Rootes v. Social Security Administration et al
Filing
36
OPINION AND ORDER: the Commissioner of Social Securitys 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). Signed by Judge Rudy Lozano on 9/3/13. (mc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
Colleen L. Rootes,
Plaintiff,
vs.
Michael J. Astrue,
Commissioner of
Social Security,
Defendant.
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No. 3:11-CV-431
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, Colleen L. Rootes.
For the reasons set forth below,
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 April 1, 2008, Plaintiff filed an application for Social
Security Disability Benefits (“DIB”), under Title II of the Social
Security Act, 42 U.S.C. section 401 et seq.
Rootes alleged an
onset date of January 21, 2008, alleging she was disabled due to
neuropathy, a spinal disorder, back, hip, and leg pain, carpal
tunnel syndrome, hypertension, bone spurs and headaches.
The
Social Security Administration denied her initial application and
also denied her claim upon reconsideration.
On January 21, 2010, Rootes appeared via video teleconference,
represented
by
counsel,
at
an
administration
Administrative Law Judge (“ALJ”) Michael Hellman.
hearing
before
Testimony was
provided by Rootes and Thomas Grzesik, a vocational expert.
On
March 26, 2010, ALJ Hellman issued a decision denying Rootes’
claims, and finding her not disabled because she could perform a
significant number of jobs in the national economy, despite her
limitations.
(Tr. 26-39.)
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).
DISCUSSION
Facts
Medical Evidence
On January 9, 2008, Rootes told her family doctor, Dr. Thomas
M. Browne, that her hips/legs hurt, they felt numb, and her feet
burned.
(Tr. 327.)
She then began treatment with vascular
neurologist Virgil A. DiBiase, M.D., for severe bilateral hip pain,
2
burning in her legs and feet, numbness in her lower legs and arms,
and neck pain.
muscle
(Tr. 291.)
strength
in
the
The physical examination found reduced
bilateral
iliopsoas
bilaterally,
hyperreflexic reflexes generally, and an absent deep tendon reflex
in the right ankle.
(Tr. 292.)
The diagnoses were neck pain,
cervical radiculopaty, numbness, poly and peripheral neuropathy,
and excessive daytime sleepiness.
(Tr. 292-93.)
On February 8, 2008, Rootes underwent an electromyography
performed by Dr. DiBiase, which showed ulnar motor neuropathy with
evidence of compression at the elbow on the left and bilateral mild
sensory carpal tunnel syndromes.
(Tr. 249, 303.)
Patient history
indicated hip pain and numbness in her feet and hands.
253, 304, 307.)
(Tr. 250,
An MRI revealed spondylitic changes in the lumbar
spine, bulging of the annulus fibrosis at L5-S1 extending into the
neuroforamina with contact of the dorsal root ganglia bilaterally,
a right foraminal L4-L5 osteophyte and disc complex with mild
lateral displacement of the right L4 dorsal root ganglion, and a
left paraspinal lipid containing an entity consistent with an
intramuscular lipoma.
(Tr. 300.)
Moreover, a cervical spine MRI
revealed moderate central spinal canal stenosis at C6-C7 from a
disc herniation and osteophyte complex and contact of the ventral
cord surface and neural foraminal narrowing at multiple levels,
especially on the left at C6-C7 and right at C5-C6.
(Tr. 313.)
Followup testing with Dr. DiBiase on February 18, 2008, found
3
reduced muscle strength in the bilateral iliopsoas, hyperreflexic
reflexes, and an absent deep tendon reflex in the right ankle.
(Tr. 316.)
The diagnoses were excessive daytime sleepiness,
numbness, carpal tunnel syndrome, cervical radiculopathy, ulnar
entrapment, leg pain, and chronic pain.
(Tr. 316-17.)
Rootes started physical therapy on February 27, 2008.
The
initial evaluation revealed she had increased pain in her lower
back and extremities after 10-15 minutes of sitting, increased pain
in her lower extremities in less than half a minute of walking,
increased bilateral lower back, hip and lower extremity pain when
sleeping, immediate pain from driving, tenderness bilaterally in
the hips, and tightness bilaterally in the upper trapezius.
260.)
She
also
had
reduced
ranges
of
motion.
(Tr.
(Tr.
319.)
Identified problems were pain, restricted flexibility, decreased
muscle strength, and decreased activity tolerance. (Tr. 260.) The
next day, Rootes received rehabilitation for her pain and numbness.
(Tr. 268.)
Plaintiff also reported dropping items from both her hands.
(Id.)
The physical examination also noted decreased grip strength
and pinch strength.
(Id.)
Plaintiff also had several other
physical therapy sessions in March 2008.
(Tr. 263-66).
On March
13, 2008, Plaintiff reported that “I can’t feel my hands or arms at
all,” on March 25, 2008, she told the physical therapist the pain
was still a 9 out of 10 and going down her lower extremities, and
4
on March 6, 2008 she was issued a night splint for her arm.
(Tr.
263, 270, 274.)
On March 31, 2008, Plaintiff returned to Dr. DiBiase who
opined the occupational therapy had failed in treating her ulnar
entrapment and carpal tunnel syndrome. (Tr. 323-24.) The physical
examination again found reduced muscle strength in the bilateral
iliopsoas bilaterally, hyperreflexic reflexes generally, and an
absent deep tendon reflex in the right ankle.
(Tr. 323.)
At
another visit on April 3, 2008, Plaintiff was still having back and
leg pain.
(Tr. 352.)
Then, on April 24, 2008, orthopedic surgeon Dr. N. Nenadovich,
examined Rootes on a referral from Dr. Browne, and his impression
was cervicolumbar spondylosis, degenerative disc disease with a
disc herniation in the cervical spine, foraminal stenosis, and he
thought
Roots
extremities.
also
had
(Tr. 337.)
peripheral
neuropathy
in
the
lower
The physical examination found some
decreased sensation in the digits of the left hand, decreased
sensation diffusely throughout the lower extremities from the hips
down, an antalgic gait with shortened stance phase in the left
lower extremity secondary to discomfort particularly in her hip
area, and some difficulty toe-walking.
Soon
thereafter,
on
May
13,
(Id.)
2008,
board-certified
pain
management specialist and anesthesiologist Dr. Heather A. Nath, of
the Lakeshore Bone and Joint Institute treated Rootes for lower
5
back pain radiating into her legs bilaterally and upper arm
complaints that made it difficult to carry things.
Plaintiff
described
the
pain
as
numbness,
(Tr. 420.)
tingling,
burning,
aching, throbbing, sharp and dull, with some weakness and rated it
at 8 out of 10 in severity generally, and 10 out of 10 when it was
bad and was aggravated by walking, lying, and sitting.
(Id.) The
physical examination also found some tenderness over the sacroiliac
joint and Dr. Nath continued to prescribe her Vicodin and increased
her Cymbalta to 60 mg every morning.
(Id.)
On June 16, 2008, family medicine practitioner Ralph E.
Inabnit, D.O., conducted a physical examination at the request of
the Disability Determination Division, diagnosing Plaintiff with
cervical spine spasm and pain, lumbar spine spasm and pain,
osteoarthritis and neural foraminal narrowing at multiple levels of
the
cervical
spine,
osteoarthritis
and
facet
arthropathy
at
multiple levels of the lumbar spine, spondylolysis of the lumbar
spine,
spinal
stenosis
of
hypertension, and obesity.
found
a
reduced
extremities),
motor
reduced
the
cervical
(Tr. 366.)
strength
reflexes
(4/5
spine
at
C6-C7,
The physical examination
in
(upper
the
lower
extremities
and
at
upper
2/5
bilaterally, knee jerks and ankle jerks at 1/5 bilaterally), a
reduced range of motion in the cervical spine, and a reduced range
of motion in the lumbar spine.
(Tr. 360, 362-63.)
6
Shortly thereafter, Alan Wax, Ph.D., conducted a psychological
evaluation on June 18, 2008, at the request of the Disability
Determination Division, and diagnosed Plaintiff with a dysthymic
disorder and a GAF score of 59. (Tr. 367, 369.)
His clinical
observations were that her mood and affect were somewhat flat, that
she rocked either side to side or back and forth during the entire
evaluation due to pain, and had some memory problems.
(Tr. 368.)
He also noted Rootes could be capable of managing her funds, but
would benefit from assistance.
opined
that
Depression.”
“[s]he
is
Id. at 369.
disabled
due
to
Finally, Dr. Wax
medical
problems
and
Id.
A few days later, Plaintiff returned to Dr. Nath on June 25,
2008 for neuropathy with a throbbing, aching, and numb pain rated
at 8 out of 10 in severity.
(Tr. 422.)
It was also noted Rootes’
sleep had worsened, there was a decrease in her activity, and she
was
sitting
in
the
chair
neuropathy was worse.”
“rubbing
her
leg
stating
that
her
(Tr. 422-23.)
Then, on July 1, 2008, non-examining State-agency reviewer
Kenneth Neville, Ph.D., completed a psychiatric review technique,
and diagnosed Plaintiff with an affective disorder (dysthymic
disorder), but found it non-severe.
(Tr. 373, 376.)
Due to this
condition, he opined Plaintiff would have mild difficulties in
maintaining
social
persistence or pace.
functioning
and
(Tr. 383.)
7
maintaining
concentration,
J. Gange, Ph.D., affirmed this
assessment on October 21, 2008.
Dr.
Nath
treated
(Tr. 434.)
Plaintiff
again
on
July
22,
2008
for
neuropathy, lower back pain, lumbar radiculopathy, and bilateral
wrist pain with the pain overall rated at 8 out of 10 in severity
and described as throbbing, burning, sharp, aching, and numbing.
(Tr. 425).
She was still wearing splints on her arms and also
noted that the Gabapentin was no longer working after two weeks.
(Id.) Consequently, Dr. Nath increased her Gabapentin to 600 mg in
the morning and 1200 mg at night while she continued the Cymbalta
at 30 mg twice per day, a blood pressure pill, and Vicodin at 7.5
mg four times a day.
(Id.)
On July 23, 2008, non-examining State-agency reviewer and
family medicine practitioner M. Ruiz, M.D., completed a physical
residual functional capacity assessment, and found Rootes was
limited to lifting 20 pounds occasionally and 10 pounds frequently,
standing or walking about 6 hours in an 8-hour workday, and sitting
about
6
hours
in
an
8-hour
workday,
occasionally
climbing,
balancing, stooping, kneeling, crouching, and crawling and avoiding
concentrated exposure to extreme temperatures, wetness, humidity,
and should avoid even moderate exposure to fumes, odors, gases,
poor ventilation and hazards.
(Tr. 408-09, 411.)
Internist
Fernando R. Montoya, M.D., affirmed this assessment on October 20,
2008. (Tr. 433.)
Thereafter, Dr. Nath once again treated Plaintiff on September
8
9, 2008, for low back pain, neuropathy, lumbar radiculopathy, and
bilateral wrist pain.
(Tr. 429.)
longer afford Cymbalta.
(Id.)
Plaintiff reported she could no
The physician decided to maintain
her on Neurontin and Vicodin and added Effexor XR, but removed
Cymbalta from her treatment. (Id.) Soon thereafter, Plaintiff was
treated by Dr. Nath again on November 4, 2008 for pain that was
still rated at 8 out of 10 in severity despite compliance with her
treatment plan.
(Tr. 440.) The physician decided to increase her
Effexor dosage to 150 mg in the morning and continue her Vicodin at
4 times a day and Neurotonin at 600 mg three times a day.
(Id.)
Then, on April 8, 2009, Dr. Nath treated Rootes for her
history of lower back pain, neck pain, wrist pain, and carpal
tunnel syndrome with the pain rated at 7 out of 10 in severity
overall and described as throbbing, burning, aching, cramping, and
numbing.
(Tr. 437.) At the time she had been prescribed Vicodin
7.5 one dosage every 6 hours, Neurontin 600 mg three times a day,
but the physician added Cymbalta again and Diclofenac at 75 mg
twice a day and discontinued Effexor.
(Id.)
Plaintiff then returned to Dr. Nath on November 11, 2009, and
it was noted she had “no changes in her overall health.”
444.)
(Tr.
Her medication treatment was continued with Vicodin one
dosage every 6 hours, Voltaren 75 mg twice a day, Cymbalta 60 mg,
and Neurontin 600 mg three times a day.
(Id.)
Finally, on January 12, 2010, Dr. Nath issued a medical source
9
statement, noting that her lifting, carrying, walking, standing,
pushing, and pulling were affected by her condition and that she
could never climb, balance, kneel, crouch, crawl, or stoop, and had
limited
handling
(gross
manipulation), and feeling.
manipulation),
fingering
(fine
(Tr. 446-49.)
Rootes’ Hearing Testimony
Rootes testified that she stopped working mainly due to the
numbness in her legs, arms, and even face that began in January
2008.
(Tr. 52-53.)
The numbness is constant and causes her to
drop things “all the time,” requires her to “hold onto a cart when
[she is] going to the grocery store” (Tr. 53), and she is afraid of
driving.
(Tr. 55.)
Plaintiff further testified to pain from the
bottom part of her back to her feet that was rated at 11 or 12 on
a scale of 1 to 10.
(Tr. 54.)
To relieve the pain, she “rock[s]
a lot” when sitting, and tries to stand and walk around before
sitting down “because [she] can’t do either one of them very long.”
(Tr. 55.)
Plaintiff also stated she could sit for 15 to 20 minutes
at a time, and during the hearing, she stood up from her chair.
(Tr. 55, 57, 61.)
She could also walk to the corner in her
neighborhood, which was five houses down from her residence, before
having to stop.
(Tr. 61.)
Plaintiff was wearing arm splints at the hearing to keep her
wrists from bending due to the pain in her arms and hands and
10
numbness in the tips of her fingers.
(Tr. 58.)
Rootes testified
that she drops items, such as a glass, approximately ten times a
day.
(Tr. 62.)
In 2008 or 2009, five pounds was the last amount
her physical therapist recommended she lift.
(Ex. 61.)
Plaintiff lives with her two grandsons, ages thirteen and
nine,
the older grandson “does everything his self” and the other
is handicapped, but her sister, a friend, her soon-to-be exhusband, and two neighbors help her with him.
(Tr. 49, 58-59.)
Rootes does, however, try to do the dishes and cook for the 13-year
old grandson once a week, but he vacuums the house and Rootes
testified she cannot finish a load of laundry.
(Tr. 60.)
Her
sister helps her with paying the bills and keeping household
finances.
(Tr. 60.)
Plaintiff’s sister, Addonia Baugh, testified that she helps
Plaintiff
by
doing
all
the
driving
to
take
her
to
doctors’
appointments, and helps with her grandson on a daily basis. (Tr.
66.)
She also said she would help cook and clean the house
occasionally.
Plaintiff
grasping
(Tr. 66-67.)
experience
objects.
numbness,
(Tr.
Ms. Baugh also reported seeing
drop
67.)
items,
Finally,
and
she
have
has
problems
also
seen
Plaintiff’s balance issues, for example, she “can’t step up on
stools or anything that puts her up a little bit” and that she has
“very bad sleeping habits.”
(Tr. 67.)
11
Vocational Expert’s Hearing Testimony
Plaintiff’s past work experience includes work as a working
plastic production supervisor (DOT #556.130-010), which is at a
light physical exertional level generally, but heavy as performed
and skilled at SVP 7.
(Tr. 68.)
The ALJ first posited a
hypothetical of an individual with Plaintiff’s age, education, work
experience, and skill set, who is limited to the light physical
exertional level with occasional postural activities. (Tr. 68.)
The VE responded that such an individual could perform Plaintiff’s
past relevant work as generally performed in the country.
69.)
(Ex.
The ALJ then posited a second hypothetical of an individual
who required an at-will sit-stand option that would not be off task
more than 10% of the work period.
(Tr. 69.)
The VE responded that
such an individual would not be able to perform Plaintiff’s past
relevant work, but could work as a production assembler, (DOT
#706.687-010),
small
parts
assembler
electronics worker (DOT #726.687-010).
(DOT
#706.684-022),
and
(Tr. 70.)
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
12
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 he 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
13
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 Rootes suffers from the
following severe impairments: cervical spine stenosis with C6-7
disc herniation and osteophyte complex, lumbar spondylitis, left
ulnar neuropathy, bilateral mild sensory carpal tunnel syndrome,
peripheral neuropathy, and hypertension.
(Tr. 28.)
The ALJ
specifically found that Rootes’ reported respiratory impairments
and mental impairment of dysthymic disorder did not qualify as
severe
impairments,
limitations.
and
resulted
in
only
minimal
functional
(Tr. 28.)
The ALJ further found that Rootes did not have an impairment
or combination of impairments that meets or medically equals one of
the listed impairments in 20 C.F.R. Part 404, subpart P, Appendix
14
1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526).
The ALJ then
determined that Rootes has the residual functional capacity to
perform light work as defined in 20 C.R.R. 404.1567(b), allowing
the claimant to sit or stand at will.
(Tr. 30.)
Based upon
Rootes’ RFC, the ALJ found that Roots is unable to perform her past
relevant work as a plastic production supervisor.
(Tr. 37.)
However, the ALJ “accommodated [the] claimant’s impairments by
limiting her to a light level exertion allowing her to alternate to
a sitting and standing position at will provided that [she] is not
off task more than 10% of the work period” (Tr. 37), and found she
is capable of performing jobs that exist in significant numbers in
the national economy (Tr. 38.)
For example, the ALJ determined
Plaintiff could be a production assembler (DOT #706.687-010), small
parts assembler (DPT #706.684-022), and electronics worker (DOT
#726.687-010). (Tr. 37-38.) Rootes believes that the ALJ committed
error by (1) rendering an improper credibility determination; and
(2) rendering an improper RFC determination.
Credibility Determination
Rootes claims that the ALJ failed to properly evaluate the
credibility of her testimony.
Because the ALJ is best positioned
to judge a claimant’s truthfulness, this Court will overturn an
ALJ’s credibility determination only if it is patently wrong.
Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004).
15
However,
when
a
claimant
produces
medical
evidence
of
an
underlying
impairment, the ALJ may not ignore subjective complaints solely
because they are unsupported by objective evidence.
Barnhart, 395 F.3d 737, 745-47 (7th Cir. 2005).
Schmidt v.
Instead, the ALJ
must make a credibility determination supported by record evidence
and be sufficiently specific to make clear to the claimant 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,
16
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
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).
Here,
Plaintiff
argues
the
ALJ
rendered
an
improper
credibility determination by failing to create an accurate and
logical bridge between the evidence and instead making a cursory
conclusion.
(DE #28, p. 11, see Lopez, 336 F.3d at 539-40.)
The
ALJ did use some boilerplate or “template” language in initially
assessing the credibility of Rootes.
In this case, he found:
After careful consideration of the evidence, I find
that
the
claimant’s
medically
determinable
impairments could reasonably be expected to cause
the alleged symptoms; however, the claimant’s and
her sister’s statements concerning the intensity,
persistence and limiting effects of these symptoms
are
not
credible
to
the
extent
they
are
inconsistent with the above residual functional
capacity assessment.
(Tr. 32.)
Almost identical boilerplate language was used and
criticized in Bjornson v. Astrue, 671 F.3d 640 (7th Cir. 2012).
There, the Seventh Circuit noted:
17
One problem with the boilerplate is that the
assessment of the claimant’s “residual functional
capacity” (the bureaucratic term for ability to
work) comes later in the administrative law judge’s
opinion, not “above” - above is just the
foreshadowed conclusion of that later assessment.
A deeper problem is that the assessment of a
claimant’s ability to work will often . . . depend
heavily on the credibility of her statements
concerning the “intensity, persistence and limiting
effects” of her symptoms, but the passage implies
that ability to work is determined first and is
then used to determine the claimant’s credibility.
That gets things backwards.
Id. at 645.
Yet, as noted by the Court in Adams v. Astrue,
While this sort of boilerplate is inadequate, by
itself, to support a credibility finding, its use,
does not make a credibility determination invalid.
Not supporting a credibility determination with
explanation and evidence from the record does.
Where, as here, the ALJ’s decision does not use the
language in a mechanical fashion, and the ALJ
carefully explains how the plaintiff’s claimed
limitations are ‘not supported by the record as a
whole,’ reversal is not warranted.
Adams v. Astrue, 880 F.Supp.2d 895, 906 (N.D. Ill. 2012) (emphasis
in original) (citations omitted).
In this case, the ALJ did “consider[] all factors listed in
SSR 96-7p.”
sister’s
(Tr. 35.)
claimed
The ALJ carefully compared Rootes and her
symptoms
and
claimed
limitations
in
daily
activities to her treatments and other evidence in the record of
daily activities.
He considered her daily living questionnaire in
which Rootes reported she could perform most of her personal care,
can prepare meals sometimes, can do laundry and some dishes, and
can shop for food and necessities once a week with help.
18
Id.
He
considered the fact that she takes care of her two grandchildren,
including one who is handicapped, even though recognizing that
friends and family help out significantly.
Id.
The ALJ also noted
that Rootes reported to her occupational therapist on February 27,
2008, that although she drops objects, she is independent in daily
activities and independent in all function areas.
Id.
Moreover,
at a psychological evaluation, Rootes reported she is independent
in self-care.
Id.
An ALJ may discount a claimant’s testimony when
it conflicts with other statements made by a claimant.
Powers
v.
Apfel,
discrepancy
207
between
F.3d
the
431,
435
minimal
(7th
Cir.
impairment
See, e.g.,
2000)
(“[T]he
expected
from
[claimant’s] conditions and her testimony of debilitating pain
casts doubt on her credibility.”
Thus, the ALJ’s conclusion that
“the claimant’s testimony as to limited daily activities is not
supported by the record,” was explained.
The ALJ also considered the claimant’s treatment history,
although
his
analysis
on
credibility is less thorough.
the
medical
(Tr. 35.)
evidence
relating
to
He noted Rootes’ reports
that her medications somewhat helped, and that following a short
course of occupational therapy, she failed to return.
267.)
(Tr. 35,
The ALJ also noted that although Rootes alleged in an
initial report she has headaches, at her physical therapy sessions,
she reported the headache pain was a 0 out of 10, and that some
pain was rated “as low as 0 . . . .”
19
(Tr. 36, 33, 263-66.)
Plaintiff takes issue with this point though, arguing the ALJ
failed to consider her other subjective complaints of pain.
See
Pancake v. AMAX Coal Co., 858 F.2d 1250, 1255 (7th Cir. 1988)
(holding an ALJ may not selectively analyze the record to reach a
desired outcome).
Rootes points to other indications of pain in
the medical record: the March 6, 2008 notification states pain is
at a 7/10 for lower back and 7/10 for left lower extremity, and
that her feet were “still on fire” (Tr. 265); the March 11, 2008
notation states that pain is rated at 9/10; the March 13, 2008
notation states that pain was 7/10 for the lower back and 7/10 for
the lower extremities (Tr. 266); the March 25, 2008 notation states
pain was 9/10 and going down the lower extremities (Tr. 263), and
the March 27, 2008 notation stated pain was a 5/10 (Tr. 263).
The ALJ also noted that Rootes tried to find work, however, no
one was hiring.
(Tr. 35.)
The parties both admit, though, that
the work attempts may have been prior to her alleged onset date.
The ALJ did recognize that Rootes reported in her disability report
that she stopped working due to personal reasons unrelated to her
health, and told her occupational therapist she was retired.
(Tr.
36, 171, 178, 276.)
In sum, the ALJ did adequately build an accurate and logical
bridge between the evidence or record and his conclusion that
Rootes and her sister’s testimony was not entirely credible.
The
ALJ gave reasons for discrediting Rootes’ complaints in the hearing
20
and
cited
to
medical
evidence
and
other
evidence
of
daily
activities in the record to support his decision. Although the ALJ
may have used some “template” language, the substance of the
decision itself supports his credibility determination.
See Smith
v. Astrue, No. 2:11-CV-32, 2012 WL 1435661, at *6 (N.D. W. Va.
2012) (noting that the ALJ’s findings could not be classified as
“boilerplate language” because the ALJ spent three pages discussing
evidence supporting his credibility finding).
Here, the ALJ spent
5 pages analyzing and explaining his credibility finding, and that
is
sufficient.
Although
not
perfect
(this
Court
especially
questions the ALJ’s analysis of Rootes’ subjective complaints of
pain), the credibility determination was supported by evidence in
the
record
and
this
Court
cannot
determination was “patently wrong.”
say
that
the
credibility
Skarbek v. Barnhart, 390 F.3d
at 504; Powers, 207 F.3d at 435; Berger v. Astrue, 516 F.3d 539,
546
(7th
Cir.
2008)
(even
where
some
of
the
ALJ’s
findings
concerning the claimant’s credibility were a bit harsh, “an ALJ’s
credibility assessment will stand as long as there is some support
in the record . . . .”).
Therefore, the ALJ’s credibility
determination, which is entitled to special deference, will be
affirmed.
RFC Determination
At step four of the sequential evaluation process, an ALJ must
21
complete a residual functional capacity assessment pursuant to 20
C.F.R. § 404.1545.
In assessing an applicant’s RFC, an ALJ will
consider all the relevant medical and nonmedical evidence in the
record.
20 C.F.R. 404.1545(a)(3); Dixon v. Massanari, 270 F.3d
1171, 1178 (7th Cir. 2001).
Plaintiff
urges
determination.
that
the
ALJ
rendered
an
improper
RFC
First, Rootes claims that the ALJ improperly
dismissed the opinion of Dr. Alan Wax, the consultative examiner.
Following a psychological evaluation, in his opinion dated June 18,
2008, Dr. Wax found Plaintiff “is disabled due to medical problems
and Depression.”
(Tr. 369.)
The ALJ “[gave] little weight to the
statement of the consultative examiner, Dr. Wax, who opined the
claimant is disabled. This statement is inconsistent with the
evidence of record, including Dr. Wax’s own findings.”
(Tr. 36.)
Plaintiff argues that consultative examinations are necessary and
an
ALJ
“must
consider
all
relevant
medical
evidence,
cannot
substitute his expertise for that of a qualified physician, and,
absent countervailing clinical evidence or a valid legal basis for
doing so, cannot simply disregard the medical conclusions of a
qualified physician.”
Pancake, 858 F.2d at 1255.
The ALJ rejected Dr. Wax’s opinion, finding his statement was
inconsistent with his own findings.
(Tr. 36.)
For example, the
ALJ noted that Dr. Wax found Rootes is independent in self-care and
performs most domestic functions.
22
Id.
Additionally, Rootes had
suggested that her medical issues, not depression, were disabling
to her.
Id.
As the Court found in Simila v. Astrue, 573 F.3d
503, 515 (7th Cir. 2009)(emphasis in original), “[t]he [ALJ] is not
required or indeed permitted to accept medical evidence if it is
refuted by other evidence - which need not itself be medical in
nature.”
Moreover, the ALJ found that because Dr. Wax is a
licensed psychologist, he “was not qualified to make an opinion on
the claimant’s degree of physical functioning.”
(Tr. 37.)
The
fact that the ALJ thought that Dr. Wax lacked the medical expertise
to
determine
Rootes’
medical
impairments
(instead
of
psychological), is a logical explanation of why he discredited that
opinion.
Finally, it was proper for the ALJ to discount Dr. Wax’s
statement that Rootes was “disabled,” stating it was a “conclusory
statement
and
not
a
function-by-function
claimant’s ability to work.”
(Tr. 37.)
assessment
of
the
See, e.g., 20 C.F.R. §
404.1527(d) (An opinion that a claimant is “disabled” is not a
medical opinion, but, instead, an opinion on an issue reserved to
the Commissioner and will not be given any special significance);
Denton v. Astrue, 596 F.3d 419, 424 (7th Cir. 2010) (citations
omitted) (“[T]he ALJ is not required to give controlling weight to
the ultimate conclusion of disability - a finding specifically
reserved for the Commissioner.”).
Thus, the ALJ’s decision to give little weight to the opinion
of Dr. Wax, a licensed psychologist who completed the psychological
23
evaluation, that Plaintiff was “disabled due to medical problems
and Depression” is supported by substantial evidence.
Simila, 573
F.3d at 515 (declining to give nontreating physician’s substantial
weight “because it lacked consistency and supportability”).
Plaintiff also contends that the ALJ improperly failed to
assess any mental limitations.
For example, Rootes believes the
ALJ overlooked a “limitation to unskilled or simple, repetitive,
and routine work despite the clear cognitive issues exhibited by
Plaintiff during her psychiatric evaluation with Dr. Wax in the
form of a flat mood and affect, memory problems, and the benefit of
assistance in managing funds.”
(DE #28, p. 16.)
As mentioned
before, the ALJ specifically declined to give weight to Dr. Wax’s
statement that Rootes was disabled because “it is a conclusory
statement
and
not
a
function-by-function
claimant’s ability to work.”
(Tr. 37.)
assessment
of
the
As noted by Defendant,
Plaintiff made no claims of disability due to mental impairments in
her application (Tr. 31, 171), and did not receive any treatment
from a mental health professional (Tr. 28.)
Although Plaintiff
points out that the non-examining state-agency reviewer Kenneth
Nevill, PhD, opined that Rootes suffered from mild difficulties in
maintaining
social
functioning
and
maintaining
concentration,
persistence or pace, Dr. Nevill concluded that Plaintiff did not
have a severe mental impairment.
(Tr. 373, 385.)
By definition,
a nonsevere mental impairment does not significantly limit a
24
claimant’s ability to do basic work activities.
See 20 C.F.R. §
404.1520(c).
Finally, Roots argues that the ALJ improperly dismissed the
treating physician, Dr. Nath’s opinion.
A treating physician’s
medical opinion must be given controlling weight if it is “well
supported” and not inconsistent with other substantial evidence in
the case record.
20 C.F.R. § 404.1527(c); see Punzio v. Astrue,
630 F.3d 704, 710 (7th Cir. 2011).
An ALJ must offer “good
reasons” for discounting the opinion of a treating physician.
Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011); Campbell v.
Astrue, 627 F.3d 299, 306 (7th Cir. 2010).
Furthermore, SSR 96-2p
requires that the ALJ’s “decision must contain specific reasons for
the
weight
supported
given
by
the
to
the
evidence
treating
in
the
source’s
case
medical
record,
and
opinion,
must
be
sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.”
SSR 96-2p.
If the treating physician’s opinion is not well supported or
is inconsistent with other substantial evidence, the ALJ must apply
the following factors to determine the proper weight to give the
opinion:
(1) the length of the treatment relationship and
frequency of examination;
(2) the nature
relationship;
and
extent
25
of
the
treatment
(3) how much supporting evidence is provided;
(4) the consistency between the opinion and the
record as a whole;
(5) whether the treating physician is a specialist;
(6) any other factors brought to the attention of
the Commissioner.
20 C.F.R. §§ 404.1527(c) and 416.927(a)-(d); see Moss v. Astrue, 555
F.3d 556, 561 (7th Cir. 2009); Bauer v. Astrue, 532 F.3d 606, 608
(7th Cir. 2008).
It is reversible error for an ALJ to discount the
medical opinion of a treating physician without applying this legal
standard and for further failing to support the decision with
substantial evidence.
Moss, 555 F.3d at 561; see also Punzio, 630
F.3d at 710 (finding the ALJ’s rejection of a treating physician’s
mental
residual
functional
capacity
questionnaire
was
not
substantially supported).
Dr. Nath opined that Plaintiff’s lifting, carrying, walking,
standing, pushing, and pulling were affected by her condition and
that she could never climb, balance, kneel, crouch, crawl, or
stoop, and had limited handling (gross manipulation), fingering
(fine manipulation), and feeling. (Tr. 446-49.) The ALJ gave this
“little weight” finding the opinion “vague and imprecise, as Dr.
Nath noted that he [sic.] is unable to assess the claimant’s
lifting
and
limitations.”
carrying,
(Tr. 37.)
as
well
as
her
standing
and
walking
It is true Dr. Nath wrote she was unable
to assess the limitations of the lifting/carrying restrictions and
26
walking/standing restrictions (for example, Dr. Nath could not
assess whether Rootes could lift or carry less than 10 pounds, 10
pounds, 20 pounds, etc., and how many hours Rootes could stand/or
walk).
(Tr. 446.)
However, Dr. Nath did specifically find that
pushing and/or pulling was affected by the impairment, and that
Rootes had postural limitations, including that she should never
climb, balance, kneel, crouch, crawl, and stoop.
(Tr. 447.)
The
ALJ gave no reasons for not considering these postural limitations
found by Dr. Nath, and the ALJ improperly failed to consider them.
Additionally, the ALJ also improperly failed to consider the
manipulative limitations found by Dr. Nath, including Rootes’
limited handling, fingering, and feeling.
(Tr. 448.)
Although the ALJ criticized Dr. Nath for basing the opinion
“only on diagnostic findings” (Tr. 37), the ALJ did not consider
the
checklist
of
factors
required
by
the
Social
Security
regulations in order to determine the appropriate weight to give to
Dr. Nath’s opinions.
Moss, 555 F.3d at 561; see also Bauer, 532
F.3d at 608 (stating that when the treating physician’s opinion is
not given controlling weight “the checklist comes into play”);
Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010) (citations
omitted)
(criticizing
the
ALJ’s
decision
which
regarding this required checklist of factors.”).
“said
nothing
For example, the
ALJ did not consider the length of the treatment relationship with
Dr. Nath and frequency of examination, or the nature and extent of
27
the treatment, or how much supporting evidence was provided by Dr.
Nath, and whether the treating physician is a specialist.
C.F.R. §§ 404.1527(c), 416.927(c).
20
This requires remand.
The ALJ did note that “[a]t the initial evaluation, Dr. Nath
observed that the claimant sat comfortably and had a good range of
motion on flexion and extension of the lumbar spine.”
(Tr. 37.)
However, Plaintiff cites to many clinical findings in the record
that support Dr. Nath’s findings that she is limited from postural
activities
such
as
climbing,
crawling, and stooping.
balancing,
kneeling,
(DE #28, pp. 18-19.)
crouching,
Additionally, there
is other medical evidence in the record to support Dr. Nath’s
opinions
and
her
opinions
are
indeed
substantial evidence in the record.
consistent
with
other
The record shows that Rootes
suffered from absent deep tendon reflexes in the right ankle,
reduced motor strength, reduced reflexes, reduced ranges of motion
in the cervical spine, lumbar spine, hips, knees, and ankles. (Tr.
291-92, 319, 323, 337, 360, 362-63.)
Dr. Nath’s assessed hand
limitations in handling, fingering, and feeling are also supported
by the record where physical examinations found decreased sensation
in the upper extremities, decreased grip and pinch strength,
decreased sensation in the left hand, neuropathy, and mild sensory
carpal tunnel syndromes.
(Tr. 249, 268, 323-24, 303, 337.)1
1
Defendant argues that even if the ALJ improperly dismissed
the treating physician’s opinion, that the error is harmless
because two of the three jobs the VE identified (small parts
28
In sum, the ALJ failed to give “good reasons” for discounting
the treating doctor’s medical opinion, and failed to consider the
checklist of factors set forth in Section 1527(d).
This case must
be remanded so the treating physician’s opinions may be properly
addressed.
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: September 3, 2013
/s/ RUDY LOZANO, Judge
United States District Court
assembler and electronics worker), do not require any postural
movements. (DE #31, p. 11.) However, these two positions would
require handling and fingering, functions which Dr. Nath also
found Plaintiff was limited by her impairments.
29
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