Prosch, Robert v. Colvin, Carolyn
Filing
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OPINION and ORDER reversing the decision of defendant Carolyn Colvin, Acting Commissioner of Social Security and remanding under sentence four of 42 U.S.C. § 405(g). Signed by District Judge William M. Conley on 3/30/2015. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ROBERT PROSCH,
Plaintiff,
OPINION AND ORDER
v.
13cv559-wmc
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
Plaintiff Robert Prosch seeks judicial review of a decision by the Commissioner of
the Social Security Administration, which denied his application for Social Security
Disability Insurance Benefits and Supplemental Security Income. Prosch contends that
the Administrative Law Judge (“ALJ”) erred in failing to give proper weight to the
opinion of his treating physician.
For the reasons set forth below, the case will be
remanded to the Commissioner for rehearing.
FACTS
On October 26, 2009, Prosch filed a claim for Disability Insurance Benefitsand a
claim for Supplemental Security Income alleging disability beginning on January 1, 2007.
(AR 144-147). Prosch, who was 60 years of age at the time, testified that he had not
worked full time since his alleged onset date of January 1, 2007. (AR 46.) Prosch also
presented evidence that he is disabled due to obesity, retinal detachment of the right eye,
lattice degeneration of the left eye, cataracts, degenerative disc disease with disc
narrowing at the L1-2 and LS-S1 levels, arthritis, left ACL tear requiring a knee brace,
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type II diabetes with multiple complications including nephropathy and peripheral
neuropathy. (AR 467, 484, 402-403, 347-351, 359, 560, 473, 547-548). Following
denials at the initial and reconsideration stages, Prosch requested a hearing befpre an
Administrative Law Judge. (AR 79-90, 27.)
On December 1, 2011, a hearing was held before ALJ Gregory Hamel. (AR 41.)
Following this administrative hearing, the ALJ denied Prosch’s claim on January 31,
2012. (AR 24-40). In his written decision, the ALJ found that Prosch was not disabled
under the five-step sequential analysis mandated by the statute. (AR 129.) At step one
in the analysis, the ALJ found that Prosch had not engaged in substantial gainful activity
since his alleged onset date, January 1, 2007. At steps two and three, the ALJ found that
Prosch
had
severe
impairments,
including
diabetes
mellitus
with
neuropathy,
osteoarthritis of the left knee, left sacroiliac joint sprain, lumbar muscle strain,
gastroenemius muscle strain, and obesity. (AR 30.) Despite these impairments, the ALJ
further found Prosch 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 P,
Appendix 1. (Id.)
At step four, the ALJ further found that Prosch was able to perform his past work.
Based on evidence from the vocational expert, the ALJ finally found at step five that
there were jobs in significant numbers in the national economy that Prosch could
perform. (AR 14-16.)
On January 8, 2013, the Appeals Council denied review and, as a result, the ALJ’s
decision stands as the final decision of the Commissioner. (AR 14-19.) Prosch filed a
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timely complaint for judicial review in this court pursuant to 42 U.S.C. §405(g).
OPINION
When a federal court reviews a final decision by the Commissioner of Social
Security, the Commissioner’s findings of fact are “conclusive,” so long as they are
supported by “substantial evidence.” 42 U.S.C. § 405(g). 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).
When reviewing the
Commissioner’s findings under § 405(g), the court cannot reconsider facts, re-weigh the
evidence, decide questions of credibility or otherwise substitute its own judgment for that
of the administrative law judge. See Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
Even so, a district court may not simply “rubber-stamp” the Commissioner’s
decision without a critical review of the evidence. See Ehrhart v. Sec’y of Health and Human
Servs., 969 F.2d 534, 538 (7th Cir. 1992). A decision cannot stand if it lacks evidentiary
support. Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). The ALJ must also
explain his “analysis of the evidence with enough detail and clarity to permit meaningful
appellate review.” Id.; see Herron v. Shalala, 19 F.3d 329, 333–34 (7th Cir. 1994). When
the administrative law judge denies benefits, he must build a logical and accurate bridge
from the evidence to his conclusion. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir.
2001).
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A. Treating Physician Rule
Prosch principally contends that the ALJ erred in failing to give proper weight to
the medical opinion of his treating physician, Dr. Braun. Bound within this issue is
whether the ALJ adequately addressed the RFC and whether the vocational expert’s
opinion was tainted by a deficient RFC determination.
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. In Jelinek v. Astrue, 662 F.3d 805 (7th Cir. 2011), the court explained that if
consistent with the record, a treating physician’s opinion “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)); see also 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); see also 20 C.F.R. §
404.1527(d)(2); Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009); Bauer v. Astrue, 532
F.3d 606, 608 (7th Cir.2008) (stating that when the treating physician's opinion is not
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given controlling weight “the checklist comes into play”).1
In the present case, Prosch’s treating physician of ten years provided a medical
opinion as to his impairments and work-related limitations.
(AR 505-509.)
In
addressing this opinion, the ALJ stated only that:
[T]he undersigned gives limited weight to Dr. Braun's opinion
that the claimant is incapable of even sedentary work, as the
claimant's activity level is in strong contradiction to Dr.
Braun's opinion. Further, the longitudinal treatment records
by Dr. Braun do not support the level of limitations opined
to.
(AR 33.)
Assuming for purposes of argument that this brief passage passes for a “sound
explanation” for rejecting Dr. Braun’s medical opinion under Jelinck, the analysis does not
end there. As the regulations explain, when The ALJ does not give a treating physician’s
opinion controlling weight, the five factors recognized in Scott 647 F.3d 734 come into
play. Moreover, the ALJ is required to discuss these factors in “enough detail to permit
meaningful appellate review.” Steele, 290 F.3d at 940.
Here, the ALJ failed in his task to discuss several of the factors required in 20
C.F.R. §§404.1527(a)-(d), 416.927(a)-(d). For example, there is no discussion of (a) the
length, (b) nature, and (c) the extent of the treatment relationship between Prosch and
1 This analysis has been more recently applied in Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.
2013), where the Seventh Circuit stated that “The agency's regulations shed some light on how
the ALJ should approach the question of the weight to be given to a doctor's opinion. They state
that more weight should be given to the opinions of doctors who have (1) examined a claimant,
(2) treated a claimant frequently and for an extended period of time, (3) specialized in treating
the claimant's condition, (4) performed appropriate diagnostic tests on the claimant, (5) offered
opinions that are consistent with objective medical evidence and the record as a whole. 20 C.F.R.
§ 404.1527(c)(2)(i), (ii).” Id.
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Dr. Braun.
Tellingly, there is also no meaningful discussion of the frequency of
examination. These factors would appear to suggest that greater weight be given Dr.
Braun’s opinion yet none are discussed, necessitating the need for remand. See Roddy,
705 F.3d at 636.
While the ALJ did discuss the fifth factor as to consistency and supportability of
the treating physician's opinion, taken out of context to the other factors noted above, it
reads like “cherry picking.” See Smith v. Apfel, 231 F.3d 433, 438 (7th Cir. 2000) (“Case
law in the Seventh Circuit holds that '[a]n ALJ may not simply select and discuss only
that evidence which favors his [or her] ultimate conclusion.’ Rather, an ALJ's decision
must be based upon consideration of all the relevant evidence.”).
As drawn from ALJ’s abbreviated analysis, the ALJ selected only those portions of
Dr. Braun’s opinions that “support a finding of non-disability while ignoring other
portions that suggest disability.” Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010).
For example, Dr. Andreu Braun, M.D. provided a detailed list of Prosch’s limitations on
November 19, 2009:
a)
b)
c)
d)
e)
f)
Difficulty walking, episodic vision blurriness, excessive thirst,
swelling, sensitivity to light, heat or cold, retinopathy, kidney
problems, insulin shock/coma, extremity pain and numbness, loss of
manual dexterity, frequency of urination, dizziness/loss of balance,
hyper/hypoglycemic attacks, neuropathy on exam and increased
blood pressure.
Pain and other symptoms would frequently interfere with attention
and concentration.
Capable of low stress jobs.
Could walk less than one block.
Could sit for 20 minutes at a time for a total of 4 hours a day.
Could stand/walk for 15 minutes at a time for a total of 2 hours a
day.
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g)
h)
i)
j)
k)
l)
m)
Would need to walk around every 20 minutes for 5 minutes at a
time.
Would have to change positions at will and would need unscheduled
5 minute breaks about every 2 hours.
Would need to elevate 1 foot for 20% of the day.
Would occasionally be able to lift less than 10 pounds and rarely lift
10 pounds.
Would rarely be able to climb stairs, twist,and stoop; would never be
able to crouch, squat, or climb ladders.
Would have to avoid all exposure to extreme heat, cold, humidity
and wetness; avoid concentrated exposure to airborne irritants, dust,
and chemicals.
Would miss about three days of work per month.
(AR 505-509). While the ALJ need not have discussed each of these limitations, some
effort should be made on remand to address what other evidence in the record is
inconsistent with the limitations, particularly in circumstances where there is no state
examiner providing evidence that directly contradicts Dr. Braun’s opinion.
Although the Commissioner’s brief argues the ALJ’s analysis was sufficient, that
argument folds in upon itself .
If anything, the Commissioner’s post hoc analysis
highlights what is missing from the ALJ’s original decision. See Spiva v. Astrue, 628 F.3d
346, 348 (7th Cir. 2010) (court finds disfavor with “the Justice Department's lawyers
who defend denials of disability benefits often rely heavily on evidence not (so far as
appears) relied on by the administrative law judge”).
This, too, provides a basis for
remand.
B. Remaining Issues
Prosch raises a number of additional issues related to the sufficiency of the
underlying proceedings. Specifically, he argues that the ALJ’s RFC is not supported by
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substantial evidence because evidence from Dr. Braun was not properly credited. Upon a
facial assessment of Dr. Braun’s report, it would seem that at least some of the
limitations noted above could be added to the RFC determination. The court, however,
will ultimately leave this to the ALJ’s discretion upon remand. Should these limitations
be given little weight -- after proper analysis of the factors required by 20 C.F.R.
§§404.1527(a)-(d), 416.927(a)-(d) -- the ALJ may find that the original RFC
determination remains the same in light of the totality of the evidence. Of course, after
giving proper consideration to Dr. Brown’s opinion, the ALJ may come to a difference
conclusion. Instead of adjudicating the merits of the RFC at this juncture, the court
encourages the parties and the ALJ to consider the evidence and issues anew on remand,
including the deficiencies identified in this order. See Pierce v. Colvin, 739 F.3d 1046,
1051 (2014).
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 March, 2015.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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