Blommel, David v. Colvin, Carolyn

Filing 18

ORDER reversing and remanding action to Commissioner for further proceedings under sentence four of 42 U.S.C. § 405(g). Signed by District Judge James D. Peterson on 7/14/2015. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DAVID BLOMMEL
Plaintiff,

ORDER

v.
14-cv-518-jdp
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

Plaintiff David Blommel seeks judicial review of a final decision of defendant Carolyn W.
Colvin, the Acting Commissioner of Social Security, finding him not disabled within the
meaning of the Social Security Act. On July 9, 2015, the court heard oral argument in this case.
For reasons discussed during the hearing, the court will remand this case to the Commissioner
for further proceedings.
Blommel alleged that he was unable to work because of a range of physical impairments
related to his back, hand, and neck. He also suffered seizures. The ALJ assessed Blommel with
severe impairments of herniated disc/narrowing post-surgery in his neck, seizures, chronic
obstructive pulmonary disease, and alcohol abuse. R. 22.1 After assigning Blommel the residual
functional capacity to perform sedentary work with additional limitations, the ALJ found that
Blommel was not disabled because there was work available to him. R. 30.
Remand is required because the ALJ erred in his consideration of two medical source
opinions. First, the ALJ failed to adequately explain why he did not give controlling weight to
the opinion of Blommel’s treating neurologist, Dr. Erikson. The ALJ withheld controlling weight
because Dr. Erickson did not consider the Blommel’s alcohol and tobacco abuse in rendering her
opinion. R. 29. But this reason is inadequate because the ALJ acknowledged that “at least one of
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Record cites are to the administrative record, Dkt. 9.

the claimant’s seizures was not related to alcohol withdrawal.” R. 26.

The ALJ cited Dr.

Erikson’s own treatment notes when making this finding, which demonstrates that her opinion
did take into consideration Blommel’s alcohol abuse. Id. (emphasis added.) The ALJ herself
stated that Blommel would “still have impairments that curtailed his functional limitation even
if [he] were not abusing alcohol.” R. 27. These factors cut in favor of Dr. Erikson’s opinion, not
against it. The ALJ also discredited Dr. Erickson’s opinion controlling weight because it was
purportedly “issued for litigation purposes.” Id. But this reason conflicts with Punzio v. Astrue,
630 F.3d 704, 712-13 (7th Cir. 2011), which holds that a purported litigation motive is not a
sound reason to discredit a treating source opinion.
The Commissioner argued that ALJ appropriately weighed Dr. Erikson’s opinion because
the ALJ incorporated all of Dr. Erikson’s limitations into the RFC (other than perhaps the
limitations related to seizures). But this adds to the confusion because the ALJ expressly gave
Dr. Erikson’s opinion “little weight.” R. 28. On remand, the ALJ should provide a clear and
logical analysis of Dr. Erikson’s opinion. Without an explanation of which parts of Dr. Erikson’s
opinions are credited, the district court cannot engage in meaningful review. See Herron v.
Shalala, 19 F.3d 329, 333–34 (7th Cir. 1994).
The second opinion that the ALJ failed to properly analyze was that of Blommel’s
treating physician, Dr. Dryer. The ALJ was entitled to withhold controlling weight from Dr.
Dryer’s opinion because her treatment notes were inconsistent with her opinion and with the
medical record. R. 27.

But the ALJ nevertheless failed to explain what weight the opinion

deserved by using the factors laid out in 20 C.F.R. § 404.1527(c)—including, among others, the
length, nature, and extent of the treating relationship. The ALJ’s failure to balance these factors
makes remand necessary. See Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013).

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This order does not mandate that any medical opinion be given a particular weight, nor
does it mandate a finding of disability. But on remand, the ALJ must articulate valid reasons for
withholding controlling weight from Dr. Erickson’s opinion. And for opinions that do not
deserve controlling weight, the ALJ must identify and apply the pertinent regulatory factors in
20 C.F.R. § 404.1527(c) to weigh Dr. Erikson and Dr. Dryer’s opinions. For example, merely
mentioning that Dr. Erikson was a neurologist is not enough; the ALJ must explain how that
factor weighs “for or against” crediting the opinion.
The ALJ should also reconsider the following issues:


Credibility: The court is not persuaded by the ALJ’s reasoning for discounting
Blommel’s credibility—i.e., the belief that Blommel was “motivated” to apply for
disability benefits because of “outstanding child support obligations.” R. 28. This
reasoning draws no logical bridge between it and the conclusion to discount
Blommel’s subjective complaints related to the nature of his impairments.



Lay witnesses: There is nothing in the ALJ’s decision addressing the lay testimony
from Blommel’s wife, Barbara, or from his friend, James. Such evidence may well
corroborate Blommel’s allegations of debilitating impairments, particularly those
impairments related to use of his hand and sitting/standing limitations. The ALJ
must therefore evaluate this testimony on remand.



RFC Deficiency: Upon reconsideration of the treating sources and the lay
witnesses, the ALJ may need to modify his RFC finding to accommodate the
medical limitations that were not previously credited. Of course, this may also
affect the questions that the ALJ proposes to the vocational expert.

Accordingly, IT IS ORDERED that the decision of defendant Carolyn W. Colvin, Acting
Commissioner of Social Security, denying plaintiff’s application for disability benefits is
REVERSED AND REMANDED under sentence four of 42 U.S.C. § 405(g) for further

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proceedings consistent with this opinion. The clerk of court is directed to enter judgment for
plaintiff and close this case.
Entered July 14, 2015.
BY THE COURT:
___/s/_____________________________________
JAMES D. PETERSON
District Judge

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