Albert v. Commissioner of Social Security

Filing 28

OPINION AND ORDER: This cause is REMANDED for further proceedings consistent with this order. Signed by Chief Judge Philip P Simon on 3/31/2016. (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

COLLIEN BILLY ALBERT,

Plaintiff,
v.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security

Defendant.

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) CAUSE NO. 3:15-CV-46-PPS-CAN
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OPINION AND ORDER
An administrative law judge denied Collien Albert’s application for Social
Security disability insurance benefits and supplemental security income. In this appeal
Albert claims that the ALJ erred by not properly analyzing Albert’s impairments in
combination, failing to provide substantial evidence to support his RFC assessment, and
failing to include any limitations in the RFC for Albert’s mild mental limitations or use
of his prescribed back brace and cane. Because I find that the ALJ’s opinion was not
supported by substantial evidence, I will REMAND his decision for further
consideration and development of the record consistent with the issues discussed in this
opinion.

BACKGROUND
At the time of his hearing before the ALJ in August 2013, Albert was a 52 year
old high school graduate and stood 5'6'' tall and weighed 200 pounds. [R. 42.] He was
working as a machine operator and a handler for Light House Industries in Michigan
City, Indiana until October 2008. [R. 43, 254.] Prior to that, he had worked in
maintenance and construction for the Michigan City Housing Authority and also
worked as a temp assembling parts for generators. [R. 44-45.] All of these jobs involved
standing and lifting more than 20 pounds. [R. 45.]
Albert stopped working in October 2008 because of his medical conditions.
Albert filed for disability benefits and supplemental security income on August 13, 2012
alleging the onset date of August 4, 2012. [R. 22.] The claims were initially denied, and
then again upon reconsideration. Subsequently, Albert filed a written request for a
hearing.
Albert has a number of medical problems that he is dealing with. At the hearing,
Albert testified along with a vocational expert. Albert told the ALJ that he suffered
from pain in his lower back, feet, ankles, and legs (using a cane to help support him
when he walks or stands), type 2 diabetes, sleep apnea, numbness in his hands and feet,
trouble reaching above his head and out in front of him, tremors in his hands, difficulty
sleeping, forgetfulness, depression, blurry vision, shortness of breath, and has to wear a
back brace because his L3 and L4 were damaged in a car accident. [R. 47-54.] Albert
testified that he was taking Lyrica, Tramadol, Flexeril, and a few more medications for
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his pain that he could not recall and also was taking Metformin and Diacom for his
diabetes. [R. 48.] He also testified that he uses a CPAP machine at night for his sleep
apnea. [R. 48-49.]
The ALJ issued a decision denying benefits. [R. 22-32.] At Step One, the ALJ
found that Albert met the insured status requirements of the Social Security Act, and
that he has not engaged in substantial gainful activity since August 4, 2012, the alleged
onset date. [R. 24.] At Step Two, the ALJ concluded that Albert had the following
severe impairments: spinal disorder(s); diabetes; obesity; and hypertension. [R. 24.]
The ALJ found Albert also suffered from chronic obstructive pulmonary disease
(COPD), sleep apnea, and depression, but that they are non-severe impairments. [R. 2425.]
At Step Three, the ALJ concluded that Albert does not have an impairment or
combination of impairments meeting or medically equaling one of the listed
impairments. [R. 26.] At Step Four, the ALJ found that Albert had the capacity to
perform “light work” as that term is defined in SSR 83-10, but with the following
limitations:
Albert is limited to no more than the occasional climbing of ramps and stairs;
however he is unable to climb ladders, ropes, or scaffold. He is limited to no
more than occasional balancing, stooping, kneeling, crouching, or crawling.
He must avoid concentrated exposure to extreme temperatures of heat and
cold, and must avoid concentrated exposure to breathing irritants, such as
fumes, odors, dusts and gases, and must avoid concentrated exposure to
hazards, such as dangerous moving machinery and unprotected heights.

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[R. 26.] At Step Five, the ALJ found that Albert could not perform any past relevant
work but that there was a sufficiently significant number of jobs in the national
economy that he could perform. [R. 31.]
The Appeals Council denied review, making the ALJ’s decision the final decision
of the Commissioner. [DE 1-1.] Albert timely sought review of that decision by filing
this case. [DE 1.]
DISCUSSION
If an ALJ’s findings are supported by “substantial evidence,” then they must be
sustained. See 42 U.S.C. § 405(g). Substantial evidence consists of “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971). Review of the ALJ’s findings is deferential. Overman v. Astrue, 546
F.3d 456, 462 (7th Cir. 2008). “Although this standard is generous, it is not entirely
uncritical and the case must be remanded if the decision lacks evidentiary support.” Id.
(internal quotation marks omitted). In making a substantial evidence determination, I
must review the record as a whole, but I cannot re-weigh the evidence or substitute my
judgment for that of the ALJ. Id.
In making his findings, an ALJ must build a logical bridge from the evidence to
the conclusion. Grooves v. Apfel, 148 F.3d 809, 811 (7th Cir. 1998). That bridge must be
sufficiently developed to allow me to assess the validity of the ALJ’s findings. Moore v.
Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). An ALJ may not “cherry-pick” from the
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medical record in order to support a denial of benefits. Scott v. Astrue, 647 F.3d 734, 740
(7th Cir. 2011). An ALJ also may not substitute his own judgment for that of a medical
professional, or make medical conclusions about a claimant’s illness, without relying on
medical evidence. See Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). An ALJ is not
required to accept or reject every medical opinion he is presented with whole cloth, but
he is required to base his decision as to what to accept or reject on substantial evidence.
See Bentley v. Colvin, No. 3:14CV1589, 2015 WL 5714156, at *5 (N.D. Ind. Sept. 28, 2015).
I do not believe that the ALJ built a logical bridge from the evidence to his
conclusion in his RFC determination. One of the things that I find troubling is that the
ALJ’s conclusion in his RFC determination is directly contrary to the opinions of both a
state agency examining physician and a different treating physician. I am further
troubled by the fact that the ALJ afforded the medical source statement supplied by that
same treating physician little weight because of lack of objective evidence to support it,
yet it contains many of the same opinions as the state agency examining physician’s
report after a consultative examination of Albert. In addition, it appears that the ALJ
rendered an independent assessment regarding Albert’s postural limitations without
evidence to support his conclusion. I will address these points in turn.
On October 5, 2012, Dr. Smejkal, a state agency physician, conducted a
consultative examination of Albert and confirmed anatomical deformities in the lumbar
spine due to scoliosis as well as spinous and paraspinal tenderness throughout the
spine and negative straight leg raising bilaterally. [R. 364-66.] Dr. Smejkal noted that
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Albert “has shortness of breath on exertion” and “has weakness and poor balance.” [R.
365.] He also noted Albert’s slow and slightly bent gait and use of a cane due to poor
balance caused from back pain and that he was unable to stoop and squat. [R. 366.] Dr.
Smejkal noted, however, that Albert had a normal range of motion in his spine, upper
extremities, and lower extremities. [Id.] Dr. Smejkal also noted that Albert was able to
walk heel to toe with difficulty, get on and off the examination table with difficulty, and
to stand from the sitting position with difficulty. [Id.] His conclusive impression of
Albert was that: 1) he has a history of scoliosis and chronic back pain for which he
wears a brace; (2) he has sleep apnea and uses a c-pap machine; (3) he has diabetes
mellitus not controlled by medication; (4) he has a history of asthma; and (5) he has high
blood pressure controlled by medication. [R. 367.]
In his June 5, 2013 Medical Source Statement (MSS), Albert’s treating physician,
Dr. Quardi, noted many similar issues. He said that Albert’s standing and/or walking
were affected by his impairment, that he cannot walk for more than 300 feet without
developing weakness due to neurogenic claudication, and he has limitations in his
upper and lower extremities for both pushing and pulling. [R. 421-22.] He agreed that
Albert was unable to stoop. [R. 423.] He also noted that Albert could not climb ramps,
stairs, ladders, ropes, or scaffolds, nor could he balance, kneel, crouch, or crawl. [R.
423.] He also said that Albert could only occasionally lift less than 10 pounds and was
unable to lift any weight frequently. [R. 421.]

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Two state agency physicians, Dr. Corcoran and Dr. Sands, came to decidedly
different conclusions about what Albert could do although without ever physically
examining him. Based on a review of Albert’s medical records Dr. Corcoran and Dr.
Sands concluded that he had the residual functional capacity to: occasionally lift and
carry 50 pounds; frequently lift and carry 25 pounds; stand or walk six hours in an
eight-hour workday; sit for a total of six hours in an eight-hour workday; unlimited
push and/or pull; unlimited lift and/or carry; and no postural, manipulative visual,
communicative, or environmental limitations. [R. 112-119, 131-139.]
The ALJ seems to have sided with the consulting physicians on certain issues,
specifically finding that Albert could occasionally balance, stoop, kneel, crouch, or
crawl, which is inconsistent with the examining and treating physicians’ evaluations. In
general, examining physicians are afforded more weight than non-examining
physicians. 20 C.F.R. § 404.1527(c)(1) (“Generally, we give more weight to the opinion
of a course who has examined you than to the opinion of a source who has not
examined you.”); Minnick v. Colvin, 775 F.3d 929, 937-38 (7th Cir. 2015). It is unusual for
an ALJ to reject an examining SSA doctor’s opinion because doctors hired by the agency
are unlikely to be biased toward claimants the way treating physicians may be, and
they are unlikely to exaggerate a claimant’s disabilities. Garcia v. Colvin, 741 F.3d 758,
761 (7th Cir. 2013); Beardsley v. Colvin, 758 F.3d 834, 839 (7th Cir. 2014). So when an ALJ
does outright reject or even discount an examining SSA doctor’s opinion, he must
provide a good explanation for doing so. Beardsley, 758 F.3d at 839.
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Here, the ALJ either rejected or failed to consider Dr. Smejkal’s conclusion that
Albert could not stoop or squat without any explanation for doing so, failing to provide
substantial evidence to support his conclusion that Albert could occasionally stoop.
Furthermore, Dr. Smejkal also stated that Albert has a slow, bent gait, uses a cane, was
only able to walk heel to toe, get on and off the examination table, and stand from a
sitting position with difficulty, has shortness of breath on exertion, and has weakness and
poor balance, yet the ALJ concluded that Albert can stand for 6 hours or lift up to 20
pounds without so much as addressing the evidence to the contrary. This must be
remedied on remand. See Moore, 743 F.3d 1118, 1123 (7th Cir. 2014) (“We have
repeatedly held that although an ALJ does not need to discuss every piece of evidence
in the record, the ALJ may not analyze only the evidence supporting her ultimate
conclusion while ignoring the evidence that undermines it. The ALJ must confront the
evidence that does not support her conclusion and explain why that evidence was
rejected.” (internal citations omitted)).
Dr. Quardi, Albert’s treating physician, provided similar opinions to those of Dr.
Smejkal’s, including that Albert could not stoop or squat and had several other postural
limitations, as well as additional external limitations. [R. 421-23.] The ALJ, however,
afforded the MSS supplied by Dr. Quardi “little weight” due to a lack of objective
evidence to support his conclusions. [R. 29.] But as I have discussed, many of Dr.
Quardi’s opinions were similar to, if not the same as, those of Dr. Smejkal’s.
Furthermore, to the extent that Dr. Quardi’s opinions differ from those of the agency
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physicians, for example their conclusions that Albert had normal motor activity, the ALJ
should evaluate the factors found in the “treating source” rule of 20 C.F.R.
404.1527(c)(2) including: (1) the length of the treatment relationship and the frequency
of examination; (2) the nature and extent of the treatment relationship; (3)
supportability; (4) consistency; (5) specialization; and (6) any other relevant factors. The
ALJ failed to delve into any of these except supportability and even then only stated
that “there is a lack of objective evidence to support [Dr. Quardi’s opinion that Albert
has upper and lower extremity weakness],” despite the fact that it was consistent with
Albert’s testimony at the hearing. [R. 29-30.] Furthermore, the ALJ also countered Dr.
Quardi’s statement that Mr. Albert “cannot walk for more than 300 feet without
developing weakness [R. 421]” by stating that Albert said he walks for exercise. [R. 30.]
Albert’s statement does not, in fact, contradict Dr. Quardi’s because Albert stated that
he could not walk more than one-half of a block without stopping to rest only to walk
back to the house – walking a total of one block. [R. 53.] The ALJ’s decision to give Dr.
Quardi’s opinions little weight is not supported by substantial evidence.
In addition, the ALJ’s failure to consider Dr. Smejkal’s and Dr. Quardi’s opinions
that Albert is unable to stoop is significant because if Albert was in fact unable to stoop
occasionally, then the list of possible occupations that he was still qualified to perform
would be significantly reduced.
An ability to stoop occasionally; i.e., from very little up to one-third of the
time, is required in most unskilled sedentary occupations. A complete
inability to stoop would significantly erode the unskilled sedentary
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occupational base and a finding that the individual is disabled would usually
apply, but restriction to occasional stooping should, by itself, only minimally
erode the unskilled occupational base of sedentary work. Consultation with
a vocational resource may be particularly useful for cases where the
individual is limited to less than occasional stooping.
SSR 96-9p. The ALJ’s finding that Albert could occasionally stoop — as opposed to Dr.
Smejkal’s and Dr. Quardi’s opinion that Albert could stoop less than occasionally —
could well be the only difference between the conclusion that Albert is disabled or not.
In other words, the error could not be deemed harmless.
Furthermore, it seems that the ALJ split the difference between the agency
consulting physicians’ opinions and the agency examining and treating physicians’
opinions regarding Albert’s additional postural limitations. The ALJ concluded that
Albert was restricted to the occasional balancing, stooping, kneeling, crouching, or
crawling, as well as occasional climbing of ramps and stairs, but unable to climb
ladders, ropes, or scaffolds. [R. 26.] Yet the consulting agency physicians found no
postural limitations. By contrast, Dr. Smejkal concluded that Albert was unable to
stoop or squat and Dr. Quardi found that Albert was unable to climb ramps, stairs,
ladders, ropes, scaffolds, nor could he balance, kneel, crouch, crawl, or stoop. The ALJ
seems to have averaged these opinions in determining that Albert was capable of many
of these actions occasionally, yet he provides no explanation for doing so. It appears
that the ALJ may have impermissibly rendered an independent assessment without
substantial supporting evidence to support his conclusion. See Myles v. Astrue, 582 F.3d

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672, 677 (7th Cir. 2009). The ALJ, therefore, has failed to build the requisite logical
bridge between the evidence and his conclusion.
Given the multiple errors in the ALJ’s RFC assessment, a remand to reassess the
RFC is warranted. On remand, the ALJ needs to explain the reasoning behind his RFC
assessment and build a clear and logical bridge from the medical evidence to his
finding.
CONCLUSION
For the reasons stated above, this cause is REMANDED for further proceedings
consistent with this order.
SO ORDERED.
ENTERED: March 31, 2016

s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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