PAUL R. CHERRY, District Judge.
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Jeanette Pino on March 29, 2016, and Plaintiff's Brief [DE 18], filed by Plaintiff on September 23, 2016. Plaintiff requests that the December 4, 2014 decision of the Administrative Law Judge denying her claim for supplemental security income be reversed and remanded for further proceedings. On January 13, 2017, the Commissioner filed a response, and Plaintiff filed a reply on February 2, 2017. For the following reasons, the Court grants Plaintiff's request for remand.
Plaintiff filed her application for supplemental security income in February 2011. Through counsel, Plaintiff amended her alleged onset date to February 3, 2011. The claim was denied initially and on reconsideration, and she requested a hearing, which was held before Administrative Law Judge Dennis R. Kramer (ALJ). On March 11, 2013, the ALJ issued an unfavorable decision. On July 8, 2014, the Appeals Council remanded the case to the ALJ. A second hearing was held before the ALJ on October 31, 2014. On December 4, 2014, the ALJ again issued an unfavorable decision, making the following findings. 1. The claimant has not engaged in substantial gainful activity since February 3, 2011, the application date.
2. The claimant has the following severe impairments: major depressive disorder, generalized anxiety disorder, chronic pain, chronic pancreatitis, and degenerative disk disease.
3. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) where the claimant can occasionally lift/carry up to ten pounds, and can frequently lift/carry less than ten pounds. The claimant can stand and/or walk for two hours of an eight-hour workday. The claimant can sit for six hours of an eight-hour workday. The claimant can occasionally climb ramps and stairs, but never climb ladders, ropes, and scaffolds. The claimant can occasionally balance, stoop, crouch, kneel, and crawl. The claimant can frequently operate foot controls bilaterally. The claimant can have occasional exposure to hazards such as unprotected heights, moving mechanical parts, and operating a motor vehicle. The claimant can have occasional exposure to humidity and wetness, fumes, odors, dusts, and gases, pulmonary irritants, extreme heat, extreme cold, and vibrations. The claimant can understand, remember, and carry out simple instructions for one to three step jobs, and can make judgments on simple work-related decisions. The claimant is able to interact occasionally with supervisors, coworkers, and the public in a routine work setting. The claimant can respond to usual work situations and changes in a routine work setting.
5. The claimant has no past relevant work.
6. The claimant was born [in 1967] and was 43 years old, which is defined as a younger individual age 18-44, on the date the application was filed.
7. The claimant has at least a high school education and is able to communicate in English.
8. Transferability of job skills is not an issue because the claimant does not have past relevant work.
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform. 10. The claimant has not been under a disability, as defined in the Social Security Act, since February 3, 2011, the date the application was filed.
(AR 14-23).
On February 4, 2016, the Appeals Council declined Plaintiff's request for review, making the ALJ's denial the final decision of the Commissioner. Plaintiff filed an appeal with this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c).
The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42 U.S.C. § 405(g).
The Social Security Act authorizes judicial review of the final decision of the agency and indicates that the Commissioner's factual findings must be accepted as conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will reverse only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence consists of "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the evidence, resolve conflicts in evidence, or substitute its judgment for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the question upon judicial review of an ALJ's finding that a claimant is not disabled within the meaning of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ "uses the correct legal standards and the decision is supported by substantial evidence." Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O'Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004)). "[I]f the Commissioner commits an error of law," the Court may reverse the decision "without regard to the volume of evidence in support of the factual findings." White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997)).
At a minimum, an ALJ must articulate his analysis of the evidence in order to allow the reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must "`build an accurate and logical bridge from the evidence to [the] conclusion' so that [a reviewing court] may assess the validity of the agency's final decision and afford [a claimant] meaningful review." Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see also O'Connor-Spinner, 627 F.3d at 618 ("An ALJ need not specifically address every piece of evidence, but must provide a `logical bridge' between the evidence and [the] conclusions."); Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) ("[T]he ALJ's analysis must provide some glimpse into the reasoning behind [the] decision to deny benefits.").
To be eligible for disability benefits, a claimant must establish that she suffers from a "disability" as defined by the Social Security Act and regulations. The Act defines "disability" as an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). To be found disabled, the claimant's impairment must not only prevent her from doing her previous work, but considering her age, education, and work experience, it must also prevent her from engaging in any other type of substantial gainful activity that exists in significant numbers in the economy. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. § 416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry to evaluate whether the claimant is entitled to benefits. 20 C.F.R. § 416.920(a)(4). The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have an impairment or combination of impairments that are severe? If no, the claimant is not disabled, and the claim is denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet or equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically considered disabled; if no, then the inquiry proceeds to step four; (4) Can the claimant do the claimant's past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no, then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant's residual functional capacity (RFC), age, education, and experience? If yes, then the claimant is not disabled, and the claim is denied; if no, the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(I)-(v); see also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).
At steps four and five, the ALJ must consider an assessment of the claimant's RFC. The RFC "is an administrative assessment of what work-related activities an individual can perform despite [her] limitations." Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). The RFC should be based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of proving steps one through four, whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d at 885-86; see also Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
Plaintiff argues that this matter should be remanded due to errors in (1) determination of her subjective symptoms, (2) assignation of weight to medical opinions, (3) assignation of weight to the opinion of Plaintiff's sister, (4) determination of Plaintiff's ability to stoop, and (5) determination that there are a significant number of jobs in the economy that Plaintiff can perform. These matters will be addressed below.
On March 28, 2016, Social Security Ruling 16-3p became effective and issued new guidance regarding the evaluation of a disability claimant's statements about the intensity, persistence, and limiting effects of symptoms. See SSR 16-3p, 2016 WL 1237954 (Mar. 28, 2016). Under SSR 16-3p, an ALJ now assesses a claimant's subjective symptoms rather than assessing her "credibility." However, SSR 16-3p is not retroactive; therefore, the "credibility determination" in the ALJ's decision is governed by the standard of SSR 96-7p.
In making a disability determination, the ALJ must consider a claimant's statements about her symptoms, such as pain, and how the symptoms affect her daily life and ability to work. See 20 C.F.R. § 416.929(a). Subjective allegations of disabling symptoms alone cannot support a finding of disability. Id. The ALJ must weigh the claimant's subjective complaints, the relevant objective medical evidence, and any other evidence of the following factors:
See 20 C.F.R. § 416.929(c)(3). "Because the ALJ is in the best position to determine a witness's truthfulness and forthrightness . . . a court will not overturn an ALJ's credibility determination unless it is `patently wrong.'" Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012) (quotation marks omitted) (quoting Skarbek, 390 F.3d 500, 504-05 (7th Cir. 2004)); see also Prochaska, 454 F.3d at 738. Nevertheless, "an ALJ must adequately explain his credibility finding by discussing specific reasons supported by the record." Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013) (citing Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009)); SSR 96-7p, 1996 WL 374186, at *2 (Jul. 2, 1996) ("The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.").
Plaintiff argues that the ALJ erred in evaluating her subjective symptoms, including pain. Specifically, Plaintiff asserts error in (1) the ALJ's failure to look into the degree of relief offered by Plaintiff's medication, (2) the ALJ's vague determination that Plaintiff's testimony is "not fully credible," (3) the ALJ's use of Plaintiff's past part time work in determining Plaintiff's subjective symptoms, (4) the ALJ's use of Plaintiff's daily activities in determining Plaintiff's subjective symptoms, (5) the ALJ's consideration of Plaintiff's "conservative" treatment without inquiring into cost or medical necessity of more aggressive treatment, and (6) dismissal of subjective symptoms for not being fully corroborated by objective medical evidence.
Of these arguments, the Commissioner only addresses use of Plaintiff's part time work, consideration of "conservative" treatment, and—in an unrelated section of the brief—the relief offered by Plaintiff's medication. If the Commissioner does not respond to an argument raised in Plaintiff's opening brief, the Commissioner's silence constitutes waiver of the issue. See Bonte v. U.S. Bank, N.A., 624 F.3d 461, 466 (7th Cir. 2010) ("Failure to respond to an argument . . . results in waiver.") (citing U.S. v. Farris, 532 F.3d 615, 619 (7th Cir. 2008); Williams v. REP Corp., 302 F.3d 660, 667 (7th Cir. 2002)). Accordingly, the Commissioner has conceded error in (1) "not fully credible" being too vague of a descriptor to allow meaningful review, (2) use of Plaintiff's daily activities, and (3) dismissal of subjective symptoms for being not fully corroborated. The combination of these three conceded errors is sufficient to require remand.
Further, the Commissioner's response to the use of Plaintiff's part time work does not directly address Plaintiff's argument. Plaintiff argues that the ALJ did not consider the significant lenience granted to her in performing her part time work. The Commissioner's response is that the ALJ did not consider only the part time work, but considered other matters as well. Though the Commissioner raises the issue of Plaintiff's part time work, she failed to respond to Plaintiff's argument on this point and has conceded this error as well.
Regarding treatment deemed "conservative," the Commissioner argues that the ALJ is allowed to consider whether treatment is conservative. See 20 C.F.R.§ 416.929(c)(3). However, Plaintiff's argument is that ALJs are not permitted to draw adverse inferences about treatment without first properly assessing the underlying reasons for the course of treatment, such as inability to pay. See Hill v. Colvin, 807 F.3d 862, 868 (7th Cir. 2015). The Commissioner has once again failed to address the specific issue raised by Plaintiff. The law on the issue is clear—an ALJ must inquire into the reason behind conservative treatment before drawing a negative inference on that basis. See id. (citing Beardsley v. Colvin, 758 F.3d 834, 840 (7th Cir. 2014); S.S.R. 96-7p, 1996 WL 374186, at *7). This conceded error is another basis for remand.
Finally, Plaintiff argues that the ALJ, in focusing on Plaintiff's management of her symptoms through medication, failed to assess the degree of relief afforded to Plaintiff through the medication. Defendant argues that the ALJ determined that Plaintiff did not require invasive treatment, and thus Plaintiff's pain was sufficiently managed with medication. Thus, the error noted above in not inquiring into reasons for conservative treatment pervades the discussion of relief afforded by Plaintiff's medication. As already stated, failure to inquire into the underlying reasons for the course of treatment when determining that subjective symptoms are less than alleged due to the conservative nature of treatment requires remand.
In determining whether a claimant is disabled, the ALJ "will always consider the medical opinions in [the] case record together with the rest of the relevant evidence . . . received." 20 C.F.R. § 416.927(b). The ALJ evaluates every medical opinion received. 20 C.F.R. § 416.927(c). This includes the opinions of nonexamining sources such as state agency medical and psychological consultants as well as outside medical experts consulted by the ALJ. Id. § 416.927(e)(2).
An ALJ must give the opinion of a treating doctor controlling weight if (1) the opinion is supported by "medically acceptable clinical and laboratory diagnostic techniques" and (2) it is "not inconsistent" with substantial evidence of record. Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010); see also Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). In weighing all opinion evidence, the ALJ considers several factors and "must explain in the decision the weight given" to each opinion. 20 C.F.R. § 416.927(e)(2)(ii), (iii). Scrogham v. Colvin, 765 F.3d 685, 697-98 (7th Cir. 2014); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). When a treating physician's opinion is not given controlling weight, the ALJ must nevertheless consider certain factors to determine how much weight to give the opinion, including the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability (such as medical signs and laboratory findings), and specialization. See 20 C.F.R. § 416.927(c)(2).
When evaluating an agency examining physician's opinion, discounting such an opinion, especially in favor of a non-examining physician's opinion, is an unusual step that needs a good explanation. See Beardsley, 758 F.3d at 839; 20 C.F.R. § 416.927(c)(1) ("Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you.").
Plaintiff argues that the ALJ erred in assigning weight to treating physicians Dr. Ozoa and Dr. Atassi and to agency examining physician Dr. Smejkal.
Dr. Ozoa is Plaintiff's treating psychiatrist. Regarding Dr. Ozoa's opinion, Plaintiff contends that the ALJ did not support with any rationale his decision to give only "some" weight to the opinion. In response, the Commissioner argues that, even if the ALJ should have provided more analysis, such an error is harmless because the ALJ's decision is generally consistent with Dr. Ozoa's findings. However, Dr. Ozoa's opinion included restrictions on Plaintiff's ability to work—such as missing two days of work per month—that, if accepted by the ALJ, would have precluded Plaintiff from competitive work, as testified to by the vocational expert. Thus, the error is not harmless. The Commissioner also argues that the ALJ was thorough in his assessment of Dr. Ozoa's opinion. Though the ALJ discussed the opinion, he did not provide sufficient explanation for his assignation of weight to the opinion. He only stated that Dr. Ozoa's opinions are based on Dr. Ozoa's clinical interviews of Plaintiff. First, this does not qualify as a "thorough" assessment of the opinion, as the Commissioner suggests. Second, the Seventh Circuit Court of Appeals rejects the discrediting of psychiatric opinions due to being based on a plaintiff's statements to the psychiatrist. Price v. Colvin, 794, F.3d 836, 840 (7th Cir. 2015). Third, there is no indication that the ALJ followed the treating physician rule as required by the regulations. The ALJ erred in his weighing of Dr. Ozoa's medical opinion.
The ALJ provided two reasons for the weight assigned to the opinion of Dr. Atassi: (1) it is not supported by the testimony of agency consulting physician Dr. Jilhewar, and (2) there is no longitudinal treatment history from Dr. Atassi. The first reason is not a sufficient reason to deny controlling weight under the treating physician rule. The treating physician rule requires the opinion to be not inconsistent with substantial evidence of record. Not being supported is not the same as being inconsistent. For instance, evidence that a person has a pet cat does not support a statement USDC IN/ND case 2:16-cv-00110-PRC document 28-1 filed 09/06/17 page 12 of 15 that the same person has a pet dog, but it is not inconsistent for that person to have both a pet cat and a pet dog. Additionally, case law indicates that a contrary non-examining medical opinion, such as Dr. Jilhewar's opinion, is not sufficient reason to deny controlling weight under the treating physician rule. Gudgel, 345 F.3d at 470.
The second reason is contrary to the evidence, which shows that Dr. Atassi has treated Plaintiff in various settings since at least 2006. (AR 544, 616, 828, 914, 934, 1049, 1092, 1235, 1354-55, 1420). Thus, the reasons provided by the ALJ provide no basis to deny controlling weight to Dr. Atassi's opinion. The ALJ erred in assigning weight to Dr. Atassi's opinion.
The Commissioner fails to respond directly to Plaintiff's argument that the ALJ provided no basis for not giving greater weight to the opinion of Dr. Smejkal, who examined Plaintiff as the agency examining physician. The Commissioner argues that the ultimate result of the ALJ's determination of Plaintiff's RFC is supported, but that is not the point here. The ALJ failed to explain the assignation of weight to Dr. Smejkal's opinion in enough detail to permit the Court to provide meaningful review of it. This was error.
Thus, the ALJ erred in assigning weight to the opinions of Dr. Ozoa, Dr. Atassi, and Dr. Smejkal. Each of these errors provides an independent ground for remand.
Plaintiff argues that the ALJ erred in giving little weight to the statements provided by Plaintiff's sister. The ALJ correctly identified that such statements must be considered pursuant to Social Security Ruling 06-3p, 2006 WL 2329939 (Aug. 9, 2006). However, the only reason provided by the ALJ for assigning little weight is the sister's potential bias. Though this is one acceptable reason for discounting an opinion, the ALJ failed to address any other reasons mentioned in the Ruling, such as the length of time and frequency that the opinion source has seen Plaintiff, the consistency of the opinion with other evidence, and how well the opinion is explained. In the opinion, Plaintiff's sister states that she has known Plaintiff for 43 years and sees her four or five days a week. (AR 420). There is no blanket rule that the opinions of family members are discounted due to potential bias. Garcia v. Colvin, 741 F.3d 758, 761 (7th Cir. 2013). The ALJ identifies no inconsistencies between this opinion and other evidence in the record, and the opinion lists specific details as to Plaintiff's limitations, for example, Plaintiff showers instead of taking baths because it hurts Plaintiff to get up from a sitting position. Id. The Court is not satisfied that the ALJ undertook the proper analysis in giving weight to the opinion of Plaintiff's sister. The ALJ erred in discounting the opinion of Plaintiff's sister without more discussion of the factors in Rule 06-03p.
The ability to stoop requires flexion of the lumbar spine. S.S.R. 83-14, 1983 WL 31254, at * 2 (Jan. 1, 1983) (explaining stooping as "bending the body downward and forward by bending the spine at the waist"). Failure to explain the ability to stoop despite limited lumbar flexion is error. Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003).
Medical evidence shows that Plaintiff had lumbar flexion limited to less than fifty degrees; the normal flexion is ninety degrees. (AR 1267, 1575). The ALJ stated that, at Plaintiff's consultative examination, she had normal range of motion in all of her joints. However, the very page that the ALJ cites, Exhibit 4F at page 4—which is page 1270 of the administrative record—specifically notes that Plaintiff's lumbar spine flexion is decreased. The ALJ did note that a later examination showed limited range of motion in her lumbar region. (AR 19). The ALJ mischaracterized the evidence as to the first examination and then failed to reconcile the second examination's findings with the ability to stoop that the ALJ found Plaintiff to have. In light of this evidence, the ALJ has not explained how he determined that Plaintiff has the ability to stoop. This error requires remand.
The Court shares Plaintiff's skepticism that a significant number of cutting and pasting jobs are available in the national economy. As described by the vocational expert at the hearing, such a job involves cutting printed material and logging where the material was taken from, perhaps for archival purposes. In such a position, this cutting and pasting is the sole task for the eight hour work day. With advancement in computing technology and the increase of paperless records, the number of cutting and pasting jobs available is likely decreasing. Because several reasons for remanding this case have already been found, the Court declines to determine whether there is error at Step 5. However, if, on remand, the ALJ relies on cutting and pasting jobs to show that a significant number of jobs that Plaintiff is able to perform exist in the national economy, then the ALJ is directed to specifically inquire of the vocational expert how the number of jobs available in the national and/or regional economy was determined and what year any data that was used in determining that number was collected.
Plaintiff, in her reply brief, asks the Court to reverse and remand for an award of benefits. This argument is waived. Herron v. Comm'r of Social Sec., 788 F.Supp.2d 809, 819-20 (N.D. Ind. 2011) (citing Damato v. Sullivan, 945 F.2d 982, 988 n.5 (7th Cir. 1991); Anderson v. Astrue, No. 1:09-cv-327, 2010 WL 3522574, at *9 n.7 (N.D. Ind. Aug. 31, 2010)). Further, an award of benefits is appropriate "only if all factual issues involved in the entitlement determination have been resolved and the resulting record supports only one conclusion—that the applicant qualifies for disability benefits." Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011). Based on the discussion above, remand, not an immediate award of benefits, is appropriate.
Based on the foregoing, the Court hereby
So ORDERED.
