SUSAN E. COX, Magistrate Judge.
Plaintiff Elizabeth R.
Plaintiff applied for Disability Insurance Benefits on June 10, 2015, alleging a disability onset date of July 1, 2014. [Administrative Record ("R.") 193-196]. Plaintiff's claim was denied initially and again upon reconsideration. [R. 30.] Following these denials, Plaintiff appeared at a November 16, 2017 Administrative Hearing before Administrative Law Judge ("ALJ") Cynthia M. Bretthauer. [R. 49-77.] On November 16, 2017, ALJ Bretthauer issued an unfavorable decision. [R 30-40.] Plaintiff requested and was denied Appeals Council review [R. 1-4], thus making the Decision of the Appeals Council the final decision of the Commissioner. Plaintiff filed the instant action on February 18, 2019, seeking review of the Commissioner's decision. [Dkt. 1.]
Plaintiff was born in 1959 and was 55 years old on her alleged disability onset date. [R. 193.] Plaintiff has an MBA and was the owner of a cosmetology school for twenty-two years. [R. 985-86.] She also had prior employment as an assistant manager in retail, as well as a few short jobs in grocery stores. [R. 986.]
Plaintiff was diagnosed with atrial fibrillation on May 24, 2014, after she presented to the emergency room with heart palpitations. [R. 323.] A chest x-ray indicated tachycardia, and cardiac enlargement was noted compared to ten years prior. Id. Physicians determined Plaintiff's palpitations were a result of atrial fibrillation, and she was admitted and started on medication. [R. 315-16.] Plaintiff was experiencing a fast heart rate, lasting for one or two hours. [R. 317.] She was given medication and chemically converted to normal sinus rhythm. [R. 318.] On June 2, 2014, Plaintiff again experienced palpitations which eventually became flutters, and she underwent a cardiology consultation with Dr. Ronald Berger, M.D, who thereafter became her treating cardiologist. [R. 463.] She was admitted to the hospital and discharged the following day. [R. 431.] One day later, she again presented at the emergency room with similar symptoms, and was found to be in atrial fibrillation. [R. 389, 431.] She was chemically converted to normal sinus rhythm. [R. 389.] She returned on June 12, 2014, also in atrial fibrillation. Id. She was provided additional prescription medications and scheduled for cardioversion. [R. 393-94.] In September 2014, Plaintiff again presented at the emergency room with similar atrial fibrillation symptoms and was chemically converted to normal sinus rhythm. [R. 491.]
In October 2014, Plaintiff underwent her first ablation procedure because her atrial fibrillation failed to be controlled by medications. [R. 595-97.] In January 2015, it was noted that she appeared to have a good response to the ablation. [R. 841.] In April 2015, Plaintiff's physician noted that while Plaintiff's atrial flutter "had gone from persistent/permanent to paroxysmal and much less frequent and bothersome," he cautioned that the condition was not "cured" and offered Plaintiff three choices: watchful waiting, anti-arrhythmic medication, or a repeat ablation. [R. 836.] Plaintiff opted for observation at that point because she felt "too well" for any therapeutic interventions. Id. In March 2016, although medication suppressed her atrial fibrillation, she experienced atrial fibrillation symptoms when she was noncompliant with the medication (the record notes Plaintiff "could not easily afford it"). [R. 1200-02.] These flutters resolved spontaneously after AV nodal blockers, and Plaintiff chose to restart medication rather than undergo another ablation because the medication was effective. [R. 1199-1202.] However, it appears the medication may have stopped being effective at some point thereafter, as records indicate Plaintiff was having quite a bit of atrial fibrillation and flutter despite medication. [R. 1206.] Therefore, in July 2016, Plaintiff underwent a second, extensive ablation procedure. Id.
On October 12, 2017, after several asymptomatic months, Plaintiff presented to her cardiologist with atrial fibrillation, elevated blood pressure, and dyslipidemia. [R. 1233.] Dr. Berger noted that normal sinus rhythm had resumed, noted that Plaintiff was able to exercise up to 4 METs without symptoms (and did, in fact, report using the elliptical for 30 minutes and the treadmill for 60 minutes five times a week), and recommended that Plaintiff follow up with him in one year. [R. 1233-39.] On October 25, 2017, a note from Dr. Berger appears in the file indicating that "[Plaintiff] should be able to take breaks for high blood pressure symptoms when needed." [R. 1413.]
On January 30, 2018, the ALJ issued a written decision denying Plaintiff disability benefits. [R. 30-40.] At Step One, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of June 1, 2014 through her date last insured. [R. 32.] At Step Two, the ALJ found that Plaintiff had the severe impairments of atrial fibrillation, status-post ablations, dysphonia, and bipolar disorder. [R. 33.] At Step Three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments of 20 C.F.R. Part 404, Subpart P, App'x 1. [R. 33-35.]
Before Step Four, the ALJ found that Plaintiff had the residual functional capacity ("RFC")
At Step Four, the ALJ found Plaintiff capable of performing her past relevant work as a food sales clerk (DOT# 290.477-018, heavy as performed, SVP-3); or assistant manager (salesperson) (DOT# 261.357-066, heavy as performed, SVP-5 as performed). [R. 39.] At Step Five, the ALJ made an alternative finding that Plaintiff was capable of performing other jobs existing in significant numbers in the national economy, including customer order clerk (DOT #249.362-026); receptionist (DOT #237.367-038); and customer service clerk (DOT #299.367-010). [R. 39-40.] Because of these determinations, the ALJ found Plaintiff not disabled under the Act. [R. 40.]
The Social Security Act requires all applicants to prove they are disabled as of their date last insured to be eligible for disability insurance benefits. ALJs are required to follow a sequential five-step test to assess whether a claimant is legally disabled. The ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; and (3) whether the severe impairment (or, in this case, the combination of impairments) meets or equals one considered conclusively disabling such that the claimant is impeded from performing basic work-related activities. 20 C.F.R. § 404.1520; 20 C.F.R. § 404.1523; 20 C.F.R. § 404.1545; 20 C.F.R. § 416.920(a)(4)(i)-(v). While a "not severe" impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may—when considered with limitations or restrictions due to other impairments—be critical to the outcome of a claim. S.S.R. 96-8p, 1996 WL 374184, *5 (July 2, 1996). If the impairment(s) does meet or equal this standard, the inquiry is over and the claimant is disabled. 20 C.F.R. § 416.920(a)(4). If not, the evaluation continues and the ALJ must determine (4) whether the claimant is capable of performing his past relevant work. Cannon v. Harris, 651 F.2d 513, 517 (7th Cir. 1981). If not, the ALJ must (5) consider the claimant's age, education, and prior work experience and evaluate whether she is able to engage in another type of work existing in a significant number of jobs in the national economy. Id. At the fourth and fifth steps of the inquiry, the ALJ is required to evaluate the claimant's RFC in calculating which work-related activities she is capable of performing given his limitations. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004). In the final step, the burden shifts to the Commissioner to show that there are jobs that the claimant is able to perform, in which case a finding of not disabled is due. Smith v. Schweiker, 735 F.2d 267, 270 (7th Cir. 1984).
In disability insurance benefits cases, a court's scope of review is limited to deciding whether the final decision of the Commissioner of Social Security is based upon substantial evidence and the proper legal criteria. Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004). Substantial evidence exists when a "reasonable mind might accept [the evidence] as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). While reviewing a commissioner's decision, the Court may not "reweigh evidence, resolve conflicts in the record, decide questions of credibility, or substitute [its] own judgment for that of the Commissioner." Young, 362 F.3d at 1001. Although the Court reviews the ALJ's decision deferentially, the ALJ must nevertheless "build an accurate and logical bridge" between the evidence and his conclusion. Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) (internal citation omitted). The Court cannot let the Commissioner's decision stand if the decision lacks sufficient evidentiary support, an adequate discussion of the issues, or is undermined by legal error. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003); see also, 42 U.S.C.§ 405(g).
Plaintiff contends there are several problems with the ALJ's opinion: (1) the ALJ allegedly failed to account for Plaintiff's limitations in combination with each other; (2) the ALJ allegedly undermined Plaintiff's credibility; (3) the ALJ allegedly ignored one specific opinion of Dr. Berger, one of Plaintiff's treating physicians; and (4) the ALJ allegedly relied on unreliable VE testimony. The Court disagrees with each of these contentions, and addresses each in turn.
Plaintiff argues that the ALJ failed to consider her mental impairments in combination with her severe physical impairments in determining her RFC. Specifically, Plaintiff notes that "her fear of the next episode [of atrial fibrillation] is, in and of itself, incapacitating" and "her anxiety about the possibility of experiencing an episode [is] the reason for her deficits," thus prohibiting her from understanding, remembering, or applying information on a sustained basis. [Dkt. 11, pp. 10-11 (emphasis in original).]
Ultimately, this bleak picture of self-reported incapacitation by anxiety is not supported by the medical record. An ALJ's evaluation of a claimant's symptom allegations is entitled to special deference, and it will be overturned only if it is "patently wrong," i.e., when it "lacks any explanation or support." Summers v. Berryhill, 864 F.3d 523, 528 (7th Cir. 2017); Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008). Here, the Court finds the ALJ adequately addressed Plaintiff's anxiety to the extent the medical records did support it; based on her analysis of the medical record, instead of relying wholesale on Plaintiff's testimony at the Administrative Hearing, the ALJ incorporated into Plaintiff's RFC five-step instructional limitations. The Court finds the ALJ adequately considered Plaintiff's activities to discount her testimony concerning any anxiety that might have needed to be considered in combination with other impairments.
In her discussion of Plaintiff's limitations, the ALJ found that Plaintiff "limited her social activities because she never knew when she might experience atrial fibrillation," but noted that Plaintiff occasionally went out to dinner and the movies, and had recently visited Montana, Austin, Texas, and Costa Rica. [R. 34.] The ALJ noted that Plaintiff was able to drive, and shop frequently. [Id.] She was "able to perform all house and yard chores" when not experiencing atrial fibrillation symptoms.[Id.] With regards to concentration, persistence, and pace, the ALJ noted that Plaintiff "had no problems following written or verbal instructions when not experiencing [atrial fibrillation] symptoms" but that Plaintiff stated she was unable to pay attention when experiencing those symptoms. [Id.]
The medical records regarding Plaintiff's anxiety also corroborate the ALJ's observation that Plaintiff was not limited by her anxiety concerning atrial fibrillation, but only by actual episodes of atrial fibrillation. Several May 2014 records indicate that Plaintiff had a short history of mild anxiety: Plaintiff's history included "ANXIETY x 1 Months;" "[s]he does have mild anxiety disorder." [R. 317; 336-337; see also 431 ("mild anxiety").] June 2014 records indicate Plaintiff's history of "anxiety [stems] from the death of 5 family members from different medical conditions all within about 2 months (ten years ago, not recovered yet)" [R. 417 (parenthetical in original).] She reported trouble sleeping "only during AF (atrial fibrillation)." [R. 374 (emphasis added).] In October 2017 (after her second ablation), Plaintiff reported to her psychiatrist that "she will feel her heart go into a fib, and her anxiety will increase and she will panic." [R. 1388.] The consulting psychologist's notes state that Plaintiff "indicates that because of her heart issues, that mood issues are triggered by her health status," and further, that "[o]n occasion, she may skip activities of daily living, but this is more initially related to physical rather than emotional difficulties." [R. 986-87.] Plaintiff reported to her physician in June, 2014 that she used to exercise regularly but her divorce lessened the frequency of her exercise. [R. 417.] In November, 2017 she testified at the Administrative Hearing that she had, a few months prior, been going to the gym 5-6 nights a week until this routine was derailed by her son's revelation he was an alcoholic and his subsequent move home. [R. 65.]
Additionally, as recognized by the ALJ, although Plaintiff claimed in her disability application (dated July 15, 2015) she experienced atrial fibrillation five days a week, this statement was made after her first ablation procedure but before her second (July 2016), and at the Administrative Hearing the Plaintiff testified she had experienced only one episode of cardiac fluttering (not even a full blown atrial fibrillation episode) in the prior year. [R.36.] In fact, Plaintiff's medical records appear to only reflect a single episode where she reported to a physician that she was anxious about potentially experiencing atrial fibrillation, and the physician specifically "reassured her that as long as her rate is controlled and she takes her [medication] she is protected," and this reassurance was "comforting to her." [R. 394.]
There is little evidence that Plaintiff experiences five episodes of atrial fibrillation five days a week as she claims, or that she experiences a crippling anxiety that causes self-limiting behavior as a result of fear of an atrial fibrillation episode, such that would be prohibited from understanding, remembering, or applying information on a sustained basis. It is not an error for the ALJ to have concluded the same. Therefore, it is similarly not erroneous for the ALJ to have not accounted for these alleged limitations in combination with each other. The Court declines to remand on this basis.
Next, Plaintiff alleges the ALJ "impermissibly undermined Plaintiff's credibility with improper inferences and leaps of logic." [Dkt. 11, p. 7.] An ALJ's credibility determination is afforded "considerable deference" on review and may only be overturned if it is "patently wrong." Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006); Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010). An ALJ's credibility finding can only be reversed if it is rooted "in an observation or argument that is unreasonable or unsupported" by the record. Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir. 2006); Moss v. Astrue, 555 F.3d 556, 561 (7th Cir 2009) (in order to uphold a credibility determination, ALJ must give specific reasons supported by substantial evidence).
The notion that the ALJ herself could undermine Plaintiff's credibility is nonsensical, and the Court does not find that she did. Rather, the ALJ noted a number of factors which the ALJ found undermined Plaintiff's credibility. The Court does not find the ALJ's analysis of these factors patently wrong, and thus, declines to remand on this basis.
The Court has already discussed Plaintiff's atrial fibrillation claims, supra, Section III(a). Inherent in that discussion are the reasons the ALJ discounted Plaintiff's credibility based on the assertion she experiences atrial fibrillation five days a week. The Court does not find the ALJ's conclusion unsupported by the record on this point or patently wrong.
Plaintiff also takes issue with the ALJ's rejection of Plaintiff's assertions of constant crying. The ALJ noted that Plaintiff "alleged that she cried continually throughout the day, every day" but also noted that this was undermined by the fact that she has not required any inpatient or intensive outpatient therapy such as a day program, nor had any therapist suggested Plaintiff require more than one therapy visit every three weeks. [R. 36.] Moreover, the Court finds that many of the other activities of daily living detailed by the ALJ undermine Plaintiff's allegations of nonstop crying, such as going to the gym, driving a car three times a week, shopping frequently, performance of all house and yard chores while not in atrial fibrillation, and trips to other states and other countries. [R. 34, 36, 38.] While there is one record of Plaintiff establishing care with a new psychiatrist that indicates Plaintiff "cried throughout interview," the results of that visit were continuation/slight change in Plaintiff's medications and recommended counseling, with a follow-up appointment in four weeks [R. 1388, 1397]; the Court does not find that this singular visit greatly contradicts the reasons for the ALJ's rejection of Plaintiff's assertions about the severity of her crying. The Court does not find the ALJ's analysis of Plaintiff's crying to be unsupported by the record or patently wrong.
The Court finds the ALJ properly considered Plaintiff's description of her activities of daily living in assessing whether her testimony about the effects of her atrial or mental impairments were credible or exaggerated. In fact, it is the ALJ's job to note inconsistencies in these areas when she finds a claimant less than credible, as this is a key part of building a logical bridge from the ALJ's reasoning to her conclusions. The ALJ concluded that, when viewed together, Plaintiff's ability to work previously,
Lastly, Plaintiff states the ALJ "badgered" Plaintiff at the administrative hearing when the ALJ inquired why Plaintiff did not seek out a mental health professional for the allegedly debilitating mental health symptoms she described during the hearing (e.g., difficulty getting out of bed, inability to find happiness in anything, difficulty being social, crying) [R. 61-62]. However, this is of no import, as it was not part of the ALJ's decision. The Court's role is to review the ALJ's decision, and this exceedingly brief (and valid) three-question inquiry into Plaintiff's reasoning behind not seeking a dedicated mental health professional sooner instead of relying solely on her primary care doctor is not mentioned in the ALJ's decision, either directly or obliquely. The ALJ's decision merely notes that Plaintiff "saw only her primary care physician for psychotropic medication until she saw a psychiatrist for the first time in April 2017."
Plaintiff next claims the ALJ improperly ignored the opinion of Plaintiff's treating cardiologist that Plaintiff would require breaks throughout the day. The entirety of Dr. Berger's opinion is as follows: "[Plaintiff] should be able to take breaks for high blood pressure symptoms when needed." [R. 1413.] The ALJ addressed this opinion thusly:
[R. 38 (record citation omitted).]
As an initial matter, Plaintiff is simply incorrect that the ALJ ignored this opinion of Dr. Berger. Next, Plaintiff fails to cite to any evidence to rebut the ALJ's conclusion about the infrequency of Plaintiff's symptoms.
Finally, Plaintiff claims the ALJ's findings were based on unreliable VE testimony. Specifically, Plaintiff takes issues with the fact the VE testified that Plaintiff performed her past jobs at an exertional level greater than indicated in the DOT.
This distinction made by the VE raises no red flags in the Court's mind, particularly since Plaintiff was performing the jobs at a heavier exertional level than the DOT classification (i.e., most of the available jobs with a food sales clerk or manager/assistant manager/salesperson title would be of a light exertional level commensurate with the DOT and, thus, Plaintiff would be able to perform these jobs as they are generally performed under the RFC set by the ALJ, rather than her past exertional level). See e.g., Gillen v. Colvin, 2016 WL 233099, at *2 (N.D. Ill. Jan. 20, 2016) (at the exertion level in RCF, claimant could still perform past relevant work, "but as listed in the DOT, not as performed.") In fact, the Court has seen numerous cases where the VE makes a distinction between the exertional level in the DOT for past relevant work and the exertional level of the same position as actually performed by the claimant.
Plaintiff also argues "[t]he alternative jobs proposed by the VE are, quite simply absurd" because it is "inconceivable" Plaintiff would be able to handle the interaction/conversation with others in these positions. [Dkt. 11, p. 17.] However, the Court notes the ALJ accommodated Plaintiff's dysphonia (a condition the ALJ noted caused a soft, raspy voice which led to some difficulty communicating by telephone but does not cause any pain [R. 36]) in the RFC when she limited Plaintiff to "communicating orally on a frequent, but not constant basis."
For the foregoing reasons, the Court must reverse and remand for proceedings consistent with this Memorandum Opinion and Order. At this time, the Court offers no opinion as to the other alleged bases of error in the ALJ's decision as raised by Plaintiff. Plaintiff's motion for summary judgment [dkt. 11] is DENIED and the Commissioner's motion for summary judgment [dkt. 15] is GRANTED.
The same holds true for customer service clerk (DOT #299.367-010):
The same also holds true for receptionist to a lesser degree (although the Court has seen nothing indicating the position entails constant oral communication) (DOT #237.367-038):
