IAIN D. JOHNSTON, Magistrate Judge.
Plaintiff Scott Nash brings this action under 42 U.S.C. §405(g), challenging the denial of social security disability benefits.
On December 12, 2011, plaintiff filed applications for disability insurance benefits and supplemental security income. He was 35 years old.
On June 18, 2013, a hearing was held before an administrative law judge ("ALJ"). Plaintiff testified that his back was sore from a recent weather change, which "definitely affects [his] back." R. 50. He drove about 30 minutes to the hearing. He lived with his wife, who works, and step-daughter, who is eight years old. During the summer, plaintiff would play board games with his step-daughter or do "something simple just to keep her entertained." R. 52.
Plaintiff takes 500 milligrams of Vicodin for pain ("probably about four times a week"); Soma, a muscle relaxer, every night; Trazadone and Zoloft also every night; and melatonin as needed for sleep. The Soma makes him "loopy," even the day after it is taken. R. 57. He used heating pads for his back and tried physical therapy in 2006-07 but it did not help. His typical day is as follows:
R. 53.
His pain is primarily in his left ankle, with occasional pain in his right ankle. He has had the ankle pain for a "[v]ery, very long time." R. 55. He injured his back in 2006, and it has "just progressively gotten worse." Id. His exercise is "[v]ery minimal":
R. 59. He "can sit about 15 minutes" but has to "constantly change positions from sitting to laying down to standing up." R. 60. He uses crutches two or three times a month. His wife is the primary grocery shopper, but he will sometimes help by grabbing a few things from the store, which is five minutes away. He stated that he will "almost use the cart as a crutch" and will "get in and get out as soon as [he] can to get only the necessities." R. 61.
He had injections in his back but they did not provide much relief. He sometimes has to elevate his ankle during the day: "If I walk much more than 30 minutes it will usually start to swell and I'll have to ice it and elevate it. That's the only time I really get much relief from it is if I take Vicodin, elevate it, and ice it." R. 66. He elevates his ankle approximately four times a week. He has no problems getting along with others and typically finishes what he starts.
On August 2, 2013, the ALJ found plaintiff not disabled. She found that he had the following severe impairments: "osteochondroitis dessicans in both ankles, left greater than right, with pain and intermittent antalgic gait; degenerative disc disease of the lumbar spine, with chronic low back pain; and obesity." R. 29. As discussed below, she found that he did not meet a listing. She found that he had the residual functional capacity ("RFC") to perform sedentary work. She gave "no weight" to the opinion of plaintiff's treating physician, another conclusion plaintiff now challenges.
A reviewing court may enter judgment "affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). If supported by substantial evidence, the Commissioner's factual findings are conclusive. Substantial evidence exists if there is enough evidence that would allow a reasonable mind to determine that the decision's conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399-401 (1971). Accordingly, the reviewing court cannot displace the decision by reconsidering facts or evidence, or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
However, the Seventh Circuit has emphasized that review is not merely a rubber stamp. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). A reviewing court must conduct a critical review of the evidence before affirming the Commissioner's decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). Even when adequate record evidence exists to support the Commissioner's decision, the decision will not be affirmed if the Commissioner does not build an accurate and logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). Moreover, federal courts cannot build this logical bridge on behalf of the ALJ or Commissioner. See Mason v. Colvin, 2014 U.S. Dist. LEXIS 152938, at *19 (N.D. Ill. Oct. 29, 2014). In this appeal, plaintiff raises four arguments in his oversized brief. As discussed below, the Court finds that several of them collectively require a remand.
Plaintiff argues that the ALJ failed to explain "with a sufficient level of detail" why his ankle and walking problems did not satisfy listing 1.02A. This listing states the following:
The key phrase—"inability to ambulate effectively"—is defined in 1.00B2b as follows:
(1) Definition. Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity function [] to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. []
Listing 100.B2b(1) & (2).
In her opinion, the ALJ did not quote from the above provisions, but only gave the following analysis for why plaintiff did not meet this listing:
R. 32.
Plaintiff argues that this two-sentence "analysis" is perfunctory and overlooks relevant evidence. This Court agrees. The ALJ's explanation—that plaintiff "remains able to ambulate effectively"—is only a conclusion. There is no analysis; for example, there is no acknowledgement that plaintiff could possibly satisfy one of the six examples from 1.00B2b. There is likewise no discussion of the specific evidence, either favorable or unfavorable. The ALJ even admits that plaintiff is suffering from some type of pain related to walking, but does not offer any analysis of why this pain is not debilitating.
Plaintiff argues that this type of cursory analysis requires a remand under Seventh Circuit case law. The Court agrees. For example, in Moss v. Astrue, 555 F.3d 556 (7th Cir. 2009), the Seventh Circuit remanded because the ALJ failed to sufficiently analyze whether the plaintiff's ongoing ankle problems met the ambulation requirement. The Seventh Circuit found that the ALJ failed to "adequately consider" the list of examples set out in 1.00B2b, a list which the court noted was "nonexhaustive." Id. at 562-63. The Seventh Circuit found that the ALJ's reference to selected pieces of evidence, such plaintiff "occasionally walk[ing] around the block," was not adequate.
The Government does not discuss Moss and related cases, but instead responds with several other points. The Government first notes that, although 1.00B2b lists six examples of ineffective ambulation, plaintiff has only argued he fits within one of them—the "inability to walk a block at a reasonable pace on rough or uneven surfaces." Dkt. #25 at 4. This is more an observation than an argument. In any event, the regulations contain no suggestion that a claimant must fit within more than one example. As Moss indicates, the six examples are non-exhaustive. Even if the Government were correct about one example not being enough, it does not appear that plaintiff limited his argument solely to one, as he cited at least one other in his opening brief—"inability to carry out routine ambulatory activities"—although it should be noted that he did not provide much analysis. See Dkt. #18 at 8.
The Government next suggests that plaintiff's listing argument is weak because he relies "solely" on "one note in the record." Dkt. #25 at 4. This is a doctor's note from plaintiff's February 9, 2012 visit to Dr. Michalsen.
First, the Court is not persuaded that this should be viewed as a misquotation—at least in any meaningful sense. Here is the disputed phrase quoted in context:
R. 299. In his opening brief, relying on this passage, plaintiff states: "The ALJ failed to discuss Dr. Michalsen's observations that Mr. Nash `walked with difficulty' and guarded his left ankle (AR 299)." Dkt. #18 at 8. In response, the Government argues the following:
Dkt. # 25 at 4. It is a stretch to assert that plaintiff misquoted the report. To begin with, in a trivial sense, there was a slight change when plaintiff used the past tense ("walked") in the phrase "walk with difficulty." But surely this is not the basis for the Government's argument. Perhaps slightly more substantive, plaintiff left off the phrase "is able to" in front of the phrase. But here again, the semantic difference is so hard to discern that it amounts to hair-splitting. The Court finds little difference in the two versions. And, as the Government implicitly concedes, both are permissible interpretations, just with different emphases. Therefore, it is not surprising that plaintiff chose the one more favorable to his case, which is a choice within the bounds of fair advocacy.
Second and more substantively, what is missing from this nitpicking over one phrase is the larger import of Dr. Michalsen's note. The Government overlooks other statements in the note. As plaintiff points out, Dr. Michalsen also noted that plaintiff would "guard his left ankle" (R. 299), that "he walks with a limp guarding his left ankle" (R. 298), and that he "is able to walk two to three steps on his toes until he had pain and he was unable to walk or stand on his heels due to the pain" (id.). Dkt. #18 at 8-9. This evidence provides support for plaintiff's argument.
Third, contrary to the Government's argument, plaintiff did not rely solely on this one note. In his opening brief, plaintiff points to other evidence, including his testimony that he had difficulty doing daily activities such as grocery shopping (where he had to lean on the cart as a crutch), the ALJ's conclusion that he had an "intermittent antalgic gait," plaintiff's obesity, and, as discussed below, Dr. Anderson's opinion that plaintiff met this listing.
The Government finally argues that the ALJ addressed some of this evidence later in the RFC discussion. Dkt. #25 at 5 (citing Curvin v. Colvin, 778 F.3d 645, 650 (7th Cir. 2015)). However, the Government never goes on to explain how this later discussion illuminates the ALJ's path of reasoning specifically relating to Listing 1.02A and the six examples in 100.B2b. It is true, as the Government suggests, that there is evidence arguably undermining plaintiff's claim that he meets the listing. Indeed, the record is replete with evidence from which a strong case for denying benefits could be made. But at this point this argument has not been fully articulated, particularly by the ALJ. And this Court cannot articulate the argument for the ALJ. See Mason, 2014 U.S. Dist. LEXIS 152938, at *19. In sum, a remand is required so that a more detailed explanation can be provided. On remand, the ALJ can locate the record evidence and build a logical bridge to a conclusion that benefits should be denied, but, under the facts of this case, the Court is not going to—and should not—engage in that process on appeal.
Plaintiff argues that the ALJ failed to follow the treating physician rule by not applying the checklist of factors and by making various errors and unjustified assumptions in giving the opinion of Dr. Kimberland Anderson "no weight." Although the ALJ did discuss Dr. Anderson's opinion, the Court finds that the discussion did not satisfy the treating physician rule.
On April 30, 2013, Dr. Kimberland Anderson completed a four-page form, answering several checkbox-style questions and adding some handwritten comments.
This case is just another example in a long line of cases that requires remand because an ALJ failed to comply with the treating physician rule. See, e.g., Booth v. Colvin, 2016 U.S. Dist. LEXIS 82754, *9 (N.D. Ill. June 27, 2016) (collecting over a dozen cases from the magistrate judges of Northern District of Illinois in the last two years remanding because of an improper application of the treating physician rule). At some point, this pervasive, systemic analytical error must end.
The treating physician rule is based on 20 C.F.R. §404.1527(c)(2). Under this section, a treating physician's opinion is entitled to controlling weight if it is supported by medical findings and consistent with other substantial evidence in the record. Id.; Moore v. Colvin, 743 F.3d 1118, 1127 (7th Cir. 2014). If the ALJ does not give the treating physician's opinion controlling weight, the ALJ cannot simply disregard it without further analysis. Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010). Instead, the ALJ must determine what specific weight, if any, the opinion should be given. Moss, 555 F.3d at 561. To make this determination, the ALJ must apply the checklist of factors set forth in 20 C.F.R. §404.1527(c)(2). Campbell, 627 F.3d at 308 (referring to the factors as a "required checklist"); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008).
Here, the ALJ failed to follow this two-step process—at all. Initially, the ALJ completely ignored the first step of the analysis. Moreover, the ALJ never explicitly analyzed the six factors under the checklist. It is true that the ALJ did not ignore Dr. Anderson's opinion entirely and provided several arguments to justify the conclusion. However, this Court takes the view that an explicit analysis is still required. See Duran v. Colvin, 2015 U.S. Dist. LEXIS 101352, *8-9 (N.D. Ill. Aug. 4, 2015). But even if the Court allowed an implicit analysis, the ALJ failed to properly apply the checklist based on several criticisms raised by plaintiff. See Koelling v. Colvin, 2015 U.S. Dist. LEXIS 14074, *28-29 (N.D. Ill. Oct. 16, 2015).
The first reason offered by the ALJ for rejecting the opinion is that Dr. Anderson "made the assessment after only 2 visits." R. 37. This rationale comes the closest to matching up with a checklist factor (the first one, length of treatment). But as plaintiff notes, the ALJ was inconsistent by asserting this criticism against Dr. Anderson, but then at the same time relying, albeit only in part, on the opinions of agency doctors who never examined plaintiff. In its response brief, the Government does not address this argument, but instead notes that length of treatment "was but one of the regulatory factors the ALJ considered." Dkt. #25 at 7. This seems to be an implicit concession that the ALJ used this factor selectively to cherry-pick the end result. The Government also notes generally that the length of treatment is important because a physician who sees a patient "a number of times" has a "longitudinal picture" of the claimant's condition. Id. This point is true, but not especially illuminating here. There is no competing opinion from another doctor who saw plaintiff more than two times. The ALJ's rationale seems to rest on a blanket conclusion that no doctor could ever render a valid opinion after only two visits. This view cannot be correct. Indeed, it is a view that the Commissioner should be hesitant to take in light of her constant reliance on agency doctors and medical experts who never examine claimants. Additionally, this argument is not only contrary to many Social Security cases, where ALJs routinely rely on medical opinions rendered after a single or even no visit, but it also fails to consider whether additional visits would have made a difference. For example, is it possible that plaintiff's condition was temporary such that it might improve over time? What additional objective tests should have been performed? What expertise did Dr. Anderson have in this area? These are valid questions and ones that may eventually lead to arguments supporting the ALJ's conclusion. But for now, the answers to these questions are murky, leaving the ALJ's rationale resting on this shaky foundation.
The second reason the ALJ offered is that Dr. Anderson's opinion is supposedly inconsistent. The ALJ stated that "Dr. Anderson reports that the identified limitations have been present since 1998, yet the claimant has worked at several jobs that required standing a full day since then." R. 37. The Government argues that the ALJ was justified in relying on this inconsistency. But as plaintiff points out, the ALJ overlooked the degenerative nature of his conditions, which he claims have grown more severe over time. Plaintiff's point is valid. Moreover, as further support of plaintiff's argument, the Court notes that the ALJ found a contradiction by placing much weight on Dr. Anderson's answer to one, arguably ambiguous question; namely: "In your opinion, given the past medical records sent, what is the earliest date that the description of
Another of the ALJ's reasons that plaintiff now criticizes is the assertion that Dr. Anderson's opinion conflicted with a recommendation of Dr. Vaewhongs who allegedly advised plaintiff to "increase his current sedentary activity level." R. 37, 364. Plaintiff argues that this one observation is not inconsistent with Dr. Anderson's larger conclusions because "[p]atients often engage in activities such as walking in order to reap the therapeutic benefits despite the pain that the increased activity may cause." Dkt. #18 at 17 (citing Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004) (ALJ "failed to consider the difference between a person's being able to engage in sporadic physical activities [which included walks as long as two miles] and her being able to work eight hours a day five consecutive days of the week")). This Court agrees. In reviewing Dr. Vaewhongs' note, the reference to exercising more is in the section addressing plaintiff's obesity problems and the advice appears to be a set of standard recommendations about dieting and exercise likely given to every patient with weight issues. For example, it recommends "regular aerobic exercise (regular means at least 30 minutes per day and at least 4 times per week) (aerobic means you sweat)." R. 364. Yet, earlier in this same note, Dr. Vaewhongs wrote that plaintiff "can only walk and stops due to left ankle pain." R. 363. There is no indication that Dr. Vaewhongs doubted the latter claim. Thus, when read fairly in its entirety, this note does not express any clear doubt about plaintiff having difficulties walking.
For the above reasons, the Court finds that a remand is warranted under the treating physician rule. In reaching this conclusion, the Court is not dictating any result on remand, nor holding that the ALJ's reasons, if more fully explained, cannot be relied on in a future analysis. As noted previously, the record contains substantial evidence that, if marshalled properly and fully explained, would support the denial of benefits.
Plaintiff argues the ALJ wrongly drew a negative inference from his lack of treatment generally and specifically from his failure to pursue ankle surgery. Plaintiff also faults the ALJ for relying on the fact that Dr. Anderson did not refer him to a specialist. Although this issue was only a small part of the ALJ's overall reasoning, the Court agrees with plaintiff. It is well-established that an ALJ has a duty to first ask a claimant about, and explore a claimant's explanations regarding, treatment inconsistencies before drawing any negative adverse inferences. See Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014) (an ALJ cannot "rely on an uninsured claimant's sparse treatment history to show that a condition was not serious without exploring why the treatment history was thin"); Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008) ("although the ALJ drew a negative inference as to Craft's credibility from his lack of medical care, she neither questioned him about his lack of treatment or medicine noncompliance during that period, nor did she note that a number of medical records reflected that Craft had reported an inability to pay for regular treatment and medicine.").
The ALJ did not comply with this rule. The Government argues that the ALJ did consider plaintiff's explanations for treatment failures. As for the specific issue of why he did not have ankle surgery in 2011, the ALJ did acknowledge that plaintiff reported that "he could tolerate his current pain and he could not afford to see an orthopedic surgeon." R. 36. However, as plaintiff points out, it is not clear what weight, if any, the ALJ gave to this explanation. The ALJ never commented one way or another on the explanation. Instead, the ALJ found that plaintiff's decision not to pursue surgery showed a lack of credibility, which logically suggests that the ALJ gave no weight to it. On remand, the ALJ should address this issue more directly. As for the ALJ's comment that Dr. Anderson had not referred him to a specialist, plaintiff argues that the ALJ failed to consider whether "referral to a specialist would have been appropriate and did not explain what aggressive pain management treatment was available to Mr. Nash" and finally "impermissibly speculated that such treatment was available and appropriate." Dkt. #18 at 19. These are legitimate questions, and also should be addressed on remand.
Based on the above arguments, the Court finds that a remand is required. Many of plaintiff's other arguments are substantially weaker and probably do not justify remand on their own. Given the decision to remand for the errors noted above, the Court need not address plaintiff's remaining argument that the ALJ made various errors in the RFC finding.
For these reasons, plaintiff's motion for summary judgment is granted, the government's motion is denied, and the case is remanded to the Commissioner for further proceedings consistent with this opinion.
