Woods, Jr. v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The Court hereby GRANTS the relief requested in the PlaintiffsOpening Brief 17 , and REMANDS this matter for further proceedings consistent with this opinion. Signed by Magistrate Judge John E Martin on 8/5/2019. (jss)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ALLEN WOODS, JR.,
Plaintiff,
v.
ANDREW SAUL, Commissioner of the
Social Security Administration,
Defendant.
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CAUSE NO.: 2:18-CV-124-JEM
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Allen Woods, Jr.,
on March 27, 2018, and Plaintiff’s Opening Brief [DE 17], filed August 9, 2018. Plaintiff requests
that the decision of the Administrative Law Judge be reversed and remanded for further
proceedings. On August 24, 2018, the Commissioner filed a response, and on October 4, 2018,
Plaintiff filed a reply.
I.
Background
On February 28, 2015, Plaintiff filed an application for benefits alleging that he became
disabled on November 29, 2014. Plaintiff’s application was denied initially and upon
consideration. On December 16, 2016, Administrative Law Judge (“ALJ”) Diane S. Davis held a
video hearing, at which Plaintiff, with an attorney, and a vocational expert (“VE”) testified. On
March 29, 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 December 31, 2019.
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2.
The claimant has not engaged in substantial gainful activity since November
29, 2014, the alleged onset date.
3.
The claimant has the following severe impairments: diabetes mellitus with
associated neuropathy, a combination of cervical radiculopathy and
degenerative joint disease of the right shoulder, and a heroin use disorder.
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 (“RFC”) to perform
medium work as defined in 20 C.F.R. § 404.1567(c) except that he is further
limited to work which avoids concentrated exposure to hazards and can
occasionally reach overhead with the dominant right upper extremity, with
no limitation involving the left upper extremity.
6.
The claimant is unable to perform any past relevant work.
7.
The claimant was born on November 9, 1957 and was 57 years old, which
is defined as an individual of advanced age, on the alleged disability onset
date.
8.
The claimant has a limited 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.
11.
The claimant has not been under a disability, as defined in the Social
Security Act, from November 29, 2014, through the date of this decision.
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
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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 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
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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 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). 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 evaluating the opinion of Plaintiff’s treating
neurosurgeon, failed to support the RFC with substantial evidence, and erred in assessing Plaintiff’s
subjective symptom allegations.
Plaintiff argues that the ALJ erred in giving no weight to the opinion of the treating
neurosurgeon, Dr. Kaakaji. The Commissioner argues that the ALJ gave good reasons for rejecting
the opinion of Dr. Kaakaji, identifying him as Plaintiff’s psychiatrist. In November, 2016, Dr.
Kaakaji stated that he would support Plaintiff’s application for disability, as Plaintiff had multiple
conditions “challenging his ability to work.” AR 827. Without identifying his role in Plaintiff’s
treatment or his specialty, the ALJ afforded no weight to Dr. Kaakaji’s opinion, on the grounds that
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it was formed on the first office visit, is inconsistent with the prior record of Plaintiff’s level of
functioning, particularly his ability to perform light work with no absences earlier in 2016, and is
inconsistent with Dr. Kaakaji’s own follow up notes.
“[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). In particular, a treating physician’s opinion that a claimant is
disabled ‘must not be disregarded.’” Hamilton v. Colvin, 525 F. App’x 433, 439 (7th Cir. 2013)
(quoting SSR 96-5p, 1996 WL 374183, at *5 (July 2, 1996)) (citing 20 C.F.R. § 416.927(e)(2)), see
also Roddy, 705 F.3d at 636 (“Even though the ALJ was not required to give [the treating
physician]’s opinion [that the claimant could not handle a full-time job] controlling weight, he was
required to provide a sound explanation for his decision to reject it.”). 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). “[W]henever 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).
The ALJ completely discounted the opinion of Plaintiff’s treating neurologist, whose
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specialty the ALJ did not identify, in part because of Plaintiff’s work history. Instead, the ALJ gave
great weight to the opinion of non-examining state agency physicians who offered their opinions
on June 3, 2015, and July 15, 2015, without access to information about Plaintiff’s shoulder
impairments.
ALJs are directed to “give more weight to the medical opinion of a source who has examined
[the claimant] than to the medical opinion of a medical source who has not examined [her].” 20
C.F.R. §§ 404.1527(c)(1), 416.927(c)(1); see also Vanprooyen v. Berryhill, 864 F.3d 567, 572–73
(7th Cir. 2017) (finding error where “without any logical explanation, the administrative law judge
gave substantial weight to the opinions of consulting physicians who had never examined [the
plaintiff], saying only that they had provided “a good synopsis of the evidence” and that “their
opinions are consistent with the overall record”). In addition, “[a]n ALJ should not rely on an
outdated assessment if later evidence containing new, significant medical diagnoses reasonably
could have changed the reviewing physician’s opinion.” Moreno v. Berryhill, 882 F.3d 722, 728
(7th Cir. 2018) (citing Stage v. Colvin, 812 F.3d 1121, 1125 (7th Cir. 2016); Goins v. Colvin, 764
F.3d 677, 680 (7th Cir. 2014)); see also Akin v. Berryhill, 887 F.3d 314, 317-18 (7th Cir. 2018)
(citing Goins, 764 F.3d at 680; Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014); Green v. Apfel,
204 F.3d 780, 782 (7th Cir. 2000)) (holding that the ALJ’s error in interpreting MRI results could
have been avoided by seeking an updated medical opinion).
In this case, Plaintiff’s medical records post-state agency opinions contain significant, new
developments that could have reasonably changed the state agency physicians’ opinions. In
particular, notable developments are reflected in the records of Plaintiff’s treating neurologist, as
described above, including the results of November 25, 2016 MRI showing a mass consistent with
a pituitary tumor, a May 12, 2016 shoulder x-ray showing degenerative arthropathy at the
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acromioclavicular joint “with inferior spurring of the acromion which can predispose to
impingement,” AR 755, a July 8, 2016, MRI showing a “partial tear and/or tendinosis of the distal
supraspinatus tendon with no full-thickness tear,” as well as degenerative changes “of the
glenohumeral and AC joints.” AR 813, and a later MRI showing right-sided foraminal stenosis of
the cervical spine at C4-C5 and C5-C6. AR 826. Neither of the state agency physicians examined
Plaintiff, and neither of them had the opportunity to review medical evidence relating to Plaintiff’s
shoulder. No other physician opined that Plaintiff could perform medium work, and Dr. Kaakaji
was the only physician to offer an opinion after Plaintiff’s shoulder pain started. No doctor opined
that Plaintiff would be able to reach overhead occasionally due to his shoulder impairment.
The ALJ is not qualified to interpret Plaintiff’s MRIs and x-rays in determining that Plaintiff
could reach overhead occasionally and perform medium work. The Seventh Circuit has made clear
that “ALJs are not qualified to evaluate medical records themselves, but must rely on expert
opinions.” Moreno, 882 F.3d at 729 (citing Meuser v. Colvin, 838 F.3d 905, 911 (7th Cir. 2016)
(remanding because the ALJ improperly “played doctor”); Stage, 812 F.3d at 1125 (finding that the
ALJ erred by evaluating the significance of a subsequent treating physician’s report that contained
significant, new, and potentially decisive findings without the input of a medical expert and instead
relying on an outdated assessment); Goins, 764 F.3d at 680 (criticizing the ALJ for “playing doctor”
by summarizing the results of an MRI without input from an expert)). Dr. Kaakaji’s
opinion/treatment note discussed Plaintiff’s second MRI, yet the ALJ gave his opinion and
treatment note little weight, relying instead on earlier non-examining physician opinions that did
not take Plaintiff’s shoulder injury into account. The ALJ impermissibly evaluated the MRIs and
x-rays on her own in determining Plaintiff’s RFC.
Further adding to the Court’s concern that the ALJ substituted her own medical judgment
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for those of physicians is her failure to account for Plaintiff’s use of an ambulatory device. The ALJ
noted that Plaintiff was prescribed a cane, but did not incorporate the need for an assistive device
in the RFC because “the evidence discussed above” – almost all of which pre-dated the cane
prescription – “does not support the assertion that use of such device is medically necessary.”
Although Plaintiff may not need to use an assistive device at all times, the ALJ completely and
explicitly disregarded his use of a cane prescribed by a medical professional based on her own
medical judgment and did not include even occasional use of an assistive device in the RFC.
Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990) (warning that ALJs should not “succumb to
the temptation to play doctor” because “lay intuitions about medical phenomena are often wrong”)
(citing cases); see also, e.g., 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”).
The ALJ also stated that she did not give weight to Dr. Kaakaji’s opinion because of
Plaintiff’s successful ability to work without absences in 2016. This is a misstatement of the record.
Plaintiff had two unsuccessful work attempts in 2016. Plaintiff stated he was let go from the position
he held as a cookie inspector from June 16, 2016, through August 3, 2016, because he was not
consistent and could not keep up, despite the fact that he did no lifting or carrying while on the job,
and he could stand or sit as he chose. He also stated that his right shoulder was bothering him during
this job, and so he was doing much of the work with his left hand only. Plaintiff then obtained a job
placing reflectors on portions of car bumpers as they came down an assembly line, which he held
from August 29, 2016, through October 3, 2016. Plaintiff testified that he could not keep up in this
job, could not lift the pieces to place in machines, and could not stand for the amount of time
required. AR 37. Although Plaintiff may have had no absences during his time at the jobs, his tenure
was extremely brief and he was let go because he was unable to work at the level required for either
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job. The ALJ grossly mischaracterized the record in stating that Plaintiff was capable of performing
light work in 2016 when Plaintiff only had unsuccessful sedentary work attempts. Not only is this
an erroneous reason for discounting the opinion of Plaintiff’s treating neurologist, but to the extent
that the ALJ concluded that Plaintiff was not disabled because he tried to work, that conclusion is
also troubling. As the Seventh Circuit Court of Appeals has noted, “even persons who are disabled
sometimes cope with their impairments and continue working long after they might have been
entitled to benefits.” Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012); see also Pierce v. Colvin,
739 F.3d 1046, 1051 (7th Cir. 2014) (“[A] claimant’s dogged efforts to work beyond her physical
capacity would seem to be highly relevant in deciding her credibility and determining whether she
is trying to obtain government benefits by exaggerating her pain symptoms.”); Richards v. Astrue,
370 F. App’x 727, 732 (7th Cir. 2010) (“A desperate person might force herself to work – or …
certify that she is able to work – but that does not necessarily mean she is not disabled.”); Gentle v.
Barnhart, 430 F.3d 865, 867 (7th Cir. 2005) (“A person can be totally disabled for purposes of
entitlement to social security benefits even if, because of an indulgent employer or circumstances
of desperation, he is in fact working.”).
The ALJ mischaracterized evidence in her analysis of Dr. Kaakaji’s opinion and erred in
failing to submit new evidence to a medical expert. This case is being remanded for the ALJ to
conduct a thorough analysis of the treating neurosurgeon’s opinion as well as to obtain updated
medical opinions for the new evidence regarding Plaintiff’s shoulder. The Commissioner is also
reminded of the requirement to assess Plaintiff’s subjective allegations in accordance with SSR 163p and of the need to build a logical bridge between the evidence in the record and the ultimate
conclusions, whatever those might be. See Myles, 582 F.3d at 678 (“On remand, the ALJ should
consider all of the evidence in the record, and, if necessary, give the parties the opportunity to
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expand the record so that he may build a ‘logical bridge’ between the evidence and his
conclusion.”).
IV. Conclusion
For the foregoing reasons, the Court hereby GRANTS the relief requested in the Plaintiff’s
Opening Brief [DE 17], and REMANDS this matter for further proceedings consistent with this
opinion.
SO ORDERED this 5th day of August, 2019.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:
All counsel of record
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