LANDER v. COLVIN
Filing
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ENTRY REVIEWING THE COMMISSIONER'S DECISION - Plaintiff Joseph Lander applied for disability insurance benefits from the Social Security Administration ("SSA") on November 2, 2012, alleging an onset date of May 29, 2012. [Filing No. 14 -6 at 2.] His application was denied initially on March 5, 2012, [Filing No. 14 -4 at 4], and upon reconsideration on June 14, 2013, [Filing No. 14 -4 at 24]. Administrative Law Judge ("ALJ") David Welch held a hearing on November 14, 2014, [Filing No. 14 -2 at 35], and issued a decision on January 30, 2015, concluding that Mr. Lander was not entitled to receive benefits, [Filing No. 14 -2 at 12-26]. The Appeals Council denied review on July 15, 2016, [Filing No. 14 -2 at 2], rendering the ALJ's decision the final decision of the Commissioner of the SSA (the "Commissioner"), [Filing No. 14 -2 at 12-26]. Mr. Lander then filed this civil action under 42 U.S.C. § 405(g), requesting that the Cou rt review the Commissioner's decision. [Filing No. 1 .] For the reasons detailed herein, the Court VACATES the ALJ's decision denying Mr. Lander benefits and REMANDS this matter for further proceedings pursuant to 42 U.S.C. § 405(g)(sentence 4) as detailed above. Final Judgment will issue accordingly. (See Order). Signed by Judge Jane Magnus-Stinson on 7/7/2017.(APD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOSEPH L. LANDER,
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Plaintiff,
vs.
NANCY A. BERRYHILL Acting
Commissioner of the Social Security
Administration,
Defendant.
No. 1:16-cv-02242-JMS-MPB
ENTRY REVIEWING THE COMMISSIONER’S DECISION
Plaintiff Joseph Lander applied for disability insurance benefits from the Social Security
Administration (“SSA”) on November 2, 2012, alleging an onset date of May 29, 2012. [Filing
No. 14-6 at 2.] His application was denied initially on March 5, 2012, [Filing No. 14-4 at 4], and
upon reconsideration on June 14, 2013, [Filing No. 14-4 at 24]. Administrative Law Judge
(“ALJ”) David Welch held a hearing on November 14, 2014, [Filing No. 14-2 at 35], and issued a
decision on January 30, 2015, concluding that Mr. Lander was not entitled to receive benefits,
[Filing No. 14-2 at 12-26]. The Appeals Council denied review on July 15, 2016, [Filing No. 142 at 2], rendering the ALJ’s decision the final decision of the Commissioner of the SSA (the
“Commissioner”), [Filing No. 14-2 at 12-26]. Mr. Lander then filed this civil action under 42
U.S.C. § 405(g), requesting that the Court review the Commissioner’s decision. [Filing No. 1.]
I.
STANDARD OF REVIEW
“The Social Security Act authorizes payment of disability insurance benefits and
Supplemental Security Income to individuals with disabilities.” Barnhart v. Walton, 535 U.S. 212,
214 (2002). “The statutory definition of ‘disability’ has two parts. First, it requires a certain kind
1
of inability, namely, an inability to engage in any substantial gainful activity. Second, it requires
an impairment, namely, a physical or mental impairment, which provides reason for the inability.
The statute adds that the impairment must be one that has lasted or can be expected to last . . . not
less than 12 months.” Id. at 217.
When an applicant appeals an adverse benefits decision, this Court’s role is limited to
ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for
the ALJ’s decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For
the purpose of judicial review, “[s]ubstantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (quotation omitted). Because the
ALJ “is in the best position to determine the credibility of witnesses,” Craft v. Astrue, 539 F.3d
668, 678 (7th Cir. 2008), this Court must afford the ALJ’s credibility determination “considerable
deference,” overturning it only if it is “patently wrong,” Prochaska v. Barnhart, 454 F.3d 731, 738
(7th Cir. 2006) (quotations omitted).
The ALJ must apply the five-step inquiry set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v),
evaluating the following, in sequence:
(1) whether the claimant is currently [un]employed; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets or equals one
of the impairments listed by the [Commissioner]; (4) whether the claimant can
perform [his] past work; and (5) whether the claimant is capable of performing
work in the national economy.
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original). “If
a claimant satisfies steps one, two, and three, [he] will automatically be found disabled. If a
claimant satisfies steps one and two, but not three, then [he] must satisfy step four. Once step four
is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing
work in the national economy.” Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
2
After Step Three, but before Step Four, the ALJ must determine a claimant’s residual
functional capacity (“RFC”) by evaluating “all limitations that arise from medically determinable
impairments, even those that are not severe.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009).
In doing so, the ALJ “may not dismiss a line of evidence contrary to the ruling.” Id. The ALJ
uses the RFC at Step Four to determine whether the claimant can perform his own past relevant
work and if not, at Step Five to determine whether the claimant can perform other work. See 20
C.F.R. § 416.920(e), (g). The burden of proof is on the claimant for Steps One through Four; only
at Step Five does the burden shift to the Commissioner. Clifford, 227 F.3d at 868.
If the ALJ committed no legal error and substantial evidence exists to support the ALJ’s
decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ’s
decision is not supported by substantial evidence, a remand for further proceedings is typically the
appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th Cir. 2005). An
award of benefits “is appropriate only where all factual issues have been resolved and the record
can yield but one supportable conclusion.” Id. (citation omitted).
II.
BACKGROUND
Mr. Lander was born in 1976, [Filing No. 14-6 at 8], has obtained a GED, [Filing No. 142 at 43], and has previous work experience as a welder, shipping and receiving clerk, material
handler, and overhead crane operator, [Filing No. 14-2 at 24]. 1 Using the five-step sequential
evaluation set forth by the SSA in 20 C.F.R. § 404.1520(a)(4), the ALJ issued an opinion on
1
Both parties provided a detailed description of Mr. Lander’s medical history and treatment in
their briefs. [Filing No. 19; Filing No. 24.] Because that discussion implicates sensitive and
otherwise confidential medical information concerning Mr. Lander, the Court will simply
incorporate those facts by reference herein and only detail specific facts as necessary to address
the parties’ arguments.
3
January 30, 2015, determining that Mr. Lander was not entitled to receive disability benefits.
[Filing No. 14-2 at 12-26.] The ALJ found as follows:
•
At Step One of the analysis, the ALJ found that Mr. Lander had not engaged in
substantial gainful activity 2 since the alleged onset date. [Filing No. 14-2 at 14.]
•
At Step Two of the analysis, the ALJ found that Mr. Lander suffered from the following
severe impairments: “Chronic heart failure, cardiomyopathy, post cardiac defibrillator
implantation; [t]ransient ischemic attack, historically; [c]ardiac arrhythmias, including
Wolff-Parkinson-White syndrome and left bundle branch block; and [m]ajor
dysfunction of a joint (for any cause), left shoulder . . . .” [Filing No. 14-2 at 14-15.]
•
At Step Three of the analysis, the ALJ found that Mr. Lander did not have an
impairment or combination of impairments that met or medically equaled the severity
of one of the listed impairments. [Filing No. 14-2 at 17.]
•
After Step Three but before Step Four, the ALJ found that Mr. Lander has the RFC to
perform light work with the following limitations: “[Mr. Lander] can lift up to 20
pounds occasionally, and lift or carry up to 10 pounds frequently. [Mr. Lander] can sit,
stand and walk, each respectively, approximately two hours at one time, each, and
approximately six hours total, each, during an 8-hour workday, all with normal breaks.
[Mr. Lander] can frequently operate foot controls, never climb ladders, ropes or
scaffolds, but can occasionally climb ramps or stairs, occasionally kneel, crouch, or
crawl, and frequently balance or stoop. Further, [Mr. Lander] can occasionally engage
in overhead reaching, but frequently engage in all other reaching and frequently
2
Substantial gainful activity is defined as work activity that is both substantial (i.e., involves
significant physical or mental activities) and gainful (i.e., work that is usually done for pay or
profit, whether or not a profit is realized). 20 C.F.R. § 404.1572(a); 20 C.F.R. § 416.972(a).
4
perform handling, fingering, and feeling.
Finally, [Mr. Lander] must avoid
concentrated exposure to extreme cold, heat, and unprotected heights.” [Filing No. 142 at 18.]
•
At Step Four of the analysis, the ALJ found that Mr. Lander is unable to perform any
past relevant work. [Filing No. 14-2 at 24.]
•
At Step Five of the analysis, the ALJ found that considering Mr. Lander’s age,
education, work experience, and RFC, there are jobs in the national economy that Mr.
Lander can perform, such as a Night Office Cleaner. [Filing No. 14-2 at 25.]
Mr. Lander asked the Appeals Council to review the ALJ’s decision, but that request was
denied on July 15, 2016, [Filing No. 14-2 at 2], making the ALJ’s decision the Commissioner’s
final decision subject to judicial review, [Filing No. 14-2 at 12-26]. Mr. Lander then filed this
civil action under 42 U.S.C. § 405(g), requesting that the Court review the Commissioner’s
decision. [Filing No. 1.]
III.
DISCUSSION
Mr. Lander raises several issues on appeal, and the Court will address them as follows: (1)
whether the ALJ improperly evaluated the opinion evidence of Mr. Lander’s treating physician,
Dr. Harry Lim, [Filing No. 19 at 19]; (2) whether the ALJ improperly evaluated the opinion
evidence of Mr. Lander’s examining physician, Dr. Suzanne Leiphart, [Filing No. 19 at 20]; (3)
whether the ALJ erred in his credibility analysis, [Filing No. 19 at 25]; and (4) whether the ALJ
erred by relying on vocational testimony that did not correspond to the hypothetical that he posed,
[Filing No. 19 at 28].
5
A. Treating Physician’s Opinion
Mr. Lander argues that the ALJ erred when he assigned “partial weight” to, and failed to
give good reasons for discounting, the opinion of his treating cardiologist Dr. Lim. [Filing No. 19
at 20.] Mr. Lander argues that Dr. Lim, who treated him regularly for his cardiac condition since
May 2012, completed a medical source statement in August 2012, and a second medical source
statement in October 2013 (signed January 2014). [Filing No. 19 at 21.] He claims that in finding
that Dr. Lim’s opinion was “contrary to his own treatment records,” the ALJ overlooked evidence
of symptoms that persisted, including dyspnea on exertion, daytime fatigue, dizziness,
lightheadedness, and “0-2 pillow orthopnea,” among other symptoms, despite implantation of a
BiV-ICD 3 and medication management. [Filing No. 19 at 21-22.] He argues that the ALJ is still
required to consider Mr. Lander’s subjective symptoms when discussing his overall functionality.
[Filing No. 19 at 23.] In addition, Mr. Lander argues that when the ALJ decided not to give
controlling weight to Dr. Lim’s opinion, the ALJ mentioned the “long lasting treatment” with Dr.
Lim, but failed to discuss “the nature, extent, and frequency of examination, and how consistent
the medical opinion is with the record as a whole.” [Filing No. 19 at 23.]
In response, the Commissioner argues that the ALJ properly articulated why Dr. Lim’s
opinion should not be afforded controlling weight. [Filing No. 24 at 16.] The Commissioner
claims that “many of Dr. Lim’s findings [from the August 2012 opinion] actually supported the
ALJ’s RFC finding.” [Filing No. 24 at 16.] The Commissioner further asserts that the ALJ pointed
3
BiV-ICD, or Biventricular Implantable Cardioverter Defibrillator (“defibrillator”), is a device
“for patients with severe left ventricular heart failure . . . used to provide a more balanced method
of controlling rapid heart beat (arrhythmia). The [defibrillator] leads are attached in the right
atrium, the right ventricle and the left ventricle. [It] detects when the heart is beating at a faster
than normal rate, and shocks it back to normal.”
http://www.cts.usc.edu/zglossarybiventricularicd.html (last visited July 3, 2015).
6
out that Dr. Lim noted that Mr. Lander had two subsequent restrictions, which she claims were
actually in conflict with his own findings. [Filing No. 24 at 16.] The Commissioner claims that
four other doctors disagreed with Dr. Lim’s opinion that Mr. Lander “required three absences from
work per month and could only rarely stoop or crouch.” [Filing No. 24 at 17.] The Commissioner
claims that the ALJ did consider Mr. Lander’s “subjective allegations of shortness of breath and
dizziness, and noted that these symptoms did not manifest during most examinations,” and that
Mr. Lander admitted that he can do “a low stress desk job with time to adjust from his lack of
experience.” [Filing No. 24 at 17.]
In reply, Mr. Lander reiterates that the ALJ failed to consider how his conditions have
persisted despite the defibrillator implantation and medication management. [Filing No. 25 at 4.]
He claims that the ALJ overlooked Dr. Lim’s consistent treatment with Mr. Lander, and the
symptoms Mr. Lander has continuously experienced noted by Nurse Practitioner Maria T. Galbo.
[Filing No. 25 at 4.] He also claims that “[n]one of the other [four] medical opinions . . . involve
a treating relationship, multiple examinations, or specialty in cardiology.” [Filing No. 25 at 4.]
Mr. Lander claims that the Commissioner mischaracterizes the record to persuade this Court that
he is capable of a sit-down job. [Filing No. 25 at 5.]
Under 20 C.F.R. § 404.1527(c)(1), an ALJ should “give more weight to the opinion of a
source who has examined [the claimant] than to the opinion of a source who has not examined [the
7
claimant]” because of his greater familiarity with the claimant’s conditions and circumstances. 4
Minnick v. Colvin, 775 F.3d 929, 937-38 (7th Cir. 2015). Section 404.1527(c)(2) provides that
“[i]f [the ALJ] find[s] that a treating source’s opinion on the issue(s) of the nature and severity of
[the claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s]
case record, [the ALJ] will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2); Minnick, 775
F.3d at 938. If the ALJ opts not to give a treating physician’s opinion controlling weight, he must
apply the factors under 20 C.F.R. § 404.1527(c)(2)-(6).
Although an ALJ is not required to discuss every piece of evidence, he must consider all
of the evidence that is relevant to the disability determination and provide enough analysis in his
decision to permit meaningful judicial review. Clifford, 227 F.3d at 870; Young v. Barnhart, 362
F.3d 995, 1002 (7th Cir. 2004). In other words, the ALJ must build an “accurate and logical bridge
from the evidence to his conclusion.” Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002) (quoting
Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002)).
Here, the ALJ acknowledged that Dr. Lim was Mr. Lander’s treating cardiologist, and he
discussed Mr. Lander’s medical history with Dr. Lim and Dr. Lim’s two medical source
assessments – one from August 2012 and one from January 2014. [See Filing No. 14-2 at 21-22.]
The ALJ noted that Mr. Lander began treating with Dr. Lim in 2012. He noted that around that
4
The SSA adopted new rules for agency review of disability claims for applications filed on or
after March 27, 2017. 82 Fed. Reg. 5844-01. The new regulations in part eliminate the treatingphysician rule, which gives more weight to the evidence of disability from acceptable medical
source providers who have an ongoing relationship with the claimant. 82 Fed. Reg. 5844-01. The
SSA “adjudicators will [now] articulate how they consider medical opinions from all medical
sources, regardless of whether or not the medical source is an [acceptable medical source] . . . .”
82 Fed. Reg. 5844-01. Because Mr. Lander applied for disability benefits before March 27, 2017,
these changes do not apply to the review of his claim.
8
time, Mr. Lander went to Indiana Heart Hospital where he had a defibrillator implanted. The ALJ
indicated that after Mr. Lander had the defibrillator implanted, from October 2012 to January 2013,
Mr. Lander’s physical exams revealed normal cardiovascular findings with no gallop, no friction
rub, and no murmurs heard, and he denied any shortness of breath. [Filing No. 14-2 at 21.] He
noted that in September 2013, Mr. Lander experienced random headaches and some pain, but that
later in 2013 and 2014, the records indicated that he was feeling better, revealed normal findings,
and demonstrated normal-sounded breath, no respiratory distress, no wheezes, and no rales.
[Filing No. 14-2 at 21.] However, Mr. Lander points to specific evidence that the ALJ failed to
consider that demonstrates Mr. Lander was experiencing symptoms after implantation of the
defibrillator. Mr. Lander had follow-up visits with Dr. Lim and Nurse Practitioner Galbo, among
others, and their records demonstrate that he was experiencing the following symptoms: dyspnea
on exertion, daytime fatigue and sleepiness, dizziness, lightheadedness, “0-2 pillow orthopnea,”
headaches, chest pain, and shortness of breath. [See Filing No. 14-9 at 17; Filing No. 14-9 at 60;
Filing No. 14-10 at 15; Filing No. 14-10 at 19; Filing No. 14-10 at 27-28; Filing No. 14-10 at 43;
Filing No. 14-10 at 52-53; Filing No. 14-12 at 3; Filing No. 14-12 at 7; Filing No. 14-12 at 11-12;
Filing No. 14-12 at 15-16; Filing No. 14-12 at 20; Filing No. 14-12 at 29-30; Filing No. 14-13 at
23-24.]
Moreover, when the ALJ described the restrictions discussed in the August 2012 and
January 2014 assessments, he noted that the January 2014 assessment contained more restrictions
and “was unreasonable and inexplicable in light of [Mr. Lander’s] overall improvement as there
are no objective findings that would warrant a decrease in [his] overall functionality. . . . Dr. Lim
offered no conclusion to support why the claimant would need to take unscheduled work breaks
and miss three days of work per month.” [Filing No. 14-2 at 22.] This analysis is flawed because
9
it does not factor in Mr. Lander’s subjective symptoms from the records noted above. Dr. Lim’s
August 2014 assessment indicated restrictions that included in part “dyspnea on exertion,”
lightheadedness or dizziness from changing positions and extreme temperatures or fumes, and
possible fatigue and dizziness from medications. [Filing No. 14-11 at 9-10.] These are similar
symptoms noted in follow-up visits with Dr. Lim and Nurse Practitioner Galbo.
The Court is not concluding that the ALJ was required to give more weight to Dr. Lim’s
opinion because of his reported symptoms. Rather, the Court finds that the ALJ failed to build a
logical bridge from the evidence to its conclusion when it failed to factor in Mr. Lander’s
symptoms from his follow-up visits. See, e.g., Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir.
2014) (“[A]lthough 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.”). On remand, the ALJ must address Mr. Lander’s symptoms noted above
when analyzing Dr. Lim’s opinion and determining Mr. Lander’s RFC.
B. Examining Physician’s Opinion
Mr. Lander also argues that the ALJ failed to offer good reasons for discounting the opinion
of Dr. Leiphart, a consultative psychologist who performed Mr. Lander’s examination on July 4,
2014. [Filing No. 19 at 24.] Mr. Lander claims that the ALJ’s decision to give Dr. Leiphart “less
than considerable weight” because she lacked access to the longitudinal medical record is “in
error” because she had nearly all of Mr. Lander’s medical records at the time of her review. [Filing
No. 19 at 24-25.] Mr. Lander points out that the ALJ gave “great weight” to non-examining
physician Dr. Brooks, although he did not have access to Mr. Lander’s entire records to review
nor a chance to examine Mr. Lander. [Filing No. 19 at 25.] In addition, Mr. Lander also challenges
10
the ALJ’s decision to reject Dr. Leiphart’s opinion that Mr. Lander suffered from the severe
impairments of unspecified anxiety disorder and depressive disorder. [Filing No. 19 at 27.]
In response, the Commissioner argues that the ALJ properly weighed Dr. Leiphart’s
opinion. [Filing No. 24 at 13.] The Commissioner claims that “Dr. Leiphart’s significantly
restricting limitations were overshadowed both by the more consistent opinion of Dr. Brooks as
well as evidence showing marked improvement in mental health functioning and coping even after
an only short time of treatment.” [Filing No. 24 at 14.] The Commissioner argues that Dr. Leiphart
did not have access to “the most relevant records to [Mr. Lander’s] mental health treatment – his
February through June 2014 mental health treatment at Gallahue . . . .” [Filing No. 24 at 14.] The
Commissioner argues that the ALJ made sure at the hearing that Dr. Brooks would have access to
newly submitted evidence. [Filing No. 24 at 14-15.]
In reply, Mr. Lander argues that Dr. Leiphart’s opinion is consistent with the longitudinal
evidence. [Filing No. 25 at 3.] Mr. Lander argues that contrary to the Commissioner’s argument,
Dr. Brooks’ opinion is not based on all relevant medical records since the ALJ admitted that
records from Mr. Lander’s mental health treatment at Gallahue were “filed after the hearing and
unavailable to the medical experts who testified during the hearing.” [Filing No. 25 at 3 (citation
omitted).] He further argues that Dr. Leiphart’s opinion should be given greater weight since he
examined Mr. Lander and reviewed nearly all the same information as Dr. Brooks. [Filing No. 25
at 3.]
Generally, an ALJ will give more weight to an opinion of a medical source who has
examined the claimant than to the opinion of a medical source who has not examined the claimant.
20 C.F.R. § 404.1527(c)(1). “An ALJ can reject an examining physician’s opinion only for reasons
supported by substantial evidence in the record; a contradictory opinion of a non-examining
11
physician does not, by itself, suffice.” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003);
Moore v. Barnhart, 278 F.3d 920, 924 (9th Cir. 2002).
Under Step Two of the analysis, the ALJ outlined what weight he gave the opinion of Dr.
Leiphart, who conducted a consultative psychological examination of Mr. Lander. [Filing No. 142 at 15.]
The ALJ noted that when Dr. Leiphart examined Mr. Lander, she found that he had
several moderate limitations and diagnosed him with unspecified anxiety disorder and depressive
disorder. [Filing No. 14-2 at 15.] He then gave her opinion “less than considerable weight”
because he found that Dr. Leiphart did not have access to the longitudinal medical record, “which
the medical experts reviewed, analyzed and considered at the hearing, which reveal[ed] no more
than mild limitations, if any, related to [Mr. Lander’s] mental impairments. Further, her opinion
is not generally consistent with the record as a whole.” [Filing No. 14-2 at 15.] The ALJ then
discussed the medical records from Gallahue Mental Health from February 2014, March 2014,
April 2014, and June 2014, which the ALJ claimed demonstrate that he improved over time.
[Filing No. 14-2 at 16.] The ALJ indicated that those records “were filed after the hearing and
[were] unavailable to the medical experts who testified during the hearing.” [Filing No. 14-2 at
16.] The ALJ then analyzed the opinion of Dr. Brooks, a clinical psychologist who reviewed Mr.
Lander’s records and testified at the hearing. Dr. Brooks noted that although Mr. Lander had mild
to moderate limitations, they were non-severe and resulted in no limitations to do work-related
activities. [Filing No. 14-2 at 16.] The ALJ gave great weight to this opinion because he claimed
that Dr. Brooks reviewed the entire record “including the most up to date medical exhibits
distributed at the hearing, and offered a thorough analysis of the medical evidence pertinent to his
medical expertise.” [Filing No. 14-2 at 16.]
12
The Court finds error with the ALJ’s explanation. As Mr. Lander points out, Dr. Leiphart
opined that Mr. Lander had more restrictions than the restrictions noted by Dr. Brooks. As noted
above, the Social Security regulations require the ALJ to afford greater weight to an examining
physician, and the ALJ may reject an examining physician’s opinion only if it is supported by
substantial evidence in the record, not just merely because of a contradictory opinion of a nonexamining physician. Here, the ALJ fails to explain what records are inconsistent with Dr.
Leiphart’s opinion, and likewise, does not describe what records are consistent with Dr. Brooks’
opinion. Although the ALJ noted that Mr. Lander’s treatment from Gallahue Mental Health
showed improvements, neither physician reviewed those records. Moreover, the ALJ indicates
that Dr. Leiphart did not have access to Mr. Lander’s longitudinal record, but again fails to describe
what records she lacked. On remand, the ALJ must describe what records he relied upon in
determining what weight to give Dr. Leiphart’s opinion. In addition, because Dr. Leiphart opined
that Mr. Lander suffered from unspecified anxiety disorder and depressive disorder under Step
Two of the analysis, after a review of the evidence, the ALJ must again determine whether they
amount to severe impairments.
C. Other Issues
As discussed above, the Court has found that remand is necessary so that the ALJ can
properly consider the opinions of Dr. Lim and Dr. Leiphart with respect to evidence in the record.
In the interest of thoroughness, the Court will briefly discuss Mr. Lander’s other arguments.
First, Mr. Lander argues that the ALJ erred in the credibility analysis when he wrongly
claimed that Mr. Lander was still smoking, found Mr. Lander less credible because of his inability
to pay child support, and overlooked evidence that demonstrates he experienced dizziness and
lightheadedness. [Filing No. 19 at 26-27.] A credibility determination by the ALJ is given
13
“considerable deference.” Prochaska, 454 F.3d at 728. The ALJ’s credibility determination will
be reversed only if he fails to base the determination on grounds that are reasonable or supported
by the evidence of record. See Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir. 2006). First, as
discussed above, the Court agrees that the ALJ failed to consider evidence in the record where Mr.
Lander complained of dizziness and lightheadedness. [See Filing No. 14-9 at 17; Filing No. 14-9
at 60; Filing No. 14-10 at 15; Filing No. 14-10 at 19; Filing No. 14-10 at 27-28; Filing No. 14-10
at 43; Filing No. 14-10 at 52-53; Filing No. 14-12 at 3; Filing No. 14-12 at 7; Filing No. 14-12 at
11-12; Filing No. 14-12 at 15-16; Filing No. 14-12 at 20; Filing No. 14-12 at 29-30; Filing No.
14-13 at 23-24.] Second, the Court finds that the ALJ also erred when he discredited Mr. Lander
in part for “noncompliance” because he continued to smoke a year after telling his physicians that
he would quit smoking. In support of this finding, the ALJ cited to evidence in the record that
does not exist, [see Filing No. 14-2 at 19 (citing to “Ex. 7F, 6-7”)], and the Commissioner in
response does not point to what evidence the ALJ relied upon. Therefore, because of these errors,
the Court instructs the ALJ to review the record and provide a proper credibility analysis.
Second, Mr. Lander claims that the ALJ erred by relying on vocational testimony that does
not correspond to the hypothetical that he posed at the hearing. [Filing No. 19 at 28-29.] However,
because the ALJ failed to consider other evidence noted above that could impact Mr. Lander’s
RFC determination, the Court instructs the ALJ to properly consider all the evidence and instruct
the vocational expert regarding all of Mr. Lander’s limitations to determine whether Mr. Lander
can perform any jobs in the national economy.
14
IV.
CONCLUSION
For the reasons detailed herein, the Court VACATES the ALJ’s decision denying Mr.
Lander benefits and REMANDS this matter for further proceedings pursuant to 42 U.S.C. §
405(g)(sentence 4) as detailed above. Final Judgment will issue accordingly.
Date: 7/7/2017
Distribution via ECF only to all counsel of record
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