Birton v. Commissioner of Social Security et al
Filing
26
OPINION AND ORDER reversing the Commissioner of Social Security's final decision and remanding proceedings consistent with this opinion pursuant to sentence four of 42:405(g). ***Civil Case Terminated. Signed by Judge Rudy Lozano on 11/26/12. (smp)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
CHANTRESS M. BIRTON,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant,
No. 3:11-CV-430
OPINION AND ORDER
This matter is before the Court for review of the Commissioner
of Social Security’s decision denying Disability Insurance Benefits
to Plaintiff, Chantress M. Birton.
below,
For the reasons set forth
the Commissioner of Social Security’s final decision is
REVERSED and this case is REMANDED for proceedings consistent with
this opinion pursuant to sentence four of 42 U.S.C. section 405(g).
BACKGROUND
On March 6, 2008, Plaintiff, Chantress M. Birton (“Birton”),
applied for Social Security Disability Benefits (“DIB”) under Title
II of the Social Security Act, 42 U.S.C. section 423.
Birton
alleged that her disability began on December 28, 2006. The Social
1
Security Administration denied her initial application and also
denied
her
claim
on
reconsideration.
Plaintiff
requested
a
hearing, and on April 29, 2010, Plaintiff appeared in person,
represented
by
counsel,
at
an
administrative
hearing
Administrative Law Judge (“ALJ”) Steven J. Neary.
before
Testimony was
provided by Birton and Dr. Leonard Fisher, a vocational expert
(“VE”).
On August 9, 2010, ALJ Neary issued a decision denying
Birton’s claims, and finding her not disabled because she did not
have a listing-level impairment or combination of impairments that
equaled one of the listing-level impairments.
Plaintiff requested that the Appeals Council review the ALJ’s
decision, but the request was denied.
Accordingly, the ALJ’s
decision became the Commissioner’s final decision.
§ 422.210(a).
See 20 C.F.R.
Plaintiff has initiated the instant action for
judicial review of the Commissioner’s final decision pursuant to 42
U.S.C. section 405(g).
Medical Evidence
Birton was born in 1971, and was 39 years old at the time the
ALJ rendered his decision, and 35 years old at the time of onset.
(Tr. 264.)
She alleges disability due to back problems which made
it difficult for her to stand or sit for prolonged periods of time
(Tr. 30-32), and complains of problems with her right hand,
drowsiness
and
difficulty
concentrating
2
due
to
medications,
depression, migraine headaches, asthma, and pain from fibromyalgia
in her neck, back, hips, arms and legs.
(Tr. 31, 33, 39-45.)
In July 1996, Dr. Rayna Jobe evaluated Birton for chronic back
and
pelvic
pain,
and
diagnosed
her
with
a
2
cm
leg
length
discrepancy, chronic left sacroilias (“SI”) joint inflamation,
trochanteric
bursitis,
possible
interstitial
bladder, and left carpal tunnel syndrome.
recommended
physical
inflammatory drugs.
therapy
and
cystitis
(Tr. 700.)
various
of
the
Dr. Jobe
non-steroidal
anti-
Id.
Plaintiff then started physical therapy with Dr. In Kwang
Yoon, a physiatrist, on November 4, 1996.
(Tr. 406.)
His
examinations revealed severe paraspinal muscle spasms in the lumbar
area associated with tenderness at the bilateral SI joint.
Dr. Yoon also recommended outpatient physical therapy.
Id.
Id.
Following 4 years of physical therapy, Birton was re-evaluated by
Dr. Yoon on October 16, 2000.
(Tr. 641.)
At that time, he found
that Birton had a recurrent left SI sprain and residual left
costochondritis and costovertebral synovitis at the level of T8,
T9, and T10.
Id.
Dr. Margit Chadwell diagnosed Plaintiff with asthma, chronic
urinary tract infections, urethral construction s/p dilation, left
trochanteric
bursitis,
cervical
dysplasia,
allergic
rhinitis,
chronic back pain, and a history of carpal tunnel syndrome on March
30, 2001.
(Tr. 469.)
Dr. Chadwell also conducted a physical
3
medical assessment, opining that Birton could lift 10 pounds, stand
and/or walk for less than 2 hours in an 8-hour workday, sit with
periodic alternation of sitting and standing to relieve pain, and
never pull. (Tr. 466-67.) Dr. Chadwell also found that Birton had
limited reaching, handling, fingering, and feeling functions. (Tr.
468.)
She further noted these limitations were based on Birton’s
chronic low back pain, recurrent sacroilitis, and hand numbness.
(Tr. 467-68.)
A
DDS-selected
physician,
Dr.
L.
Banerji,
conducted
a
consultative examination of Birton on October 23, 2001, for her
Social Security claim. (Tr. 508-11.) Birton complained of chronic
back
and
pelvic
pain,
urinary
tract
problems,
a
leg
length
discrepancy, pain in the left knee and ankle, and carpal tunnel
syndrome. (Tr. 508.) During the exam, Dr. Banerji noted bronchial
asthma, an inability to squat more than 80% due to lower back pain,
a questionable shortening of the left lower extremity (but it did
not interfere with her daily activities or walking), and no
abnormal physical finding related to carpal tunnel syndrome.
(Tr.
511.)
Then, on November 2, 2006, Dr. Sarah Jacob, Birton’s treating
physician, diagnosed Birton with fibromyalgia.
Jacob
also
diagnosed
her
with
(Tr. 347.)
hyperlipidemia,
Dr.
persistent
constipation, asthma, mastalgia, and chronic obstructive pulmonary
disease (“COPD”). (Tr. 340-48, 386.)
4
Dr. Jacob referred Plaintiff to Drs. Jeffrey Kirouac and
Dominick Lago, Jr., Michigan Pain Management consultants.
368.)
(Tr.
On August 30, 2007, she presented to them with a long
history of lower back pain and left leg pain.
Id.
Birton began
getting lumbar epidural steroid injections from Dr. Kirouac which
continued into early 2008.
(Tr. 374-78.)
On October 28, 2008, Plaintiff started treatment with Dr.
Ralph Carbone, complaining of low back pain and neck pain radiating
in her arms.
(Tr. 968.)
An MRI of the lumbar spine showed the
following: slight straightening of the normal curvature of the
lumbar spine secondary to muscle spasm or positioning, a mild edema
of the spinous processes at the L3 and L4 levels, a mild edema of
the interspinous intervals at the L3-L4 and L4-L5 levels compatible
with mild degenerative change or mild sprains of interspinous
ligaments, minimal bulging of the disk material without significant
impingement upon the thecal sac at L5-S1, and mild to moderate
diffuse
bulging
of
the
disk
material
that
was
greater
posterolaterally on the right at L4-L5. (Tr. 961.) There was also
an
annular
fissure
posterolaterally
on
the
right,
with
mild
impingement upon the thecal sac and mild bilateral foraminal
stenoses slightly greater on the right at L4-L5.
(Tr. 961.)
Following the MRI, Birton continued to receive lumbar epidural
steroid injections from Dr. Carbone and do physical therapy at
South Bend Orthopaedics, which slightly improved her pain.
5
(Tr.
876-913, 950, 966, 970.)
On
April
reviewer,
30,
William
2008,
a
non-examining
Lockhart,
checked
off
State
boxes
Agency
on
a
(“SA”)
physical
residual functional capacity assessment (“RFC”) form opining Birton
was able to occasionally lift 50 pounds, frequently lift 25 pounds,
stand or walk 6 hours of an 8 hour work-day, and push or pull
unlimitedly.
(Tr. 763.)
visual limitations.
have
a
treating
He noted no postural, manipulative, or
(Tr. 764-65.)
or
examining
The non-examining SA did not
source
statement
claimant’s physical capacities on file.
On
March
16,
Postmyelogram CT.
2009,
Birton
(Tr. 837.)
had
regarding
the
Myelograme
and
(Tr. 768.)
a
Lumbar
The radiology report indicated a
diffuse posterior disc protrusion at L4-L5 with associated buckling
and
thickening
of
the
ligamentum
relatively congenitally small canal.
flavum
Id.
bilaterally
and
a
Overall, this caused
moderate central canal stenosis at L4-L5 with mass effect and
decreased filling of the right traversing L5 nerve root sheath and
potentially the left traversing L5 nerve sheath as well.
Id.
Dr.
Carbone recommended Birton undergo a fusion operational procedure
by Dr. Henry DeLeeuw for decompression of L4-L5 consisting of
laminectomy L4 and L5 with foraminotomy and partial facetectomy
bilaterally at L4 and L5 with decompression of four nerve roots,
instrumentation L4-L5.
May 5, 2009.
(Tr. 846.)
(Tr. 846-47.)
This procedure occurred on
Following the operation, Birton attended
6
physical therapy at Memorial Regional Rehabilitation Center, where
she presented with further complaints of low back and anterior
posterior
leg
pain,
as
well
as
frequent
exacerbations
of
fibromyalgia-like symptoms through her upper thoracic spine and
lower extremities.
worst was 8/10.
(Tr. 933.)
Birton estimated the pain at its
(Tr. 930.)
On December 8, 2009, Dr. Randolph Ferlic diagnosed Birton
again with carpal tunnel syndrome of the right side.
935.)
(Tr. 867-68,
Birton began physical therapy for her hand at South Bend
Orthopaedics, and received steroid injections in the right middle
finger. (Tr. 863.) However, the medical records as of January 28,
2010, indicate that her status was “worse.”
(Tr. 863.)
Later,
Birton began treatment with a new physician, Dr. Ziboh, presenting
with complaints of continued lower back pain, and she continued to
see Dr. Deleeuw for pain management.
(Tr. 780.)
On February 2, 2010, Birton sought treatment at the Memorial
Hospital of South Bend Emergency Center for right shoulder pain
leading into the back of her neck.
(Tr. 859.)
Dr. Mark Monahan’s
physical examination revealed Birton’s pain in the right neck with
movement going the course of the trapezius into the right shoulder,
as well as a right upper back with a positive trigger point in the
right shoulder with pain.
Id.
Dr. Monahan treated the pain with
an injection of 2% lidocaine and discharged Plaintiff with a
prescription for Vicodin. Id. Dr. Monahan’s diagnostic impression
7
included right trapezial pain and probable fibromyalgia.
Id.
Plaintiff continued physical therapy for the treatment of her pain
at South Bend Orthopaedics at least through February 24, 2010.
(Tr. 860.)
Evidence Regarding Mental Impairments
In addition to her physical maladies, Birton suffered from
mental impairments as well.
history
written
by
Dr.
A January 22, 1998 statement of
Jobe
for
the
Michigan
Disability
Determination Service noted that Birton was diagnosed with major
depression disorder in 1997 and had a GAF score of 60.
712.)
(Tr. 700,
Dr. Jobe prescribed Paxil, Wellbutrin and Elavil for her
depression. (Tr. 704.) He also noted Birton was often tearful for
no reason, had a loss of energy, and complained of severe fatigue,
irritability, decreased memory, and concentration.
(Tr. 707.)
On January 20, 1998, a DDS-selected psychiatrist, Dr. Jorge
Zuniga, conducted a consultative examination for Social Security he found Birton was depressed, anxious, and tearful at times. (Tr.
714.)
He also found her to have dysthymia, a personality disorder
not otherwise specified, and a GAF score of 68.
On
April
27,
1999,
Plaintiff
visited
Id.
Dr.
William
Kole,
presenting with symptoms of depression. (Tr. 660.) Dr. Kole noted
Birton suffered from moderate depression based upon a Beck’s
Depression Inventory Score of 26.
8
(Tr. 660, 665.)
On January 24, 2001, another DDS-selected psychiatrist, Dr. F.
Qudir, conducted a consultative examination of Birton, finding her
to have a depressed mood, sleep disturbances, a dysthymic disorder,
a history of S/P strike, scoliosis, asthma, and back pain, and a
GAF score of 50.
(Tr. 524-25.)
On October 23, 2001, another DDS-
selected psychiatrist, Dr. Rownak Hasan, conducted a mental status
examination for Social Security - he found her to have occasional
short-term memory problems, mood swings, anxiety, a poor sleep
pattern, a history of scoliosis and back pain, an adjustment
disorder with mixed emotional features, a mood disorder due to
chronic pain, and a GAF score of 55-60.
(Tr. 520.)
Source
Work-Related
Statement
of
Ability
to
do
On a “Medical
Activities
(Mental),” Dr. Hasan opined that Plaintiff had a slight restriction
with regard to understanding and remembering detailed instructions,
a moderate restriction for carrying out detailed instructions, and
a moderate restriction for the ability to make judgments on simple
work-related decisions.
(Tr. 521.)
He further opined that Birton
had a slight restriction for interacting appropriately with the
public,
as
well
appropriately
with
as
moderate
supervisors
limitations
and
for
co-workers,
interacting
responding
appropriately to work pressures in a usual work setting, and for
responding appropriately to changes in a routine work setting.
(Tr. 522.)
assessment.
He noted that Birton’s depression supported this
(Tr. 521-22.)
9
On June 18, 2007, a DDS-selected psychologist, Dr. Terrance
Mills, conducted a consultative examination of Birton for Social
Security - he found her to have a dysthymic disorder, fibromyalgia,
oesteoarthritis, COPD, headaches, and left hand carpal tunnel
syndrome, as well as a GAF score of 45.
(Tr. 367.)
On April 17, 2008, a DDS-selected psychologist, Dr. Ibrahim
Youssef, conducted another consultative examination of Birton for
Social Security - he found her to have a constricted affect, a mood
between sad and irritable, major depression, a history of asthma,
hypertension, COPD, and fibromyalgia, and a GAF score of 50.
(Tr.
740-41.)
On April 30, 2008, SA reviewer, Dr. Syd Joseph, checked off a
mental FGC form listing Plaintiff as moderately limited in the
following areas: the ability to understand and remember detailed
instructions, the ability to carry out detailed instructions, the
ability
to
maintain
attention
and
concentration
for
extended
periods, the ability to perform activities within a schedule,
maintain
regular
attendance,
and
be
punctual
with
customary
tolerances, the ability to complete a normal work-day and workweek
without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and
length of rest periods, the ability to get along with coworkers or
peers without distracting them or exhibiting behavioral extremes,
the ability to respond appropriately to changes in the work
10
setting, and the ability to set realistic goals or make plans
independently of others.
(Tr. 744-45.)
Dr. Joseph also found
Birton to have major depression - single episode, listed under
12.04 Affective Disorders.
(Tr. 751.)
that
difficulties
Birton
had
moderate
Lastly, Dr. Joseph opined
in
maintaining
social
functioning and moderate difficulties in maintaining concentration,
persistence, or pace.
On
February
(Tr. 758.)
20,
2008,
Birton
began
treatment
at
the
Comprehensive Counseling Centers PC with Dr. Chalakudy Ramakrishna.
(Tr. 779.)
Dr. Ramakrishna found Birton to be withdrawn and sad,
to have bipolar disorder, and to have a GAF score of 65.
Id.
After other visits, by May 28, 2008, Dr. Ramakrishna diagnosed
Birton with major depression, and gave her a GAF score of 75.
775.)
He also increased her Zoloft from 150 mg to 200 mg.
(Tr.
Id.
On January 12, 2010, at the request of her physician Dr.
Ziboh, Birton began counseling with Frances Touhey, M.S.W.
941.)
(Tr.
She presented with mood swings and crying spells, and
distracted concentration affected by pain.
Id.
Touhey noted that
Birton reported she was raped by a stranger at age 7, and that she
had suicidal ideation in 2004 resulting in inpatient treatment.
(Tr.
942,
evaluation
947.)
that
affect/mood.
Id.
Touhey
Birton
further
had
a
stated
in
a
mental
dysthymic/depressed
and
status
tearful
She diagnosed Birton with depressive features.
(Tr. 943.)
11
Plaintiff’s Hearing Testimony
During the hearing before ALJ Neary, Birton testified as
follows. She last worked at McDonald’s in 1997, and has not worked
since then because of pain in her lower back.
She had fusion
surgery in May 2009, which brought her pain level down from a
constant 10 to a 7 or 8.
(Tr. 31, 37.)
At the time of the
hearing, she was being treated by Dr. Ralph Carbone, an orthopedic
specialist, and receiving medications and injections to help with
her pain.
Id.
She suffers from drowsiness and a lack of
concentration as a side effect of her medications and injections.
(Tr. 31.)
Therefore, Birton thought she would have difficulty
working 8 hours a day, 5 days a week.
(Tr. 39.)
She had been
participating in physical therapy since the surgery, which she did
not think was effective, but the lighter “at-home” exercises
helped.
(Tr. 37-38.) Birton suffers from a sharp, stabbing,
“pinching-like needle” pain that worsens with cold weather.
32, 38.)
(Tr.
She said standing and sitting for long periods of time
aggravates the pain, and she is only able to stand 2 or 3 minutes
without pain.
Id.
She can only sit 20-30 minutes, and walk a
block and a half without pain.
(Tr. 32-33.)
To relieve the pain,
she has to stand up for a few minutes, then return to a sitting
position, eventually needing to lie down every 2-3 hours. (Tr. 3940.)
12
Birton’s hands bother her as well, and she has carpal tunnel
syndrome in her right hand.
(Tr. 33.)
She has trouble lifting,
grabbing, reaching, and writing for a long period of time.
Id.
She was diagnosed with fibromyalgia and feels pain in her neck,
lower back, arms, hips, and thighs, limiting her ability to raise,
reach, walk, and sit.
(Tr. 42-43.)
Plaintiff also has migraines
about every few weeks, lasting one or two days, forcing Plaintiff
to lie down.
(Tr. 43-44.)
Birton suffers from asthma, which is
activated by a change in the weather or excitement, and treated
with an inhaler and Prednisone when needed.
depression
and
anxiety,
and
takes
(Tr. 45-46.)
Zoloft.
(Tr.
She has
41.)
The
medication has been effective, but has not eliminated the symptoms
of her depression and anxiety.
Id.
Birton stated she suffers from
hives, an inability to sleep, crying spells, and a low energy
level.
Id.
Her depression and anxiety limit her concentration,
and she claims she is verbally violent with others.
(Tr. 46-47.)
Birton states she is verbally violent because she has not been on
medication for about two months due to lack of insurance.
(Tr.
47.)
Birton spends her days relaxing, watching television, and
taking her medications when she has them.
(Tr. 34.)
She is able
to dust, but her daughter does the rest of the housework.
Id.
Additionally, she sleeps, reads the Bible, and listens to music.
(Tr. 36.)
Birton
testified for the past 6 years, she has spent
13
her
time
going
treatment.
back
(Tr. 35.)
she does not drive.
and
forth
to
hospitals
and
doctors
for
She does not willingly leave the house, and
(Tr. 36.)
VE Hearing Testimony
The VE testified at the ALJ hearing.
Birton’s past work
experience included work as a clerk (DOT #209.562-010; light and
skilled), a housekeeper (DOT #321.137-101; light and skilled), and
as a short order cook (DOT #313.374-014; light and semiskilled).
(Tr. 270).
For the ALJ’s first hypothetical, the VE stated that
for an individual aged 39, with a high school education and no
prior work experience, who is limited to work at the sedentary
level and who is limited to occupations which do not require
concentrated exposure to pulmonary irritants or complex or detailed
tasks, there are jobs that exist in significant numbers that the
individual could perform.
accommodate
such
(Tr. 49.)
limitations
would
The types of jobs that would
include
jobs
such
as
a
“surveillance monitor,” “call-out operator,” and “food and beverage
order clerk.”
The
ALJ’s
(Tr. 49-50.)
second
hypothetical
asked
the
VE
whether
an
individual of the same age, education, and past work experience as
Birton, and who had the “limitations consistent with Plaintiff’s
testimony presented,” would be capable of performing any jobs that
exist in significant numbers in the national economy.
14
(Tr. 50.)
The VE testified that with those limitations, there would not be
any jobs that exist in significant numbers in the national economy.
Id.
He further testified that if an individual were unable to
complete
a
normal
workday
or
workweek
due
to
moderate,
15%
limitations, that this would eliminate competitive employment.
(Tr. 53.)
And, if an individual has a moderate limitation with
regard to working an 8 hour work day, which Plaintiff’s attorney
defined as losing one hour of work per day, then that individual
would
be
unable
to
find
competitive
employment.
(Tr.
54.)
Further, the VE determined that if an individual has a moderate
limitation with getting along with co-workers or peers without
distracting them, that it will be hard for that individual to do a
job.
(Tr. 56.)
Lastly, the VE testified that taking a narcotic
pain medication, which may cause moderate drowsiness and limited
concentration, would also make it hard for an individual to do a
job.
(Tr. 56-57.)
DISCUSSION
Review of Commissioner’s Decision
This Court has authority to review the Commissioner’s decision
to deny social security benefits.
42 U.S.C. § 405(g).
“The
findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive . . . .” Id.
Substantial evidence is defined as “such relevant evidence as a
15
reasonable mind might accept as adequate to support a decision.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).
In determining
whether substantial evidence exists, the Court shall examine the
record in its entirety, but shall not substitute its own opinion
for the ALJ’s by reconsidering the facts or re-weighing evidence.
Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003).
With that in
mind, however, this Court reviews the ALJ’s findings of law de novo
and if the ALJ makes an error of law, the Court may reverse without
regard
to
findings.
the
volume
of
evidence
in
support
of
the
factual
White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999).
As a threshold matter, for a claimant to be eligible for DIB
or SSI benefits under the Social Security Act, the claimant must
establish that she is disabled.
To qualify as being disabled, the
claimant must be unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not
less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A). To determine
whether a claimant has satisfied this statutory definition, the ALJ
performs a five step evaluation:
Step 1:
Is the claimant performing substantial gainful
activity: If yes, the claim is disallowed; if
no, the inquiry proceeds to Step 2.
Step 2:
Is the claimant’s impairment or combination
impairments “severe” and expected to last
least twelve months?
If not, the claim
disallowed; if yes, the inquiry proceeds
16
of
at
is
to
Step 3.
Step 3:
Does the claimant have an impairment or
combination of impairments that meets or
equals the severity of an impairment in the
SSA’s Listing of Impairments, as described in
20 C.F.R. § 404, Subpt. P, App. 1? If yes,
then claimant is automatically disabled; if
not, then the inquiry proceeds to Step 4.
Step 4:
Is the claimant able to perform his past
relevant work? If yes, the claim is denied;
if no, the inquiry proceeds to Step 5, where
the
burden
of
proof
shifts
to
the
Commissioner.
Step 5:
Is the claimant able to perform any other work
within his residual functional capacity in the
national economy: If yes, the claim is denied; if
no, the claimant is disabled.
20 C.F.R. §§ 404.1520(a)(4)(I)-(v) and 416.920(a)(4)(I)-(v); see
also Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).
In this case, the ALJ found that Birton suffers from the
following severe impairments: fibromyalgia, disorders of the back,
right-sided carpal tunnel syndrome, asthma/COPD, depression/mood
disorder, and PTSD.
(Tr. 15.)
The ALJ further found that Birton did not meet or medically
equal one of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. 416.920(d), 416.925 and 416.926)).
15).
(Tr.
ALJ Neary then determined that Birton has the residual
functional capacity “to perform sedentary work as defined in 20 CFR
416.967(a) except that she is limited to simple, repetitive tasks.
She must also avoid concentrated exposure to temperature extremes
and other pulmonary irritants.”
(Tr. 16.)
17
Based on Birton’s RFC,
the ALJ found that Birton would be capable of working as a
surveillance system monitor, call out operator, and food and
beverage order clerk.
Birton
believes
requiring reversal.
First,
she
argues
(Tr. 21-22.)
that
the
ALJ
committed
several
errors
Birton sets forth three main arguments.
that
the
ALJ
erred
at
his
step
three
determination that Birton’s impairments do not meet or medically
equal any impairment that appears in the Listing of Impairments.
Second, Birton contends that the ALJ relied on an incomplete
hypothetical.
Third, she argues that the ALJ erred in finding
Birton’s subjective symptoms to be not credible and failing to
contact Birton’s other treating physicians.
Step 3 Determination
First, Birton argues that the ALJ performed an improper Step
3 determination when he found that Birton’s impairments do not meet
or medically equal the criteria of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1.
Specifically, Birton
argues that her fibromyalgia, in combination with her back pain,
medically equals the Listing Requirement of 1.04, “Disorders of the
Spine.”
(DE #22, pp. 13-15.)
The ALJ stated in his opinion that “[t]here is no medical
evidence of record and no medical opinion of record to support a
finding that the claimant meets or equals the requirements of any
18
of the listings in the Regulations, including 1.00, 3.00, and
12.00.”
whether
(Tr. 15.)
the
satisfied,
The ALJ then went on to discuss in detail
criteria
discussing
evidence in the record.
for
the
mental
Birton’s
hearing
disorders
listings
testimony
and
were
medical
(Tr. 15-16.)
Importantly, Plaintiff has the burden of proof to demonstrate
that she has medical conditions which meet, or are equal in
severity to every element of a listed impairment.
Sullivan v.
Zebley, 493 U.S. 521, 531 (1990); Pope v. Shalala, 998 F.2d 473,
480 (7th Cir. 1993) (overruled on other grounds)(finding the
applicant must satisfy all of the criteria in the Listing in order
to receive an award of disability insurance benefits under step
three.)
Here, Birton seems to concede that fibromyalgia is not
itself a Listing, but instead asserts that the combination of her
fibromyalgia and back pain equal the requirements in Listing 1.04C.
Listing 1.04C provides in relevant part:
1.04 Disorders of the spine (e.g., herniated
nucleus pulposus, spinal arachnoiditis, spinal
stenosis,
osteoarthritis,
degenerative
disc
disease, facet arthritis, vertebral fracture),
resulting in compromise of a nerve root (including
the cauda equina) or the spinal cord. With:
*
*
*
*
(C)
Lumbar
spinal
stenosis
resulting
in
pseudoclaudication, established by findings on
appropriate
medically
acceptable
imaging,
manifested by chronic nonradicular pain and
weakness, and resulting in inability to ambulate
effectively, as defined in 1.00B2b.
Listing 1.04.
Yet, Plaintiff fails to point to evidence in the
19
record showing that she meets the Listing for 1.04C. To the extent
Birton contends that her use of a cane shows an “inability to
ambulate effectively,” under Listings 1.00(B)(2)(b)(1) and 1.04(C),
this argument fails.
20 C.F.R. Part 404, Subpt. P., App. 1 §
1.00B(2)(b)(1) states that ineffective ambulation is defined as
having
insufficient
lower
extremity
functioning
to
permit
independent ambulation without the use of a hand-held assistive
device(s) that limits the functioning of both arms.
However, the
reference to using a cane in the medical record only refers to a
cane (singular), and Birton does not argue otherwise.
It is well
settled that “[a] single cane does not constitute a ‘hand-held
assistive device’ under the listing [1.00B(2)(b)(1)], as it does
not limit the functioning of both upper extremities.”
Tolbert v.
Astrue, No. 1:09-CV-01348-TWP-TAB, 2011 WL 883927, at *8 (S.D. Ind.
Mar. 11, 2011); see also White v. Astrue, No. 08 C 5441, 2009 WL
2244635, at *4 (N.D. Ill. July 28, 2009) (requiring evidence in the
record of a need to walk using a walker, two crutches, or two canes
to find inability to ambulate effectively).
Thus, there is
insufficient evidence to demonstrate that Birton met all of the
criteria of Listing 1.04(C).
To the extent Birton attacks the ALJ’s analysis at Step 3 as
“perfunctory,” this Court disagrees.
(DE #22, p. 15.)
First, the
Seventh Circuit has rejected the argument that the ALJ’s failure to
explicitly
refer
to
the
relevant
20
listing
alone
necessitates
reversal and remand.
Cir. 2004).
Rice v. Barnhart, 384 F.3d 363, 369-70 (7th
Second, in Step 5, the ALJ did review in detail
Birton’s testimony regarding her physical ailments, including back
pain, physicians notes, and other medical evidence in the record.
(Tr. 16-20.) “Because it is proper to read the ALJ’s decision as a
whole . . . [the court can] consider the ALJ’s treatment of the
record evidence in support of both his conclusions at steps three
and five.”
Rice, 384 F.3d at 370 n.5.
Finally, with regard to the argument that Plaintiff had a
medical equivalent, “longstanding policy requires that the judgment
of a physician (or psychologist) designated by the Commissioner on
the issue of equivalence on the evidence before the administrative
law judge . . . must be received into the record as expert opinion
evidence and given appropriate weight.”
SSR 96-6P.
In this case,
there is no expert in the record opining that Birton had a medical
equivalent to an impairment in the listing of impairments. As such,
this Court finds that the ALJ did make a proper finding at Step 3.
Credibility
Birton complains that the ALJ improperly discredited Birton’s
testimony solely because it seemed in excess of the “objective”
medical evidence.
The ALJ did find that “[a] more restrictive
assessment of [Plaintiff’s] physical residual functional capacity
(especially one that would be consistent with her rather extreme
21
testimony regarding her functional limitations) is not possible,
given the lack of supporting medical evidence (including lack of
muscle atrophy, lack of significant loss of grip strength, or lack
of loss of fine finger manipulative ability) and the lack of a
corroborating medical opinion of record.”
(Tr. 20.)
Because the ALJ is best positioned to judge a claimant’s
truthfulness,
this
Court
will
overturn
an
determination only if it is patently wrong.
390 F.3d 500, 504 (7th Cir. 2004).
ALJ’s
credibility
Skarbek v. Barnhart,
However, when a claimant
produces medical evidence of an underlying impairment, the ALJ may
not
ignore
subjective
complaints
unsupported by objective evidence.
solely
because
they
are
Schmidt v. Barnhart, 395 F.3d
737, 745-47 (7th Cir. 2005); Indoranto v. Barnhart, 374 F.3d 470,
474 (7th Cir. 2004) (citing Clifford v. Apfel, 227 F.3d 863, 871-72
(7th Cir. 2000)).
“In assessing a claimant’s credibility, the ALJ
must consider subjective complaints of pain if the claimant can
establish a medically determined impairment that could reasonably
be expected to produce the pain.”
Indoranto, 374 F.3d at 474
(citing 20 C.F.R. § 404.1529, SSR 96-7p; Clifford, 227 F.3d at
871). Further, “the ALJ cannot reject a claimant’s testimony about
limitations on her daily activities solely by stating that such
testimony is unsupported by the medical evidence.”
Id.
Instead,
the ALJ must make a credibility determination supported by record
evidence and be sufficiently specific to make clear to the claimant
22
and to any subsequent reviewers the weight given to the claimant’s
statements and the reasons for that weight. Lopez v. Barnhart, 336
F.3d 535, 539-40 (7th Cir. 2003).
In evaluating the credibility of statements supporting a
Social Security Application, the Seventh Circuit Court of Appeals
has noted that an ALJ must comply with the requirements of Social
Security Ruling 96-7p.
Cir. 2002).
Steele v. Barnhart, 290 F.3d 936, 942 (7th
This ruling requires ALJs to articulate “specific
reasons” behind credibility evaluations; the ALJ cannot merely
state that “the individual’s allegations have been considered” or
that “the allegations are (or are not) credible.”
SSR 96-7p.
Furthermore, the ALJ must consider specific factors when assessing
the credibility of an individual’s statement including:
1.
The individual’s daily activities;
2.
The
location,
duration,
frequency and
intensity of the individual’s pain or other
symptoms;
3.
Factors that precipitate and aggravate the
symptoms;
4.
The type, dosage, effectiveness, and side
effect of any medications the individual takes
or has taken to alleviate pain or other
symptoms;
5.
Treatment,
other
than medication, the
individual receives or has received for relief
of pain or other symptoms;
6.
Any
measures
other
than treatment the
individual uses or has used to relieve pain or
other symptoms; and
23
7.
Any other factors concerning the individual’s
functional limitations and restrictions due to
pain or other symptoms.
SSR 96-7p; see also Golembiewski v. Barnhart, 322 F.3d 912, 915-16
(7th Cir. 2003).
The ALJ failed to discuss the 96-7p factors.
For example, he
did not consider her daily activities, level of pain or symptoms,
aggravating
factors,
specific reasons.
medication,
or
justify
the
finding
with
See Villano v. Astrue, 556 F.3d 558, 562 (7th
Cir. 2009) (because “the ALJ did not analyze the factors required
under SSR 96-7p,” “the ALJ failed to build a logical bridge between
the evidence and his conclusion that [claimant’s] testimony was not
credible.”).
Here, the ALJ improperly used boilerplate language, finding
her testimony “rather extreme” given “the lack of supporting
medical
evidence,”
without
articulating
assessing the credibility of Birton.
specific
reasons
in
This language fails to
specify which of Birton’s statements are credible (and which the
ALJ discredited), thus there is no basis to review whether the
ALJ’s conclusion is supported by substantial evidence.
See Parker
v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010)(reviewing similar
language and finding the statement by a trier of fact that the
witness’s testimony is “not entirely credible” yields no clue to
what weight the trier of fact gave the testimony.”).
Although the ALJ asserts that there is no medical evidence to
24
support Birton’s testimony about her limited functioning and pain,
the
record
does
indicate
that
Birton
was
fibromyalgia, and prescribed pain medications.
diagnosed
(Tr. 347.)
the ALJ does not dispute that Birton has fibromyalgia.
with
Indeed
(Tr. 15.)
The ALJ’s listed reasons discrediting her testimony (that there is
a lack of medical evidence, muscle atrophy, or loss of grip
strength), are not sufficient to sustain his credibility findings.
The Seventh Circuit has recognized the subjective nature of the
symptoms of fibromyalgia, stating, “[t]here are no laboratory tests
for the presence or severity of fibromyalgia.
The principal
symptoms are ‘pain all over,’ fatigue, disturbed sleep, stiffness,
and - the only symptom that discriminates between it and other
diseases of rheumatic character - multiple tender spots . . . that
when pressed firmly cause the patient to flinch.”
Chater, 78 F.3d 305, 306 (7th Cir. 1996).
Circuit
discussed
fibromyalgia
mysterious disease.”
as
Id. at 306.
a
Sarchet v.
In Sarchet, the Seventh
“common
but
elusive
and
Moreover, that Court criticized
an ALJ for, inter alia, depreciating the gravity of a claimant’s
fibromyalgia because of the lack of any evidence of objectively
discernable symptoms.
F.3d
636,
638
(7th
Id. at 307; see also Estok v. Apfel, 152
Cir.
1998)(noting
“fibromyalgia
is
very
difficult to diagnose, that no objective medical tests reveal its
presence, and that it can be completely disabling.”).
Thus, in this case, the ALJ should not have discredited
25
Birton’s testimony merely because of the alleged lack of supporting
medical evidence in the record - indeed, there is no test to show
the presence or severity of the pain of fibromyalgia. The facts of
the record may leave room for an ALJ to reach the conclusion that
ALJ Neary reached; however, because he did not fully set forth his
analysis in the decision, the ALJ committed an error of law and
reversal
is
required.
This
case
must
be
remanded
so
the
credibility of Birton is properly addressed.
Because
this
Court
finds
that
the
ALJ’s
credibility
determination was flawed, it need not reach Birton’s final argument
that the ALJ erred in relying on the VE testimony after giving the
VE an incomplete hypothetical. On remand, the ALJ is reminded that
the ALJ must orient the VE to the totality of a claimant's
limitations. O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th
Cir. 2010). “Among the limitations the VE must consider are
deficiencies of concentration, persistence and pace.”
Id. (citing
Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir.2009); Kasarsky v.
Barnhart, 335 F.3d 539, 544 (7th Cir.2003); Steele v. Barnhart, 290
F.3d 936, 942 (7th Cir. 2002)).
“[T]he most effective way to
ensure that the VE is apprised fully of the claimant's limitations
is to include all of them directly in the hypothetical.” O’ConnorSpinner, 627 F.3d at 619.
The Court in O’Connor-Spinner noted the following:
In most cases, however, employing terms like
“simple, repetitive tasks” on their own will
26
not
necessarily
exclude
from
the
VE’s
consideration those positions that present
significant
problems
of
concentration,
persistence and pace. The ability to stick
with a given task over a sustained period is
not the same as the ability to learn how to do
tasks of a given complexity. . . .
. . . . As discussed, limiting a hypothetical
to
simple,
repetitive
work
does
not
necessarily
address
deficiencies
of
concentration, persistence and pace.
We
acknowledge
that
there
may
be
instances where a lapse on the part of the ALJ
in framing the hypothetical will not result in
a remand. Yet, for most cases, the ALJ should
refer
expressly
to
limitations
on
concentration, persistence and pace in the
hypothetical in order to focus the VE’s
attention on these limitations and assure
reviewing courts that the VE’s testimony
constitutes substantial evidence of the jobs a
claimant can do.
Id. at 620-21 (citations omitted).
CONCLUSION
For the reasons set forth above, the Commissioner of Social
Security’s final decision is REVERSED and this case is REMANDED for
proceedings consistent with this opinion pursuant to sentence four
of 42 U.S.C. section 405(g).
DATED: November 26, 2012
/s/ RUDY LOZANO, Judge
United States District Court
27
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