffered from back
pain that sometimes interrupted her sleep every two to three hours. She described the pain as ranging
from mild to severe, up to a ten on a ten-point scale. Her hands were afflicted with pain and swelling
as a result of severe carpal tunnel syndrome and she had difficulty opening jars and boxes and
picking up objects. Picking up objects caused swelling of the hands. Her hands swelled once each
week on average and the swelling lasted for two days. At night she slept with braces on each hand.
She suffered from constant fatigue that left her without energy to even walk up stairs. When she
returned home after working a six-hour shift, she would, “. . . just lay[] in the bed.” Plaintiff suffered
from enlarged lymph nodes under the right arm that became inflamed every two months.
9
Inflammation, when it occurred, lasted for a week and caused stiffness that made moving her arm
difficult.
Plaintiff awakened every morning with full-body stiffness; while stiffness in the legs abated
somewhat after she walked around, she remained stiff in other parts of the body. She helped her
twelve-year-old son get ready for school and then attempted light housework, though she relied on
her husband and son for assistance. She did not lift heavy items at home. She was able to wash
clothes in the washer and dryer but relied on her son to put the clothes away. She went to the grocery
store once every week or two weeks and shopped for 30 minutes or less. She spent most of her time
at home lying down resting. When at work, Plaintiff was able to remain on her feet for two to three
hours before needing to take a 15 minute break. She could sit for no more than an hour before
needing to move around to alleviate stiffness in the back. She relied on coworkers to lift any objects
that weighed more than five pounds. Her hands swelled during the two days that she worked.
Plaintiff submitted an undated Adult Function Report to the Administration in which she
stated that her impairments restricted her ability to lift, squat, bend, stand, walk, kneel, climb stairs,
and use her hands. Plaintiff needed assistance carrying heavy objects when attempting housework
and needed to sit intermittently when preparing a meal. Pain in the hands and difficulty standing
limited Plaintiff’s enjoyment of hobbies that included gardening and crocheting. She did not leave
the house as much as she did before being afflicted with her impairments, as most of the time she
was tired and needed to lie down. She became dizzy and light-headed after standing or walking short
distances.
10
C. Vocational Expert Testimony
The ALJ questioned the vocational expert (“VE”) as to the availability of jobs to a
hypothetical individual who retained the residual functional capacity (“RFC”) to perform medium
work and who had to avoid moderate exposure to extreme cold and concentrated exposure to
extreme heat and high humidity. The VE testified that the hypothetical individual would have been
unable to perform Plaintiff’s past relevant work but was able to perform the jobs of labeler, office
helper, or assembler. If the individual was limited to work that involved standing and walking for
four hours in an eight hour day and sitting for less than two hours in an eight hour day, she would
have been precluded from any competitive employment. If the individual was able to use the hands
and wrists occasionally and not repetitively, she would have been unable to perform the jobs
identified by the VE. If the individual could only work two or three days each week, missed more
than two days of work each month, or was off-task more than 20 percent of the day, she would have
been precluded from competitive employment.
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will reverse
only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous
legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence
consists of “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v. Barnhart,
345 F.3d 467, 470 (7th Cir. 2003)).
11
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment
for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the
question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning
of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ
“uses the correct legal standards and the decision is supported by substantial evidence.” Roddy v.
Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618
(7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart,
381 F.3d 664, 668 (7th Cir. 2004)). “[I]f the Commissioner commits an error of law,” the Court may
reverse the decision “without regard to the volume of evidence in support of the factual findings.”
White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th
Cir. 1997)).
At a minimum, an ALJ must articulate his analysis of the evidence in order to allow the
reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that, as a reviewing
court, we may assess the validity of the agency’s final decision and afford [the claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski
12
v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that she suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent her from
doing her previous work, but considering her age, education, and work experience, it must also
prevent her from engaging in any other type of substantial gainful activity that exists in significant
numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. § 404.1520(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. § 404.1520(a)(4). The steps are:
(1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not disabled, and
the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have an
impairment or combination of impairments that are severe? If not, the claimant is not disabled, and
the claim is denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet or
equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically
considered disabled; if not, then the inquiry proceeds to step four; (4) Can the claimant do the
claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,
then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant’s
13
RFC, age, education, and experience? If yes, then the claimant is not disabled, and the claim is
denied; if no, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(i)-(v); see also Scheck v.
Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).
At steps four and five, the ALJ must determine the claimant’s residual functional capacity
(“RFC”). The RFC “is an administrative assessment of what work-related activities an individual
can perform despite her limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). The
RFC should be based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008)
(citing 20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of proving steps one through
four, whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d at 886; see also Knight v.
Chater, 55 F.3d 309, 313 (7th Cir. 1995).
ANALYSIS
Plaintiff seeks reversal of the ALJ’s decision, arguing that (1) the ALJ improperly evaluated
Plaintiff’s credibility; (2) the ALJ improperly weighed the opinion of Dr. Zachariah; and (3) the ALJ
improperly assessed Plaintiff’s residual functional capacity (“RFC”). The Commissioner contends
that the ALJ considered the record under the appropriate regulatory framework and that substantial
evidence supports his decision. The Court considers each argument in turn.
A. Credibility
In making a disability determination, the ALJ must consider a claimant’s statements about
her symptoms, such as pain, and how the claimant’s symptoms affect her daily life and ability to
work. See 20 C.F.R. § 404.1529(a). Subjective allegations of disabling symptoms alone cannot
support a finding of disability. Id. In determining whether statements of symptoms contribute to a
finding of disability, the regulations set forth a two-part test: (1) the claimant must provide objective
14
medical evidence of a medically determinable impairment or combination of impairments that
reasonably could be expected to produce the alleged symptoms; and (2) once an ALJ has found an
impairment that reasonably could cause the symptoms alleged, the ALJ must consider the intensity
and persistence of these symptoms. Id.
The ALJ must weigh the claimant’s subjective complaints, the relevant objective medical
evidence, and any other evidence of the following factors:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
The individual’s daily activities;
Location, duration, frequency, and intensity of pain or other symptoms;
Precipitating and aggravating factors;
Type, dosage, effectiveness, and side effects of any medication;
Treatment, other than medication, for relief of pain or other symptoms;
Other measures taken to relieve pain or other symptoms;
Other factors concerning functional limitations due to pain or other symptoms.
See 20 C.F.R. § 404.1529(c)(3). In making a credibility determination, Social Security Ruling 96-7p
requires the ALJ to consider the record as a whole, including objective medical evidence, the
claimant’s statement about symptoms, any statements or other information provided by treating or
examining physicians and other persons about the conditions and how the conditions affect the
claimant, and any other relevant evidence. See SSR 96-7p, 1996 WL 374186 (Jul. 2, 1996); see also
§ 404.1529(c)(1).
An ALJ is not required to give full credit to every statement of pain made by the claimant
or to find a disability each time a claimant states she is unable to work. See Rucker v. Chater, 92
F.3d 492, 496 (7th Cir. 1996). However, Ruling 96-7p provides that a claimant’s statements
regarding symptoms or the effect of symptoms on her ability to work “may not be disregarded solely
because they are not substantiated by objective evidence.” SSR 96-7p at *6. “Because the ALJ is
‘in the best position to determine a witness’s truthfulness and forthrightness . . . this court will not
15
overturn an ALJ’s credibility determination unless it is ‘patently wrong.’” Shideler v. Astrue, 688
F.3d 306, 310-11 (7th Cir. 2012) (quoting Skarbek v. Barnhart, 390 F.3d 500, 504-05 (7th Cir.
2004)); see also Prochaska, 454 F.3d at 738. Nevertheless, “an ALJ must adequately explain his
credibility finding by discussing specific reasons supported by the record.” Pepper v. Colvin, 712
F.3d 351, 367 (7th Cir. 2013) (citing Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009)).
As an initial matter, Plaintiff notes that the ALJ impermissibly employed the well-known
“boilerplate” language at the outset of the credibility determination. See, e.g., Bjornson v. Astrue,
671 F.3d 640, 645 (7th Cir. 2012). However, an ALJ’s use of the boilerplate language does not
amount to reversible error if he “otherwise points to information that justifies [her] credibility
determination.” Pepper, 712 F.3d at 367-68. In this case, the use of “boilerplate” language alone
does not require remand because the ALJ considered the required factors in assessing Plaintiff’s
credibility and analyzed the evidence to explain his credibility determination. See Filus v. Astrue,
694 F.3d 863, 868 (7th Cir. 2012). Nevertheless, several other errors in the ALJ’s credibility
determination require remand.
First, the Seventh Circuit Court of Appeals has criticized ALJs for relying on the claimant’s
ability to perform simple or basic daily activities in order to find a claimant not fully credible:
The critical differences between activities of daily living and activities in a full-time
job are that a person has more flexibility in scheduling the former than the latter, can
get help from other persons (in this case, Bjornson’s husband and other family
members), and is not held to a minimum standard of performance, as she would be
by an employer. The failure to recognize these differences is a recurrent, and
deplorable, feature of opinions by administrative law judges in social security
disability cases.
Bjornson, 671 F.3d at 647 (citing Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011); Spiva v.
Astrue, 628 F.3d 346, 351-52 (7th Cir. 2010); Gentle v. Barnhart, 430 F.3d 865, 867-68 (7th Cir.
16
2005); Draper v. Barnhart, 425 F.3d 1127, 1131 (8th Cir. 2005); Kelley v. Callahan, 133 F.3d 583,
588-89 (8th Cir. 1998); Smolen v. Chater, 80 F.3d 1273, 1284 n. 7 (9th Cir. 1996)).
In this case, the ALJ found that Plaintiff was “fairly active in spite of purported pain,” (AR
28), noting that Plaintiff was able to drive, prepare meals, do laundry, do light housework, wash
dishes, and shop for groceries. Yet, the ALJ did not explain how these minimal activities are
inconsistent with severe pain or support a finding that Plaintiff could perform work at the medium
exertional level, which includes being able to lift up to 50 pounds at a time over the course of an
eight-hour day. Moreover, Plaintiff testified that when she does laundry, she relies on her son to put
the clothes away. These minimal daily activities performed by Plaintiff, often with accommodations,
are not inconsistent with Plaintiff’s claims of pain, stiffness, and limitations. See Hughes v. Astrue,
705 F.3d 276, 278 (7th Cir. 2013) (finding that the performance of basic daily chores, which the
claimant did in such a way as to minimize the weight she had to lift, was not consistent with the
standard of performance required by an employer); Gentle, 430 F.3d at 867-68 (finding caring for
two small children, cooking, cleaning, and shopping not to be inconsistent with a disability claim);
Zurawski, 245 F.3d at 887 (finding that the claimant’s activities of helping his children prepare for
school, doing laundry, and cooking dinner were “not of a sort that necessarily undermines or
contradicts a claim of disabling pain”); Clifford, 227 F.3d at 872 (finding that performing household
chores in a two-hour interval, cooking, shopping, vacuuming, and watching grandchildren were not
inconsistent with disability, in part, because of the additional limitations in doing those basic
activities); see also SSR 96-7p at *8 (indicating that an ALJ must consider that “daily activities may
be structured so as to minimize symptoms to a tolerable level or eliminate them entirely, avoiding
physical or mental stressors that would exacerbate the symptoms”).
17
The ALJ also appears to equate Plaintiff’s performance of part-time work with an ability to
sustain full-time work; if this is the case, it was in error. See Larson v. Astrue, 615 F.3d 744, 752
(7th Cir. 2010) (“There is a significant difference between being able to work a few hours a week
and having the capacity to work full time.”); Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011)
(criticizing the ALJ for not explaining how the claimant’s brief, part-time employment supported
the determination that she could maintain consistent full-time employment). Plaintiff testified that
she worked two days a week for a total of twelve hours at a fast food job and that she worked six
to eight hours a month selling candles. This schedule was the result of a reduction in hours at the fast
food job over time from 24 to 30 hours per week, to 16 hours per week, to 12 hours per week
beginning in January 2011 because she was unable to tolerate the pain and fatigue that accompanied
full-time work. Plaintiff testified that working two days in a row caused swelling of the hands that
lasted for several days and that she was able to stand for two to three hours before needing to take
a break to sit down. The ALJ did not discuss this evidence. Moreover, Plaintiff testified that her
work was performed at the light exertional level, not the medium exertional level of the RFC. In the
context of evaluating Plaintiff’s subjective complaints, the ALJ acknowledged that Plaintiff
continued her sales and fast food work, even though on a reduced basis. It is not clear how the ALJ
weighed this fact, but given that the ALJ found Plaintiff not credible to the extent of the RFC, it
appears that the ALJ relied on the fact of Plaintiff’s part-time work to find that she could perform
full-time work. The lack of discussion of this element makes it impossible for the Court to trace the
line of the ALJ’s reasoning.
Next, the ALJ concluded that the intensity, frequency, and limiting effects of Plaintiff’s
symptoms were not as severe as alleged based on the ALJ’s perception that Plaintiff did not comply
18
with treatment. The ALJ commented that Plaintiff sometimes forgot her nightly dose of Plaquenil,
that she cancelled a Rituximab infusion, that she was off her medications for two weeks on one
occasion, and that she refused stronger medication. The ALJ was correct in considering Plaintiff’s
compliance with treatment when evaluating credibility. However, before drawing any inferences
from a failure to seek or pursue treatment, the ALJ must “first consider any explanations that the
individual may provide, or other information in the case record, that may explain infrequent or
irregular medical visits or failure to seek medical treatment.” See SSR 96-7p; Roddy v. Astrue, 705
F.3d 631, 638 (7th Cir. 2013).
In this case, the ALJ did not obtain any explanation from Plaintiff at the hearing as to why
she sometimes forgot her medication, why she cancelled the infusion, or why she did not want to
take stronger medication. Nor did the ALJ discuss the record evidence that Plaintiff was hesitant to
start taking Rituximab due to potential side effects and that nephrology had wanted to start steroids
for her stage three glomerulonephritis but that Plaintiff declined. The ALJ did not establish that
Plaintiff forgot to take her medication with sufficient regularity to undermine the severity of her
allegations. Contrary to the Commissioner’s suggestion, it was not enough for the ALJ to simply
note the issues with Plaintiff’s conduct regarding her medication without exploring the “why”
behind the conduct. Again, the Court cannot follow the path of the ALJ’s reasoning. Although the
Commissioner points to evidence in the record that Dr. Zachariah repeatedly warned Plaintiff about
the risk of damage to internal organs if she did not take certain medication, the ALJ did not discuss
those warnings in his decision. On remand, the ALJ shall obtain explanations for the perceived
noncompliance with treatment and include them in his discussion.
19
The ALJ also found Plaintiff’s assertions regarding the limiting effects of stiffness and back
pain to be exaggerated based on the level of treatment Plaintiff received. First, the ALJ
acknowledged Plaintiff’s testimony that after work she cannot move and must lie down, that she has
constant back pain if she lies or sits, that she suffered constant tiredness in 2009, and that she is tired
and fatigued all the time and lies down frequently during the day. He contrasted the testimony with
a lack of support in the record, commenting that Plaintiff underwent no hospitalization, had no
emergency room visits, did not use rehabilitation therapies, and did not ambulate using an assistive
device. Again, the ALJ was correct to consider the type of treatment Plaintiff received but erred in
the evaluation of the treatment. See SSR 96-7p. There is no evidence of record nor does the ALJ cite
any medical authority that these alternative treatments and therapies were indicated for Plaintiff’s
conditions. On remand, should the ALJ again find that the level of treatment does not support
Plaintiff’s alleged limitations, the ALJ shall properly support the finding.
If the ALJ had made any one of these errors in isolation, the overall credibility determination
may have been sustained. However, the combination of errors in several of the factors that must be
considered in a credibility determination renders the Court unable to say that the decision was not
patently wrong. Remand is required for a proper credibility determination.
B. Weight to Treating Physician Opinion and State Agency Physician Opinion
An ALJ must give the medical opinion of a treating doctor controlling weight as long as the
treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s]
impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in
[a claimant’s] case record . . . . When we do not give the treating source’s opinion
controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii)
of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this
section in determining the weight to give the opinion. We will always give good
reasons . . . for the weight we give to your treating source’s opinion.
20
20 C.F.R. § 404.1527(c)(2); 20 C.F.R. § 416.927(c)(2); see also Schaaf v. Astrue, 602 F.3d 869, 875
(7th Cir. 2010); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008); Hofslien v. Barnhart, 439 F.3d
375, 376 (7th Cir. 2006); SSR 96-8p; SSR 96-2p, 1996 WL 374188 (Jul. 2, 1996). In other words,
the ALJ must give a treating physician’s opinion controlling weight if (1) the opinion is supported
by “medically acceptable clinical and laboratory diagnostic techniques” and (2) it is “not
inconsistent” with substantial evidence of record. Schaaf, 602 F.3d at 875.
The factors listed in paragraphs (c)(2)(i) through (c)(6) are the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment relationship,
supportability, consistency, specialization, and other factors such as the familiarity of a medical
source with the case. 20 C.F.R. §§ 404.1527(c), 416.927(c). “[I]f the treating source’s opinion passes
muster under [§ 404.1527(c)(2)], then there is no basis on which the administrative law judge, who
is not a physician, could refuse to accept it.” Punzio v. Astrue, 630 F.3d 704, 713 (7th Cir. 2011)
(internal quotation marks omitted) (quoting Hofslien, 439 F.3d at 376). Courts have acknowledged
that a treating physician is likely to develop a rapport with his or her patient and may be more likely
to assist that patient in obtaining benefits. Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007). An
ALJ is entitled to discount the medical opinion of a treating physician if it is inconsistent with the
opinion of a consulting physician or when the treating physician’s opinion is internally inconsistent,
as long as the ALJ gives good reasons. Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010);
Schaaf, 602 F.3d at 875; Skarbek, 390 F.3d at 503.
In this case, the ALJ gave significant weight to Dr. Zachariah’s opinions on the lupus RFC
form that Plaintiff should avoid even moderate exposure to extreme cold and concentrated exposure
21
to extreme heat and high humidity and that Plaintiff’s impairments would seldom interfere with her
attention and concentration. The ALJ found these opinions to be supported by the record.
In contrast, the ALJ gave little weight to Dr. Zachariah’s favorable opinions, given in the
same document, that Plaintiff was able to sit for less than two hours in an eight-hour workday, was
able to stand and walk for a total of four hours in an eight-hour workday, needed to take a break
every four hours before returning to work, was able to occasionally lift and carry less than ten
pounds and was unable to lift more than ten pounds, and could occasionally twist and never stoop,
crouch, or climb ladders or stairs. The ALJ gave these opinions little weight because they were “not
well supported by the medical records.” (AR 29). Specifically, the ALJ noted that objective
examinations during the period at issue were generally normal and that Dr. Zachariah appeared to
be basing her opinions solely on Plaintiff’s complaints. The ALJ also found that there were “no
documented complaints of pain during the numerous visits during the period in issue.” (AR 29).
Plaintiff argues that the ALJ erred by rejecting portions of Dr. Zachariah’s opinion without
using the “checklist of factors” set out in 20 C.F.R. § 404.1527(c), including the treatment
relationship, Dr. Zachariah’s specialty, and the limitations reflected in the medical records from Dr.
Zachariah. Overall, the ALJ identified the portions of the opinion to which he gave little weight and
explained why. Unlike many cited by Plaintiff, this is not a case in which the ALJ selectively
discussed portions of a physician’s report that support a finding of non-disability while completely
ignoring other portions that suggest disability. See Campbell, 627 F.3d at 306 (citing Myles v.
Astrue, 582 F.3d 672, 678 (7th Cir. 2009)). Nor is this a case in which the ALJ completely ignored
the checklist of factors. See id. at 308 (citing Larson, 615 F.3d at 749 (criticizing the ALJ’s decision
which “said nothing regarding this required checklist of factors”); Bauer v. Astrue, 532 F.3d 606,
22
608 (7th Cir. 2008) (stating that when the treating physician’s opinion is not given controlling
weight “the checklist comes into play”)).
And, for the most part, the ALJ examined the record evidence to explain why he gave less
weight to the limitations imposed by Dr. Zachariah. The ALJ identified the specific time periods of
the records, noted the largely normal physical examination results, and discussed the mostly normal
diagnostic findings and objective medical evidence. The ALJ noted that Plaintiff consistently had
normal range of motion in all of her joints, including her upper extremities, rare documentation of
synovitis in some of her finger joints, no apparent reports of swelling, including those in her upper
extremities, and normal neurological examinations, including normal sensation. The ALJ also noted
that Plaintiff did not complain of pain during any of her office visits and identified those visits where
Plaintiff reported feeling fine, denied fatigue, or denied other lupus symptoms.
Nevertheless, as discussed in the following paragraphs, the ALJ ignored two major
factors–the nature and history of the treatment relationship and Dr. Zachariah’s specialty–and did
not address favorable medical evidence regarding Plaintiff’s sinovitis and stage three
glomerulonephritis. Given the importance of these factors in the overall balance of the weight given
to Dr. Zachariah’s opinion, remand is appropriate for a proper analysis.
First, Plaintiff suggests that the ALJ did not consider the length and nature of the treatment
relationship. While the ALJ identified Dr. Zachariah as Plaintiff’s treating physician and thoroughly
discussed the treatment history in the pages preceding the credibility determination, the ALJ did not
discuss this factor in the context of weighing the opinion. On remand, the ALJ shall explicitly
discuss the nature and length of the treatment relationship in weighing Dr. Zachariah’s opinion.
23
Second, Plaintiff argues that the ALJ did not recognize Dr. Zachariah’s specialty as a
rheumatologist. Although Dr. Zachariah’s specialty is not readily apparent from either her treatment
notes or opinion, the record demonstrates that Dr. Zachariah is a specialist. Plaintiff’s primary care
physician, Dr. Tallamraju noted that Plaintiff needed to be seen by a rheumatologist, and Dr.
Zachariah indicated that Plaintiff had been referred by Dr. Tallamraju. On remand, the ALJ shall
discuss the fact of Dr. Zachariah’s specialty in weighing her opinion.
Third, Plaintiff argues that the ALJ erroneously rejected parts of Dr. Zachariah’s opinion for
lack of supporting evidence by ignoring two areas of limitation found by Dr. Zachariah that “were
reflected in her medical records,” namely her synovitis and stage three glomerulonephritis (Pl. Br.
10). Plaintiff notes that Dr. Zachariah’s examination records reflect synovitis in the PIP joints and
contends that, because synovitis causes pain and swelling of the affected joint, Dr. Zachariah could
have reasonably concluded that Plaintiff should have lifted no more than ten pounds to mitigate pain.
In his review of all of Plaintiff’s medical records from Dr. Zachariah (many of which Plaintiff failed
to include in her recitation of the medical facts in her brief), the ALJ specifically noted that the
record contained “rare” document of synovitis in her finger joints. Yet, Dr. Zachariah observed
sinovitis in the finger joints on three or four occasions; the ALJ does not explain why limitations are
not appropriate based on these observations by Dr. Zachariah. While the sinovitis of the finger joints
may not support the severe sitting and standing limitations, the ALJ does not explain why the
sinovitis does not support the lifting limitation imposed by Dr. Zachariah in the lupus RFC.
As for the April 2010 diagnosis of stage three glomerulonephritis, Plaintiff notes that this
condition can cause fatigue and joint pain and that she complained of both. However, in her opening
brief, Plaintiff offers no citation to the record evidence for such complaints. In contrast, the ALJ
24
considered all the record evidence and found that Dr. Zachariah’s treatment notes did not document
complaints of pain. In her reply brief, Plaintiff notes her complaints of fatigue in May 2009 and
August 2009 and her complaint of knee pain in July 2009. Given the length of her treatment,
substantial evidence supports the ALJ’s understanding of Plaintiff’s complaints of pain and fatigue
as minimal. Nevertheless, while the glomerulonephritis diagnosis predates Dr. Zachariah’s May
2010 opinion by only a month, it appears that Dr. Zachariah considered that diagnosis in the lupus
RFC because Dr. Zachariah checked the box for renal involvement and checked the box for “severe
fatigue.” On remand, the ALJ shall seek clarification regarding Dr. Zachariah’s opinion as to
Plaintiff’s fatigue and symptoms based on the stage three glomerulonephritis.
The ALJ also found that Dr. Zachariah’s opinion was based on Plaintiff’s subjective
complaints rather than objective evidence: “Objective examinations during the period in issue were
generally normal, and it appears that the doctor was basing her opinions on complaints alone.” (AR
29). This statement is not supported by substantial evidence of record as to all of Plaintiff’s
complaints, especially those of swelling. As set forth in the factual background above, Dr. Zachariah
made objective physical findings and the diagnostic blood and urine testing supported Dr.
Zachariah’s diagnosis. Also, to the extent that some of Dr. Zachariah’s lupus RFC opinion is in fact
based on Plaintiff’s subjective complaints of pain and/or fatigue, the weight the ALJ gave to Dr.
Zachariah’s opinion is affected by the errors in the ALJ’s credibility determination set forth in the
prior section. Thus, the remand for a proper credibility determination may influence the weight the
ALJ gives to the portion of Dr. Zachariah’s opinion based on Plaintiff’s subjective complaints.
In weighing Dr. Zachariah’s opinion, the ALJ did not have an alternative medical opinion
that discredited Dr. Zachariah’s, and the ALJ improperly weighed the opinions of the non-examining
25
state agency physicians. See Gudgel, 345 F.3d at 470 (“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.” (citing Moore v. Barnhart, 278 F.3d 920,
924 (9th Cir. 2002)). In two sentences, with no analysis, the ALJ gave “considerable” weight to the
opinion for medium work of the state agency doctors, Dr. Sands and Dr. Whitley, because “[t]heir
opinion is well supported by the medical records.” (AR 29). However, the opinion of Dr. Sands was
given in December 2009. Plaintiff received over eighteen months of additional treatment between
the date of Dr. Sands’ assessment and the ALJ’s decision, and none of those records were evaluated
by Dr. Sands. See Campbell v. Astrue, 627 F.3d 299, 309 (7th Cir. 2010). It was improper for the
ALJ to surmise that Dr. Sands would not necessarily have altered his assessment of Plaintiff had he
reviewed the additional records, which included the diagnosis of enlarged right axilla lymph node
and stage three glomerulonephritis. Nor does Dr. Whitley’s March 16, 2010 affirmation of Dr.
Sands’ opinion cure the error because there is no evidence that Dr. Whitley considered the additional
evidence and impairments other than the check mark next to the preprinted statement: “I have
reviewed all the evidence in file and the assessment of 12/07/2009 is affirmed, as written.” (AR
427). On remand, the ALJ shall obtain an updated consultative opinion.
Plaintiff’s request for relief asks either for remand for a proper evaluation of Dr. Zachariah’s
opinion using the checklist factors, or, in the alternative, for a finding that Dr. Zachariah’s opinion
is entitled to great weight and award benefits. In this instance, remand for further proceedings is
appropriate.
26
C. Residual Functional Capacity
The residual functional capacity (“RFC”), which is at issue at steps four and five of the
sequential evaluation, is a measure of what an individual can do despite the limitations imposed by
her impairments. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); 20 C.F.R. §
404.1545(a)(1); SSR 96-8p, 1996 WL 374184, at *3 (July 2, 1996). The determination of a
claimant’s RFC is a legal decision rather than a medical one. 20 C.F.R. § 404.1527(e)(2); Diaz, 55
F.3d at 306 n.2. The evidence relevant to the RFC determination includes medical history; medical
signs and laboratory findings; the effects of symptoms, including pain, that are reasonably attributed
to a medically determinable impairment; evidence from attempts to work; need for a structured
living environment; and work evaluations, if available. SSR 96-8p, at *5. The ALJ “must consider
all allegations of physical and mental limitations or restrictions and make every reasonable effort
to ensure that the file contains sufficient evidence to assess RFC.” Id. The ALJ “must consider
limitations and restrictions imposed by all of an individual’s impairments, even those that are not
‘severe’” because they “may–when considered with limitations or restrictions due to other
impairments–be critical to the outcome of a claim.” Id.
Plaintiff argues that the ALJ erred in formulating her RFC by failing to include any
limitations produced by Plaintiff’s carpal tunnel syndrome, by failing to properly consider her
obesity, and by failing to consider her impairments in combination. Overall, the ALJ’s RFC decision
is relatively thorough, providing a narrative discussion of the medical and nonmedical evidence and
assessing Plaintiff’s abilities in accordance with statutes and regulations. Nevertheless, remand is
required because the ALJ did not create a logical bridge between the evidence and testimony
regarding Plaintiff’s carpal tunnel syndrome and the RFC. The Court considers each of Plaintiff’s
RFC arguments in turn.
27
First, the ALJ found that Plaintiff’s bilateral carpal tunnel syndrome was a severe impairment
at step two of the sequential analysis. However, the ALJ did not include any related limitations in
the RFC. The objective medical evidence, namely the results of the April 2009 EMG of Plaintiff’s
wrists showing left and right severe mononeuropathy across the wrists, supports the diagnosis of
bilateral carpal tunnel syndrome. Dr. Tallamraju prescribed carpal tunnel splints, which Plaintiff
wore at night when she slept and any time her hands swelled. In May 2010, Dr. Zachariah observed
swelling of Plaintiff’s wrist and hand upon examination. Plaintiff testified that use of her hands
caused swelling and that her hands swelled whenever she worked.
In his credibility determination, the ALJ discussed Plaintiff’s hands, acknowledging
Plaintiff’s complaints of swelling. However, the ALJ then found that there was no swelling during
the period at issue, contrary to the May 2010 evidence. Although the ALJ listed the April 2009 EMG
in his summary of the medical record, he does not include the test results in analyzing the credibility
of Plaintiff’s stated limitations as a result of carpal tunnel syndrome. Nonsensically, the ALJ
discredits Plaintiff simply because she misstated that Dr. Zachariah, rather than Dr. Tallamraju,
prescribed the splints. Yet, the ALJ seems to ignore the fact that a treating doctor indeed prescribed
the splints and that Plaintiff used the splints to relieve the associated symptoms. These errors cannot
be overlooked and require reversal in light of the vocational expert’s testimony that, if Plaintiff
could only occasionally use her hands, Plaintiff would have been unable to perform the jobs
identified by the vocational expert.
On remand, the ALJ shall properly discuss all of the evidence regarding Plaintiff’s carpal
tunnel syndrome, which the ALJ found to be a severe impairment, and explain what limitations
result from the impairment. See Myles, 582 F.3d at 676-77 (finding that the ALJ failed to properly
assess hand limitations after acknowledging the limitations but giving no reason for rejecting the
28
limitations); Martinez v. Astrue, 630 F.3d 693, 697 (7th Cir. 2011) (finding that the ALJ erred in not
properly evaluating a hand limitation). Also on remand, the ALJ shall explicitly discuss whether any
limitations from Plaintiff’s non-severe enlarged right axilla lymph node should be included in the
RFC.
Second, Plaintiff argues that the ALJ failed to properly consider the effects of her obesity
in formulating the RFC. The Court disagrees. The ALJ explicitly found that Plaintiff’s obesity did
not produce any limitations because no treating source identified any limitations. Plaintiff argues
that the ALJ should have considered the effect of obesity in combination with Plaintiff’s other
impairments. Under Social Security Ruling 02-1p, Plaintiff’s BMI of 38.1 is Level II obesity. See
SSR 02-1p, 2002 WL 34686281, at *2 (Sept. 12, 2002) (citing the National Institutes of Health
Clinical Guidelines on the Identification, Evaluation, and Treatment of Overweight and Obesity in
Adults). The Ruling clarifies that “[t]hese levels describe the extent of obesity, but they do not
correlate with any specific degree of functional loss.” Id. The consideration of obesity should be an
integral factor underlying the construction of the RFC. Id. at *6. The ALJ must consider whether
obesity causes any functional limitations and explain that conclusion: “As with any other
impairment, we will explain how we reached our conclusions on whether obesity caused any
physical or mental limitations.” Id. at *6-7.
The Ruling provides some guidance on how obesity is factored into the RFC determination:
Obesity can cause limitation of function. The functions likely to be limited depend
on many factors, including where the excess weight is carried. An individual may
have limitations in any of the exertional functions such as sitting, standing, walking,
lifting, carrying, pushing, and pulling. It may also affect ability to do postural
functions, such as climbing, balance, stooping, and crouching. The ability to
manipulate may be affected by the presence of adipose (fatty) tissue in the hands and
fingers. The ability to tolerate extreme heat, humidity, or hazards may also be
affected.
29
The effects of obesity may not be obvious. For example, some people with obesity
also have sleep apnea. This can lead to drowsiness and lack of mental clarity during
the day. Obesity may also affect an individual’s social functioning.
Id. at *6. Consistent with Ruling 02-1p, the Seventh Circuit Court of Appeals requires that the ALJ
“factor in obesity when determining the aggregate impact of an applicant’s impairments.” Arnett v.
Astrue, 676 F.3d 586, 593 (7th Cir. 2012) (citing Martinez, 630 F.3d at 698-99; Clifford, 227 F.3d
at 873); Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004) (finding that the ALJ erred by not
explaining the consideration given to the claimant’s obesity).
Unlike cases in which the claimant’s obesity is ignored, the ALJ in this case specifically
addressed the effects of Plaintiff’s obesity, finding “no further limitations resulting from obesity”
and that “[n]one of the treating sources indicated as such.” (AR 28). Moreover, the ALJ relied on
the opinions of doctors who were aware of Plaintiff’s obesity. See Arnett, 676 F.3d at 593 (citing
Prochaska, 454 F.3d at 736-37; Skarbek, 390 F.3d at 504). Plaintiff identifies no evidence that
supports greater functional limitations as a result of her obesity. Reversal is not required on this
basis.
Finally, Plaintiff argues generally that the ALJ should have found that work at the sedentary
level was appropriate for Plaintiff based on the combination of her impairments, namely her lupus,
rheumatoid arthritis, nephritis, and obesity. However, the Court finds that, other than as to the errors
identified above, the ALJ properly considered the limitations resulting from each of Plaintiff’s
impairments and Plaintiff does not identify any evidence of record suggesting that the combination
of her impairments created additional or greater limitations. Nor does Plaintiff offer any evidentiary
support for her conclusion that the ALJ should have concluded that walking and heavy lifting was
impossible and that sedentary work was most appropriate for Plaintiff. Reversal is not required on
this basis.
30
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the relief sought in Plaintiff’s Brief in
Support of her Motion to Reverse the Decision of the Commissioner of Social Security [DE 16],
REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter
for further proceedings consistent with this Opinion and Order.
So ORDERED this 9th day of June, 2014.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:
All counsel of record
31
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?