Fitzgerald, Matthew v. Colvin, Carolyn
Filing
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OPINION AND ORDER Entering Judgment in favor of plaintiff. Signed by District Judge Barbara B. Crabb on 3/19/14. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MATTHEW T. FITZGERALD,
OPINION AND ORDER
Plaintiff,
13-cv-405-bbc
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This is an appeal of an administrative decision denying plaintiff Matthew T.
Fitzgerald’s claim under the Social Security Act, 42 U.S.C. § 405(g), for disability benefits
and supplemental security income. Plaintiff alleged that he suffered from a number of
impairments such as degenerative disc disease, coronary artery disease and lateral
epicondylitis, but the administrative law judge concluded that plaintiff was not disabled
because he retained the ability to perform a number of jobs, such as telephone solicitor,
information clerk and counter clerk.
Plaintiff argues that a remand is required because the administrative law judge erred
by (1) failing to adequately consider whether plaintiff’s degenerative disc disease met or
equaled listing 1.04 for “disorders of the spine” in 20 C.F.R. Part 404, Subpart P, Appendix
1; (2) making an improper credibility assessment; (3) giving inadequate weight to the
opinion of plaintiff’s treating physician; (4) failing to explain the scope of plaintiff’s sitting
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and standing limitations; and (5) failing to resolve a conflict between the Dictionary of
Occupational Titles and the vocational expert’s testimony.
Because I agree with most of plaintiff’s arguments, I am remanding the case for
further proceedings. However, with respect to plaintiff’s argument about his sitting and
standing limitations, the commissioner argues in her opposition brief that the administrative
law judge addressed this issue by including it in his hypothetical question to the vocational
expert.
AR 58 (“And if this individual also required a sit/stand option, which I would
define as being allowed to sit or stand alternatively, at will, provided he’s not off task more
than 10 percent of the workday, would that change your answer?”). Plaintiff omits this issue
from his reply brief, so I will assume that he has abandoned it. Bonte v. U.S. Bank, N.A.,
624 F.3d 461, 466 (7th Cir. 2010).
OPINION
A. Listed Impairment
If the administrative law judge determines that the claimant has a “severe”
impairment within the meaning of 20 C.F.R. § 404.1520, she must determine next whether
the impairment “meets or equals a listed impairment” in 20 C.F.R. Part 404, Subpart P,
Appendix 1. If it does, the claimant is disabled as a matter of law. 20 C.F.R. § 404.1509.
In this case, plaintiff argues that the administrative law judge failed to adequately consider
whether plaintiff had an impairment that met or equaled Listing 1.04(A):
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
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arthritis, vertebral fracture), resulting in compromise of a nerve root (including
the cauda equina) or the spinal cord.
With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by sensory
or reflex loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine).
The administrative law judge’s only discussion of this listing was one sentence in
which he concluded without explanation that plaintiff’s impairments “do not meet the
severity requirements” of the listing. AR 25. Plaintiff relies on Ribaudo v. Barnhart, 458
F.3d 580, 583 (7th Cir. 2006), for the proposition that a remand is required when an
administrative law judge provides only a “perfunctory analysis” of a particular listing and she
cites various pieces of evidence to support an argument that his degenerative disc disease
meets all the requirements of the listing. The commissioner offers up her own reasons for
why she believes that plaintiff’s back impairment does not meet or equal Listing 1.04(A), but
it is well established that commissioner may not make up reasons for the administrative law
judge on appeal. Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). Accordingly, I am
remanding the case to allow the administrative law judge to reconsider this issue.
B. Credibility
The administrative law judge noted several reasons for questioning plaintiff’s
credibility regarding the intensity, persistence and limiting effects of his impairments: (1)
plaintiff was inconsistent in the way he described his ability to perform daily activities; (2)
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he gave different explanations for the cause of his cervical injury; (3) plaintiff was receiving
unemployment benefits at the same time he was seeking disability benefits; and (4) plaintiff
continued to smoke even though he was told he needed to quit before he could undergo
surgery on his spine. AR 27.
The commissioner does not attempt to defend the administrative law judge’s second
and third reasons for questioning plaintiff’s credibility, so I will not consider those. With
respect to plaintiff’s failure to quit smoking, the administrative law judge quoted a passage
from Sias v. Secretary of Health & Human Services, 861 F.2d 475, 480 (6th Cir. 1988):
Each of us faces myriads of choices in life, and the choices we make, whether
we like it or not, have consequences. If the claimant in this case chooses to
drive himself to an early grave, that is his privilege—but if he is not truly
disabled, he has no right to require those who pay social security taxes to help
underwrite the cost of his ride.
In addition, the administrative law judge wrote that “[t]he claimant continues to choose to
smoke rather than undergo necessary surgery and so must accept the consequences of that
choice.” AR 28. The administrative law judge did not explain how plaintiff’s failure to quit
smoking relates to credibility; the discussion of this issue seems to be more about personal
responsibility than it is about truthfulness. However, the logic may be that plaintiff’s pain
and other symptoms cannot be as bad as he says they are if he refuses to do what it takes to
get surgery that could help his problem.
In response, plaintiff cites Shramek v. Apfel, 226 F.3d 809, 813 (7th Cir. 2000), in
which the court stated that
[I]t is extremely tenuous to infer from the failure to give up smoking that the
claimant is incredible when she testifies that the condition is serious or
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painful. Given the addictive nature of smoking, the failure to quit is as likely
attributable to factors unrelated to the effect of smoking on a person's health.
One does not need to look far to see persons with emphysema or lung
cancer—directly caused by smoking—who continue to smoke, not because
they do not suffer gravely from the disease, but because other factors such as
the addictive nature of the product impacts their ability to stop. This is an
unreliable basis on which to rest a credibility determination.
The commissioner does not address Shramek in her brief. Instead, she attempts to
shift the discussion away from smoking by citing testimony from the hearing in which
plaintiff acknowledged that he had not yet scheduled the surgery even though he found a
doctor who may be willing to do the surgery even if plaintiff continues to smoke. AR 47.
The commissioner argues that plaintiff’s failure to have the surgery under these
circumstances made it reasonable for the administrative law judge to conclude that plaintiff
was exaggerating his pain.
There are two problems with this argument. First, plaintiff did not testify that he was
unwilling to have the surgery; rather, he said that “it’s a matter of when [the surgeon] has
an opening.” AR 47. Thus, it is not reasonable to infer from plaintiff’s testimony that he is
refusing to undergo the surgery. Second, the administrative law judge said nothing in his
decision about the other surgeon plaintiff found; the administrative law judge focused solely
on plaintiff’s failure to quit smoking. Again, the commissioner may not make up new
reasons to justify the commissioner’s decision on appeal.
This leaves the alleged inconsistencies in plaintiff’s statements. The administrative
law judge identified two:
•
in “disability/function reports,” plaintiff said that he could take care of
himself, perform household chores, shop and attend medical appointments,
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but at the hearing, he said he “cannot do much of anything” and spent most
of his day napping, watching television and using the computer;
•
At one point, plaintiff reported that he could not walk more than ten minutes;
at other points, he reported that he walked 20 minutes daily and could shop
for an hour multiple times a week.
AR 27.
I agree with plaintiff that the administrative law judge overstated any inconsistencies
between plaintiff’s different descriptions of his daily activities. In both his report and his
testimony, plaintiff stated that he could perform some chores but not many of them and not
for a long period of time. AR 50-51, 231-39. Further, plaintiff did not say that he could not
walk more than ten minutes; he said, “if I stand longer than . . . 10-15 minutes, I start
feeling it.” AR 51. That statement is not inconsistent with other statements that plaintiff
had the ability to walk for a longer period of time.
In sum, because the administrative law judge did not build an “accurate and logical
bridge” between the evidence and his credibility determination, Castile v. Astrue, 617 F.3d
923, 929 (7th Cir. 2010), I am remanding the case for that reason as well.
C. Treating Physician
Plaintiff challenges two aspects of the administrative law judge’s handling of the
opinion of plaintiff’s treating physician, Marty Mozena.
First, plaintiff says that the
administrative law judge did not explain why he was rejecting Mozena’s opinion that
plaintiff would be absent from work at least two days each month because of his
impairments. Second, the administrative law judge did not explain why he took Mozena’s
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finding that plaintiff has “significant” limitations in his left hand related to grasping,
twisting, turning objects, fine manipulation and reaching , AR 792, and changed the finding
in the residual function capacity assessment to say that plaintiff was precluded from doing
any over-head reaching (but not other kinds of reaching) and that he could perform
“occasional” handling and fingering. AR 25.
The administrative law judge is required to give a good reason for rejecting a treating
physician’s opinion, Scott v. Astrue, 647 F.3d 734, 739, 647 F.3d 734 (7th Cir. 2011), and
he failed to do that with respect to the issues plaintiff raises. The administrative law judge
said that Mozena’s opinion was speculative and not consistent with plaintiff’s daily
activities, but he did not explain how he reached these conclusions.
Although the
commissioner provides possible reasons in her brief, again, that was too late.
D. Conflict with Dictionary of Occupational Titles
In his residual functional capacity assessment, the administrative law judge found that
plaintiff was limited to sedentary work that involved simple, routine and repetitive tasks and,
as noted above, that plaintiff was limited to occasional handling and fingering with his left
hand. AR 25. Using that assessment, the vocational expert determined that plaintiff could
perform jobs as a counter clerk, information clerk and telephone solicitor.
Although the vocational expert testified at the hearing that her findings were
consistent with the Dictionary of Occupational Titles, AR 55, there seems to be no dispute
between the parties that the vocational expert was wrong. In particular, the dictionary lists
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counter clerk as a light job, not sedentary, and the only unskilled sedentary jobs listed under
information clerk and telephone solicitor require frequent reaching and handling. “Under
SSR 00–4p, . . . the ALJ has an affirmative responsibility to ask if the VE's testimony
conflicts with the DOT, and if there is an apparent conflict, the ALJ must obtain a
reasonable explanation.” Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009).
The commissioner does not attempt to defend the accuracy of the vocational expert’s
opinion or the administrative law judge’s failure to question her conclusions. Rather, the
commissioner’s only argument is that plaintiff forfeited this issue because his counsel did not
raise it during the hearing. However, the commissioner ignores the holding in Overman v.
Astrue, 546 F.3d 456, 463 (7th Cir. 2008), that “SSR 00–4p imposes an affirmative duty
on the ALJ to inquire into and resolve apparent conflicts, [so] a claimant's failure to raise a
possible violation of SSR 00–4p at the administrative level does not forfeit the right to argue
later that a violation occurred,” at least when “the conflicts [a]re obvious enough that the
ALJ should have picked up on them without any assistance.” Id. The commissioner also
ignores plaintiff’s argument that the conflicts were obvious in this case. In particular,
plaintiff says that it should have been obvious that a counter clerk is not a sedentary position
and that sedentary telephone solicitors and information clerks require frequent use of both
hands because the agency’s own rules state that. SSR 96-9p (“Most unskilled sedentary jobs
require good use of both hands and the fingers; i.e., bilateral manual dexterity. Fine
movements of small objects require use of the fingers; e.g., to pick or pinch. Most unskilled
sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.”).
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In the absence of any argument to the contrary, I conclude that the commissioner has
forfeited this issue and that a remand is required.
ORDER
IT IS ORDERED that plaintiff Matthew Fitzgerald’s motion for summary judgment,
dkt. #11, is GRANTED.
The decision denying plaintiff benefits is REVERSED and
REMANDED under sentence four of 42 U.S.C. § 405(g). The clerk of court is directed to
enter judgment in favor of plaintiff and close this case.
Entered this 19th day of March, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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