Miller, Neil v. Colvin, Carolyn
Filing
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OPINION AND ORDER reversing and remanding action to Commissioner for further proceedings RE: 11 Social Security Transcript. Signed by District Judge Barbara B. Crabb on 7/28/15. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
NEIL F. MILLER,
Plaintiff,
v.
OPINION AND ORDER
14-cv-595-bbc
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
Plaintiff Neil Miller is seeking review of a final decision by defendant Carolyn W.
Colvin, Acting Commissioner of Social Security, denying his claim for disability insurance
benefits and supplemental security income under the Social Security Act. 42 U.S.C. §
405(g). The administrative law judge who decided the case concluded that plaintiff suffered
from the severe impairments of degenerative disc disease of the lumbar spine with past
fusion and hemilaminectomy, seizure disorder, chronic pain syndrome and anxiety disorder
but retained the residual functional capacity to perform limited light work with brief position
changes every 30 minutes, no more than occasional foot controls, bending, twisting,
stooping, kneeling, crouching crawling or climbing, and no work at unprotected heights or
near hazards. In addition, the administrative law judge limited plaintiff to work that was
routine, repetitive, simple and low stress (meaning no high production standards) and that
required no more than brief and superficial contacts with others.
In his petition for judicial review, plaintiff asks this court to reverse the decision and
remand it to the commissioner on the ground that the administrative law judge committed
a number of errors in determining plaintiff’s residual functional capacity. He contends that
the administrative law judge failed to properly weigh the medical opinions in the record,
failed to build an accurate and logical bridge between the evidence and his ultimate residual
functional capacity finding and improperly evaluated his credibility.
Because I find that the administrative law judge did not build an accurate and logical
bridge between the evidence and her residual functional capacity assessment, I am granting
plaintiff’s motion for summary judgment and remanding this case for further proceedings.
The following facts are drawn from the administrative record (AR).
RECORD FACTS
I. BACKGROUND AND MEDICAL EVIDENCE
Plaintiff applied for Supplemental Security Income and Disability Insurance Benefits
on February 10, 2009. After the social security administration denied his application
initially and on reconsideration, plaintiff asked that his claim be heard by an administrative
law judge. A hearing was held on March 13, 2013, at which plaintiff and a vocational expert
testified.
Plaintiff was born on January 3, 1978, making him 31 years old at the time he applied
for benefits. He had past work experience as a heavy equipment operator, cleaner and
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restaurant worker. He alleged that he had been disabled since February 1, 2003 because of
back pain and seizures.
Plaintiff has a long-standing history of back pain; he had a lumbar laminectomy in
2001. For the next eight years, he was relatively asymptomatic apart from some acute
exacerbations of pain and right-sided numbness in 2004, 2006 and 2008. In late 2009, he
reported that his symptoms had worsened and he had leg and right buttock pain as well as
some erectile dysfunction. After consulting with a neurosurgeon, Dr. Marshall Watson,
plaintiff underwent fusion of the L5-S1 joint in March 2010.
When seen for a followup appointment in May, plaintiff reported having attempted
to return to work as a heavy equipment operator but was unable to do so because his legs
were too weak. Dr. Watson, the treating neurosurgeon, noted that plaintiff had good lower
extremity strength and sensation and that he was making slow and steady progress after his
surgery, but it was too early for him to attempt any significant physical labor. Dr. Watson
recommended physical therapy to strengthen plaintiff’s back and legs.
Plaintiff did not see Dr. Watson again until September 1, 2010, having missed three
appointments. He reported that he had not attended physical therapy for financial reasons.
He was doing reasonably well but he still had some back pain and episodic pain down his
right leg. At a follow up two months later, plaintiff said he had been doing reasonably well
until the weather changed, at which point he began having severe pain down his right leg
into his foot. Plaintiff had 5/5 lower extremity strength but some decreased light touch in
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the lateral aspect of his foot. Dr. Watson ordered a myelogram, which showed that the
hardware was in a reasonable position and there was no significant compression of any of
the involved nerve roots, although there was slight bulging at the L4-L5 disc above the
fusion.
On December 8, 2010, plaintiff reported that he continued to have episodes of back
pain, although his back did not “lock up” the way it had before the surgery. Dr. Watson
again emphasized the importance of physical therapy and told plaintiff to follow up as
needed.
Plaintiff saw Dr. Watson again on April 20, 2011, complaining of increased pain in
his back and right leg, though the pain was still better than it was before surgery. Plaintiff
told Watson that he was pursuing Social Security disability and that a form had been faxed
to Watson’s office. Watson noted that plaintiff had good lower extremity strength but some
decreased light touch in a right S1 distribution. (The record does not show that Watson
completed any form on plaintiff’s behalf at that time.)
Plaintiff saw Dr. Watson again on October 26, 2011. Watson wrote that plaintiff
“[e]ssentially is here for disability papers,” reporting that he continued to have back and leg
pain and had good days and bad days. He could not attend physical therapy because of the
cost. Watson noted that plaintiff appeared reasonably comfortable, although he shifted in
his chair frequently.
On examination, he showed good lower extremity strength and
sensation. Dr. Watson diagnosed degenerative joint disease of the lumbosacral spine and
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ordered x-rays.
Two days later, Watson completed a residual functional capacity
questionnaire, which is discussed below.
At a visit with Dr. Watson on December 5, 2011, plaintiff reported that his back pain
was worse with the cold weather.
Watson noted that plaintiff was awake, alert and
comfortable and his lumbar xrays “look good.” Watson ordered an MRI to evaluate the
other discs in plaintiff’s back.
On January 26, 2012, plaintiff presented to the emergency room, complaining that
he had experienced sharp sudden pain in his back and buttocks after reaching around to get
some toilet paper while sitting on the toilet. Plaintiff reported that his back had gone into
spasm and he was in severe pain. He was treated with medications and released. Four days
later, plaintiff returned to the urgent care clinic, reporting that his back was still “locking up”
and he had pain in both legs but he was out of his medications. Plaintiff was noted to
appear very uncomfortable. He had fairly normal strength and sensation in his left leg but
decreased sensation on the outside of the right foot. His diagnosis was an exacerbation of
lumbar radiculopathy.
Sometime in 2012, plaintiff began seeing Dr. Jacob Oestreich, a primary care
physician. Dr. Oestreich saw plaintiff on a monthly basis, primarily for the purpose of
refilling his medications, which consisted of Lortab (a combination of hydrocodone and
acetaminophen) and Tramadol (a narcotic-like pain reliever).
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On October 11, 2012, plaintiff was evaluated by neurologist Edgardo Crisostomo,
M.D., after having what was thought to be a seizure. On examination, plaintiff was found
to have normal motor function, normal and symmetrical reflexes in the arms and legs,
normal tone and unremarkable gait and station. An EEG showed abnormal brain activity
consistent with a seizure disorder.
Dr. Oestreich’s office notes from 2012 generally show that plaintiff was doing well
overall and that the medications allowed plaintiff to be “out and about and functional at a
level that’s acceptable and necessary for him.” On December 3, 2012, Dr. Oestreich noted
that plaintiff’s seizures were stable on Depakote and that he had not had any further seizure
activity.
II. ADMINISTRATIVE LAW JUDGE’S DECISION
On April 1, 2013, the administrative law judge issued a decision finding plaintiff not
disabled. Applying the familiar five-step process for deciding disability claims, 20 C.F.R. §§
404.1520(a) and 416.920(a), she found at steps one through three that plaintiff had not
engaged in substantial gainful activity since February 1, 2003, his alleged onset date (step
one); plaintiff had the severe impairments of degenerative disc disease of the lumbar spine
with past fusion and hemilaminectomy; seizure disorder; chronic pain syndrome; and anxiety
disorder (step two); and that none of plaintiff’s impairments was severe enough either singly
or in combination to meet or medically equal the requirements of any listing contained in
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20 C.F.R. Part 404, Subpart P, Appendix 1 (step three). Accordingly, the administrative law
judge proceeded to evaluate plaintiff’s residual functional capacity.
The record before the administrative law judge included two medical opinions
concerning plaintiff’s residual functional capacity. The first was a form completed by Dr.
Watson, plaintiff’s treating neurosurgeon, on October 28, 2011. Dr. Watson wrote that
plaintiff could lift up to 10 pounds frequently and up to 20 pounds occasionally, sit and
stand for 30 minutes at one time and walk for 20 minutes at one time, but in an eight-hour
work day could stand for 90 minutes and walk for 30 minutes total, sit for six hours, could
reach only occasionally and could never climb, balance, stoop, kneel, crouch, crawl or work
at unprotected heights. Watson also wrote that plaintiff needed to be able to lie down for
two hours of an eight-hour day. The vocational expert testified that an individual who was
limited to occasional reaching could not perform any of the jobs he had identified and that
a person who had to lie down for two hours a day could not work at any job.
The second opinion concerning plaintiff’s physical limitations was a form completed
on May 11, 2011 by Dr. Chan, a consultant for the state disability agency. Like Dr.
Watson, Chan concluded that plaintiff could sit for up to six hours a day and could stand
or walk for at least two hours a day. However, Chan concluded that plaintiff could lift only
10 pounds, as opposed to 20 pounds, as Watson found. Further, Chan did not see any
reason for restrictions on reaching or postural activities such as bending, kneeling and
stooping and he did not indicate that plaintiff would need to lie down for two hours a day.
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Overall, it was Chan’s opinion that plaintiff could perform sedentary work. (No one asked
the vocational expert whether any jobs would have been available to plaintiff if he had the
restrictions identified by Chan.)
The administrative law judge concluded that plaintiff had the residual functional
capacity to perform light work (defined as lifting up to 20 pounds occasionally and 10
pounds frequently and standing and walking up to six hours and sitting up to two hours in
an eight-hour workday). In addition, the administrative law judge concluded that plaintiff
would not be able to maintain a job unless it
•
permitted him to change position briefly every 30 minutes;
•
did not require more than occasional use of foot controls, bending, twisting,
stooping, kneeling, crouching, crawling or climbing;
•
did not require work at unprotected heights or near hazards;
•
was limited to routine, repetitive and simple work;
•
did not require more than brief and superficial contacts with others; and
•
was low stress, defined as no high production standards.
In arriving at the residual functional capacity detailed above, the administrative law
judge stated that she was giving “some weight” to Dr. Watson’s conclusions and “little
weight” to Chan’s conclusions. The administrative law judge explained that Dr. Watson’s
limitations of lifting 20 pounds occasionally and 10 pounds frequently as well as a change
of position after 30 minutes were consistent with the degenerative disc disease that Watson
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had diagnosed. She found, however, that “limitations on walking and standing are not
supported by the generally normal physical exams showing full strength in the lower
extremities.” AR 33. In addition, she rejected Watson’s opinion concerning plaintiff’s need
to lie down and his limitations on reaching and other postural activities, finding that Dr.
Watson did not provide any rationale for these limitations and there was no evidence that
he ever examined plaintiff’s upper extremities.
As for Dr. Chan’s opinion that plaintiff was limited to sedentary work, the
administrative law judge cited three reasons for rejecting his opinion:
1) the lack of
consistent objective findings in the record to support “limiting the claimant as drastically as
[Chan] indicated in his report;” 2) Chan appeared to have given great weight to plaintiff’s
subjective reports as stated in his function report, rather than considering objective findings;
and 3) plaintiff’s activities during the applicable time period were not consistent with the
limitations Chan found.
At step four, the administrative law judge determined that plaintiff’s residual
functional capacity prevented him from performing any of his past relevant work.
Accordingly, she went on to consider whether, in light of plaintiff’s age, education, work
experience and residual functional capacity, he could make a vocational adjustment to work
existing in significant numbers in the national or regional economy.
Relying on the
testimony of the vocational expert at the hearing, the administrative law judge found that
plaintiff would be able to perform the jobs of parking lot attendant/cashier, warehouse
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checker and bagger and that such jobs existed in significant numbers in the state of
Minnesota.
Plaintiff asked the Appeals Council to review his claim but it declined, making the
administrative law judge’s decision the final decision of the Commissioner.
OPINION
I. STANDARD OF REVIEW
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). The reviewing court cannot reconsider
facts, re-weigh the evidence, decide questions of credibility or otherwise substitute its own
judgment for that of the ALJ. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
However, a reviewing “court must conduct a critical review of the evidence before affirming
the [C]ommissioner's decision, and the decision cannot stand if it lacks evidentiary support
or is so poorly articulated as to prevent meaningful review.” Hemminger v. Astrue, 590 F.
Supp. 2d 1073, 1079 (W.D. Wis. 2008) (internal citations omitted). To provide the
necessary support for a decision to deny benefits, the ALJ must “build an accurate and logical
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bridge from the evidence to [his] conclusion.” Zurawski v. Halter, 245 F.3d 881, 887 (7th
Cir. 2001).
II. PHYSICAL RESIDUAL FUNCTIONAL CAPACITY
In performing the analysis for Step Four, the administrative law judge determines
whether the claimant's residual functional capacity allows the claimant to return to past
relevant work. Residual functional capacity is a measure of the abilities the claimant retains
despite his or her impairments. 20 C.F.R. §§ 404.1545(a); 416.945(a). In assessing a
claimant’s residual functional capacity, an administrative law judge is not limited to medical
opinions but may consider all of the relevant evidence. This includes objective medical
evidence, treatment, physicians' opinions and observations and the claimant's own
statements about his limitations. 20 C.F.R. §§ 404.1545(a); 416.945(a). Thus, although
medical source opinions about a plaintiff’s residual functional capacity must be considered,
they are not controlling.
Plaintiff argues that the administrative law judge’s residual functional capacity finding
is not supported by substantial evidence. First, he argues that the administrative law judge
failed to properly weigh the medical opinions in accordance with SSA regulations. According
to plaintiff, the administrative law judge violated the rule against “playing doctor” by
drawing her own conclusions about the objective medical evidence rather than leaving it to
the medical professionals. Second, he contends that, even assuming the administrative law
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judge properly rejected Dr. Watson and Dr. Chan’s opinions, she still failed to give an
adequate explanation for some of her conclusions regarding plaintiff’s residual functional
capacity. In particular, plaintiff argues that there is no clear evidentiary basis for the
administrative law judge’s conclusions that plaintiff was able to be on his feet for up to six
hours a day provided he was allowed a “brief change of position” and that he was able to
perform postural maneuvers such as crawling, stooping and kneeling occasionally, meaning
up to one-third of the day.
It is a well-settled rule that a treating physician’s medical opinion is entitled to
controlling weight if it is supported by objective medical evidence and consistent with other
substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Roddy v.
Astrue, 705 F.3d 631, 636 (7th Cir. 2013); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th
Cir. 2004). Although an administrative law judge is not required to afford a treating
physician’s opinion controlling weight, she is required to provide a sound explanation for
rejecting it. Roddy, 705 F.3d at 636. See also Beardsley v. Colvin, 758 F.3d 834, 839 (7th
Cir. 2014) (“The problem in this case is that the ALJ did not provide a valid explanation for
preferring the record reviewer's analysis over that of the agency’s examining doctor.”).
Further, “[i]f 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” in determining
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the weight to give the opinion. See Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009); 20
C.F.R. §§ 404.1527(d)(2); 416.927(d).
With respect to non-examining sources,
administrative law judges are required to consider their opinions and evaluate them in
accordance with the same criteria that apply to treating source opinions. 20 C.F.R. §§
404.1527(e); 416.927(e).
With respect to the walking and standing limitations, the commissioner argues that
it was reasonable for the administrative law judge to rely on the physical examinations by
Drs. Watson, Oestreich and Crisostomo as a basis for rejecting Dr. Watson and Dr. Chan’s
conclusion that plaintiff was limited to two hours of standing or walking daily. These
examinations generally showed that plaintiff had normal strength in his lower extremities
and no neurological abnormalities.
Plaintiff responds that the administrative law
judge“played doctor,” drawing her own conclusions about the medical evidence, when she
assumed that lower extremity weakness and abnormal neurological findings had to be
present in order to credit the opinions plaintiff was limited in his ability to walk and stand,
Although it is true that administrative law judges must resist the urge to make medical
determinations, they are permitted to weigh the evidence and make reasonable inferences
from the record. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004); Blakes ex rel.
Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir. 2003). Drawing that line is often a difficult
task, and this case is no exception.
On the one hand, it seems reasonable for the
administrative law judge to question the soundness of Dr. Watson and Dr. Chan’s opinions
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that plaintiff would have problems with prolonged walking and standing given the absence
of any objective findings indicating that plaintiff had weakness or numbness in his legs and
the generally unremarkable examinations by other providers. (Although plaintiff points to
a few records showing some leg weakness and other positive findings, I agree with defendant
that overall, plaintiff’s post-surgery examinations were largely unremarkable apart from some
isolated flare-ups.) On the other hand, plaintiff does have documented problems with his
lower back: he has degenerative disc disease, has had two surgeries on his lumbar spine
requiring the placement of hardware in his back and his back can lock up even when he
performs ordinary activities such as reaching for a roll of toilet paper. In addition, he has
a diagnosis of chronic pain syndrome and takes relatively strong medication on a daily basis.
What is more, no other physician who examined plaintiff or reviewed his records
offered an opinion about his ability to walk and stand that supports the administrative law
judge’s conclusion that plaintiff was not as limited in walking or standing as Drs. Watson
and Chan had found. To the contrary, the only two physicians who evaluated plaintiff’s
residual functional capacity were Watson and Chan, who agreed that plaintiff was limited
in the amount of standing or walking he could do. The administrative law judge did not
acknowledge this consistency in her opinion, even though it is one of the regulatory factors
and arguably supports giving greater weight to both opinions.
See 20 C.F.R. §§
404.1527(d)(2), 416.927(d) (in deciding weight to be afforded medical opinion,
administrative law judge must consider the length, nature and extent of the treatment
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relationship, frequency of examination, the physician's specialty, the types of tests performed
and the consistency and supportability of the physician's opinion).
Given these facts, I am persuaded that this is a case where the administrative law
judge crossed the line between permissible inferences and impermissible medical opinions.
As the court of appeals has cautioned, “[c]ommon sense can mislead; lay intuitions about
medical phenomena are often wrong.” Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir.
1990). Here, both plaintiff’s treating neurosurgeon and a non-examining medical expert
concluded that plaintiff was restricted in his ability to walk and stand notwithstanding his
generally normal lower extremity strength and neurological findings. Where the only two
medical opinions of record are in agreement, the administrative law judge should have had
some strong evidence on which to rely before rejecting those opinions and finding that
plaintiff had a greater capacity for work. Her own opinion that the doctors’ opinions are
unsupported by the objective medical evidence is not enough. Barrett v. Barnhart, 355 F.3d
1065, 1067 (7th Cir. 2004) (ALJ's conclusion that claimant could stand for two hours was
not supported by the medical evidence because “[t]he only physician who specified
limitations had advised that [plaintiff] could stand for up to six hours at a time, but he had
not known about the problem with her knees.”).
This does not mean that the administrative law judge was required to accept Dr.
Watson or Dr. Chan’s opinions without question. If the administrative law judge thought
neither opinion well-supported or contradicted by later evidence introduced into the record,
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she could have called a consulting expert to testify. Alternatively, she could have asked Dr.
Watson for a new evaluation. Having opted not to do so, however, the administrative law
judge could not simply rely on her own understanding of the medical evidence as a basis for
her conclusions about plaintiff’s residual functional capacity.
I agree with plaintiff that the administrative law judge also failed to build an accurate
and logical bridge between the evidence and her conclusion about his ability to perform
postural maneuvers such as climbing, balancing, stooping, kneeling, crouching or crawling.
Dr. Watson found that plaintiff could never perform these maneuvers, whereas Dr. Chan
found plaintiff to have no limitations in these areas. The administrative law judge found
that plaintiff could “occasionally” perform these maneuvers, but how she arrived at this
conclusion is impossible to discern from her decision.
The commissioner insists that plaintiff’s reported activities provide the missing
support for the administrative law judge’s conclusions about plaintiff’s ability to walk, stand
and perform postural maneuvers, but her arguments are not convincing. The administrative
law judge’s discussion of plaintiff’s activities reads as follows:
[T]he claimant’s ongoing activities are consistent with the ability to perform
work within the residual functional capacity defined above. He lives
independently and does not drive because he lost his license secondary to child
support issues. The claimant’s parents pay the rent for him. He is able to go
grocery shopping with his parents and cook independently. The claimant
indicated he used to do laundry but no longer does so, for unclear reasons. He
indicated he can straighten up the house, wash dishes, have his kids over on
the weekends when they cook together, watch movies, play video games, and
design things with Legos. He also tries to read, watches television, plays the
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guitar, and does some sketching. There were also references in the medical
records to skinning a deer and painting during the applicable time period.
AR 33 (citations omitted).
This discussion is deficient because the administrative law judge never says why
plaintiff’s activities are consistent with the administrative law judge’s conclusions about
plaintiff’s residual functional capacity. Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011)
(“[An ALJ] must explain perceived inconsistencies between a claimant's activities and the
medical evidence.”). As the Court of Appeals for the Seventh Circuit has cautioned on
numerous occasions, the mere fact that a plaintiff is able to perform personal activities of
daily living does not prove that he can perform a job on a regular basis, much less a job
requiring up to six hours of standing or walking. See Bjornson v. Astrue, 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.”); Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011) (“[The claimant's]
ability to struggle through the activities of daily living does not mean that [the claimant] can
manage the requirements of a modern workplace.”); Mendez v. Barnhart, 439 F.3d 360, 362
(7th Cir. 2006) (“The pressures, the nature of the work, flexibility in the use of time, and
other aspects of the working environment as well, often differ dramatically between home
and office or factory or other place of paid work.”). It is not clear how the administrative
law judge concluded from plaintiff’s ability to manage a few personal daily and weekly chores
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and to read and watch television that he was able to be on his feet for a total of six hours a
day, five days a week, or to perform postural maneuvers occasionally.
The commissioner argues that plaintiff’s activities of skinning a deer and painting his
house were sufficient to support the administrative law judge’s conclusion. To be sure, if
these more strenuous activities were performed on a regular basis, they would be a good
reason for the administrative law judge to find that plaintiff had a relatively non-restrictive
residual functional capacity. However, there is no evidence that plaintiff hunts or skins deer
or paints on a regular basis. (At the hearing, plaintiff stated that he had not gone hunting
for years. He was not asked about painting.) Merely referring to isolated activities in
passing without analyzing what those activities mean in terms of the claimant’s credibility
or functional capacity is not enough to satisfy the minimal articulation requirement.
Hamilton v. Colvin, 525 F. App’x 433, 438 (7th Cir. May 3, 2013) (administrative law
judge’s reference to plaintiff’s “isolated recreational event” of driving to Kentucky
insufficient to establish that plaintiff could sit for more than 20 minutes at a time on a
regular basis) (unpublished opinion). But see McElroy v. Apfel, No. 97 C 6585, 1999 WL
199617, at *6 (N.D. Ill. Apr. 2, 1999) (ALJ properly rejected opinion of non-treating
physician that plaintiff could lift no more than five pounds where administrative law judge
specifically asked plaintiff at hearing how much he could lift and plaintiff testified repeatedly
that he could lift more than five pounds).
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The commissioner also points out that Dr. Oestreich stated on several occasions that
plaintiff was able to function at an acceptable level and that his medications allowed him to
be “out and about.” Such vague boilerplate statements, however, do not say much about
plaintiff’s ability to walk or stand for six hours or perform postural maneuvers such as
bending. As the court of appeals has noted with respect to analogous remarks about a
patient’s “improvement,” “[t]he key is not whether one has improved (although that is
important), but whether they have improved enough to meet the legal criteria of not being
classified as disabled.” Murphy v. Colvin, 759 F.3d 811, 819 (7th Cir. 2014). It may be the
case that for Dr. Oestreich, “acceptable” means that plaintiff can perform a few tasks around
the house and “out and about” means he can go to the grocery store. Without a reference
point, Oestreich’s statements are simply not informative as to plaintiff’s activities or his
capacity for light work.
In sum, none of the medical evidence or activities cited by the administrative law
judge supports her determination that plaintiff is able to walk or stand six hours of an eighthour workday with brief position changes or perform occasional postural maneuvers.
Accordingly, this case must be remanded for a new determination of plaintiff’s residual
functional capacity. In doing so, the administrative law judge should re-evaluate the medical
opinions in accordance with the commissioner’s regulations, taking care to apply the factors
noted above for weighing medical opinions. If the administrative law judge decides again
to make a residual functional capacity assessment that differs from that of the medical
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sources, she must explain the basis for her conclusions and make sure they are firmly
grounded in the evidence.
I note that plaintiff raises additional objections to the administrative law judge’s
evaluation of Dr. Watson’s opinion, arguing that she failed to cite good reasons for rejecting
his opinion that plaintiff needed to lie down for two hours a day, could not operate foot
controls and could not perform reaching. However, as the administrative law judge correctly
noted and as plaintiff appears to concede, Dr. Watson did not provide any rationale for
these limitations and none is obvious from his medical records; in fact, there is no indication
that he ever examined plaintiff’s arms to determine whether plaintiff had any problems with
reaching. Furthermore, Dr. Chan did not find that plaintiff had any of these limitations.
Accordingly, I am not particularly troubled by the administrative law judge’s decision to
reject these aspects of Dr. Watson’s opinion. Nonetheless, on remand, the administrative
law judge should re-consider all of Dr. Watson’s opinions and explain the weight given to
each of them in accordance with the regulations.
Finally, there is one additional issue not flagged by either party. The administrative
law judge mentioned evidence that plaintiff had engaged in work activity after his alleged
disability date. In particular, she cited a September 2006 urgent care note in which plaintiff
was noted to have a job where he worked around crude oil (AR 354) and another from
March 2008 in which he was noted to have a job that required him to lift 50 pounds (AR
369). Indeed, as the administrative law judge pointed out, other than some emergency room
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visits, there is little evidence that plaintiff was having any serious problems with his back
until late 2009, when he was referred to Dr. Watson.
Even though the evidence suggests that the earliest plaintiff could have been disabled
was in late 2009, the administrative law judge did not make separate findings for the preand post-2009 periods. Instead, she determined plaintiff’s residual functional capacity for
the entire 10-year period under adjudication. On remand, the administrative law judge may
wish to consider separating the period under consideration into different time frames to
account for the changes in plaintiff’s condition and activities.
For the sake of completeness, and to help guide the commissioner on remand, I briefly
address plaintiff’s remaining objections.
III. MENTAL RESIDUAL FUNCTIONAL CAPACITY
Plaintiff argues that the administrative law judge “played doctor” when she assigned
mental limitations to account for plaintiff’s anxiety disorder that were not supported by any
medical opinion of record. Although a state agency psychologist provided a mental residual
functional capacity assessment concluding that plaintiff’s only mental impairment was nonsevere substance abuse, the administrative law judge disregarded it because of evidence that
showed that plaintiff developed anxiety after the psychologist reviewed the record. Plaintiff
does not challenge the administrative law judge’s decision to disregard the psychologist’s
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opinion, but argues that once she did so, she could not draw any conclusions about plaintiff’s
mental abilities without a new expert evaluation or opinion.
Although I agree that this appears to be another case of the administrative law judge
playing doctor, in this instance it is unclear how plaintiff was harmed by it. In spite of
minimal evidence showing that plaintiff complained of or was treated for anxiety or any
other psychological impairment, the administrative law judge included a number of mental
limitations in her residual functional capacity assessment, namely, that plaintiff be limited
to work that was routine, repetitive and simple, did not require more than brief and
superficial contacts with others and was low stress, defined as no high production standards.
Plaintiff fails to point to any evidence in the record suggesting that his anxiety imposes
greater limitations than these. Accordingly, there is no reason to remand the decision on this
ground.
IV. CREDIBILITY
In assessing the credibility of plaintiff’s subjective complaints, the administrative law
judge found it credible that plaintiff would have difficulty with prolonged periods of standing
or walking, heavy lifting and complex or highly stressful work. In addition, although plaintiff
did not allege difficulties in social functioning, she gave plaintiff “the benefit of the doubt”
and included such limitations in her residual functional capacity assessment. However, she
rejected plaintiff’s allegations that he could not lift more than a half gallon of milk, had to
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nap twice a day for one to two hours, experienced debilitating seizures every 10 days, had
episodes of back pain where he could not move for five days, could not stand for more than
15 minutes and could not walk for more than 25 minutes.
So long as an administrative law judge gives specific reasons supported by the record,
the court will not overturn her credibility determination unless it is patently wrong. Pepper
v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013). “Credibility determinations can rarely be
disturbed by a reviewing court, lacking as it does the opportunity to observe the claimant
testifying.” Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir. 2006).
The commissioner concedes that the administrative law judge erred by relying on
plaintiff’s failure to attend physical therapy as a reason to discount his credibility without
considering evidence that plaintiff was unable to afford therapy. Murphy v. Colvin, 759
F.3d 811, 816 (7th Cir. 2014) (failure to follow prescribed treatment should not negatively
affect credibility if there are good reasons the claimant did not fully comply with prescribed
treatment). Further, as discussed above, the administrative law judge’s “list” of plaintiff’s
ongoing activities lacks sufficient analysis to be of much use in the credibility determination.
In spite of these deficiencies, however, I am satisfied that the administrative law judge’s
credibility assessment was not patently wrong because she cited other inconsistencies
between plaintiff’s alleged symptoms and the evidence that are supported by the record. For
example, she noted that although records showed that plaintiff was seen in the emergency
room for back pain, the doctors did not corroborate his testimony that he could not move
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for five days; there was no support in the medical records that plaintiff had seizures when
he took his medications regularly and he did not report any side effects to his doctor;
plaintiff had engaged in fairly strenuous work activity after his alleged onset date; and he
worked only sporadically prior to his alleged onset date, which called into question whether
plaintiff’s unemployment was the result of his medical impairments. Because these reasons
were adequate to support the administrative law judge’s credibility determination, that
determination does not require a remand.
ORDER
IT IS ORDERED that the decision of the defendant, Carolyn Colvin, Commissioner
of Social Security, is REVERSED AND REMANDED for further proceedings consistent
with this opinion.
Entered this 28th day of July, 2015.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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