Brown v. Commissioner of Social Security

Filing 24

OPINION AND ORDER The Court hereby GRANTS the Opening Memorandum (DE 19 ), 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 John E Martin on 2/07/2019. (sct)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LALISEA V. BROWN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Social Security Administration,
Defendant.

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CAUSE NO.: 2:18-CV-64-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Lalisea V. Brown
on February 14, 2018, and an Opening Memorandum [DE 19], filed August 16, 2018. Plaintiff
requests that the decision of the Administrative Law Judge be reversed and remanded for further
proceedings. On September 12, 2018, the Commissioner filed a response, and on October 4, 2018,
Plaintiff filed a reply.
I.

Background
On November 18, 2013, Plaintiff filed applications for benefits alleging that she became

disabled on June 30, 2012. Plaintiff’s applications were denied initially and upon reconsideration.
On November 9, 2016, Administrative Law Judge (“ALJ”) Edward Kristof held a hearing at which
Plaintiff, Plaintiff’s case manager, and a vocational expert (“VE”) testified. Plaintiff was represented
by an attorney at the hearing. On February 15, 2017, the ALJ issued a decision finding that Plaintiff
was not disabled.
The ALJ made the following findings under the required five-step analysis:
1.

The claimant meets the insured status requirements of the Social Security Act
through June 30, 2015.

2.

The claimant has not engaged in substantial gainful activity since June 30,
2012, the alleged onset date.

3.

The claimant has the following severe impairments: fibromyalgia, mild
degenerative changes in the lumbar spine and mild degenerative changes in
the cervical spine, sleep apnea, mild right shoulder tendinosis and mild left
subacromial subdeltoid bursitis and focal tendinitis of the shoulder, obesity,
and a bipolar disorder versus depression.

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one the listed impairments in
20 CFR 404, Subpart P, Appendix 1.

5.

The claimant has the residual functional capacity to lift and carry up to 10
pounds occasionally and nominal weight frequently, stand and/or walk for
about 2 hours of an 8 hour workday and sit for about 6 hours of an 8 hour
workday. She uses a cane in one hand for standing and walking and cannot
operate a motor vehicle as part of her job duties. She can occasionally bend
and stoop, and never climb ramps/stairs/ladders/ropes/scaffolds, kneel,
crouch, or crawl. She cannot reach overhead bilaterally and can perform no
more than frequent handling and fingering. She should avoid exposure to
workplace hazards including unprotected heights or moving machinery. She
is limited to simple, routine, repetitive tasks; occasional interaction with
supervisors and coworkers; no interaction with the general public; and cannot
perform assembly line type of work or timed tasks.

6.

The claimant is unable to perform any past relevant work.

7.

The claimant was 45 years old, which is defined as a younger individual age
45-49, on the alleged disability onset date.

8.

The claimant has at least a high school education and is able to communicate
in English.

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.

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.

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11.

The claimant has not been under a disability, as defined in the Social Security
Act, from June 30, 2012, through the date of this decision.

The Appeals Council did not take jurisdiction of the claim, leaving the ALJ’s decision the final
decision of the Commissioner.
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).
II.

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)).
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
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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 [a 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 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.”).
III.

Analysis
Plaintiff argues that the ALJ’s decision should be remanded because the ALJ erred in

evaluating the opinion evidence, did not build a logical bridge between the evidence and his

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conclusions, erred in finding moderate restrictions in concentration, persistence, or pace, and made
a flawed subjective symptom analysis.
“[A] judge should give controlling weight to the treating physician’s opinion as long as it
is supported by medical findings and consistent with substantial evidence in the record.” Kaminski
v. Berryhill, 894 F.3d 870, 874 (7th Cir. 2018) (citing 20 C.F.R. § 404.1527(c)(2); Gerstner v.
Berryhill, 879 F.3d 257, 261 (7th Cir. 2018)); see also Gudgel, 345 F.3d at 470; Schmidt v. Astrue,
496 F.3d 833, 842 (7th Cir. 2007). If the ALJ declines to give a treating source’s opinion controlling
weight, he must still determine what weight to give it according to the following factors: the length,
nature, and extent of the physician’s treatment relationship with the claimant; whether the
physician’s opinions were sufficiently supported; how consistent the opinion is with the record as
a whole; whether the physician specializes in the medical conditions at issue; and other factors, such
as the amount of understanding of the disability programs and their evidentiary requirements or the
extent to which an acceptable medical source is familiar with other information in the claimant’s
case. 20 C.F.R. §§ 404.1527(c)(2)(i)-(ii), (c)(3)-(6); 416.927(c)(2)(i)-(ii), (c)(3)-(6). Furthermore,
“whenever an ALJ does reject a treating source’s opinion, a sound explanation must be given for
that decision.” Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011).
Treating doctors Dr. Beth Marnix and Dr. Paul Dobransky completed a Medical Assessment
of Ability to Do Work-Related Activities (Mental). AR 1582-83. The ALJ noted that Drs. Marnix
and Dobransky found Plaintiff to have a “fair” or “poor/none” ability in 11 out of 14 areas pertaining
to occupational, performance, or personal-social adjustments. Id. at 31. The ALJ wrote that “[i]t
appears that the basis for assessment was self-reported symptoms. As there is no objective evidence

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to support such extreme functional restrictions (no inpatient hospitalization, etc.) this finding cannot
be afforded more than minimal weight.” Id.
The ALJ’s analysis of Dr. Marnix’s and Dr. Dobransky’s opinions is in error and requires
remand. First, “a psychological assessment is by necessity based on the patient’s report of symptoms
and responses to questioning . . . .” Aurand v. Colvin, 654 F. App’x 831, 837 (7th Cir. 2016); accord
Bainter v. Colvin, No. 13 C 9105, 2015 WL 5177754 at *8 (N.D. Ill. Sept. 2, 2015).
Second, there is objective evidence in the record that supports a finding of significant mental
impairments. For example, at one mental status examination, Plaintiff was observed to have a “very
nasty” mood and mild paranoia, and she did not know the date. AR 1480. At another office visit, she
was unable to complete serial sevens and openly interacted with an imaginary friend in the waiting
room and office. Id. at 836-37. On a third occasion, her memory was 1 out of 3 on recall and had to
be redirected on responding to questions. Id. at 700.
Third, the ALJ is not competent to determine whether a Plaintiff’s allegations of mental
impairment, if true, would require inpatient hospitalization. The Seventh Circuit Court of Appeals
has held that, “[t]he administrative law judge went far outside the record when he said that if Voigt
were as psychologically afflicted as Day thought, he ‘would need to be institutionalized and/or have
frequent inpatient treatment”—a medical conjecture that the administrative law judge was not
competent to make.” Voigt v. Colvin, 781 F.3d 871, 876 (7th Cir. 2015) (citing Browning v. Colvin,
766 F.3d 702, 705 (7th Cir. 2014); Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014); Pate-Fires
v. Astrue, 564 F.3d 935, 946-47 (8th Cir. 2009)). The court went on to explain that “[t]he
institutionalization of the mentally ill is generally reserved for persons who are suicidal, otherwise

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violent, demented, or (for whatever reason) incapable of taking care of themselves.” Id. Remand is
required for a new evaluation of these opinions.
The ALJ likewise discounted the opinion of Ms. Lucinda Franco, a licensed mental health
clinician, in part because the opinion was based on Plaintiff’s self-report of her symptoms. On
remand, the ALJ is instructed to re-evaluate Ms. Franco’s opinion in light of Aurand. and the
objective evidence in the record.
The ALJ proceeded to give “considerable” weight to the opinions of the state agency
consulting physicians. Due to the ALJ’s improper reliance on a lack of inpatient hospitalization,
misunderstanding of how mental impairments are diagnosed in evaluating the mental health
opinions, and failure to discuss evidence in support of significant mental health impairments, these
opinions need to be re-evaluated on remand.
The ALJ’s evaluation of the treating physician opinions regarding Plaintiff’s physical
condition provides an independent ground for remand. The ALJ rejected the opinions of Drs. Aitken,
Ismail, and Kowlowitz, all of whom made similar functional findings. The ALJ wrote that “there
are absolutely no medical records either from Dr. Ismail or any other provider that document
findings so severe as to cause [the limitations opined by Dr. Ismail].” AR 30. As the ALJ noted, Dr.
Ismail stated that the opinion was derived from history, the medical file, physical therapy reports,
laboratory reports, other tests, consultative medical opinions, progress notes, office notes, physical
examinations, and x-rays/CT scans/MRIs. The ALJ substituted his own lay opinion for that of the
doctor. The ALJ does not have the medical training necessary to interpret medical testing, such as
MRIs, to determine what functional limitations would result. See Goins v. Colvin, 764 F.3d 677, 680
(7th Cir. 2014) (finding that the ALJ played doctor, “a clear no-no” (citing Blakes ex rel. Wolfe v.

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Barnhart, 331 F.3d 565, 570 (7th Cir. 2003); Rohan v. Chater, 98 F.3d 966, 90 (7th Cir. 1996))).
Furthermore, Plaintiff alleges impairments due to fibromyalgia. The ALJ has not explained how
evidence of normal range of motion, gait, motor strength, and results from neurological
examinations are inconsistent with significant limitations due to fibromyalgia and, thus, show Dr.
Ismail’s opinion to be inconsistent with the record. See Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.
1996) (“Since swelling of the joints is not a symptom of fibromyalgia, its absence is no more
indicative that the patient’s fibromyalgia is not disabling than the absence of headache is an
indication that a patient’s prostate cancer is not advanced.”).
The ALJ also discredits the opinions of Drs. Aitken, Ismail, and Kowlowitz, stating that the
doctors made identical findings. However, according to the regulations, consistency is a factor that
should weigh in favor of greater weight. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). Further, the
opinion forms show that the opinions are not identical and contain small differences. For example,
Dr. Kowlowitz and Dr. Ismail opined that Plaintiff could “rarely” lift 5 pounds, and Dr. Aitken
opined that she could do so “occasionally.” AR 1586, 1593, 1615. Dr. Ismail opined that Plaintiff
needed to elevate her legs at a 45 degree angle with prolonged sitting, and Dr. Kowlowitz and Dr.
Aitken opined that she did not need to elevate her legs. Id. at 1588, 1595, 1617 . In addition, the ALJ
inconsistently did not reject the opinions of state agency Drs. Morris and Vavercan, whose opinions
are identical. See AR 119-21, 149-51. The ALJ chose to believe that three medical professionals
decided to make false statements on the form “to satisfy their patient[’s] requests and avoid
unnecessary doctor/patient tension,” instead of believing that the doctors were basing their opinions
on sound medical judgment according to their years of education and experience. More is needed
to discredit a doctor’s opinion than the ALJ’s mere conjecture of sympathy toward the patient. Moss

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v. Astrue, 555 F.3d 556, 560 (7th Cir. 2009) (“An ALJ’s conjecture is never a permitted basis for
ignoring a treating physician’s views.”) (citing Gudgel, 345 F.3d at 470; Rohan v. Chater, 98 F.3d
966, 971 (7th Cir. 1996)).
Due to the errors identified above, the Court need not fully address Plaintiff’s remaining
arguments. However, on remand, the ALJ is directed to evaluate Plaintiff’s allegations of
fibromyalgia with an awareness of how the condition is diagnosed and treated and what symptoms
are to be expected. Regarding concentration, persistence, and pace, if the ALJ again determines that
Plaintiff’s reliance on a case worker is a matter of Plaintiff’s choice, the ALJ must provide a logical
bridge connecting this conclusion to evidence in the record. Further, evaluation of Plaintiff’s
subjective symptoms must comply with Social Security Ruling 16-3p. 2017 WL 5180304 (Oct. 25,
2017). In addition, in light of the number and character of the ALJ’s errors, the Court suggests that
this matter be reassigned to a different ALJ on remand.
IV.

Conclusion
For the foregoing reasons, the Court hereby GRANTS the Opening Memorandum [DE 19],

REVERSES the final decision of the Commissioner of Social Security, and REMANDS this matter
for further proceedings consistent with this opinion.
SO ORDERED this 7th day of February, 2019.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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