Naug, Lisa v. Colvin, Carolyn

Filing 15

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 12/7/2015. (arw)

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

LISANAUG,
ORDER
Plaintiff,
l 4-cv-818-jdp

v.

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

Plaintiff Lisa Naug seeks judicial review of a final decision of defendant Carolyn W.
Colvin, Acting Commissioner of Social Security, finding her not disabled within the meaning
of the Social Security Act. The court heard oral argument on December 3, 2015. For reasons
explained during the hearing and summarized here, the court will remand this case to the
Commissioner for further proceedings. ·
N aug contends that she suffers from debilitating numbness and weakness in her
extremities caused by neuropathy. Naug does not challenge the ALJ's nearly complete
dismissal of her own credibility, but she contends that the ALJ improperly discounted the
opinions of her treating physician, Dr. Aston. In determining N aug' s residual functional
capacity (RFC), the ALJ afforded Dr. Aston's opinions "lesser weight" because: (1) the
objective medical tests that Dr. Aston relied on were not in the record; (2) Dr. Aston relied
on Naug's subjective complaints, which the ALJ had determined to be not credible; (3) Dr.
Aston's opinions were not consistent with the relatively moderate symptoms that Dr. Durette
had documented; (4) Dr. Aston did not specify when disabling limitations first impacted

N aug; and (5) Dr. Aston could not say whether forthcoming treatment would alleviate
Naug's symptoms. R. 20. 1
The ALJ did not indicate whether he evaluated Dr. Aston as a treating source. 2
Regardless, the ALJ did not adequately justify his decision to discount Dr. Aston's opinions,
and he did not identify and apply the pertinent regulatory factors, as required under 20
C.F.R. § 404.1527. See Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000), as amended, (Dec.
13, 2000) (citing 20 C.F.R. § 404.1527(d)(2)).
The ALJ gave some good reasons for declining to afford Dr. Aston's opinions greater
weight, but the ALJ overlooked one crucial fact: Dr. Aston identified the first (and only) piece
of objective medical evidence in the record that corroborated N aug' s subjective complaints.
The ALJ wrote off Dr. Aston's opinions because the corroborating test results were not
included in the record. But the ALJ discounted the fact that objective test results, including
an EMG and a nerve conduction study, supported Dr. Aston's diagnoses and opinions. And
even if the test results had been included in the record, the ALJ would not have been
qualified to use those records to impeach Dr. Aston's opinion. 3 Naug's application would be
dramatically more persuasive with objective medical evidence supporting her subjective
1

Record cites are to the administrative record, located at Dkt. 7.

2

The record shows that Dr. Aston is Naug's treating physician even though Dr. Aston had
only examined N aug twice before the record closed. N aug had commenced a treating
relationship with Dr. Aston, who had taken over Naug's care after her colleague, Dr.
Shewmake, retired. The short relationship that Dr. Aston had with Naug would be an
appropriate factor to consider, but there is no sound reason to dismiss Dr. Aston as a nontreating source. And because the ALJ did not cite Dr. Aston's status as a reason for
discounting her opinion, I will decline the Commissioner's invitation to do so here. See SEC
v. Chenery Corp., 318 U.S. 80, 87-88 (1943).
3

Maybe the test results would contain the impressions of another professional who
interpreted the results, which would have allowed the ALJ to determine whether the test
results supported Dr. Aston's opinions. But the ALJ did not sufficiently explore this issue.
2

experience, which the ALJ had discounted entirely as contradictory and uncorroborated.
Because the ALJ effectively disregarded important corroborating evidence, his reasons for
affording Dr. Aston's opinions lesser weight were not sound.
To be clear, Dr. Aston's records may not necessarily turn the tide for Naug. The ALJ
provided a sound credibility analysis that discredited Naug's subjective complaints, and many
of the medical records-including Dr. Aston's-rely on those subjective complaints. Naug
does not challenge these aspects of the ALJ's opinion. But the court is concerned that the ALJ
glossed over the only medical opinion evidence in the record that was based on objective
medical evidence without sufficient consideration or explanation. The court is equally
concerned that the state agency consultants did not have the opportunity to evaluate this
evidence, especially in light of the amended disability onset date and date last insured. On
remand, the ALJ must provide a careful evaluation of Dr. Aston's opinions and identify and
apply the pertinent regulatory factors. The Commissioner should also consider getting the
test results cited by Dr. Aston and getting new opinions from the state agency consultants, as
the ALJ is responsible for developing the administrative record. Nelms v. Astrue, 553 F.3d
I 093, I 098 (7th Cir. 2009).
N aug also contended that she met the requirements of a listed disability. But
plaintiff's counsel conceded the listings issue, in light of the fact that the ALJ validly
discredited Naug's subjective testimony. The ALJ may, however, choose to revisit the listing
after the EMG and nerve conduction study are fully considered.

3

ORDER
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 December 7, 2015.
BY THE COURT:

Isl
JAMES D. PETERSON
District Judge

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