Sanchez, Margaretta v. Colvin, Carolyn
Filing
22
ORDER granting 12 Motion for Summary Judgment and reversing and remanding action to Commissioner for further proceedings RE: 10 Social Security Transcript. Signed by District Judge Barbara B. Crabb on 7/22/14. (rep)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MARGARETTA SANCHEZ,
OPINION AND ORDER
Plaintiff,
13-cv-519-bbc
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This is an appeal of an administrative decision denying plaintiff Margaretta Sanchez’s
claim under the Social Security Act, 42 U.S.C. § 405(g), for disability benefits and
supplemental security income. The administrative law judge found that plaintiff suffered
from severe impairments in the form of rheumatoid arthritis, fibromyalgia, inflammatory
arthritis, diabetes, obesity and asthma, but that plaintiff was not disabled because she
retained the ability to perform a range of sedentary work.
On appeal, plaintiff challenges the administrative law judge’s decision on many
grounds, but these arguments fall within four general categories: (1) the administrative law
judge assessed plaintiff’s credibility improperly; (2) the administrative law judge did not give
adequate consideration to the question whether plaintiff suffers from an impairment that
meets or equals medical listing 14.09(A); (3) the administrative law judge gave too little
weight to the opinion of plaintiff’s treatment providers and too much weight to the opinions
1
of the state agency physicians; and (4) the administrative law judge did not adequately
consider all of plaintiff’s impairments. Although many of plaintiff’s objections are not wellfounded, I conclude that a remand is necessary because the administrative law judge did not
adequately explain why plaintiff does not suffer from an impairment that meets or equals
listing 14.09(A) and why he gave the opinions of the state agency consultants more weight
than he gave to those of plaintiff’s treatment providers.
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 she had an impairment that met or equaled Listing 14.09(A). That listing
includes a number of requirements, but defendant focuses on only one of them, which is that
plaintiff’s impairment “result[s] in the inability to ambulate effectively.” Listing 14.09(A)
refers the reader to 14.00(C)(6) and then 1.00(B)(2)(b) for a definition of “ambulate
effectively.” One part of that definition states that “[t]o ambulate effectively, individuals
must be capable of sustaining a reasonable walking pace over a sufficient distance to be able
to carry out activities of daily living.” 1.00(B)(2)(b)(2). Citing this sentence, defendant
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argues that plaintiff “has not suggested that the ability to walk for two hours a day with
some use of an assistive device is insufficient to carry out activities of daily living.” Dft.’s
Br., dkt. #20, at 19.
The problem with defendant’s argument is that it does not take into account the
definition of “ineffective ambulation” in 1.00(B)(2)(b)(1), which is “having insufficient
lower extremity functioning . . . to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper extremities.” Plaintiff has a
prescription for a walker and testified that she uses the walker on her “bad days,” which she
says make up about 25 days a month.
It is not immediately clear why the administrative law judge concluded that plaintiff
did not meet the requirements of 14.09(A). He stated that he “specifically considered listing
14.09” and that “the objective medical evidence” did not support a finding under 14.09(A).
AR 38. However, he did not give specific reasons for that conclusion, stating instead that
his reasons were “discussed in further detail throughout this decision,” without pointing to
any examples. He did not discuss Listing 14.09(A) again. He discussed plaintiff’s walker
in a later portion of the opinion, but he concluded that she does not need one because “there
is no medical recommendation or prescription for an assistive device.” AR 40. Defendant
acknowledges in its brief that the administrative law “erred by stating that [plaintiff] had not
been” prescribed a walker, dkt. #20 at 21, so I agree with plaintiff that the administrative
law judge must reconsider whether plaintiff meets or equals 14.09(A). The administrative
law judge should also consider whether he should obtain an expert opinion on this issue, in
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accordance with SSR 96-6p. (Plaintiff also discusses 14.09(B) in her reply brief, but I agree
with defendant that plaintiff forfeited this issue by failing to raise it in her opening brief.)
B. Credibility
The Court of Appeals for the Seventh Circuit has stated that an administrative law
judge’s credibility determination will not be overturned unless it is “patently wrong.”
Eichstadt v. Astrue, 534 F.3d 663, 668 (7th Cir. 2007). At the same time, the court has said
that the administrative law judge must support credibility findings with evidence in the
record, Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009), building an “accurate and
logical bridge” between the evidence and his decision. Castile v. Astrue, 617 F.3d 923, 929
(7th Cir. 2010). In addition, “when . . . the [credibility] determination rests on objective
factors or fundamental implausibilities rather than subjective considerations, . . . courts have
greater freedom to review the ALJ's decision.” Indoranto v. Barnhart, 374 F.3d 470, 474
(7th Cir. 2004) (internal quotations and alterations omitted).
At the administrative hearing, plaintiff testified that she believes her arthritis prevents
her from working because her joints “flare up,” her knees “give out,” and she is “very stiff”
and “very sore.” AR 98. Her rheumatoid arthritis causes pain, stiffness and swelling in her
knees, hips, fingers and wrists. AR 107. With respect to fibromyalgia, plaintiff said that it
too causes “stiffness,” “pain” and “flareups in [her] joints,” including her fingers, hips, knees
and ankles. AR 115. Both sitting and standing for “a long time” make her “very stiff.” AR
108.
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Plaintiff testified that it takes her to 25 to 30 minutes to get out of bed in the
morning because she is so stiff. AR 109. She lies down after she takes her morning
medication because it makes her dizzy. AR 113. She lies down again in the afternoon
“because of [her] arthritis and [her] flare ups, [her] inflammation.” AR 115.
She lost her previous job as a house cleaner because the inflammation in her joints
often prevented her from going into work. AR 106. She can do some house work on her
“good days,” but she has about 25 “bad days” in a month. AR 100-01.
Sometimes she
needs help from her family to do the laundry and to get dressed. AR 108. She cannot hold
a frying pan because it hurts her wrists too much. AR 109. She uses a cane to get around
the house; on good days, she uses the cane outside as well, but on bad days she uses a walker
outside the house. AR 110.
Both sides assume that, if plaintiff’s testimony is accepted as true, she would be
disabled within the meaning of the Social Security Act, or unable to work full-time on a
regular basis. However, the administrative law judge found that plaintiff retained the
residual functional capacity to perform sedentary work (with a few additional restrictions
that the parties do not discuss in their briefs).
AR 38.
As is often the case, the
administrative law judge did not identify specific testimony by plaintiff that he rejected but
instead wrote that plaintiff’s “statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are inconsistent with the . . .
residual functional capacity assessment.” AR 39. The Court of Appeals for the Seventh
Circuit has criticized similar language in many opinions because it “implies that the ability
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to work is determined first and is then used to determine the claimant's credibility.”
Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012). See also Shauger v. Astrue, 675
F.3d 690, 696 (7th Cir. 2012); Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir. 2011);
Martinez v. Astrue, 630 F.3d 693, 696–97 (7th Cir. 2011); Spiva v. Astrue, 628 F.3d 346,
348 (7th Cir. 2010); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010). It is perplexing
why the Social Security Administration insists on continuing to use this boilerplate language
despite repeated admonishments by the court of appeals. Regardless, an administrative law
judge’s use of the boilerplate is not a ground for reversing the decision so long as he
“otherwise points to information that justifies his credibility determination.” Pepper v.
Colvin, 712 F.3d 351, 367-68 (7th Cir. 2013).
The administrative law judge gave many reasons for questioning plaintiff’s credibility.
Plaintiff challenges each of these reasons.
First, the administrative law judge said that plaintiff’s testimony regarding the severity
of her pain is “so extreme compared to the objective abnormalities as to appear implausible.”
AR 39. In particular, he says that her “lab work is not as abnormal as one would expect”;
her “rheumatic systems reviews have . . . generally been negative and not fully consistent
with the severity of her alleged symptoms”; many of her treatment notes indicate that she
has “far fewer tender points” than are usual for fibromyalgia; and the record shows that her
knee arthritis is “mild.” Id. at 39. In a later portion of the decision, the administrative law
judge cites the opinion of the state agency consultants for the proposition that “the medical
record showed only mild and transient abnormalities.” Id. at 41.
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Initially, plaintiff objected to the administrative law judge’s observations about the
objective medical evidence on the ground he was using his own lay judgment to interpret the
medical records, which he is not permitted to do. Myles v. Astrue, 582 F.3d 672, 677-78
(7th Cir. 2009). However, after defendant pointed out that the administrative law judge was
relying on the opinions of the state agency consultants, plaintiff abandoned that objection
in her reply brief, and instead raised a number of objections about those opinions. I will
address those objections below in the context of discussing the weight the administrative law
judge gave to the medical opinions.
Second, the administrative law judge wrote that plaintiff’s “subjective reports are not
fully consistent with” the opinion of her rheumatologist, Jilaine Bolek-Berquist. AR 39. In
particular, the rheumatologist stated that she was “unsure to what degree [plaintiff’s] overall
pain” was related to her diagnosis rather than some other reason. In addition, BolekBerquist had reported that plaintiff’s pain was “positional” rather than the result of a
medically determinable impairment. Finally, an examination showed that plaintiff was not
putting forth full effort. AR 39.
The administrative law judge does not explain the relevance of the first statement, but
I assume that he is relying on it to suggest that Bolek-Berquist believed that plaintiff may
be malingering. However, the full context of the quote does not support that interpretation:
I don’t think we’ve gotten full control of [plaintiff’s rheumatoid arthritis]
given her stiffness and swelling with elevated markers of inflammation. That
being said, I’m unsure to what degree her overall pain is related to RA other
reasons that she has to have pain. I am going to try to up her RA treatment
to a biologic agent to see if this makes a substantial difference in her markers
of inflammation and pain.
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AR 540. This discussion may suggest that Bolek-Berquist is uncertain about the causes of
plaintiff’s pain, but there is no suggestion that she believes that plaintiff is malingering. In
fact, Bolek-Berquist later gave the opinion that plaintiff was not a malingerer. AR 754.
The statement that plaintiff’s pain is “positional” comes from a different doctor and,
more important, is about “epigastric pain.” AR 528. (“Feels better when sitting up.”). The
administrative law judge did not point to any statements by plaintiff in which she denied
that her epigastric pain was positional, so the statement from the doctor does not undermine
plaintiff’s credibility.
The examination the administrative law judge cites in which plaintiff was not putting
forth full effort was conducted an occupational therapist, not Bolek-Berquist. However, the
therapist did conclude that plaintiff’s “self-limiting performance indicates that abilities in
some areas may actually be higher than demonstrated in this Functional Capacity
Evaluation.” AR 676. Regardless whether the administrative law judge misstated the name
of the person who conducted the evaluation, the administrative law judge was entitled to rely
on that evaluation in assessing plaintiff’s credibility. McKinzey v. Astrue, 641 F.3d 884,
891 (7th Cir. 2011) (statement by health care provider that plaintiff exaggerated symptoms
supported administrative law judge’s decision to question plaintiff’s credibility).
Third, the administrative law judge stated that plaintiff’s “more recent treatment
notes do not . . . list fibromyalgia as one of the claimant’s impairments.” AR 39. He cites
a treatment note from January 2012 in which plaintiff was seen by a new physician “for
transfer of medical care.” AR 767. According to the physician’s notes, plaintiff did not
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complain about fibromyalgia during the visit and the physician did not list it as one of
plaintiff’s conditions. AR 767-68. The administrative law judge’s observation provides some
support for a view that fibromyaligia is not a current concern for plaintiff, but the point has
limited probative value because it does not address plaintiff’s other conditions such as
rheumatoid arthritis, which was noted during the same visit cited by the administrative law
judge.
Particularly because plaintiff described similar symptoms for both conditions,
eliminating fibromyalgia from the mix does little to undermine plaintiff’s disability claim as
a general matter.
Fourth, the administrative law judge wrote that “the record reveals relatively
infrequent trips to the doctor and only conservative treatment for” conditions other than
fibromyalgia and rheumatoid arthritis. AR 40. However, this observation is less about
plaintiff’s credibility and more about whether the administrative law judge adequately
considered the evidence supporting those other conditions, so I will address this issue in a
separate section as well.
Fifth, the administrative law judge said that plaintiff had complained to medical
providers that she was in significant pain, but providers observed that she was in “no
apparent distress” or “no acute distress.” AR 331, 548-50, 768. Two of these records are
not probative because I see no indication in the record that plaintiff claimed to be in
“distress” during the medical visit. Plaintiff did not testify that she was in severe pain 24
hours a day, seven days a week, so the absence of observable distress during a visit is not
necessarily evidence of inconsistency. However, in one of the records, Bolek-Berquist wrote
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that plaintiff stated that her “pain level is 10 . . . on a ten-point visual analog scale,” even
though the doctor observed that plaintiff had normal strength, good balance and only two
swollen or tender joints at the time. AR 39. Plaintiff says that the appointment was related
to dermatology rather than pain, but the issues addressed at the appointment were not so
limited.
Whatever the primary reason for the visit, it does not change the doctor’s
observations.
In another record, plaintiff’s doctor, Steven Bartz, wrote in September 2010 that
plaintiff “is pleasant, cooperative, in no apparent distress. She points to numerous joints
having pain [but] I cannot see any obvious swelling or erythema in her knees ankles fingers.
Her right wrist may have some swelling but not her left.” AR 331. In response, plaintiff
notes that Bartz authorized a steroid injection for plaintiff’s pain during the same
appointment, but the note indicates that the injection had been authorized before the
appointment. AR 330. In any event, the injection does not undermine Bartz’s statement
that plaintiff’s complaint did not match his observation.
Sixth, the administrative law judge made a related observation that plaintiff “betrayed
no evidence of pain or discomfort” during the hearing, even though she said she was in pain.
AR 40. “She sat for the entire hour and a half hearing without adjusting her position or
standing.” Id. Plaintiff’s response to this is that the ability to sit for 90 minutes does not
show that she can sit for at least six hours, which is what a sedentary job would require.
Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995). However, the administrative law judge
acknowledged that “the hearing was short-lived and cannot be considered a conclusive
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indicator of the claimant’s overall level of pain on a day-to-day basis.”
AR 40.
The
administrative law judge’s point was not that her conduct at the hearing showed that she
could sit for six hours but that, in light of her testimony about the severity of her symptoms,
it is surprising that she did not show any signs of pain or discomfort over a 90-minute
period. The administrative law judge did not err by relying on his observation for a limited
purpose.
Seventh, the administrative law judge wrote that the alleged severity of plaintiff’s
symptoms is inconsistent with her daily activities, such as cooking, cleaning and doing
laundry. AR 39. This reasoning is problematic because the administrative law judge ignored
the limitations that plaintiff said she had in performing these activities. For example, she
said that she did housework on “good days,” that her family had to help her do laundry and
that she could not hold a frying pan. Also, the administrative law judge never explained how
plaintiff’s ability to engage in these activities undermines her allegation that she cannot
sustain a full-time job. The Court of Appeals for the Seventh Circuit has stated repeatedly
that administrative law judges should take care to distinguish between the ability to do
certain things some of the time and in some contexts from the ability to sustain full-time
employment. Bjornson, 671 F.3d at 647 (“The critical differences between activities of
daily living and activities in a full-time job are that a person has more flexibility in
scheduling the former than the latter, can get help from other persons . . . and is not held to
a minimum standard of performance, as she would be by an employer. The failure to
recognize these differences is a recurrent, and deplorable, feature of opinions by
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administrative law judges in social security disability cases.”). See also Moore v. Colvin, 743
F.3d 1118, 1126 (7th Cir. 2014) (“[A] problem we have long bemoaned [is that]
administrative law judges have equated the ability to engage in some activities with an ability
to work full-time, without a recognition that full-time work does not allow for the flexibility
to work around periods of incapacitation.”); Spiva v. Astrue, 628 F.3d 346, 351-52 (7th Cir.
2010) (“[A]n ability to engage in ‘activities of daily living’ (with only mild limitations) need
not translate into an ability to work full time.”). If administrative law judges wish to avoid
repeated remands on these grounds, it would behoove them to stop extrapolating an ability
to work to full time from an ability to do some household chores.
Eighth, the administrative law judge pointed out what he said were discrepancies
between plaintiff’s testimony and previous statements she had made. In particular, he wrote
that she stated previously that she could “stand/walk” for four hours a day and that she did
not take naps or “spend[] any time in bed.” AR 40. I do not see any statement by plaintiff
in the records the administrative law judge cited that plaintiff could stand or walk for four
hours a day. Further, plaintiff did not testify at the hearing that she needed to take naps,
so there is no inconsistency with her previous statement that she did not take naps during
the day. However, plaintiff did write in the form she prepared for her disability application
that she could walk for three hours and that she did not spend any time in bed during the
day. AR 293. These statements seem to be inconsistent with plaintiff’s testimony that she
had limited walking ability and needed to lie down throughout the day, so they are some
evidence in support of the administrative law judge’s decision.
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Plaintiff says that any discrepancies are the result of the passage of time. Plaintiff
completed the form in November 2010, which was seven months before her amended onset
date of June 2011. AR 36. This objection relates to the administrative law judge’s alleged
failure to adequately consider more recent medical records, an issue I will address below in
the context of discussing the medical opinions.
Ninth, the administrative law judge relied on plaintiff’s job history to question her
credibility. First, he wrote that plaintiff worked “only sporadic temporary jobs” before her
onset date, which “raises a question as to whether the claimant’s continuing unemployment
is actually due to medical impairments.” AR 41. Second, he wrote that plaintiff continued
to work part time after she was diagnosed with fibromyalgia and arthritis. AR 41. The
administrative law judge did not explain further, but he seems to making the argument that
plaintiff’s failure to work more before her onset date shows that she is not disabled and her
failure to work less after her onset date also shows that she is not disabled.
The
administrative law judge did not ask plaintiff to explain her reasons for working as much as
she did, so it was improper for him to speculate. Particularly because the administrative law
judge did not question plaintiff’s testimony that she lost her most recent job because of her
symptoms, plaintiff’s work history has limited probative value.
Finally, plaintiff challenges the administrative law judge’s credibility assessment for
what it doesn’t include, which is any discussion of her “constant” attempts to treat her pain
with medication. She cites SSR 96-7 for the proposition that “[p]ersistent attempts by the
individual to obtain relief of pain or other symptoms, such as by increasing medications,
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trials of a variety of treatment modalities in an attempt to find one that works or that does
not have side effects, referrals to specialists, or changing treatment sources may be a strong
indication that the symptoms are a source of distress to the individual and generally lend
support to an individual's allegations of intense and persistent symptoms.” Defendant does
not challenge this objection, so I will assume that the administrative law judge should have
considered this issue in his decision.
In sum, some of the administrative law judge’s reasons for questioning plaintiff’s
credibility are well-founded and some are not. In some cases, the Court of Appeals for the
Seventh Circuit has upheld an administrative law judge’s decision even when the court
rejected some of the administrative law judge’s reasoning, on the ground that “the standard
of review employed for credibility determinations is extremely deferential.” Bates v. Colvin,
736 F.3d 1093, 1098 (7th Cir. 2013). However, because I am remanding the case for other
reasons, I conclude that it is unnecessary to decide whether the administrative law judge’s
assessment of credibility is “good enough” to be sustained. On remand, the administrative
law judge should reconsider his credibility assessment to address the problems identified in
this opinion.
C. Plaintiff’s Secondary Impairments
Plaintiff says that the administrative law judge did not adequately consider the effect
of her diabetes, asthma, GERD, insomnia, diarrhea, anxiety, sleep apnea and obesity.
However, despite having multiple opportunities to do so during the hearing, plaintiff never
14
identified any limitations she suffered because of those conditions, so I cannot say it was
unreasonable for the administrative law judge to follow her lead. Even in her opening brief,
plaintiff does not point to any evidence showing that any of these conditions, alone or in
combination with other impairments, prevent her from working or are otherwise inconsistent
with the administrative law judge’s residual functional capacity assessment.
In her reply brief, plaintiff raises the issue that her obesity could affect a finding under
14.09(A) on the question whether plaintiff can ambulate effectively. The administrative law
judge should address this issue on remand. I also agree with plaintiff there is a potential
inconsistency between the administrative law judge’s finding that her diabetes, obesity and
asthma are “severe impairments” and his decision not to find any limitations imposed by
those impairments. The administrative law judge should resolve this discrepancy on remand.
D. Medical Opinions
The administrative law judge considered several medical opinions. First, Jilaine
Bolek-Berquist, who became plaintiff’s rheumatologist in September 2010, discussed
plaintiff’s condition in a “functional capacity questionnaire” that she prepared in January
2011. AR 753-65.
In the questionnaire, Bolek-Berquist gave plaintiff a diagnosis of
rheumatoid arthritis, causing joint pain, reduced range of motion, tenderness, crepitus and
trigger points. AR 753. She concluded that plaintiff was not a malingerer, that she had
“moderate” limitations in handling normal work stress and that “often” her pain would be
“sufficiently severe to interfere with attention and concentration.” AR 754.
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Second, Heidi Alderman, an occupational therapist, evaluated plaintiff and prepared
a “summary of functional abilities” in November 2010. In her comments, Alderman wrote
the following:
The client demonstrated marginally consistent performance in this Functional
Capacity Evaluation. Occasional inconsistencies between test performance
and functional history questionnaire, and between subjective input and
objective data were noted. For example, dominant hand bell curve not
established and different efforts recorded different similar grip testing. Client
also did not show difficulties with tests prior to stopping some tests. Although
this test represents safe work abilities, this self-limiting performance indicates
that abilities in some areas may actually be higher than demonstrated in this
Functional Capacity Evaluation. AR 676.
Alderman concluded that plaintiff could lift and carry 20 pounds no more than two
hours a day, stand and walk no more than two hours a day and walk less than one block
“without rest or severe pain.” AR 684. However, she did not find any sitting limitations.
Id.
Finally, she found that plaintiff’s symptoms would interfere with her work
“occasionally,” which is defined on the form to mean five percent to thirty-three percent of
an eight-hour day. AR 685. Overall, Alderman concluded that plaintiff could work two to
four hours a day. AR 686.
Finally, the administrative law judge considered the January 2011 opinion of the state
agency consultant, Syd Foster, who is a physician specializing in osteopathic manipulative
therapy. After reviewing plaintiff’s medical records, Foster concluded that plaintiff could
(1) lift 10 pounds occasionally and less than 10 pounds frequently; (2) stand at least two
hours a day; and (3) sit for about six hours a day. Overall, Foster concluded that plaintiff
was capable of performing sedentary work with environmental restrictions. AR 416. A
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second consultant, Mina Khorshidi, concurred with Foster’s conclusion, but did not explain
her decision. AR 475
The administrative law judge’s handling of these opinions is a mixed bag. With
respect to Bolek-Berquist, the only thing the administrative law judge said about the opinion
is that it “did not include any specific physical limitation.” AR 41. He ignored BolekBerquist’s opinions that plaintiff’s pain would interfere with her ability to concentrate and
that plaintiff was limited in her ability to handle work stress. Campbell v. Astrue, 627 F.3d
299, 306 (7th Cir. 2010) (administrative law judge must provide “good reasons” for
discounting treating physician’s opinion). Defendant provides reasons why she believes the
administrative law judge may have rejected these aspects of Bolek-Berquist’s opinion, but
it is well-established that the reasoning for the administrative law judge’s opinion must be
included in that opinion; the commissioner cannot provide reasoning after the fact. Spiva,
628 F.3d at 353; Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010). Accordingly, the
administrative law judge should reconsider Bolek-Berquist’s opinion, using the checklist of
factors in 20 C.F.R. § 404.1527(c). 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.”) (citing 20 C.F.R. § 404.1527).
With respect to Alderman, the administrative law judge noted that she had found that
plaintiff’s abilities were greater than what was represented in the evaluation and that
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Alderman’s opinion was “generally consistent with this decision,” with the exception that
Alderman found that plaintiff was limited to working two to four hours a day. AR 41. The
administrative law judge discounted that opinion on the ground that it “appears based on
claimant’s work history rather than her actual abilities.” Id. Plaintiff does not challenge the
administrative law judge’s reasoning for rejecting Alderman’s conclusion regarding the
number of hours plaintiff can work, so I do not consider that issue. However, she says that
the administrative law judge again overlooked the opinion regarding plaintiff’s symptoms
interfering with her work. Although Alderman found that plaintiff’s symptoms would
interfere only “occasionally,” the form Alderman used defined “occasionally” as including up
to one-third of the employee’s time. Plaintiff cites the vocational expert’s testimony for the
proposition that being off task for more than ten percent of the time would preclude plaintiff
from sustaining full time work. AR 134. Accordingly, the administrative law judge should
reconsider Alderman’s opinion as well, using SSR 06-03p, which governs consideration of
opinions of many health care providers who are not physicians.
The administrative law judge adopted the opinion of the state agency consultants that
plaintiff could perform a range of sedentary work. Plaintiff’s primary objection to the
administrative law judge’s reliance on the state agency consultants is that they did not have
the benefit of nearly 300 pages of medical records that plaintiff submitted later. The
administrative law judge noted this objection in his decision:
The claimant alleges that her condition has worsened since the State agency
opinion, but the medical record, as described above, does not support any
worsening in her condition beyond the limitations in the residual functional
capacity. I note that the limitations found in this decision are consistent with
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the claimant’s alleged worsening, to the extent supported by the medical
record, given that her initial complaints were of only intermittent symptoms
associated with 35-40 minutes of stiffness in the morning and difficulty
walking for longer distances. The record does not support that she would be
unable to sit throughout a day, stand/walk for 2 hours, or use her upper
extremities within the limited scope described in the residual functional
capacity.
AR 41. This statement is conclusory and it does not address test results showing the
worsening of plaintiff’s rheumatoid arthritis, Plt.’s Br., dkt. #21 at 17 (citing AR 466-71,
774-77), plaintiff’s prescription for a walker that she obtained after the opinion of the state
agency consultants, id. at 16 (citing AR 99, 107, 554) or more aggressive attempts to treat
plaintiff’s pain with medication. Id. at 20-21 (citing AR 111-13, 355-56, 395-97, 761-63).
Accordingly, the administrative law judge should reconsider his decision in light of those
records.
Plaintiff also objects to the administrative law judge’s reliance on the state agency
opinions because he did not give any consideration to the fact that the state agency
consultants were not specialists in the relevant field and that they had not treated or
examined plaintiff. Generally, opinions from sources who have treated the plaintiff are
entitled to more weight than non-treating sources. 20 C.F.R. § 404.1527(d)(1) and (2). A
physician’s specialty is a relevant consideration as well. Id. The administrative law judge
should address both of these factors on remand.
ORDER
IT IS ORDERED that Margaretta Sanchez’s motion for summary judgment, dkt.
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#12, 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 22d day of July, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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