Alsteen v. Berryhill

Filing 28

DECISION and ORDER. The Commissioners decision is REVERSED and REMANDED tothe Agency pursuant to 42 U.S.C. § 405(g) (sentence four). The Clerk is directed to enter judgmentforthwith. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

RICHARD ALSTEEN,
Plaintiff,
v.

Case No. 17-C-1060

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

DECISION AND ORDER REVERSING COMMISSIONER’S DECISION

This is an action for judicial review of the final decision of the Commissioner of Social
Security denying Plaintiff Richard Alsteen’s application for a period of disability and disability
insurance benefits (DIB) under Title II of the Social Security Act. For the reasons set forth below,
the Commissioner’s decision will be reversed and remanded for further proceedings.
BACKGROUND
On June 11, 2013, Alsteen filed an application for DIB with an alleged onset date of January
1, 2009, due to severe rheumatoid arthritis and back surgery. R. 212. Following the denial of his
application initially and on reconsideration, Alsteen requested a hearing before an administrative law
judge (ALJ). ALJ Edward P. Studzinski conducted a hearing on September 1, 2015. Alsteen, who
was represented by counsel, and a vocational expert (VE) testified. R. 30–68.
At the time of the hearing, Alsteen was 54 years old, and lived with his wife and thirty-yearold son in a house in Green Bay, Wisconsin. Although Alsteen was self-employed as a computer
technician, he testified that he has been unable to work eight hours a day since 2009. R. 48.

Alsteen’s attorney indicated that Alsteen’s medically determinable severe impairments included a
history of spinal dysfunction with a laminectomy in 2008, along with severe rheumatoid arthritis,
bilateral knee dysfunction, some edema of the hands, severe migraines, and seizures. R. 34. Alsteen
testified that the rheumatoid arthritis affected his hands, knees, and back. R. 56. In particular, the
rheumatoid arthritis in his hands prevented him from working with computers and holding pens; his
knee pain prevented him from walking from the parking lot to his office; and his back pain prevented
him from sitting in a chair for longer than 45 minutes. R. 53–55. Alsteen also reported that he had
a seizure in July 2014. As a result of the seizure, Alsteen testified that he had difficulty remembering
things. R. 45–46. Alsteen testified that either his wife or son did the cleaning and cooking, but he
could drive short trips. R. 57–58.
In a decision dated November 17, 2015, the ALJ found Alsteen was not disabled. The ALJ
concluded Alsteen had not engaged in substantial gainful activity since January 1, 2009, the alleged
onset date, and also met the insured status requirements.1 R. 17. The ALJ found Alsteen had the
following severe impairments: osteoarthritis, degenerative disc disease, and migraine headaches. He
then determined that Alsteen’s impairments did not meet or medically equal any listed impairments
under 20 C.F.R. § 404, Subpart P, Appendix 1. R. 18.
The ALJ ultimately concluded Alsteen had the residual functional capacity (RFC) to perform
light work and “to lift and/or carry up to 20 pounds occasionally and 10 pounds frequently, and has
no limitations in his ability to sit, stand, or walk throughout an 8-hour workday. The claimant can
never climb ladders, ropes, or scaffolds. He is limited to working in non-hazardous environments,

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Though the ALJ noted that Alsteen’s date last insured was June 30, 2014, the Appeals
Council later clarified that the actual date last insured was September 30, 2014. R. 4–8.
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i.e. no driving at work, operating moving machinery, working at unprotected height or around
exposed flames and unguarded large bodies of water, and he should avoid concentrated exposure
to unguarded hazardous machinery. The claimant can use his hands frequently to perform fine and
gross manipulation, but he is incapable of performing precision manipulation, forceful grasping, or
torqueing. The claimant is further limited to simple, routine tasks and work exposing him to no more
than occasional and minor changes in the work setting.” R. 18. With these limitations, the ALJ
found that Alsteen was unable to perform any past relevant work. R. 23. Nevertheless, he
concluded that there are jobs that exist in significant numbers in the national economy that Alsteen
could have performed, such as cashier and mail clerk. R. 24. Based on these findings, the ALJ
concluded Alsteen was not disabled within the meaning of the Social Security Act. R. 25.
The ALJ’s decision became the final decision of the Commissioner when the Appeals Council
denied Alsteen’s request for review on June 14, 2017. After the Appeals Council issued its decision,
Alsteen commenced this action for judicial review.
LEGAL STANDARD
The Commissioner’s final decision will be upheld if the ALJ applied the correct legal
standards and supported his decision with substantial evidence. 42 U.S.C. § 405(g); Jelinek v.
Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Substantial evidence is “such relevant evidence as a
reasonable mind could accept as adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869,
874 (7th Cir. 2010). Although a decision denying benefits need not discuss every piece of evidence,
remand is appropriate when an ALJ fails to provide adequate support for the conclusions drawn.
Jelinek, 662 F.3d at 811. The ALJ must provide a “logical bridge” between the evidence and
conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
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The ALJ is also expected to follow the SSA’s rulings and regulations in making a
determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v.
Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). In reviewing the entire record, the court does not
substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel, 152 F.3d 636,
638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered by the ALJ. Shauger
v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80, 93–95
(1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).
ANALYSIS
Alsteen raises several challenges to the ALJ’s decision, but the court finds one dispositive.
Alsteen asserts the ALJ erred in failing to obtain an updated medical opinion regarding Alsteen’s new
medical records. The ALJ relied on the medical opinions of state agency reviewing physicians Dr.
Pat Chan and Dr. Douglas Chang to support his decision. Dr. Chan completed his physical residual
functional capacity assessment in December 2013, and Dr. Chang completed his assessment in March
2014. R. 73, 78. Dr. Chan opined that Alsteen could perform light exertional work with the
following limitations: occasionally lift or carry 20 pounds; frequently lift or carry 10 pounds; stand
or walk for about six hours in a normal workday; sit for about six hours in a normal workday;
frequently climb ramps or stairs, balance, kneel, crouch, and crawl; and occasionally climb ladders,
ropes, or scaffolds. R. 73–74. Dr. Chang subsequently agreed with the limitations recommended
by Dr. Chan on March 5, 2014. R. 85.
In making their determinations, both state agency physicians only considered medical
evidence through October 3, 2013. The ALJ acknowledged that the state agency reviewing
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physicians did not review the more recent evidence of Alsteen’s seizures, headaches, and cognitive
complaints and incorporated additional environmental and mental limitations to accommodate
Alsteen’s concerns. R. 22–23. Alsteen contends that the ALJ failed to support his decision with an
opinion from a physician that reviewed all of the medical evidence in the record, particularly those
records pertaining to Alsteen’s July 2014 seizure and his subsequent headaches and cognitive
deficits, including several objective tests such as a brain MRI and CT scan, electroencephalogram,
and lumbar puncture. ECF No. 14 at 4.
Alsteen relies upon a number of recent Seventh Circuit cases to support his argument. See,
e.g., Moreno v. Berryhill, 882 F.3d 722 (7th Cir. 2018); Akin v. Berryhill, 887 F.3d 314 (7th Cir.
2018. In Moreno, the Seventh Circuit found that the ALJ improperly relied on an “outdated mentalhealth assessment” because the assessment did not consider “later evidence containing new,
significant medical diagnoses.” Moreno, 882 F.3d at 728 (citing Stage v. Colvin, 812 F.3d 1121,
1125 (7th Cir. 2016) (remanding where a later diagnostic report “changed the picture so much that
the ALJ erred by continuing to rely on an outdated assessment”); Goins v. Colvin, 764 F.3d 677, 680
(7th Cir. 2014) (remanding after ALJ failed to submit new MRI to medical scrutiny)). In rejecting
the Commissioner’s argument that “the new mental-health records would not have made a difference
because they showed improvement,” the court stated:
This argument is based on the ALJ’s own assessment of the more recent records.
That assessment was not justified under the circumstances of this case. Meuser v.
Colvin, 838 F.3d 905, 911 (7th Cir. 2016) (remanding because the ALJ improperly
“played doctor”); Goins, 764 F.3d at 680 (prohibiting ALJs from “playing doctor”
by summarizing the results of a medical exam without input from an expert).
Id. at 729. The court remanded the case to the Agency with directions to conduct a new mentalhealth assessment. Id.
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In Akin, the Seventh Circuit concluded the ALJ impermissibly “played doctor” by evaluating
MRI results that had not been interpreted by a state agency physician. 887 F.3d at 317. The court
reasoned that, “without an expert opinion interpreting the MRI results in the record, the ALJ was
not qualified to conclude that the MRI results were ‘consistent’ with his assessment.” Id. (citing
Goins, 764 F.3d at 680; Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014)). The court therefore
remanded the case to the Agency. Id. at 318.
The court recognizes the difficulties the ALJ and the Agency face in ensuring a state agency
physician reviews the claimant’s medical record in its entirety before completing a physical residual
functional capacity assessment. A hearing with an ALJ is scheduled after the state agency physicians
reach an opinion on the claimant’s limitations and after the claimant’s application is denied initially
and upon reconsideration. Generally, the claimant continues to receive treatment up to, and even
after, the date of the hearing. If the rule were that all new records required further review by the
state agency consultants, the ALJ would be required to obtain supplemental opinions in every case.
That would obviously be impractical. For this case, it is enough to note that the new records
suggested significant events had occurred in the medical treatment after the state agency consultants
conducted the review.
In light of the law in this circuit, the court concludes that the ALJ erred in relying on
outdated assessments of Alsteen’s medical records. The last state agency physician assessment was
completed by Dr. Chang on March 5, 2014, and he only reviewed the medical evidence of record
through October 3, 2013. The medical evidence relating to Alsteen’s seizures, such as the brain MRI
and CT scan, electroencephalogram, and lumbar puncture, were taken well after Dr. Chang’s review.
By failing to seek an updated medical opinion, the ALJ impermissibly “played doctor” and
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interpreted these records himself. Accordingly, the court concludes that the ALJ’s failure to obtain
an updated medical opinion in light of the new medical evidence constitutes reversible error.
CONCLUSION
For the reasons above, the Commissioner’s decision is REVERSED and REMANDED to
the Agency pursuant to 42 U.S.C. § 405(g) (sentence four). The Clerk is directed to enter judgment
forthwith.
SO ORDERED this 24th day of September, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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