Miller, Mark v. Astrue, Michael J.

Filing 17

OPINION AND ORDER Entering Judgment for plaintiff. Signed by District Judge William M. Conley on 6/30/14. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MARK A. MILLER,

Plaintiff,

OPINION AND ORDER

v.
12-cv-00635-wmc
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

Plaintiff Mark A. Miller seeks judicial review of a decision by the Commissioner of
the Social Security Administration denying his application for Social Security Disability
Insurance Benefits and Supplemental Security Income.

Miller contends that the

Administrative Law Judge (“ALJ”) erred in failing to give proper weight to the opinion of
one of Miller’s treating physician.

For the reasons set forth below, the case will be

remanded to the Commissioner for rehearing.
FACTS
A. Procedural History
On January 19, 2010, Miller filed claims for Social Security Disability and
Supplemental Security Income.

(AR 154-62, 163-66).

He alleged an onset date of

disability of December 31, 1997. These claims were denied initially on February 22,
2010, and again upon reconsideration on June 29, 2010. (AR 87-90, 91-4; 98-101-10205). On July 7, 2010, Miller filed a timely request for hearing. (AR 106-08). A hearing

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was held before the ALJ Virginia Kuhn on May 10, 2011. (AR 35-82). On May 24,
2011, Miller’s claims received an unfavorable hearing decision. (AR 10-29). On June 29,
2012, the Appeals Council denied his request for review, thereby making the ALJ’s
decision the final decision of the Commissioner.1 (AR 1-5).

B. Miller’s Work History, Injury and Application for Benefits
Miller’s past work history included work as a general laborer (mainly inspecting
telephone-lines).

(AR 23).

Due to his impairments, he was ultimately unable to

continue this work. At age 39, he filed his disability claim on January 19, 2010. (AR
154-62).
Miller suffers from hypertension, chronic headaches, agoraphobia, anxiety,
depression and panic attacks.

(AR 280-81, 289, 309, 439).

He testified his blood

pressure was always high, even with his current medical regimen. (AR 45). He added he
was on lorazepam and clonazepam for mental health. (AR 46). He noted that these
medications seriously interfere with his memory. (AR 46-7). He also suffers from nausea
and blurry vision due to side effects of the medication, which appear to be secondary
symptoms to his headaches. (AR 47).
When Miller first started having headaches in 1994 or 1995, he thought he had a
brain tumor, but an MRI was negative. (AR 48). He explained his headaches and sinus

The Appeals Council=s affirmance of the ALJ=s decision constitutes the final decision of the
Commissioner of Social Security. Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008).
1

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problems cause his ears to pop on a regular basis. (AR 50). He stated he took Benedryl
to assist with sleep. (AR 51). He added that he naps four to five times a week, in
addition to his nightly sleep (approximately 12 hours). (AR 52).
Miller also testified that he suffered from anxiety and agoraphobia. (AR 52). He
explained he has trouble going out of his house. (AR 52). He explained that his last
panic attack occurred while traveling to his hearing for benefits.

(AR 52).

Miller

explained the onset of a panic attack includes dizziness and a feeling similar to a
concussion. (AR 54). He offered a recent example that resulted in his falling down a
flight of stairs and breaking his foot due to dizziness.

(AR 58).

He added his

psychotherapist informed him he would not be able to stop them from happening. (AR
53). His panic attacks last anywhere from ten minutes to two hours or longer. (AR 53).

C.

The ALJ’s Disability Determination

On May 24, 2011, the ALJ issued a written decision finding that Miller was not
disabled under the five-step sequential analysis mandated by the statute. (AR 10).

At

step one in the analysis, the ALJ found that Miller had not engaged in substantial gainful
activity since his alleged onset date, December 31, 1997. At steps two and three, the ALJ
found that Miller had severe impairments, including: headaches, hypertension,
depression, panic disorder, and alcohol abuse. (AR 12). Despite these impairments, the
ALJ further found Miller did not have an impairment or combination of impairments
that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart

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P, Appendix 1. (AR 13).
After completing step three, the ALJ took up the question of Miller=s residual
functional capacity (“RFC”) by considering the level of work activities that he could
perform on a sustained basis despite the limitations posed by his impairments. After
considering the medical records, the ALJ found that Miller retained the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b). The ALJ further found that:
[Miller] must have no exposure to heights and/or hazards,
including dangerous moving machinery and general
workplace safety hazards. He is limited to unskilled, routine
and repetitive tasks, which means tasks consistent from day
to day, with minimal, if any, workplace changes. He is
precluded from tasks requiring direct interaction with the
public. He is limited to tasks performed primarily by the
individual without requiring teamwork or collaboration with
coworkers
Relying on the vocational expert=s testimony at step four, the ALJ found that while
Miller was not able to perform his past work, there were jobs in significant numbers in
the national economy that Miller could perform. (AR 23-24.)

The Appeals Council

denied Miller’s request of the ALJ=s decision on June 29, 2012.
Miller then filed a timely complaint for judicial review in this court pursuant to 42
U.S.C. §405(g).
OPINION
Miller contends that the ALJ erred in failing to give proper weight to the medical
opinion of Miller’s treating physician.

Bound within this issue is whether the ALJ

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adequately built an accurate and logical bridge between this medical opinion and her
conclusion that Miller is not disabled under the statute.
As a starting point, the Seventh Circuit has repeatedly addressed the appropriate
standards that the Commissioner must follow when weighing the opinions of a treating
physician.2 In Jelinek v. Astrue, 662 F.3d 805 (7th Cir. 2011), the court explained that if a
treating physician’s opinion “is consistent with the record is generally entitled to
‘controlling weight’ ... [and] an ALJ who chooses to reject a treating physician’s opinion
must provide a sound explanation” for doing so.

Id. at 811 (citing 20 C.F.R. §

404.1527(d)(2)); Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010); Campbell v. Astrue,
627 F.3d 299, 306 (7th Cir. 2010); Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007).
Moreover, “[i]f an ALJ does not give a treating physician’s opinion controlling weight,
the regulations require the ALJ to consider the (1) length, nature, and extent of the
treatment relationship; (2) frequency of examination; (3) physician’s specialty; (4) types
of tests performed; and (5) consistency and supportability of the physician's opinion.”
Scott v. Astrue, 647 F.3d 734, (7th Cir. 2011); Moss v. Astrue, 555 F.3d 556, 561 (7th Cir.
2009); 20 C.F.R. § 404.1527(d)(2).

As a more general matter, a federal court reviews an administrative disability determination with
deference and will uphold a denial of benefits unless the ALJ’s decision is not supported by
substantial evidence or is based on an error of law. 42 U.S.C. § 405(g); Terry v. Astrue, 580 F.3d
471, 475 (7th Cir. 2009). Substantial evidence means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971). “Where conflicting evidence allows reasonable minds to differ about whether a claimant
is disabled, the responsibility for that decision falls on the [C]ommissioner, or the
[C]ommissioner’s designate, the ALJ.” Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990)
(quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987) (citation omitted).
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In this case, Dr. Eulogio Aguilar, M.D., Miller’s treating physician, provided an
opinion regarding Miller’s medical condition and ability to perform specific work
activities. (AR 341-46). Dr. Aguilar opined that Miller has had chronic headaches for
ten years.

(AR 341). Secondary symptoms from these headaches included vertigo,

malaise, photosensitivity, visual disturbances, inability to concentrate and severe pain.
(AR 343). Because of these symptoms, Dr. Aguilar opined that Miller could be expected
to be absent from work numerous times per month. In discounting portions of that
opinion, however, the ALJ stated:
Dr. Aguilar indicated that the claimant has good days and
bad days, and could be expected to be absent from work
more than 4 times per month. The undersigned gives this
assessment little weight because it does not correlate to
any treatment notes or diagnostics performed by the
doctor. However, consistent with the overall medical record,
Dr. Aguilar also opined that the claimant is capable of
performing low stress jobs, and the undersigned has
incorporated that determination into the residual functional
capacity.
(AR 26) (emphasis added).
Miller challenges the manner in which this absenteeism opinion was discounted.
He first argues that the opinion fails to provide the minimal level of articulation required
for meaningful judicial review. Zurawski, 245 F.3d at 888. The court agrees that the
ALJ’s analysis seems far too abbreviated to discount Dr. Aguilar’s opinion, particularly as
one provided by the treating physician and generally accorded controlling weight.3 In

To be clear, the court does not necessarily fault the ALJ for ultimately discounting some or even
all of Dr. Aguilar’s opinion. The problem lies with the fact that there is inadequate discussion to
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particular, all the ALJ states in purporting to discount Aguilar’s opinion is her conclusion
that it fails to “correlate to any treatment notes or diagnostics performed by [Dr.
Aguilar].” (AR 26). Even this statement is open to question since there is evidence in
the record that does, at least on first blush, correlate with the pain caused by Miller’s
headaches that may lead to absent work days, just as Dr. Aguilar suggests. For instance,
Dr. Aguilar noted pain upon palpation of the sinus areas in a treatment note from
January, 2010. (AR 297).

Other notes and objective evidence seem to also bolster Dr.

Aguilar’s findings. (AR 301-305, 311-315, 440-441). Because this evidence has not
been adequately addressed -- and because it could have a bearing on the ALJ’s conclusion
that Miller is not disabled -- the court has little choice but to remand for reconsideration. Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996).
Miller also challenges the ALJ’s decision because it only discusses a small portion
of Dr. Aguilar’s opinion even though the doctor described multiple, secondary symptoms
associated with Miller’s headaches. Dr. Aguilar explained the factors that exacerbate the
headaches, opined on the relationship of emotional factors to the headaches and opined
that Miller’s headaches were reasonably consistent with the functional limitations set
forth in the doctor’s evaluation. (AR 341-46).

In her RFC analysis, however, the ALJ

neither discussed any of the above, nor did she incorporate them into her hypotheticals
for the vocational expert.4 Because of these deficiencies, the court finds that the ALJ’s

allow for appellate review the basis for doing so.
4
While the ALJ gives weight to Dr. Aguilar’s opinion that the Miller is capable of performing low
stress jobs, incorporating this portion of the opinion into the RFC determination, this only

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analysis (or lack thereof) constitutes error and remand is required. See 20 C.F.R. §
404.1545(a)(1) (stating that the RFC assessment is made by the ALJ “based on all the
relevant evidence in [the claimant’s] case record”); see also SSR 96–8p.
Relatedly, because the ALJ only discusses a small portion of Dr. Aguilar’s opinion,
the ALJ has not given a clear indication of the weight that he assigns the opinion overall
(despite doing so for the other doctors in the record). Of course, there is the statement
that “little weight” was afforded to Dr. Aquilar’s absentee finding, but there appears no
weight assigned to other portions of the opinion. This not only underscores the lack of
adequate explanation for the decision, but also contravenes Social Security Ruling 96-2p.
That Ruling provides that when a decision is not fully favorable to a claimant, the
“decision must be sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source's medical opinion.”

Here, by only

assigning weight to a single sentence of Dr. Aguilar’s report (absenteeism), and “little
weight” at that, the ALJ’s decision is bare-boned and prevents this court from properly
reviewing her analysis. This provides further cause for remand.
Finally, because the ALJ does not afford Dr. Aguilar’s opinion controlling weight,
she was required to examine the factors laid out in 20 C.F.R. § 404.1527(d)(2)-(6) and §
416.927(d)(2)-(6). The ALJ makes tacit reference to these regulations on page 15 of the
decision, but the analysis of Dr. Aguilar’s opinion that follows several pages later belies it.

demonstrates cherry-picking from that opinion to help support the ALJ’s finding of non-disability.
See Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009) (“An ALJ may not selectively consider
medical reports, especially those of treating physicians, but must consider all relevant evidence.”).

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(AR 22). In reviewing the ALJ’s analysis, there is no discussion of the length, nature, and
extent of the treatment relationship. Indeed, no attempt is made to explain how these
factors, among others, apply in this case.5 And what discussion there is of the other
factors is only cursory.6 The court will leave the question of weight, and more detailed
analysis of above factors, to the ALJ for further consideration. See Scott 647 F.3d 734.
ORDER
IT IS ORDERED that the decision of defendant Carolyn Colvin, Acting
Commissioner of Social Security, is REVERSED and the case is REMANDED to the
commissioner under sentence four of 42 U.S.C. § 405(g) for further proceedings
consistent with this opinion. The clerk of court is directed to enter judgment for plaintiff
and close this case.
Entered this 30th day of June, 2014.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

For example, Dr. Aguilar treated Miller over a period of several years, including numerous
clinical examinations.
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Even the ALJ’s discounting of Dr. Aguilar’s absenteeism opinion is conclusory at best.
Moreover, an earlier treating physician, Dr. Nagle, stated in mid-2006 that Miller should “at least
get a part-time manual labor job”. (AR 305). On the one hand, this suggests that Miller could
engage in some level of work despite his condition; on the other, the evidence arguably
corroborates Dr. Aguilar’s opinion that Miller could not work full-time (i.e., he would absent from
work more than 4 times per month). The ALJ should also reconcile this evidence on remand.
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