Smith v. Commissioner of the Social Security Administration
Filing
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DECISION AND ORDER signed by Magistrate Judge William E Duffin. IT IS ORDERED that the Commissioner's decision is reversed, this matter is remanded for further proceedings consistent with this decision. The Clerk shall enter judgment accordingly. (cc: all counsel)(blr)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EDDIE J. SMITH,
Plaintiff,
v.
Case No. 17-CV-1332
NANCY A. BERRYHILL,
Defendant.
DECISION AND ORDER
1. Background
Eddie J. Smith was injured when he fell from a forklift in 2002, injured again in
2008 when carrying a washing machine, and again in 2012 when digging a trench. (Tr.
39-40.) He alleges he is disabled as of November 23, 2012, due, in part, to lumbar
spondylosis and degenerative disc disease. Following a final decision of the
Commissioner denying his applications for Social Security Disability Insurance and
Supplemental Security Income benefits, Smith filed the present action. He was insured
through July 31, 2013. (Tr. 18.)
An administrative law judge (ALJ) concluded that Smith did not meet or
medically equal a listed impairment and retained the residual functional capacity to
perform light work with the additional limitations of only occasional climbing of ramps
or stairs; no climbing of ladders, ropes, or scaffolds; occasional stooping, crouching,
kneeling, and crawling; and avoiding concentrated exposure to unprotected heights,
hazards, and the use of moving machinery. (Tr. 21.) “He is also limited to simply,
routine and repetitive tasks, with no fast-paced work, only simple, work related
decisions, occasional work place changes and occasional interaction with supervisors.”
(Tr. 21.) Although this precluded his past relevant work, there existed a significant
number of jobs he could perform. (Tr. 27-28.) Therefore, Smith was not disabled. (Tr. 30.)
2. Standard of Review
The court’s role in reviewing an ALJ’s decision is limited. It does not look at the
evidence anew and make an independent determination as to whether the claimant is
disabled. Rather, the court must affirm the ALJ’s decision if it is supported by
substantial evidence. Moore, 743 F.3d at 1120. Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at
1120-21 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Thus, it is possible that
opposing conclusions both can be supported by substantial evidence. Scheck v. Barnhart,
357 F.3d 697, 699 (7th Cir. 2004).
It is not the court’s role to reweigh evidence or substitute its judgment for that of
the ALJ. Moore, 743 F.3d at 1121. Rather, the court must determine whether the ALJ
complied with his obligation to build an “accurate and logical bridge” between the
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evidence and his conclusion that is sufficient to enable a court to review the
administrative findings. Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014); Thomas v.
Colvin, 745 F.3d 802, 806 (7th Cir. 2014). “This deference is lessened, however, where the
ALJ’s findings rest on an error of fact or logic.” Thomas, 745 F.3d at 806. If the ALJ
committed a material error of law the court cannot affirm the ALJ’s decision regardless
of whether it is supported by substantial evidence. Beardsley, 758 F.3d at 837; Farrell v.
Astrue, 692 F.3d 767, 770 (7th Cir. 2012).
3. Analysis
3.1. ALJ’s Assessment of Medical Evidence and Dr. Mines’s Opinions
Smith argues that the ALJ improperly “played doctor” by assessing medical
evidence that was beyond his expertise. Specifically, Smith notes that, although the ALJ
relied on state agency consultants who reviewed the medical records, the consultants’
opinions predated a November 2014 MRI. According to Smith, the ALJ interpreted this
MRI on his own to conclude that it was inconsistent with the opinion of Dr. Arthur
Mines, Smith’s treating physician. (ECF No. 27 at 9-12.) Smith separately argues that the
ALJ lacked substantial evidence to reject Dr. Mines’s opinions. (ECF No. 27 at 18-23.)
The court finds these alleged errors related and thus addresses them together.
“An ALJ must give ‘controlling weight’ to a treating source’s opinion if it is ‘wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence.’” Punzio v. Astrue, 630 F.3d 704, 710
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(7th Cir. 2011) (quoting 20 C.F.R. § 404.1527(d)(2)). “And whenever an ALJ does reject a
treating source’s opinion, a sound explanation must be given for that decision.” Id.
(citing 20 C.F.R. § 404.1527(d)(2)). However, the ALJ’s discussion need not be
comprehensive; the ALJ need only “minimally articulate” her reasoning. Filus v. Astrue,
694 F.3d 863, 869 (7th Cir. 2012).
Dr. Mines offered multiple opinions over the years that he treated Smith. The ALJ
characterized these opinions as “highly exaggerated” and “inconsistent with each other
and with the imaging studies and with the claimant’s longitudinal record of
conservative treatment.” (Tr. 25.) The ALJ further stated, “Given the November 2014
MRI scan and the claimant’s discharge from the pain management clinic in 2016, it is
difficult to accept Dr. Mines’ opinions.” (Tr. 25.)
However, the ALJ did not describe how the November 2014 MRI was
inconsistent with Dr. Mines’s conclusions. Rather than somehow suggesting that Smith
was not disabled, the objective findings in the MRI report identified a likely source of
Smith’s pain: “Facet arthropathy with moderately severe right-sided facet arthropathy
at L5-S1. This finding most likely significantly contributes to the patient’s signs and
symptoms.” (Tr. 787.) If the ALJ believed these objective findings were inconsistent with
the alleged severity of Smith’s symptoms, the court agrees with Smith that such a
conclusion was beyond the expertise of an ALJ. And the ALJ could not properly rely on
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the conclusions of the state agency consultants on the import of this MRI because it was
taken after the consultants’ review of the record.
But the MRI was not the ALJ’s only reason for concluding that Dr. Mines’s
opinions were “not fully support[ed]” (Tr. 26) and entitled to “little weight” (Tr. 25). The
ALJ noted that Dr. Mines opined in May of 2013 that Smith could return to work
without restrictions. (Tr. 25.) But only seven months later, in December of 2013, Dr.
Mines concluded that Smith was incapable of any fulltime work. (Tr. 25.) The ALJ
characterized these opinions as “internally inconsistent” because “[t]here does not
appear any significant event noted either in the medical record or testimony at the
hearing that could have triggered such a drastic change in the claimant's medical
condition between May and December of 2013.” (Tr. 25.)
On May 17, 2013, Mines completed a form titled “Certificate to Return to
Work/School” and checked the box next to “No Work/School Restrictions.” (Tr. 453.) The
ALJ relied on this to conclude that Mines found Smith was able to work without
restrictions. But other portions of the form are inconsistent with that reading. For
example, the top of the form asks the doctor to identify when the patient will be able to
return to work. (Tr. 453.) There is a box for “Immediately (Tomorrow)” and one for “or
as follows” followed by a blank space. Mines checked the latter box, and in the space
wrote “pending.” (Tr. 453.) In a space for comments, Dr. Mines wrote “totally disabled.”
(Tr. 453.) In the portion of the form where the physician is to identify when this
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assessment is “Effective Until,” Dr. Hines wrote, “to be reassessed in 6 months.” (Tr.
453.)
Read in its entirety, and particularly in light of Dr. Mines’s other opinions, the
court finds that the ALJ erred when he read the May 2013 form as inconsistent with Dr.
Mines’s subsequent opinions that Smith was incapable of any fulltime work. Consistent
with his subsequent opinions, Dr. Mines concluded that Smith was “totally disabled” in
May of 2013. That conclusion is obviously inconsistent with the notion that Smith is able
to work without restrictions. Moreover, if Dr. Mines had really believed Smith was
capable of returning to work, it makes little sense that he would have said the date he
could return was “pending” rather than that he could return to work immediately. The
court can only speculate as to why Dr. Mines checked the “No Work/School
Restrictions” box; perhaps Dr. Mines was inattentive when reading the form, reading
only the “No Work” to the left of the slash and thus intending to indicate that Smith was
incapable of any work. But for the ALJ to place such weight on a checked box in the face
of contradictory evidence in the rest of the form was error.
A third reason the ALJ gave for discounting Dr. Mines’s opinions was that Smith
was discharged from a pain management clinic in 2016. (Tr. 25.) The ALJ does not
specifically explain what significance he attaches to Smith’s discharge. Ordinarily, if a
claimant is discharged from pain management it would suggest that the claimant’s
condition has sufficiently improved such that intensive pain management is no longer
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necessary. That may have been the ALJ’s intended implication; in the preceding
paragraph the ALJ noted that “the pain management records at the time indicated that
medications were effective at improving functioning and decreasing pain.” (Tr. 25.)
But such an implication would be incorrect. As the ALJ noted in his recitation of
the medical evidence, “[i]n January 2016, the claimant was dismissed for [sic] the pain
management clinic for a positive methadone test despite the claimant denying using the
substance.” (Tr. 23; see also Tr. 23 (“The claimant was discharged from a pain
management clinic in January 2016 for a positive methadone test and the emergency
room records show a history of narcotic pain medications abuse.”).)
Evidence that Smith was abusing prescribed narcotics is relevant in assessing the
severity of his symptoms. See Jensen v. Colvin, 149 F. Supp. 3d 1076, 1089 (E.D. Wis.
2016). For example, insofar as the consumption of strong narcotics might ordinarily
tend to corroborate complaints of severe pain, see SSR 16-7p (noting how increasing
medication dosages may indicate that symptoms are intense and persistent), that
corroboration is undermined when evidence suggests that the consumption is
motivated by abuse rather than the legitimate need for pain control. See McFadden v.
Berryhill, No. 15-CV-1268, 2017 U.S. Dist. LEXIS 217509, at *17-18 (E.D. Wis. Feb. 22,
2017); Jensen v. Colvin, 149 F. Supp. 3d 1076, 1089 (E.D. Wis. 2016) (“[W]hile it is true that
frequent use of narcotic pain medication can be evidence of frequent and severe pain, it
can also be evidence of a strong desire for the narcotics themselves and even addiction,
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and less than honest efforts to obtain such medications certainly bear on the credibility
of the claimant.”)
However, evidence of narcotics abuse is not inconsistent with a claim of
disability, at least not in the same way as evidence that Smith was discharged from pain
management because his pain had resolved. But, more importantly, the ALJ did not
explain how the evidence that Smith abused narcotics was inconsistent with Dr. Mines’s
opinions.
The ALJ offered a fourth reason for discounting Dr. Mines’s opinion—“Dr. Mines
cited to pain as the basis for his opinion, but does not get much more specific.” (Tr. 2526.) A treating source’s lack of explanation is an appropriate basis for discounting his
opinion. 20 C.F.R. § 404.1527(c)(3). However, in the face of the ALJ’s other errors in
assessing Dr. Mines’s opinions, the court is unable to say that the ALJ would have
afforded the same weight to Dr. Mines’s opinions simply by virtue of Dr. Mines’s failure
to identify more than “shoulder / arm pains” and “muscle / joint pains” as the medical
findings that support his opinion. Therefore, remand is necessary.
At a minimum, the ALJ’s explanation for discounting Dr. Mines’s opinions was
based on a selective reading of the record. The ALJ focused on the unremarkable aspects
of the MRI rather than the fact that it identified an objective basis for Smith’s pain. The
ALJ discounted Dr. Mines’s opinions as internally inconstant because Dr. Mines once
checked a box indicating that Smith was able to work, while ignoring the fact that on
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the same form Dr. Mines stated, consistent with his other opinions, that Smith was
“totally disabled.” And the ALJ regarded Smith’s discharge from a pain management
program as inconsistent with Dr. Mines’s opinions whereas, at best, it indicated that, in
addition to suffering from pain, Smith also abused narcotics. These factual and logical
errors diminish the deference to which the ALJ’s opinion would otherwise be entitled,
see Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). As such, the court must conclude
that substantial evidence does not support the weight the ALJ afforded Dr. Mines’s
opinions.
3.2. Severity of Symptoms Under SSR 16-3p
Pursuant to SSR 16-3p, 82 Fed. Reg. 49,462 (Oct. 25, 2017), the ALJ must engage in
a two-step process to evaluate a claimant’s symptoms. First, the ALJ “must consider
whether there is an underlying medically determinable physical or mental
impairment(s) that could reasonably be expected to produce an individual’s symptoms,
such as pain.” SSR 16-3; see also 20 C.F.R. § 416.929. “Second, once an underlying
physical or mental impairment(s) that could reasonably be expected to produce the
individual’s symptoms is established, [the ALJ] evaluate[s] the intensity and persistence
of those symptoms to determine the extent to which the symptoms limit an individual’s
ability to perform work related activities ….” SSR 16-3p. “The determination or decision
must contain specific reasons for the weight given to the individual’s symptoms, be
consistent with and supported by the evidence, and be clearly articulated so the
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individual and any subsequent reviewer can assess how the adjudicator evaluated the
individual's symptoms.” SSR 16-3p.
Smith raises a number of issues with the ALJ’s assessment of his symptoms,
including that the ALJ improperly focused on the medical evidence that supported his
conclusion and ignored contrary evidence; that he improperly considered Smith’s
possible drug abuse; and that he failed to consider his daily activities.
The court agrees that the ALJ failed to fully comply with SSR 16-3p. For example,
the ALJ frequently recounted medical evidence but failed to explain how it supported
his conclusion that Smith’s self-reported limitations were not as severe as he alleged. (Tr.
22-23.) The ALJ also noted that Smith’s pain and physical functioning were “stable” (Tr.
22, 23) and that Smith did “not show any significant decline” (Tr. 23). Such observations
are commonly included in ALJs’ decisions, but without an explanation as to how it is
inconsistent with claims of debilitating pain, it is an empty observation. Pain and other
symptoms do not need to be get progressively worse or even vary for them to be
disabling. As even noted in SSR 16-3p, symptoms may plateau.
Finally, in conjunction with his discussion of whether Smith met or medically
equaled a listed mental impairment, the ALJ concluded that Smith had no restriction in
his activities of daily living. (Tr. 20.) The ALJ did not again discuss Smith’s activities of
daily living in the context of assessing the severity of Smith’s symptoms. And given the
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ALJ’s conclusion that Smith had no such restriction, repetition was probably
unnecessary.
The problem is, as even the ALJ acknowledged, Smith did have restrictions in his
activities of daily living. Smith required a personal care working in 2014 to prepare
meals. (Tr. 20.) Smith could drive, but “with assistance.” (Tr. 22.) Beyond the details the
ALJ acknowledged in his decision, Smith’s testimony at the hearing offers evidence of
greater restrictions in Smith’s activities of daily living. He testified he prepares only
small microwavable meals and in the next few weeks will again have a personal care
worker to assist him with cleaning and preparing food. (Tr. 50-51.) He said he has panic
attacks when he goes outside, and he tries to rely on family to help him with shopping.
(Tr. 51.) His attention span is limited, and thus he cannot read or watch television for
extended periods. (Tr. 53-54.) He gave up gardening because of his health. (Tr. 54.)
The ALJ closed his discussion of Smith’s activities of daily living by saying, “In
short, to the extent the claimant has limitations in this area, they are apparently based
on his physical impairments, not mental deficits.” (Tr. 20.) This might have been fine
when discussing activities of daily living vis-à-vis whether Smith met or medically
equaled a listed mental impairment, but it was obviously insufficient when it comes to
assessing the alleged severity of his physical symptoms. Thus, the ALJ failed to consider
Smith’s activities of daily living in accordance with SSR 16-3p.
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3.3. Smith’s Need for a Cane
Finally, Smith argues the ALJ erred in his RFC assessment by failing to consider
that Smith needs to use a cane. (ECF No. 27 at 23-25.) The ALJ acknowledged evidence
of Smith using a cane (Tr. 19, 22, 23) but did not consider whether this additional
limitation would further erode his employability.
The Commissioner argues that “Smith did not show medical necessity for a cane.
It was simply his subjective complaint that the ALJ did not fully credit in evaluating his
symptoms.” (ECF No. 34 at 14.) However, the ALJ never said that was the reason he did
not include Smith’s use of a cane in his RFC determination.
Moreover, contrary to the Commissioner’s contention, there is evidence that the
use of a cane was medically necessary. For example, Smith testified that Dr. Mines
prescribed the use of the cane. (Tr. 58; see also Tr. 111, 132 (consultant’s summary noting,
“Cane was prescribed 6-10 months ago”); Tr. 573 (Dr. Mines treatment note stating
“order for cane/grab bar/lift chair” and stating as “History of Present Illness” “needs a
grab bar and new cane”); Tr. 684, 794 (physical therapist notes regarding instructions on
use of cane.) Therefore, on remand the ALJ also will have to consider the evidence
regarding Smith’s use of a cane and whether it further limits his employability such that
he might be precluded from fulltime work.
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4. Conclusion
For the reasons set forth above, IT IS THEREFORE ORDERED that the
Commissioner’s decision is reversed, this matter is remanded for further proceedings
consistent with this decision. The Clerk shall enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 18th day of December, 2018.
_________________________
WILLIAM E. DUFFIN
U.S. Magistrate Judge
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