Blum, Jerry v. Colvin, Carolyn

Filing 15

ORDER reversing and remanding action to the Commissioner for further proceedings under sentence four of 42 U.S.C. § 405(g). Signed by District Judge James D. Peterson on 10/16/2015. (jls)

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

JERRY BLUM,

v.

Plaintiff,

ORDER
14-cv-814-jdp

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

Plaintiff Jerry Blum seeks judicial review of a final decision of defendant Carolyn W.
Colvin, Acting Commissioner of Social Security, finding him not disabled within the meaning of
the Social Security Act. On October 15, 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.
Blum alleged that he was unable to work because of carpal tunnel syndrome, left foot
atrophy, degenerative disc disease, and right shoulder pain. Since 2003, Blum has undergone
three back surgeries, carpal tunnel release surgery, and physical therapy, all of which have
provided only modest relief. Blum’s treating physician, Gary Grunow, MD, opined on the
physical limitations that Blum’s underlying conditions caused. R. 321-25. 1 According to Dr.
Grunow, Blum would require exertional and postural limitations, he would have good days and
bad days, and he would need to miss work three days per month. Id. The ALJ gave Dr. Grunow’s
opinion little weight “because the degree of limitation expressed in [his] assessment is not
proportional to the physical examination findings or the plan of care.” R. 21. But this reasoning,
without more, does not justify withholding controlling weight from Dr. Grunow’s opinion.

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Record cites are to the administrative record. Dkt. 7.

The ALJ recited the correct standard for determining whether a treating source’s opinion
is entitled to controlling weight, but he did not apply that standard to the medical evidence in
the record. Despite recounting Blum’s considerable medical history, the ALJ did not specifically
identify evidence that was inconsistent with Dr. Grunow’s opinion. Indeed, much of the
evidence that the ALJ summarized actually supported Dr. Grunow’s limitations. For example, a
2011 disability assessment indicated that Blum had experienced considerable loss of sensation
and grip strength in his right hand, and in 2012, Blum’s persistent leg pain led him to undergo a
discectomy. R. 19. Remand is necessary because the court cannot trace the ALJ’s reasons for
giving Dr. Grunow less than controlling weight.
Even if Dr. Grunow’s opinion was not entitled to controlling weight, the ALJ still needed
to identify and apply the pertinent regulatory factors in 20 C.F.R. § 404.1527(c) to weigh his
opinion and the other medical opinions in the record. Here, beyond acknowledging that Dr.
Grunow is a treating source—a factor that favors giving his opinion greater weight—the ALJ did
not engage these factors in analyzing Dr. Grunow’s opinion. Instead, it appears as though the
ALJ simply disagreed with Dr. Grunow’s conclusions about the limitations that Blum’s
conditions imposed. But an ALJ cannot “play doctor” and substitute his own medical
conclusions for those of a medical professional. Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.
1996). Thus, regardless of whether the ALJ properly withheld controlling weight, remand would
be required for the ALJ to articulate his reasons for assigning little weight to Dr. Grunow’s
opinion.
Blum also alleges that the vocational expert who was present at the hearing lacked a
proper foundation from which to testify to the number of jobs available to a person with Blum’s
residual functional capacity. The Seventh Circuit has expressed skepticism at the methodology
that VEs use to calculate the number of jobs available. See, e.g., Voigt v. Colvin, 781 F.3d 871

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(7th Cir. 2015). But the court of appeals has not overruled its precedent that a social security
claimant forfeits arguments about conflicts between a VE’s testimony and the Dictionary of
Occupational Titles when the claimant is represented at the hearing and his representative fails to
object. Unless the conflicts are so apparent that the ALJ should know that the VE’s testimony
conflicts with the DOT, the ALJ is entitled to accept the VE’s unchallenged testimony. Overman
v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008). Here, Blum was represented at the hearing and his
representative did not challenge the numbers that the VE provided. Given the direction of
recent Seventh Circuit decisions, the ALJ may want to inquire into the VE’s methodology. But
this issue, standing alone, does not require remand.
On remand, the ALJ must adequately explain why Dr. Grunow’s opinion is not entitled
to controlling weight by identifying how it is inconsistent with other evidence of record. And if
the ALJ determines that controlling weight is not appropriate, then he must still identify and
apply the pertinent § 1527(c) factors to weigh the medical opinions in this case.
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
proceedings consistent with this opinion. The clerk of court is directed to enter judgment for
plaintiff and close this case.
Entered October 16, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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