Anderson v. Colvin

Filing 18

DECISION and ORDER signed by Judge Pamela Pepper on 9/30/2016 Reversing the Commissioner's Denial of Social Security Benefits and Remanding for Further Proceedings. (cc: all counsel)(kgw)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JOHN ANDERSON,
Plaintiff,
v.

Case No. 15-cv-725-pp

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________________
DECISION AND ORDER REVERSING THE COMMISSIONER’S DENIAL OF
SOCIAL SECURITY DISABILITY BENEFITS AND REMANDING FOR
FURTHER PROCEEDINGS
______________________________________________________________________________
Plaintiff John Anderson seeks judicial review of the final decision of the
acting Commissioner of Social Security (Commissioner), who found that
Anderson was not “disabled” within the meaning of the Social Security Act. The
Social Security Administration’s Appeals Council denied review, making the
administrative law judge’s (ALJ) decision the final decision of the
Commissioner. 20 C.F.R. § 416.1481; Schomas v. Colvin, 732 F.3d 702, 707
(7th Cir. 2013).
The ALJ applied the five-step analysis in 20 C.F.R. § 416.920(a)(4) and
found that Anderson had not engaged in substantial gainful activity since his
alleged November 2, 2012, date of disability (step one). He also found that
Anderson’s alcohol dependence and anxiety disorder are severe impairments;
his other mental impairments, however, are non-severe, as are all his physical

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impairments of blood disorders, hypertension, chest pain, hip pain and other
musculoskeletal symptoms, cholesterol issues, difficulty hearing, history of
tongue cancer, and gastro-esophageal reflux (step two), and that Anderson
does not have an impairment or combination of impairments that meet or
equal the listing of impairments found at 20 C.F.R. Part 404, Subpart P, App. 1
(step three).
The ALJ further found that Anderson has the residual functional
capacity (RFC) for a full range of work at all exertional levels with the following
non-exertional limitations: allowing him to perform simple, routine, repetitive
tasks at a job in which he can be off task up to five to ten percent of the work
period, with only occasional changes in the work-setting and no fast-paced
work. Consequently, he is not able to perform any past relevant work (step
four). However, using the medical vocational guidelines as a framework for
decision-making, and considering Anderson’s age, education, past work
experience (with the transferability of work skills not being material) and RFC,
the ALJ found that substantial gainful employment as a kitchen helper,
laundry worker, cleaner of vehicles/equipment and machine bearer or off
bearer would be available in significant numbers in the national economy (step
five) and, therefore, Anderson was not disabled through the February 19, 2015,
date of the decision.
Anderson contends that the case should be remanded for a further
hearing, because the ALJ improperly minimized the opinion of treating
physician Dr. Francis J. Cuevas, a specialist in blood disorders, after
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improperly finding that Anderson’s blood disease1 is not severe. Further,
Anderson contends that the RFC fails to account for his panic attacks.
To uphold the denial of benefits, the ALJ’s decision must be supported by
substantial evidence, which is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Barnett v. Barnhart, 381
F.3d 664, 668 (7th Cir. 2004). To determine whether substantial evidence
exists, the court reviews the record as a whole but does not attempt to
substitute its judgment for the ALJ’s by reweighing the evidence, resolving
material conflicts, or reconsidering facts or the credibility of witnesses.
Beardsley v. Colvin, 758 F.3d 834, 836-37 (7th Cir. 2014). An ALJ’s credibility
determination is entitled to “special deference.” Schomas, 732 F.3d at 708. The

Polycythemia vera is “a slow-growing type of blood cancer in which [the] bone
marrow makes too many red blood cells. Polycythemia vera may also result in
production of too many of the other types of blood cells — white blood cells and
platelets. These excess cells thicken [the] blood and cause complications, such
as such as a risk of blood clots or bleeding.” See Polycythemia vera, available at
http://www.mayoclinic.org/diseases–conditions/polycythemia–
vera/basics/definition/con–20031013
(last
visited
Aug.
16,
2016).
Polycythemia vera “isn’t common” and “[w]ithout treatment, polycythemia vera
can be life-threatening. However, with proper medical care, many people
experience few problems related to this disease.” Id.
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The on-line consumer version of Merck Manual states:
. . . People may feel tired and weak, light-headed, or short of
breath, or develop symptoms caused by blood clots. . . .
Phlebotomy is done to remove excess red blood cells, and some
people take aspirin and sometimes other drugs. In polycythemia
vera, the excess of red blood cells increases the volume of blood
and makes it thicker, so that it flows less easily through small
blood vessels.
http://www.merckmanuals.com/ (last visited Aug. 15, 2016).
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court will reverse an ALJ’s credibility finding only if it is patently wrong. See
Pepper v. Colvin, 712 F.3d 351, 367-68 (7th Cir. 2013).
The ALJ must articulate, at least minimally, his analysis of all relevant
evidence, Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994), and “the [ALJ’s]
decision . . . cannot stand if it lacks evidentiary support or an adequate
discussion of the issues,” Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003). Additionally, the ALJ must “build an accurate and logical
bridge from the evidence to his conclusion.” Clifford v. Apfel, 227 F.3d 863, 872
(7th Cir. 2000).
At step two of the analysis, the ALJ determines whether the claimant has
an impairment or combination of impairments that is severe. Castile v. Astrue,
617 F.3d 923, 926 (7th Cir. 2010); 20 C.F.R. § 416.920(a)(4)(ii). An impairment
is severe if it “significantly limits [a claimant’s] physical or mental ability to do
basic work activities.” 20 C.F.R. § 416.920(c). The step two determination “is a
threshold issue only.” Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012.). If
the ALJ fails to find one impairment severe, but finds that another is severe
and continues with the sequential analysis, any step two error is harmless. See
id. (holding that any error in omitting a severe impairment was harmless where
the ALJ found two impairments severe and continued with the remaining steps
of the evaluation process); Castile, 617 F.3d at 927. In this case, any error at
step two is harmless because the ALJ found that Anderson’s alcohol
dependence and anxiety disorder are severe, and because the ALJ evaluated
the effect of all Anderson’s impairments on his RFC.
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The ALJ must determine an individual’s RFC, meaning “what an
individual can still do despite his or her limitations,” SSR 96-8p, based upon
medical evidence as well as “other evidence, such as testimony by the claimant
or his friends and family,” Murphy v. Colvin, 759 F.3d 811, 817 (7th Cir. 2014)
(citation omitted). See 20 C.F.R. § 416.929(a) (in making a disability
determination, the ALJ must consider a claimant’s statements about his
symptoms, such as pain, and how his symptoms affect his daily life and ability
to work). An ALJ must evaluate both the evidence favoring the claimant and
the evidence favoring the claim’s rejection and may not ignore an entire line of
evidence that is contrary to his findings. Golembiewski v. Barnhart, 322 F.3d
912, 917 (7th Cir. 2003); Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir.
2001). Nevertheless, an ALJ need not provide a written evaluation of every
piece of testimony and evidence. Golembiewski, 322 F.3d at 917. Instead, an
ALJ need only minimally articulate his justification for accepting or rejecting
specific evidence of disability. Berger v. Astrue, 516 F.3d 539, 545 (7th Cir.
2008); Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004).
An ALJ is not required to give the treating opinion controlling weight. The
ALJ must, however, provide a sound explanation for a decision to reject the
treating physician’s opinion and to accept an alternate opinion. Jelinek v.
Astrue, 662 F.3d 805, 811 (7th Cir. 2011); 20 C.F.R. § 416.927(c)(2). Moreover,
even when an ALJ offers good reasoning for refusing to give controlling weight
to a treating physician’s opinion, he must still decide what weight to give that
opinion. Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010). ALJs are
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required to rely on expert opinions instead of determining the significance of
particular medical findings themselves. Moon v. Colvin, 763 F.3d 718, 722 (7th
Cir. 2014); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not
succumb to the temptation to play doctor and make their own independent
medical findings.”)
In evaluating Anderson’s blood disorder, the ALJ relied on Anderson’s
reports regarding his response to treatment, his “eventual denial of fatigue,”
and the observations of Dr. Cuevas and Mary B. Snell, M.D., his primary care
physician. (Tr. 21.)
The medical evidence establishes that Anderson was initially diagnosed
with polycythemia vera in January 2010 by hematologist Lewis R. Domke,
M.D., who recommended treatment with weekly phlebotomies for four weeks.
(Tr. 430-31.) Due to conflicts — Anderson’s genetic testing initially reported as
positive and then reported a day later as negative — Dr. Domke withheld such
treatment because he was uncertain about Anderson’s diagnosis. (Tr. 430.)
However, he told Anderson to stop smoking, that his blood pressure needed to
be controlled, and that future treatment might include therapeutic
phlebotomies but that would be “very temporary.” (Tr. 429.)
As of May 2010, Anderson told Dr. Snell that he had not seen Dr. Domke
for a couple of months, he was “just tired,” and he was going to trial on charges
of driving while intoxicated. (Tr. 405.) Dr. Snell noted a trace of edema (swelling
caused by excess fluid trapped in the body’s tissue) and that the polycythemia
vera was lower since Anderson had treatment phlebotomy. (Tr. at 405-07.) She
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also documented fatigue, stating that it was multifactorial but could be sleep
apnea. (Tr. 407.)
In February 2012, Anderson told Dr. Snell that in January he had been
released after thirteen and a half months in jail. (Tr. 399.) He had dyspnea
(shortness of breath) on exertion if carrying too much, and a trace of edema.
(Tr. 400.) In April 2012, Dr. Snell noted Anderson’s polycythemia vera and that
he had seen Dr. Domke. (Tr. 398.)
In April 2013, Mina Khorshidi, M.D., a non-treating, non-examining
internist, completed a form evaluation of Anderson’s medically determinable
impairments, finding that he had anxiety-related disorders and substance
abuse addiction disorders but no other severe medical impairments. (Tr. 8293.) Khorshidi found that Anderson’s statements regarding his symptoms were
only partially credible. (Tr. 89.)
In late August 2013, Dr. Cuevas first saw Anderson and recorded
Anderson’s reported fatigue and shortness of breath on exertion. Dr. Cuevas
found elevated white and red blood cells, and high hemoglobin levels.
In October 2013, Dr. Cuevas scheduled a therapeutic phlebotomy. In
November 2013, Anderson told Dr. Cuevas that the phlebotomy made him feel
better. (Tr. 527.) Dr. Cuevas recommended hemograms every six weeks and
phlebotomy if hemoglobin levels were greater than 18. (Tr. 529.)
In November 2013, Douglas Chang, M.D., a non-treating, non-examining
physician, reviewed the medical evidence and noted that “[b]lood work
indicates that [Anderson] has erythrocytosis and leukocytosis. He was treated
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for the same condition years ago. This condition can cause fatigue and joint pain
but appears it will be resolved in less than a year with therapeutic phlebotomy.”
(Tr. 100.) (Emphasis added.) Dr. Chang found the impairment non-severe.
On February 12, 2014, Anderson told Dr. Cuevas that he actually felt
better since phlebotomies. (Tr. 530.) Dr. Cuevas continued to recommend an
every-six-week hemogram with phlebotomy for hemoglobin levels higher than
18. (Tr. 532.) He also recommended that Anderson stop smoking.
In May 2014, Anderson complained of fatigue while stating that it was
somewhat better. (Tr. 533.) Dr. Cuevas directed hemograms every four weeks
and phlebotomy if hemoglobin was higher than 18, and told Anderson to stop
smoking. (Tr. 534.)
In July 2014, Anderson told Dr. Cuevas that he actually was feeling
better, had more energy, was able to do more, and was breathing better, but
was still smoking cigarettes. (Tr. 536.) Dr. Cuevas continued the treatment
protocol.
In October 2014, Anderson complained of fatigue. (Tr. 539.) Dr. Cuevas
urged Anderson to stop smoking and continued with the hemograms every four
weeks and phlebotomy if hemoglobin was higher than 18.
In December 2014, when Dr. Snell was conducting her annual
examination, Anderson reported that he had not had a phlebotomy in his last
two visits with Dr. Cuevas because his CBCs (complete blood counts) were just
at the borderline. (Tr. 765.) She reported the exam was negative for fatigue. (Tr.
767.)
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By a January 21, 2015 form, Dr. Cuevas reported that fatigue with daily
activities was consistent with symptomatology medically associated with
polycythemia vera. Given his affirmative answer and choices of sedentary, light,
and medium work as defined by the Social Security regulations, Dr. Cuevas
indicated that Anderson would be capable of sustaining light work “in the
context of full-time employment.” (Tr. 774.)
In his evaluation of the medical evidence, the ALJ gave “great weight” to
the opinions of Drs. Khorshidi and Chang regarding the impact of Anderson’s
physical impairments, noting that both concluded that Anderson did not have
a severe physical impairment. (Tr. 23.) Dr. Khorshidi’s opinion, however, predated Dr. Cuevas’s treatment of Anderson. Dr. Chang’s opinion noted Dr.
Cuevas’s August 2013 examination, and indicated that Anderson’s condition
would resolve in less than a year. (Tr. 100.)
Dr. Chang did not review the medical evidence from the majority of the
treatment of Anderson’s blood disorder. Dr. Cuevas, a hematologist, treated
Anderson for the blood disorder longer than Dr. Chang projected, and in May
2014, Dr. Cuevas ordered more frequent hemograms. The record does not
disclose whether either non-examining doctor specialized in hematology. A
specialist’s opinion is generally accorded more weight than that of an nonspecialist. 20 C.F.R. 416.927(c)(5).
The Commissioner side-steps the issue raised by Anderson and, instead,
focuses on the ALJ’s analysis of Dr. Cuevas’s opinion. She cites the ALJ’s
findings that Dr. Cuevas’s opinion lacked objective support, was inconsistent
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with Anderson’s reported improvements with respect to fatigue and energy, and
was inconsistent with Dr. Cuevas’s own observations and exam findings. Dkt.
No. 14, 4-6.
The Commissioner and the ALJ overstate the record. The medical record
reflects a fluctuation in Anderson’s fatigue rather than consistent
improvement. Moreover, the ALJ’s recitation of Anderson’s ability to perform
daily tasks — he reports that Anderson is able to manage basic household
chores and prepare meals for himself — is selective. Even the non-examining
physicians noted that Anderson makes “simple meals.” (Tr. 89, 100.)
Anderson’s ex-wife, Laura Anderson, whom the ALJ gave significant
weight as a source of factual information (Tr. 33), reported that Anderson
watched television from the time he woke up until he went to bed, did
crossword puzzles, and might go for a walk on a good day. (Tr. 264, 268.) She
estimated that he went outside a few times a week. (Tr. 267.) He “seldom
washe[d] his clothes” and he did laundry if she or her mother brought coins
and told him to do the laundry. (Tr. 265-66.) With respect to personal care, he
bathed every three days, only shaved when he bathed, and his hair was often
greasy and was getting long. (Tr. 265.) She and her mother took him grocery
shopping or to Walmart every two weeks and it took two or three hours (Tr.
267.) He did not shop on his own, and his ex-wife or her mother also took him
to the pharmacy and to medical appointments. (Tr. 267, 268.) He cleaned every
couple months and would usually clean if he expected guests. (Tr. 266.) He

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prepared daily meals such as frozen pizza, canned food, sausage-cheese and
crackers, chips. (Tr. 266.)
The ALJ indicated that Laura Anderson reported Anderson’s “broad
range of activities of daily living.” (Tr. 33.) As has been emphasized, an ability
to engage in sporadic activities does not equate with the ability to work eight
hours a day, five consecutive days of the week. See Roddy v. Astrue, 705 F. 3d
631, 639 (7th Cir. 2013) (“[w]e have repeatedly cautioned that a person’s ability
to perform daily activities, especially if that can be done only with significant
limitations, does not necessarily translate into an ability to work full-time”);
Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004) (the ALJ failed to
consider the difference between a person’s being able to engage in sporadic
physical activities and being able to work eight hours a day, five consecutive
days of the week).
Additionally, improvement in Anderson’s fatigue is not necessarily
inconsistent with fatigue limiting him to light work, rather than allowing him to
perform the full range of work (or medium work) with the additional nonexertional limitations. The ALJ erred when he relied upon non-examining
physicians who did not consider either Anderson’s treatment course and
response to treatment in terms of the level of his fatigue, or Dr. Cuevas’s
January 2015 opinion. See Stage v. Colvin, 812 F.3d 1121, 1125 (7th Cir.
2016) (holding that the ALJ erred by continuing to rely on an outdated
assessment by a non-examining physician and by evaluating the significance of

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a treating specialist physician's report himself.) See also Goins v. Colvin, 764
F.3d 677, 680 (7th Cir. 2014).
In making the RFC determination, the ALJ must determine and
articulate the weight applied to each medical opinion. SSR 96-8p. A treating
physician’s medical 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, 705 F.3d at 636; Skarbek v. Barnhart, 390 F.3d
500, 503 (7th Cir. 2004); 20 C.F.R. § 416.927(c)(2). Because fatigue, recognized
by Dr. Chang as a part of Anderson’s blood disorder, may impact the RFC
determination and the types of jobs which Anderson may be able to perform in
the national economy, this case must be remanded for further analysis.
The ALJ found that Anderson’s anxiety disorder is a severe impairment
and limited him to “simple, routine and repetitive tasks at a job in which he is
allowed to be off task up to five-to-ten percent of the work period, with only
occasional changes in the work setting and no-fast paced work.” (Tr. 19, 26).
The ALJ relied, however, upon Anderson’s failure to obtain psychiatric
treatment for his anxiety as a basis for finding Anderson’s allegations of
disabling panic attacks not fully credible:
Notably, there is little medical evidence supporting [Mr.
Anderson’s] allegations as to the severity and frequency of
what he terms “panic attacks”; rather, [his] subjective
claims and his [ex-] wife’s supporting statements are the
primary evidence on this matter. Yet, if [he] was
experiencing genuine, severe panic attacks three times a
day on average, as he claims, one would expect he would
follow his doctor’s advice and seek treatment as needed.
Yet, as explained above, he consistently ignored his
primary care physician’s advice to accept professional
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mental health expertise, and possibly even make an effort
to completely abstain from alcohol use, as his doctor
advised.
(Tr. 30.) (Emphasis added.)
It is true that “infrequent treatment or failure to follow a treatment plan
can support an adverse credibility finding where the claimant does not have a
good reason for the failure or infrequency of treatment.” Beardsley, 758 F.3d at
840 (quoting Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008) citing Social
Security Ruling 96-7p). But the ALJ may not draw any inferences “about a
claimant’s condition from this failure unless the ALJ has explored the
claimant’s explanations as to the lack of medical care.” Id. The transcript does
not reveal that the ALJ asked Anderson about why he had not followed Dr.
Snell’s recommendation that he obtain mental health treatment for the anxiety
attacks. (Tr. 47-60, 62-67.)
As a result of the foregoing errors, the ALJ’s determination that Anderson
is not disabled because he can perform a significant number of jobs in the
national economy is not supported by substantial evidence. Therefore,
pursuant to sentence four of 42 U.S.C. § 405(g), the court will reverse the ALJ’s
decision and remand the case to the Commissioner for further proceedings
consistent with this decision.
The court ORDERS that Anderson’s appeal is GRANTED. Dkt. No. 1.
The court further ORDERS that, pursuant to sentence four of 42 U.S.C.
§ 405(g), the ALJ’s decision is REVERSED, and this case is REMANDED to the
Commissioner for further proceedings consistent with this decision.
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The Clerk of Court shall enter judgment accordingly.
Dated in Milwaukee, Wisconsin this 30th day of September, 2016.

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