Clayhiggs v. Colvin

Filing 32

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 7/29/2014. Commissioner's denial of benefits REVERSED, matter remanded for further proceedings pursuant to 42 U.S.C. § 405(g) (sentence four). (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
VIANNALYNN CLAYHIGGS,
Plaintiff,
-vsCase No. 13-C-494
CAROLYN COLVIN, Acting Commissioner
of the Social Security Administration,
Defendant.

DECISION AND ORDER
Viannalynn Clayhiggs appeals from the denial of her application for social
security disability benefits. Clayhiggs‟ application was here before, but it was returned
for further proceedings pursuant to a joint stipulation. On remand, the Administrative
Law Judge conducted another hearing and found that Clayhiggs suffers from the
following severe impairments: idiopathic cardiomyopathy, congestive heart failure
(CHF), fibromyalgia, asthma, hypertension, headaches, and obesity. However, the
ALJ found that Clayhiggs was not disabled because she had the residual functional
capacity to perform sedentary work with certain nonexertional limitations.
The Court must uphold the Commissioner‟s decision so long as it is supported
by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). The Court reviews the record as a
whole but does not substitute its judgment for that of the ALJ by reweighing evidence,

resolving material conflicts, or reconsidering facts or the credibility of witnesses.
Cannon v. Apfel, 213 F.3d 970, 974 (7th Cir. 2000). Remand may be required,
however, if the ALJ “committed an error of law,” or if the ALJ “based the decision on
serious factual mistakes or omissions.” Beardsley v. Colvin, --- F.3d ----, 2014 WL
3361073, at *2 (7th Cir. July 10, 2014). The ALJ also has a “basic obligation to
develop a full and fair record,” and must “build an accurate and logical bridge between
the evidence and the result to afford the claimant meaningful judicial review of the
administrative findings.” Id.
Clayhiggs argues that the ALJ erred by failing to adequately assess the
opinions of her various treating providers. Such an opinion is entitled to controlling
weight if it is well supported by objective medical evidence and consistent with other
substantial evidence in the record. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013).
An ALJ who chooses to reject a treating physician‟s opinion must provide a sound
explanation for the rejection. Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011).
Even if not entitled to controlling weight, the ALJ still must “determine what value the
assessment did merit.” Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011).
The ALJ addressed three treating opinions in the following four paragraphs:
Over the past several years, the claimant‟s doctors have filled out
many residual functional capacity forms indicating the claimant is
not capable of full-time work. Her primary care physician, Joan
Neuner, M.D., has filled out no less than nine such forms with
varying degrees of functional limitations. . . . Although each
differs slightly from the others in how long the claimant can stand,
walk, sit and how much she can lift etc., each limits the claimant
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to only part-time work and opines she would miss multiple[] days
of work each month.
The undersigned gives Dr. Neuner‟s opinions little weight. Some
of the forms were filled out during the period of September 2007
to June 2009 when the claimant was engaging in [substantial
gainful activity] . . . or when the claimant was working for
Milwaukee County. . . . It is clear that Dr. Neuner was basing her
opinions primarily on the subjective complaints of the claimant
and, [as] has been demonstrated above, those complaints are not
credible.
The same can be said for the opinions of the claimant‟s treating
rheumatologist, Paul Halverson, M.D. He also filled out multiple
functional capacit[y] forms and opined that the claimant was
limited to only part-time work. . . . Again, these opinions are based
primarily on the claimant‟s subjective complaints and are
inconsistent with her previous and subsequent work activity as
well as the limitations the claimant gave to DVR. Dr. Halverson‟s
opinions are given little weight.
The claimant‟s treating cardiologist filled out three functional
capacit[y] forms. . . . However, these opinions are either
incomplete . . ., limit the claimant to sedentary work . . . or
confusing as to what the limitations actually are . . . . In any event,
Exhibit 23F is dated November 13, 2008, which was during the
time the claimant was working so any limitation to less than fulltime work is given no weight.
(R. 866).
Thus, the ALJ rejected all three treating opinions because they were grounded
in Clayhiggs‟ subjective complaints, which the ALJ did not find to be credible.
Relatedly, the ALJ rejected the treating opinions because they were made at a time
when the claimant was performing full-time work.

This is an erroneous line of

reasoning. It is well-established that employment “is not proof positive of ability to

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work, since disabled people, if desperate (or employed by an altruist), can often hold a
job.” Wilder v. Apfel, 153 F.3d 799, 801 (7th Cir. 1998). Indeed, the ALJ expressed
his amazement as to how Clayhiggs manages to “get by. . .” R. 927. Clayhiggs
explained that she relies on low-income housing and food stamps, and that she can‟t
even afford insurance for her car. R. 927-29.
More generally, the ALJ‟s credibility finding is not supported by substantial
evidence. For example, the ALJ reasoned that there is “nothing approaching objective
findings to support the claimant‟s complaints of severe and chronic pain. Therefore,
the claimant‟s credibility is the true determinate of her level of pain.” R. 865. This is
incorrect. Dr. Halverson‟s treatment notes reflect numerous and repeated objective
findings of fibromyalgia, including tender points in the posterior neck, right lateral
neck, and shoulder (among other points). R. 331-32; Weitzenkamp v. Unum Life Ins.
Co. of Am., 500 Fed. App‟x 506, 507 (7th Cir. 2013) (“Because Weitzenkamp
underwent a „trigger test‟ — a test where a doctor presses down on 18 fixed locations
on the patient‟s body to determine whether the patient has fibromyalgia — we
concluded that the diagnosis was supported by objective medical evidence . . .”). Dr.
Halverson also found that Clayhiggs met the American Rheumatological criteria for
fibromyalgia. R. 831-35. In this manner, the ALJ‟s credibility finding infected and
undermined his assessment of the treating providers. Both were errant, requiring a
remand for further proceedings. Even if the treating physician opinions are not entitled
to controlling weight, the ALJ still must provide a more thorough analysis, as required
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by the pertinent regulations. Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009) (“If an
ALJ does not give a treating physician‟s opinion controlling weight, the regulations
require the ALJ to consider the length, nature, and extent of the treatment relationship,
frequency of examination, the physician‟s specialty, the types of tests performed, and
the consistency and supportability of the physician‟s opinion”). On remand, the ALJ
should also incorporate Clayhiggs‟ mental impairments into the VE-hypothetical.
O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010) (“Our cases generally
have required the ALJ to orient the [vocational expert] to the totality of a claimant‟s
limitations.

Among the limitations the VE must consider are deficiencies of

concentration, persistence and pace. Our cases, taken together, suggest that the most
effective way to ensure that the VE is apprised fully of the claimant‟s limitations is to
include all of them directly in the hypothetical”).
The Commissioner=s denial of benefits is REVERSED, and this matter is
REMANDED for further proceedings pursuant to 42 U.S.C. ' 405(g) (sentence four).
Dated at Milwaukee, Wisconsin, this 29th day of July, 2014.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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