Tapper III v. Commissioner of Social Security

Filing 18

OPINION AND ORDER The Court GRANTS the relief requested in Plaintiff, Norman A. Tapper III's 13 Opening Brief and REMANDS this matter for further proceedings consistent with this opinion. Signed by Magistrate Judge John E Martin on 7/30/19. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
NORMAN A. TAPPER, III,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of the Social Security
Administration,
Defendant.

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CAUSE NO.: 2:18-CV-103-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Norman Tapper on
March 15, 2018, and Plaintiff’s Opening Brief [DE 13], filed July 12, 2018. Plaintiff requests that
the decision of the Administrative Law Judge be reversed and remanded for further proceedings. On
September 13, 2018, the Commissioner filed a response, and on October 3, 2018, Plaintiff filed a
reply.
I.

Background
On March 12, 2010, Plaintiff filed an application for benefits alleging that he became

disabled on January 19, 2010. Plaintiff’s application was denied initially and upon reconsideration.
On June 11, 2012, Administrative Law Judge (“ALJ”) Jonathan Stanley held a hearing, at which
Plaintiff, with an attorney, and a vocational expert (“VE”) testified. On June 14, 2012, the ALJ
issued a decision finding that Plaintiff was not disabled. Plaintiff appealed this decision to the
District Court on September 3, 2013. On March 30, 2015, the Court remanded the ALJ’s decision,
and the Appeals Council remanded the matter to the ALJ. A second hearing was held on September
29, 2016 with ALJ William Sampson, at which Plaintiff, with an attorney, and a VE testified. On

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February 24, 2017, the ALJ issued a decision finding that Plaintiff was not disabled. The Appeals
Council denied Plaintiff’s request for review, leaving the ALJ’s decision the final decision of the
Commissioner.
The ALJ made the following findings under the required five-step analysis:
1.

The claimant’s date last insured is March 31, 2014.

2.

The claimant did not engage in substantial gainful activity during the period
from his alleged onset date of January 19, 2010 through his date last insured
of March 31, 2014.

3.

Through the date last insured, the claimant had the following severe
impairments: coronary artery disease; sleep disorders; Type II diabetes;
status post gastric bypass surgery and obesity.

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equal the severity of one
the listed impairments in 20 CFR 404, Subpart P, Appendix 1.

5.

Through the date last insured, the claimant had the residual functional
capacity (“RFC”) to perform light work as defined in 20 CFR 404.1567(b)
except the claimant could never climb ladders, ropes, or scaffolds;
occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl
and avoid concentrated exposure to extremes of heat and cold.

6.

Through the date last insured, the claimant was capable of performing past
relevant work as an account executive and electronic technician. This work
did not require the performance of work-related activities precluded by the
claimant’s residual functional capacity.

7.

The claimant was not under a disability, as defined in the Social Security Act, at any
time from January 19, 2010, the alleged onset date, through March 31, 2014, the date
last insured.

The Appeals Council denied Plaintiff’s request for review, 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.
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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
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.

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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 or her analysis of the evidence in order to allow
the reviewing court to trace the path of her 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 erred in weighing the medical opinions in the record and in

making the RFC determination. The Commissioner argues that the ALJ’s opinion is supported by
substantial evidence.
Plaintiff argues that the ALJ erred in giving the opinion of his treating cardiologist, Dr.
Clifford Kavinsky, little weight. “[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

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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). 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).
Dr. Kavinsky opined in a medical source statement that because of Plaintiff’s coronary artery
disease, diabetes, and other conditions, Plaintiff could sit for thirty minutes at a time, sit less than
two hours total in an eight-hour workday, stand for fifteen minutes at a time, and stand or walk for
less than two hours total in an eight-hour work day. AR 869. Dr. Kavinsky further stated that
Plaintiff would need to elevate his legs twelve inches off the ground for forty percent of an
eight-hour work day due to muscle soreness. AR 870. Finally, Dr. Kavinsky opined that Plaintiff
was incapable of even “low stress” work, would be off task twenty-five percent of the time or more,
and would miss about three days of work per month. AR 871.
The ALJ gave Dr. Kavinsky’s opinion little weight, noting that Plaintiff has had no major
cardiac treatment since 2007, and that although he struggled with an exercise stress test in 2012, his
readings were normal during a medication stress test. Further, the ALJ noted that Plaintiff lost
weight after having gastric bypass surgery, and his diabetes was under control to the point where

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he no longer required emergency room care. The ALJ relied instead on two other medical
professionals who assessed Plaintiff as being capable of performing at least some variation of light
work.
However, the ALJ failed to discuss all the relevant evidence supporting Dr. Kavinsky’s
opinion, including the reasons Plaintiff was unable to complete the exercise stress test in 2012.
Plaintiff was able to walk for four minutes and sixteen seconds, but stopped due to leg pain and
shortness of breath. Because he was unable to reach the goal heartrate during that time, Plaintiff was
forced to switch to a medical stress test, where he showed normal blood pressure and no chest pain
or stress arrhythmias. AR 898. However, he remained dizzy, light-headed, and diaphoretic. AR 896.
Those results were consistent with Dr. Kavinsky’s opinion that Plaintiff could only stand/walk for
fifteen minutes at a time due to other concerns, such as leg pain, shortness of breath, dizziness, and
light-headedness.
The ALJ also mischaracterized another stress test, taken in 2013, which the ALJ stated
showed “good functional capacity.” During this test, Plaintiff walked on a treadmill for seven
minutes and thirty seconds. The results showed an abnormal resting electrocardiogram suggesting
the possibility of an old anterior wall infarction. AR 910. The doctor noted that although
“submaximal treadmill exercise test demonstrat[ed] relatively good functional capacity,” Plaintiff’s
exercise-induced symptoms and pain were highly suggestive of angina. AR 910. Moreover, an EKG
from two days before the stress test showed thickening of the mitral valve, mitral annular
calcification, mild thickening of the trileaflet valve, and mild thickening of the aortic valve. AR
912-13. In sum, the ALJ relied on the phrase “good functional capacity” while ignoring the
worsening symptoms noted during the test. An ALJ “cannot rely only on the evidence that supports

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[his] opinion.” Yurt v. Colvin, 758 F.3d 850, 859 (7th Cir. 2014) (quoting Bates v. Colvin, 736 F.3d
1093, 1099 (7th Cir. 2013)); see also Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010) (holding
that ALJs must “consider all relevant medical evidence and cannot simply cherry-pick facts that
support a finding of non-disability while ignoring evidence that points to a disability finding.”).
The ALJ also failed to properly weigh the factors in 20 C.F.R. § 404.1527(c) in discussing
Dr. Kavinsky’s opinion. Although the ALJ need not explicitly discuss and weigh each factor, the
ALJ must still consider the factors and “minimally articulate” his reasoning. Elder v. Astrue, 529
F.3d 408, 415 (7th Cir. 2008); Collins v. Berryhill, 743 Fed. App’x. 21, 25 (7th Cir. 2018). The ALJ
failed to evaluate multiple factors, several of which would favor giving Dr. Kavinsky’s opinion
greater weight. Specifically, the ALJ failed to acknowledge the length, nature, and extent of the
treatment relationship, along with the frequency of examination, and the types of tests performed.
Campbell, 627 F.3d at 308 (“[S]everal of the factors support the conclusion that Dr. Powell’s
opinion should be given great weight . . . Proper consideration of these factors may have caused the
ALJ to accord greater weight to Dr. Powell’s opinion.”). Dr. Kavinsky treated Plaintiff
approximately every six months for at least nine years, and he performed Plaintiff’s angiography,
angioplasty, and stent placement in 2007. AR 343-49, 363-73, 856-58, 901-05, 920-26, 961-64. Dr.
Kavinsky had been treating Plaintiff for nine years prior to completing the written opinion. Although
the ALJ noted that Plaintiff didn’t see Dr. Kavinsky for eight months between August 2010 and
April 2011, it is undisputed that Dr. Kavinsky had a lengthy and regular treating relationship with
Plaintiff, which supports giving more weight to Dr. Kavinsky’s opinion. See 20 C.F.R. §
404.1527(c)(2)(i) (“Generally, the longer a treating source has treated you and the more times you
have been seen by a treating source, the more weight we will give to the source’s medical opinion.”).

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The ALJ failed to discuss these factors or indicate that he considered them.
Finally, the ALJ dismissed Dr. Kavinsky’s opinion in part because two “other medical
professionals” opined that Plaintiff was capable of a variation of light work. The ALJ does not
identify those two professionals, but the only other doctors that the ALJ gave weight to were an
examining physician (who received “some weight”) and a state agency physician (“great weight”).
However, both of those opinions were given in 2010, and Plaintiff’s date last insured was not until
March 31, 2014. The ALJ gave the examining physician “some weight,” because diagnostic testing
subsequent to his opinion revealed additional limits, and gave the state agency physician “great
weight,” but added postural and environmental limits to account for further issues not discussed in
the opinion. Neither doctor had the records from 2011-2014 – the majority of the medical evidence
in this record – when giving their opinions. After 2010, Dr. Kavinsky continued to treat Plaintiff for
six years before offering his most recent opinion in 2016. The ALJ failed to build a “logical bridge”
to his conclusion that non-treating sources from 2010 should be given more weight than Plaintiff’s
treating cardiologist, when the cardiologist’s opinion was the only one incorporating evidence from
the entire relevant period. O’Connor-Spinner, 627 F.3d at 618.
Plaintiff also argues that the ALJ erred in failing to account for his sleep disorders in the
RFC. The RFC is an assessment of what work-related activities the claimant can perform despite
his limitations. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see also 20 C.F.R. §§
404.1545(a)(1); 416.1545(a)(1). In evaluating a claimant’s RFC, an ALJ is expected to take into
consideration all of the relevant evidence, including both medical and non-medical evidence. See
20 C.F.R. §§ 404.1545(a)(3); 416.945(a)(3). Although an ALJ is not required to discuss every piece
of evidence, he must consider all of the evidence that is relevant to the disability determination and

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provide enough analysis in his decision to permit meaningful judicial review. Clifford, 227 F.3d at
870; Young, 362 F.3d at 1002. The ALJ’s analysis must establish a logical bridge between the
evidence and the conclusion. See O’Connor-Spinner, 627 F.3d at 618; Briscoe, 425 F.3d at 352
(remanding where the ALJ “did not explain how he arrived at these [RFC] conclusions; this
omission in itself is sufficient to warrant reversal of the ALJ’s decision”).
Plaintiff was diagnosed with severe obstructive sleep apnea and severe periodic limb
movement disorder in 2011. Although he was prescribed a BiPAP (bilateral positive airway
pressure) machine, he continued to report fatigue and sleepiness “throughout the day,” and that he
needed to take naps. Plaintiff testified that his fatigue affected his concentration at work, and that
he occasionally fell asleep on the job.
The ALJ included a single limitation in the RFC addressing Plaintiff’s sleep disorders,
indicating that he should avoid “concentrated exposure to extremes of heat,” in response to
Plaintiff’s testimony that he would fall asleep in the afternoon when it got exceedingly warm. In
assessing Plaintiff’s sleep disorders, the ALJ stated that “there was no documentation that the
claimant’s fatigue was so severe that he was unable to get out of bed in the morning or conduct his
activities of daily living.” The ALJ noted that, during the hearing, Plaintiff was able to concentrate
and “looked to be in absolutely no distress” during the 45-minute hearing, and that he showed
“normal communication ability” in a prior medical exam. The ALJ also cited a sleep study
questionnaire in which Plaintiff reported a “slight” chance of falling asleep if he were sitting inactive
in a public place, which the ALJ said was “a bit inconsistent” with Plaintiff’s testimony.
The ALJ made several inferences about Plaintiff’s work ability without adequate support in
the record. First, to the extent the ALJ relied on his inference that Plaintiff was able “to get out of

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bed in the morning [and] conduct his activities of daily living,” he failed to draw a logical bridge
from the evidence to the work-related limitations he crafted. O’Connor-Spinner, 627 F.3d at 618;
see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (“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 . . . 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.”);
Punzio, 630 F.3d at 712 (“[The Plaintiff’s] ability to struggle through the activities of daily living
does not mean that she can manage the requirements of a modern workplace.”); Mendez v. Barnhart,
439 F.3d 360, 362 (7th Cir. 2006) (“We have cautioned the Social Security Administration against
placing undue weight on a claimant’s household activities in assessing the claimant’s ability to hold
a job outside the home . . . The pressures, the nature of the work, flexibility in the use of time, and
other aspects of the working environment . . . often differ dramatically between home and office or
factory or other place of paid work.”).
Similarly, the ALJ concluded that Plaintiff’s apparent lack of distress during the 45-minute
hearing and his “normal communication” during a medical exam supported his ability to perform
for a full workday. Plaintiff indicated on his sleep study questionnaire that he would not fall asleep
if he were “sitting and taking to someone,” but that there was a “slight” chance he may fall asleep
if he were sitting “in a public place.” The ALJ failed to explain why Plaintiff’s ability to focus and
not fall asleep in a 45-minute hearing (in which he was literally “sitting and talking to someone”),
or that his chance of falling asleep in a public place was “slight,” meant that his sleep disorders
would not limit him at work. Although a medical source statement from Plaintiff’s sleep doctor, Dr.

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Hakam Safradi, indicated that Plaintiff did not have “recurrent daytime sleep attacks,” Dr. Safradi
declined to address Plaintiff’s work limitations, explicitly stating that Plaintiff’s primary care
physician should complete that portion of the form. The judgments about Plaintiff’s medical
disorders should have been made by a medical professional, not the ALJ. See Myles v. Astrue, 582
F.3d 672, 677-78 (7th Cir. 2009) (warning that an ALJ may not “play[] doctor and reach[] his own
independent medical conclusion”); see also Blakes v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003);
Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996).
Plaintiff requests reversal with remand for an award of benefits. An award of benefits is
appropriate only if all factual issues have been resolved and the record supports a finding of
disability. Briscoe, 425 F.3d at 356. In this case, the ALJ erred in assessing Dr. Kavinsky’s opinion,
but it is not clear what weight his opinion should be given, and the record does not clearly indicate
how Plaintiff’s sleep disorders affect his work capabilities. Although the ALJ’s analysis was
inadequate, remand for benefits is not appropriate here. See Allord v. Astrue, 631 F.3d 411, 417 (7th
Cir. 2011) (affirming reversal for re-hearing, rather than an award of benefits, where “contradictory
inferences could be drawn from the physicians’ testimony”); Campbell v. Shalala, 988 F.2d 741, 744
(7th Cir. 1993) (“the record is not so clear that we can award or deny benefits on appeal”).
On remand, the ALJ is instructed to address the factors enumerated in 20 C.F.R. §
404.1527(c) as they apply to the treating physician, and to provide a sound explanation if he or she
rejects those opinions, including analysis of the evidence that does not support the ALJ’s
conclusion. The ALJ must build a logical bridge between the evidence in the record and the ultimate
conclusions, including those in the RFC. See Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009)
(“On remand, the ALJ should consider all of the evidence in the record, and, if necessary, give the

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parties the opportunity to expand the record so that he may build a ‘logical bridge’ between the
evidence and his conclusion.”). The Commissioner should not assume that any allegations not
discussed in this opinion have been adjudicated in his favor.
IV.

Conclusion
For the foregoing reasons, the Court hereby GRANTS the relief requested in Plaintiff’s

Opening Brief [DE 13] and REMANDS this matter for further proceedings consistent with this
opinion.
SO ORDERED this 30th day of July, 2019.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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