Torres v. Commissioner of Social Security

Filing 23

OPINION AND ORDER: The decision of the Commissioner of Social Security is REVERSED and REMANDED. Signed by Judge William C Lee on 9/8/21. (ksp)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
LILLIAN T.1,
Plaintiff,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant.

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CIVIL NO. 2:20cv332

OPINION AND ORDER
This matter is before the court for judicial review of a final decision of the defendant
Commissioner of Social Security Administration denying Plaintiff's application for Disability
Insurance Benefits (DIB) under Title II of the Social Security Act. Section 205(g) of the Act
provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the
transcript of the record including the evidence upon which the findings and decision complained
of are based. The court shall have the power to enter, upon the pleadings and transcript of the
record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or
without remanding the case for a rehearing." It also provides, "[t]he findings of the
[Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42
U.S.C. §405(g).
The law provides that an applicant for disability benefits must establish an "inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to last for a continuous period of no less than 12

1

For privacy purposes, Plaintiff’s full name will not be used in this Order.

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months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment
is "an impairment that results from anatomical, physiological, or psychological abnormalities
which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42
U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an impairment exists. It must
be shown that the impairment is severe enough to preclude the plaintiff from engaging in
substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372
U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established
that the burden of proving entitlement to disability insurance benefits is on the plaintiff. See
Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir.
1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record
as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.
Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786
(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,
552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,
42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also
Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after consideration of the entire record, the Administrative Law
Judge ("ALJ") made the following findings:
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1.

The claimant meets the insured status requirements of the Social Security Act
through December 31, 2020.

2.

The claimant has not engaged in substantial gainful activity since March 10, 2015,
the alleged onset date (20 CFR 404.1571 et seq.).

3.

The claimant has the following severe impairments: obesity, lumbar degenerative
disc disease, hand and wrist osteoarthritis, mild bilateral knee osteoarthritis (20
CFR 404.1520(c)).

4.

The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as defined
in 20 CFR 404.1567(a) except the claimant can never climb ladders, ropes, or
scaffolds. She can occasionally climb ramps and stairs, balance, stoop, crouch,
kneel, and crawl. She can frequently handle and finger with her bilateral upper
extremities. She is limited to occasional exposure to extreme cold, vibration, or to
hazards such as moving mechanical parts or unprotected heights.

6.

The claimant is capable of performing past relevant work as a hospital admitting
clerk, job development specialist, and an eligibility worker. This work does not
require the performance of work-related activities precluded by the claimant’s
residual functional capacity (20 CFR 404.1565).

7.

The claimant has not been under a disability, as defined in the Social Security Act,
from March 10, 2015, through the date of this decision (20 CFR 404.1520(f)).

(R. 17-31).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to benefits.
The ALJ's decision became the final agency decision when the Appeals Council denied review.
This appeal followed.
Plaintiff filed her opening brief on June 9, 2021. On July 12, 2021 the defendant filed a
memorandum in support of the Commissioner’s decision to which Plaintiff replied on August 18,
2021. Upon full review of the record in this cause, this court is of the view that the
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Commissioner’s decision should be remanded.
A five step test has been established to determine whether a claimant is disabled. See
Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 229091 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test
as follows:
The following steps are addressed in order: (1) Is the claimant
presently unemployed? (2) Is the claimant's impairment "severe"?
(3) Does the impairment meet or exceed one of a list of specific
impairments? (4) Is the claimant unable to perform his or her
former occupation? (5) Is the claimant unable to perform any other
work within the economy? An affirmative answer leads either to the
next step or, on steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than step 3, stops
the inquiry and leads to a determination that the claimant is not
disabled.

Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162
n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). In the present
case, Step 4 was the determinative inquiry.
On April 18, 2016, Plaintiff filed for DIB alleging she became disabled beginning March
10, 2015. The claim was denied initially, upon reconsideration, and after a hearing on April
9, 2018. (R1. 141). The Appeals Council remanded the case and directed the ALJ to exhibit and
address specific medical evidence. (R. 15, 159-60). On September 23, 2019, Plaintiff appeared
before ALJ Jeanette Schrand for a second hearing, and on January 30, 2020, the ALJ issued an
unfavorable decision. (R. 15-32).
Plaintiff was born on June 29, 1959. She was over age 55 at onset and by the time of the
ALJ’s most recent decision, she was age 60. (R. 354). Prior to Plaintiff’s onset date, she treated
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for blurred vision, hypertension (HTN), back pain, fatigue and metacarpal issues. (R. 505-06, 509,
523, 530, 538, 543, 579, 583, 934, 936). She also treated with a chiropractor for low back pain,
degenerative disc disease (DDD) and muscle spasm. (R. 638-41).
In September 2015, Plaintiff treated for HTN and a prescription for physical therapy was
issued. (R. 564, 600). She was discharged after presenting with pain and decreased range of
motion (“ROM”) to the lumbar spine. (R. 554-56). Plaintiff treated with pain management
specialist, Dr. Simon Ho for debilitating pain rated at 9/10. She had severe pain with ROM
maneuvers. (R. 650-51). A MRI for back pain and left leg numbness showed loss of normal
lumbar lordosis, abnormal peripheral displacement of the nerve roots at L5 level, moderate left
L4-5 foraminal stenosis and moderate bilateral SI joint arthritis. (R. 596, 653-54). Plaintiff
received a L4 injection and a LSO brace. (R. 655, 658). She had tried and failed conservative
treatment for vein issues. She had pain and discomfort to the lower extremities. Plaintiff was listed
as suffering from venous HTN. She had left greater saphenous vein. (R. 666). Plaintiff continued
chiropractic care with noted limited ROM and muscle spasm. (R. 668-70). Dr. Ho noted Plaintiff
was doing “quite well” with ongoing therapy prescribed. (R. 672).
However, by November, it was noted that Plaintiff’s discogenic/radicular pain had been
present for at least three months and she had failed usual measures such as therapy, rest and
medication management with a L4-5 epidural administered. (R. 680, 112). Pre-procedure, she had
pain at 8/10. Post-procedure, she had 0/10 pain relief. However, the pain returned back to baseline
and was stable and unchanged from the prior block. (R. 680, 682, 112). She had positive straight
leg raise (“SLR”), ambulated with difficulty, and had antalgic behavior. (R. 682). The plan was for
a repeat injection. (R. 684, 1114).
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By January, Plaintiff’s pain was down to 6/10. She had radicular pain at 2/10 and
experienced a significant increase in functional capacity. (R. 686). She ambulated with difficulty
and exhibited guarding and antalgic behavior. On exam, she had moderate pain with ROM. (R.
687). Despite the improvement, Plaintiff had persistent pain. (R. 687). A Lidoderm patch was
prescribed and an injection ordered. (R. 687). Due to her venous insufficiency and inflammation,
the plan was for a vein ablation. (R. 689, 692). In March, she underwent trigger point injections.
(R. 693, 695, 1117). Plaintiff continued chiropractic treatment with noted limited ROM due to
pain and spasm and increased pain with flexion and extension. (R. 697). She received a lumbar
interlaminar epidural at L4-5. (R. 698). Dr. Ho completed a RFC form stating that Plaintiff could
frequently lift 5 pounds, stand less than an hour, sit less than two hours and her legs needed to be
elevated more than 25% based on the MRI findings. (R. 629-30).
In July, Plaintiff met with Dr. Ho for back pain rated at 6/10. She had persistent axial pain
exacerbated by prolonged sitting and standing and worse on the right. (R. 703). On examination,
ambulation and certain activities were guarded. She still had significant pain on ROM maneuvers.
(R. 703). As a result of persistent pain, with suspicion for facet arthropathy, a diagnostic block
was prescribed. (R. 704). She treated for venous insufficiency and bilateral left venous HTN and
varicose veins with inflammation and underwent an ablation with a compression stocking applied.
(R. 709). Prior to this, she engaged in leg elevation and stocking use with inadequate response.
(R. 709). Thereafter she underwent left spider sclerotherapy sessions around the knee area. (R.
712). Despite venous and back issues documented in the record, a June 2016 consultative
examination was relatively benign other than noting she was not able to stand from seated position
without difficulty and she had trouble stooping or squatting. (R. 643-46).
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Thereafter, Plaintiff received medial branch blocks (R. 714, 739-40, 744, 746-47, 753,
1122, 1125) and radiofrequency ablations. (R. 1127). Her primary care provider treated HTN and
ordered an arterial Doppler of the lower left calf for right lower extremity pain. (R. 731). She
participated in sclerotherapy. (R. 743).
In August 2016, Plaintiff returned to Dr. Ho exhibiting significant signs of neuritis, a
common complication of the radiofrequency ablation. (R. 757). The plan was for a repeat branch
block which occurred in September at L3-S1. (R. 766, 1129). In October, Plaintiff underwent a
second consultative examination. She was wearing a left wrist brace and reported pain to the wrist
and fingers. Her strength was 4/5 in all upper major muscle groups and dynamometer testing
showed 3.2 force on right and 3.5 kg on left. Plaintiff had 3/5 strength to left hand on examination,
antalgic gait, and was not able to stoop or squat completely. Significant ROM loss to the cervical
and lumbar spine was documented. (R. 771-770). An X-ray showed minimal degenerative changes
to the knees and left wrist. (R. 776, 801). A CT of the spine showed severe moderate severe of
disc height at L4-5 and L3-4, broad-based disc osteophyte complex resulting in mild spinal canal
stenosis and mild subarticular recess stenosis, moderate left and mild right foraminal stenosis. (R.
798).
Two weeks post-branch block, Plaintiff continued to have neuritis. (R. 799). She continued
to have “pretty significant pain”. (R. 800). Physical therapy was paused. (R. 800). In November,
she reported stable symptoms with ambulation and certain movements guarded and pain with
ROM. (R. 795). “She [had] responded very modestly to intervention procedures…at this point,
she [was] continuing to have a waxing and waning course” so more conservative care was
provided. (R. 796). By December she was stable with “moderate success” to her lower back. With
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the winter weather, she was in more pain. Plaintiff ambulated with difficulty and exhibited
guarding and antalgic behavior and pain with ROM. (R. 792). She was going to try physical
therapy at St. Mary’s Hospital and plan for trigger point injections which occurred in January. (R.
787, 789, 793, 1131). In February she was having “good success” in therapy. (R. 781, 1329-82).
By March, it was noted her lumbar pain problems returned and results from the
radiofrequency ablation were “quite modest”. (R. 778). Her pain had reacted to epidurals in the
past by at least 50% for 6-8 weeks but the pain had reoccurred and she experienced a substantial
deterioration in functional capacity. (R. 779). Plaintiff continued to treat with her primary care
provider for HTN, obesity and left arm pain. (R. 830, 842, 882, 77). She received a lumbar
epidural in June. (R. 805). In July, Dr. Ho wrote “at this point I think we are doing pretty well.
We have treated the lumbar issues similarly to what we had done a year ago, and I think the results
are as good as we would expect” with modest results. (R. 807). Her pain was about 40% better
subsequent to the injection. (R. 806).
However, by February 2018, Plaintiff’s pain had returned and was radiating to the lower
extremities. She had not worked for a while and was looking for a job. She had been considering
disability but now was a little unsure of herself with respect to this. (R. 812). On examination, she
had positive SLR on the right. (R. 812). Again she was noted to experience a substantial
deterioration regarding functioning. (R. 813). She underwent another course of epidurals at L4-5.
(R. 810, 813, 1135). The results were short lived. She had persistent and chronic pain, had failed
conservative measures and was not a surgical candidate. (R. 815-16). Her pain was too severe to
tolerate therapy. (R. 816). More injections were provided. (R. 818, 1137). As a result of only
modest improvement with epidurals, Dr. Ho recommended a surgical consult. (R. 1000-01).
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It was noted Plaintiff had left sided carpal tunnel syndrome with a plan to monitor this
condition. (R. 1000-01). Plaintiff was experiencing moderate varicose issues to her left lower
ankle. (R. 974). She had a new varicosities with 2+ edema noted to the left lower extremity. (R.
992-93, 1022). An ultrasound showed left great saphenous vein below knee patency with
moderate to severe reflux. (R. 1017). Plaintiff has been using compression stockings over the last
year but the pain returned. (R. 1016). She had failed leg elevation and compression stockings with
a plan for an ablation. (R. 1016). A MRI showed lumbar spondylosis most prominent at L3-4 and
L4-5. (R. 1029). Plaintiff participated in physical therapy with reports of moderate difficulty with
performing daily activities and note of pain at 7/10. (R. 1250-1305).
In July 2018, Plaintiff participated in a reevaluation of symptoms by Dr. Ho. Ambulation
and certain activities were guarded. She had moderate to severe pain on ROM testing and a
positive SLR. (R. 977-78, 985-87, 1009, 1139). Despite an injection (R. 998), she only had
modest, 10% relief. (R. 1007). By December, she switched pain management. (R. 965-66).
In 2019, Plaintiff reported swelling to her bilateral hands and fingers. (R. 995). She
received a lumbar epidural with minimal improvement and note on examination of positive SLR,
loading test and failed prior conservative care. (R. 1067-68). A neurosurgeon recommended a
decompression or fusion due to severe lower back pain with only minimal relief with conservative
care. (R. 1144). In September, rheumatoid arthritis was ruled out and Plaintiff treated for multiple
joint osteoarthritis. (R. 1474-77).
At the first hearing, Plaintiff explained she was 5’2" and 170 pounds. (R. 89). Weight gain
was as a result of the fact she was not as mobile as she used to be. (R. 90). Plaintiff explained that
she could not work due to her severe DDD which precluded her from lifting, carrying and standing
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for long periods of time. (R. 92). She had tried therapy, medications, and epidurals and nothing
worked. (R. 92). Plaintiff could not concentrate 85% of the time as pain was distracting. She did
not feel she could be on her legs more than two hours due to severe back pain and leg cramping.
She had problems with her left hand which resulted in pain and cramping. (R. 93). Bending of the
left wrist caused her pain and limited her ability to use a computer. (R. 94). For the left wrist she
just used the brace. (R. 95). Plaintiff received help from her daughter for chores and cooking
meals. (R. 95).
At the remand hearing, Plaintiff again explained that her daughter came over and did
chores. (R. 49). She did not drive; the potholes were hard on her back and driving caused her back
pain. (R. 50). Plaintiff could not work due to severe back injuries that continued to get worse to
the point she could not walk even two hours. Her job became so strenuous on her body she got to
the point where she was in crippling pain. (R. 61). It got to the point where she was always in pain
with severe leg cramps and muscle spasms, she could barely write with her right hand and could
not move her left hand. (R. 62). Plaintiff last did therapy in 2018 and her doctors and physical
therapist told her there was nothing more that she could do. (R. 62). She spent a couple of hours
per day elevating her legs. (R. 65). She sat in a recliner that elevated her legs. (R. 65). She could
not write or type with her right hand for more than two hours. (R. 66). She could stand/walk less
than two hours due to lower back pain, varicose veins and swollen feet and she had knee
problems. (R. 66). Plaintiff wore a brace on her left hand. (R. 67).
In support of remand, Plaintiff first argues that the ALJ erred in weighing her subjective
symptoms. The regulations describe a two-step process for evaluating a claimant's own description
of her impairments. First, the ALJ “must consider whether there is an underlying medically
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determinable physical or mental impairment(s) that could reasonably be expected to produce the
individual's symptoms, such as pain.” SSR 16-3p, at *2. If there is such an impairment, the ALJ
must “evaluate the intensity and persistence of those symptoms to determine the extent to which
the symptoms limit an individual's ability to perform work-related activities.” Id. In evaluating a
claimant's symptoms, “an ALJ must consider several factors, including the claimant's daily
activities, her level of pain or symptoms, aggravating factors, medication, treatment, and
limitations, ... and justify the finding with specific reasons.” Villano v. Astrue, 556 F.3d 558, 562
(7th Cir. 2009). An ALJ's assessment of a claimant's subjective complaints will be reversed only
if “patently wrong.” Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010).
The ALJ discounted Plaintiff’s symptoms based on the fact that Dr. Ho noted a waxing and
waning of symptoms. (R. 30). Plaintiff contends that the ALJ cherry-picks this reference without
understanding the full context of Plaintiff’s condition. Denton v. Astrue, 596 F.3d 419, 425 (7th
Cir. 2010)(An ALJ has the obligation to 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). Plaintiff points out that, after blocks, she suffered from neuritis with “pretty
significant pain” resulting in physical therapy being paused. (R. 799-800). Thereafter, Dr. Ho
noted only very modest response to interventions and she continued to wax and wane. (R. 796).
Only a few months later, in March, Plaintiff was noted to have experienced a substantial
deterioration in functional capacity. (R. 779). Plaintiff argues that the ALJ did not squarely address
the flare-up issue.
Plaintiff further contends that the ALJ minimizes the treatment Plaintiff underwent, stating
that Plaintiff had relief with injection therapy and was not entirely compliant with physical therapy
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despite progressing well. (R. 30). However, the record reflects otherwise. In September 2015,
Plaintiff was doing “quite well”, yet by November Dr. Ho noted that discogenic/radicular pain had
been present for at least three months and Plaintiff had failed usual measures such as therapy, rest
and medication management with a L4-5 epidural administered. (R. 680, 112). Pre-procedure,
Plaintiff had pain at 8/10. Post-procedure, she had 0/10 pain relief. However, the pain returned
back to baseline and was stable and unchanged from the prior block. (R. 680, 682, 112). At the
visit she had positive SLR, she ambulated with difficulty and had antalgic behavior. (R. 682). The
plan was for a repeat injection. (R. 684, 1114). While the injection took her pain down to 6/10, by
March 2016, Plaintiff continued to undergo trigger point injections (R. 693, 695, 1117), epidural
injections (R. 698), medial branch blocks (R. 714, 739-40, 744, 746-47, 753, 1122, 1125) as well
as radiofrequency ablations. (R. 1127). As a result of the ablation, she developed neuritis. (R.
757). At the consultative examination, Plaintiff had significant ROM loss and very reduced
dynamometer testing to the hands. (R. 771-77). Dr. Ho continued to note modest success with
pain management and intermittent antalgic gait and positive SLR. (R. 792). Therapy notes
reference that Plaintiff was placed on hold to address issues related to pain, suggesting therapy
was not as helpful as the ALJ determined. (R. 30, 1253). Later records reflect epidurals only
helped by at least 50% for 6-8 weeks with pain returning with significant deterioration. (R. 799,
812). Again, Plaintiff presented with positive SLR and note of deterioration. (R. 812-13). She was
described as having failed conservative care. (R. 815-16). Injections only provided 10% relief and
were short-lived. (R. 1007).
An ALJ can discount a claimant's testimony in light of routine and conservative treatment,
as long as the ALJ does not unreasonably minimize the extent of the claimant's treatment, Huber
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v. Berryhill, 732 F. App'x 451, 456 (7th Cir. 2018), play doctor, Suess v. Colvin, 945 F. Supp. 2d
920, 929 n.13 (N.D. Ill. 2013); or make assumptions about the claimant's failure to seek treatment
without asking the claimant about the reasons for noncompliance, Keiper v. Berryhill, 383 F.
Supp. 3d 819, 823 (N.D. Ind. 2019) (collecting cases). Here, the ALJ minimized the extent of
treatment and made assumptions about the reasons for noncompliance without questioning
Plaintiff.
Moreover, the record reflects that Plaintiff was not managing her pain and that more
aggressive measures might be needed, contrary to the consultative examiner’s assessment. (R. 30).
Surgery was recommended. (R. 1474). Further, Plaintiff did not decline surgery due to the lack of
severity of pain. Rather, the record reflects that she did not pursue surgery as she would no longer
be able to bend at the waist. (R. 30, 1474). Many courts have found that under those
circumstances an ALJ must consider the reasonableness of the claimant’s fear before construing
the claimant’s reluctance to pursue aggressive treatment against her. See, e.g., Nichols v.
Califano, 556 F.2d 931, 933 (9th Cir. 1977) (“A patient may be acting reasonably in refusing
surgery that is painful or dangerous.”); Schena v. Sec. of Health and Human Servs., 635 F.2d 15,
19 (1st Cir. 1980) (“A reasonable fear may justify the refusal of treatment.”); Swanson v.
Barnhart, 190 Fed.Appx. 655, 657 (10th Cir. 2006);.
The ALJ states in the decision that Plaintiff had wanted to return to work but that her
doctor had stated to wait. (R. 21). Again, no question was asked at the hearing as to what type of
work Plaintiff wished to engage in, such as part-time work. (R. 21). Plaintiff stated that she was in
severe back pain until recently with physical therapy and epidurals but her pain had returned and
the plan was for another epidural. (R. 443). After this point, injections were not as helpful (R. 998)
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with surgery recommended (R. 1144); Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)(“... we
cannot uphold a decision by an administrative agency, any more than we can uphold a decision by
a district court, if, while there is enough evidence in the record to support the decision, the reasons
given by the trier of fact do not build an accurate and logical bridge between the evidence and the
result.”).
While the ALJ found that in 2015 Plaintiff was non-compliant with physical therapy (R.
22), shortly thereafter a pain management record noted that she had failed conservative treatments
such as physical therapy, due to pain. (R. 22, 561, 680). Again in 2018, Plaintiff stopped therapy.
(R. 27, 1250). But around this time she was looking for a surgical option, and symptoms were
listed as significant with injections providing only minimal relief. (R. 997-98, 1007, 1049). This
would again imply that therapy was not working to the extent that the ALJ determined. (R. 22,
27).
The ALJ suggests that records from Plaintiff’s general doctor provided mostly benign
examinations which did not address back issues. (R. 30). However, this doctor was not overseeing
Plaintiff’s back issues. See Wilder v. Chater, 64 F.3d 335, 377 (7th Cir. 1995) (noting that a
physician asking about “an eye problem, or back pain, or an infection of the urinary tract” is not
looking to diagnose depression).
As to the ALJ’s conclusion that Plaintiff’s back pain complaints were “intermittent”, the
record documents years of ongoing physical therapy, chiropractic care, injection therapy, branch
blocks and ablations with surgery recommended. Clearly, this is not a case of someone
intermittently seeking treatment. (R. 30); (see e.g., R. 693, 695, 698, 714, 739-40, 744, 746-47,
753, 757, 1117, 1122, 1125, 1127).
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As to the upper extremity issues, the ALJ states that treatment was minimal and Plaintiff
had full range of motion. (R. 30). However, Plaintiff used a left wrist brace. (R. 67, 95, 770-77).
And in the second consultative examination, dynamometer testing showed 3.2 force on right
and 3.5 kg on left, and 3/5 strength to the left hand which is not consistent with an individual being
able to frequently use this hand for handling and fingering. (R. 30); SSR 83-10. Further records
confirm carpal tunnel syndrome as well. (R. 1001).
With respect to the venous issues, the ALJ found this impairment non-severe, determining
that Plaintiff had good response to procedures. (R. 18). To the contrary, in September 2015,
Plaintiff had tried and failed conservative treatment for vein issues. She had pain and discomfort to
the lower extremities. Plaintiff was listed as suffering from venous HTN. She had left greater
saphenous vein. (R. 666). By early 2016, due to her venous insufficiency and inflammation, the
plan was for a vein ablation. (R. 689, 692). Dr. Ho found her legs needed to be elevated. (R.
629-30). Plaintiff treated for venous insufficiency and bilateral left venous HTN and varicose veins
with inflammation and underwent an ablation with a compression stocking applied. (R. 709). Prior
to this, she was engaged in leg elevation and stocking use with inadequate response. (R. 709).
Thereafter she underwent left spider sclerotherapy sessions around the knee area. (R. 712). Her
primary care provider treated HTN and ordered an arterior Doppler of the lower left calf for right
lower extremity pain. (R. 731). She participated in sclerotherapy. (R. 743). Plaintiff was
experiencing moderate varicose issues to her left lower ankle. (R. 974). She had a new varicosities
with 2+ edema noted to the left lower extremity. (R. 992-93, 1022). An ultrasound showed left
great saphenous vein below knee patency with moderate to severe reflux. (R. 1017). Plaintiff had
been using compression stockings over the last year but the pain returned. (R. 1016). She had
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failed leg elevation and compression stockings with plan for an ablation. (R. 1016).
While Plaintiff concedes that the record is silent as to what occurred regarding the ablation,
Plaintiff points out that the evidence of leg elevation, swelling, and the fact that improvement did
not occur was not addressed by the ALJ. (R. 18). This evidence supports Plaintiff’s testimony as
to leg elevation which supports both Dr. Ho’s opinion and her subjective statements.
In response, the Commissioner argues that the ALJ “acknowledged” evidence and by
virtue of summarizing evidence, the ALJ’s decision should stand. See Erwin v. Astrue, 2012 WL
3779036, at *8 (N.D. Ill. Aug. 30, 2012) (“Summarizing medical evidence is no substitute for
actual analysis of medical evidence”); Perry v. Colvin, 945 F. Supp. 2d 949, 965 (N.D. Ill. 2013)
(“[T]he act of summarizing the evidence is not the equivalent of providing an analysis of the
evidence.”).
The Commissioner argues the ALJ properly considered reasons Plaintiff stopped treatment
for physical therapy citing the ALJ’s summary of the evidence. However, the ALJ did not consider
the actual record that Plaintiff’s therapy was placed on hold to address issues related to pain,
suggesting therapy was not as helpful as the ALJ believed. (R. 1253); Arnett v. Astrue, 676 F.3d
586, 592 (7th Cir. 2012)(ALJ cannot ignore contrary lines of evidence).
The Commissioner argues that the ALJ “acknowledged” wrist weakness, pain and leg
cramps. However, again, the Commissioner points to the ALJ’s summary of Plaintiff’s testimony,
not to an actual analysis of the record. Perry, 945 F. Supp. 2d at 965. Despite a line of evidence
showing significant deficits to the wrist and hands, the ALJ found that Plaintiff, a woman over the
age of 60, could frequently handle and finger. (R. 770-77, 955, 1001). The Commissioner argues
that there was minimal treatment with no swelling to the hands, but a physical examination
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confirmed swelling in the bilateral hands with pain in the fingers. (R. 955). She had tenderness on
examination to both wrists. (R. 1484). She reported arthralgia of the hands and wrists with
throbbing and sharp pain worse with movement and hand usage. (R. 1481).
As to the venous insufficiency, the Commissioner and ALJ grossly discount the severity of
the impairment. The Commissioner argues that conservative treatment was pursued and it only
minimally impacted Plaintiff’s ability to perform basic work activities. However, Plaintiff’s
treatment was not conservative, considering that she had ablations and sclerotherapy. (R. 709,
743); see Schomas v. Colvin, 732 F.3d at 709 (Contrasting ‘conservative’ treatment like
over-the-counter medication with ‘more aggressive’ treatment like prescription narcotics and
steroid injections). Additionally, contrary to the Commissioner’s argument that it was unclear what
additional functional limitations existed, there is clear evidence of the need for leg elevation by
Plaintiff’s providers. (R. 629-30, 709). An ALJ's analysis of a claimant's RFC “must say enough to
enable review of whether the ALJ considered the totality of a claimant's limitations.” Lothridge v.
Saul, 984 F.3d 1227, 1233 (7th Cir. 2021).
As the ALJ’s analysis of Plaintiff’s subjective symptoms failed to build an accurate and
logical bridge between evidence and conclusion, remand is warranted on this issue.
Next, Plaintiff argues that the ALJ erred in evaluating the opinion evidence. Based on the
filing date of Plaintiff’s application, the treating physician rule applies. Gerstner v. Berryhill, 879
F.3d 257, 261 (7th Cir. 2018) (noting that the treating physician rule applies only to claims filed
before March 27, 2017). In Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011) (quoting § 404.
1527(c)(2)), the Seventh Circuit held that a “treating doctor’s opinion receives controlling weight
if it is ‘well-supported’ and ‘not inconsistent with the other substantial evidence’ in the record.”
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See Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011); Campbell v. Astrue, 627 F.3d 299, 306
(7th Cir. 2010). The ALJ must determine whether to give the treating physician's opinion
“controlling weight,” by evaluating if the opinion is both well supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence
in the record. 20 C.F.R. § 404.1527(c)(2); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011).
A treating physician has greater familiarity with plaintiff's conditions and circumstances,
and therefore an ALJ may only discount a treating physician's opinion based on “good reasons”
supported by substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); Clifford, 227 F.3d at
870. “If an ALJ does not give a treating physician’s opinion controlling weight, the regulations
require the ALJ to consider the length, nature, and extent of the treatment relationship, frequency
of examination, the physician’s specialty, the types of tests performed, and the consistency and
supportability of the physician’s opinion.” Scott, 647 F.3d at 740 (citing Moss v. Astrue, 555 F.3d
556, 561 (7th Cir. 2009)); see 20 C.F.R. § 404.1527(c).
Plaintiff contends that the ALJ erred in her analysis of Dr. Ho’s opinion. (R. 29). Because
the ALJ did not give controlling weight to any of the preceding treating physician opinions, she
had to “consider the length, nature, and extent of the treatment relationship, frequency of
examination, the physician's specialty, the types of tests performed, and the consistency and
supportability of the physician's opinion.” Moss, 555 F.3d at 561; see 20 C.F.R. § 404.1527(c). An
ALJ's failure to explicitly apply the checklist can provide a basis for remand. See, e.g., Yurt v.
Colvin, 758 F.3d 850, 860 (7th Cir. 2014).
In the present case, the ALJ failed to consider the nature and extent of Plaintiff’s treatment
relationship with Dr. Ho. Under 20 CFR § 404.1527(c)(2)(ii), the ALJ “will look at” the treatment
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that the treating source provided and the type of examinations and testing that the treating source
has performed or ordered from specialists. Here, in weighing the treating physicians’ opinion, the
ALJ did not mention any techniques or exams conducted by Dr. Ho. (R. 29).
Nor did the ALJ expressly consider the specialty, or frequency of treatment, when
weighing the opinion of Dr. Ho, a pain management specialist. 20 CFR § 404.1527(c)(5). The ALJ
also failed to discuss the supportability and consistency of the opinions of Dr. Ho in her analysis of
his opinion. See 20 CFR § 404.1527(c)(3)-(4). The regulations explain that supportability
encompasses the preference given to a medical source that “presents relevant evidence to support
a medical opinion, particularly medical signs and laboratory findings....” 20 CFR § 404.1527(c)(3).
Whereas consistency is directed at the fit of the medical source's opinion in the context of the
record as a whole. 20 CFR § 404.1527(c)(4). In this case, the ALJ did not address supportability
or consistency when weighing the opinion of Dr. Ho.
Further, the ALJ found that the Agency opinions regarding light work were not supported
by the record. (R. 29). The opinions pre-dated most of Dr. Ho’s records and medical opinions and
wrongfully observe that the vein issues resolved. (R. 132). Plaintiff argues that the RFC creates an
evidentiary gap as “the ALJ failed to give weight to any of Plaintiff’s treating sources, without an
explanation that withstands even cursory scrutiny, failed to explain how the medical evidence in
the record supported the RFC, and cherry-picked and mischaracterized evidence to support [her]
conclusion”. Noak v. Saul, 2:18- CV- 288-JEM, 2020 WL 1164432, at *5 (N.D. Ind. Mar. 11,
2020) citing Suide v. Astrue, 371 F. App'x 684, 690 (7th Cir. 2010) (“When an ALJ denies
benefits, she must build an ‘accurate and logical bridge from the evidence to her conclusion,’ and
she is not allowed to “play doctor” by using her own lay opinions to fill evidentiary gaps in the
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record.”) (quoting Clifford, 227 F.3d at 872) (other citations omitted). Thus, because the ALJ
erred in her analysis of Dr. Ho’s medical opinions, remand is required on the issue of the proper
weight to give to the medical opinion evidence.
Conclusion
On the basis of the foregoing, the Decision of the Commissioner is hereby REVERSED
AND REMANDED.

Entered: September 8, 2021.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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