MARY M. ROWLAND, United States Magistrate Judge.
Plaintiff Gillian K. Suess filed this action seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for
To recover Disability Insurance Benefits ("DIB"), a claimant must establish that he or she is disabled within the meaning of the SSA.
20 C.F.R. §§ 404.1509, 404.1520, 416.909, 416.920; see Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.2000). "An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled." Zalewski v. Heckler, 760 F.2d 160, 162 n. 2 (7th Cir.1985). "The burden of proof is on the claimant through step four; only at step five does the burden shift to the Commissioner." Clifford, 227 F.3d at 868.
Plaintiff applied for DIB on July 26, 2005,
On March 30, 2009, Plaintiff, represented by counsel, testified at a hearing conducted by video teleconferencing before an ALJ. The ALJ also heard testimony from Ellen Rozenfeld, Psy.D., a medical expert ("ME"), and William Newman, a vocational expert ("VE"). (R. at 77, 91, 162). Following
Applying the five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity from her alleged onset date of April 30, 2002, through her date last insured of March 31, 2009.
(Id. at 16, 92-93). Based on Plaintiff's RFC and the VE's testimony, the ALJ determined at step four that Plaintiff could not perform any past relevant work through the date she was last insured. (Id. at 24, 93). At step five, based on Plaintiff's RFC, her vocational factors, and the VE's testimony, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including work as a machine feeder, hand packer, and housekeeper/cleaner. (Id. at 25, 93). Accordingly, the ALJ concluded that Plaintiff was not suffering from a disability as defined by the SSA as of the date she was last insured. (Id. at 26).
Judicial review of the Commissioner's final decision is authorized by § 405(g) of the SSA. In reviewing this decision, the Court may not engage in its own analysis of whether the plaintiff is severely impaired as defined by the Social Security Regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor may it "reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute [its] own judgment for that of the Commissioner." Id. The Court's task is "limited to determining whether the ALJ's factual findings are supported by substantial evidence." Id. (citing § 405(g)). Evidence is considered substantial "if a reasonable person would
Although this Court accords great deference to the ALJ's determination, it "must do more than merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.2002) (citation omitted). The Court must critically review the ALJ's decision to ensure that the ALJ has built an "accurate and logical bridge from the evidence to his conclusion." Young, 362 F.3d at 1002. Where the Commissioner's decision "lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded." Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir.2002).
Plaintiff raises the following arguments in support of her request for a reversal or a remand: (1) the ALJ failed to support her finding that claimant could perform the physical requirements of light work; (2) the ALJ erred by questioning the diagnosis of the treating physician;
It is undisputed that Suess has an anxiety disorder that results in panic attacks. (R. at 14, 34, 61). She worked at Honeywell for 25 years, until she went on sick leave in April 2002 due to her worsening anxiety and panic attacks. (Id. at 37, 45). During her panic attacks, her symptoms include: shakiness, heart palpitations, shortness of breath, feeling faint almost to the point of passing out, and stomach and intestinal cramps. (Id. at 34, 39-40). She suffers dizziness,
In March 2005, Jeffrey Schleich, M.D. prescribed her 20 mg of Paxil per day, apparently "due to expense." (R. at 325). Dr. Schleich also directed her to take Xanax, as needed. (Id.) In July of that year, despite the medication, she was still reporting "panic attacks really bad when out in public." (Id. at 324). It appears Dr. Schleich then switched her to Prozac. (Id. at 323). However, 40 mg of Prozac left her lightheaded (id. at 322), so her dose was reduced to 30 mg (id. at 321). Dr. Schleich notes that "If she is able to tolerate the 30 mg and still has not enough relief, we may be able to get her up to the 40 mg." (Id. at 321). The record further notes that she has "no insurance." (Id. at 324).
In June 2005, Dr. Dansdill, after treating Plaintiff for over two years, completed a Residual Functional Capacity Questionnaire. (R. at 332-36). In it, he indicates that she was "severely limited by panic attacks [and] agoraphobia." (Id. at 333). He opined that Plaintiff was incapable of "even `low stress' jobs" and that her attention and concentration would be interrupted frequently to occasionally during a typical work day. (Id.). He notes that Prozac leaves Suess nauseous and Alprazolam leaves her drowsy. (Id.). Finally, given the likelihood of good days and bad days, Dr. Dansdill opined that Plaintiff would "likely be absent from work" more than four days per month. (Id. at 335).
In February 2006, Gerald K. Hoffman, M.D. performed a psychiatric evaluation at the request of the Bureau of Disability Determination Services. (R. at 365). He confirmed the diagnosis of generalized anxiety "complicated by Panic Disorder with Agoraphobia," and opined that the Panic Disorder is the "primary reason for the degree to which her life is currently limited." (Id. at 366). Dr. Hoffman also opined that "an inadequately treated anxiety disorder can lead to musculoskeletal aches and pains." (Id.).
In addition to medication, Plaintiff received counseling. While she was still working at Honeywell in 2002, she received counseling from the Jane Addams Center. (R. at 61). The records indicate that she attended eight sessions at Jane Addams between December 2001 and August 2002 for treatment of anxiety. (Id. at 292). She reported frequent panic attacks (more than once a month) for several years, and described feeling faint to the point of passing out when she is anxious. (Id. at 295).
She testified that she again attended counseling again between July 2007 and May 2008,
Suess also presented evidence, in the form of testimony and medical records, that she suffers from fibromyalgia, carpel tunnel syndrome, and headaches. She suffers from arthritis in her back that affects how long she can sit, and regularly requires her to lie down. (R. at 34, 35, 66-67, 70-71). In terms of her physical abilities, her testimony was that she could sit for about 45 minutes with some shifting around, she can walk two blocks and she can stand for 5-10 minutes.
Her treating rheumatologist, Dr. Dansdill, diagnosed her fibromyalgia as consistent with tender point findings and symptoms. (R. at 309-12, 317-20). He also diagnosed bilateral carpel tunnel syndrome, recurring headaches, and dizziness. (Id. at 283, 302, 309, 317, 321, 326, 332, 443). Furthermore, in the Residual Functional Capacity Questionnaire he completed,
The Medical Expert, Dr. Ellen Rozenfeld, having reviewed the records but never examining Plaintiff, opined as to Suess's mental capacity only, finding that she would be limited to simple routine tasks with "only occasional contact with the public." (R. at 84). Having offered the opinion that Suess could interact with the public "on occasion," Dr. Rozenfeld admitted on cross-examination that she did not know that "on occasion" translates into interacting with the public one-third of the time. (Id. at 87). When pressed whether she believed Suess could interact with the public one-third of the time, Dr. Rozenfeld responded "[i]f that is the correct interpretation [of occasional.]" (Id. at 88). Dr. Rozenfeld's opinion was contrary to the opinion of Freeburg (id.) and Dr. Dansdill, both of whom treated Suess, completed residual function questionnaires, and found her unable to perform light or low skill work (id. at 89). Dr. Rozenfeld disagreed with Freeburg because he completed the residual capacity questionnaire after only a few sessions and, even though her Global Assessment of Functioning ("GAF") of 58 was inconsistent with the work-related limitations she was embracing,
The VE opined that assuming a person could sit, stand, or walk six to eight hours per day, lift or carry 10 pounds regularly and 20 pounds occasionally, was not required to perform repetitive grasping, and was placed in a simple, routine, low-stress job with no regular general contact with public, the person could work as a machine feeder, hand packer, or housekeeper. (R. at 92-93). On cross-examination, the VE testified that the worker must be on task 50 minutes per hour. (Id. at 95). Moreover, if the person was able to walk or stand for less than two hours per day, sit for only up to four hours per day, or be expected to miss more than four days per month, these jobs would be eliminated. (Id. at 95-96).
Plaintiff contends that the ALJ committed several errors in discounting her credibility regarding the intensity, persistence, and limiting effects of her ailments.
(R. at 23) (emphasis added). This Court agrees with Suess that the ALJ's credibility finding requires remand.
The ALJ's analysis contains the boilerplate language, oft criticized by the Seventh Circuit Court of Appeals, that "yields no clue to what weight the trier of fact gave [Plaintiff's] testimony." Parker v. Astrue, 597 F.3d 920, 922 (7th Cir.2010) (reviewing similar language and finding that "[i]t is not only boilerplate; it is meaningless boilerplate[; t]he statement by a trier of fact that a witness's testimony is `not entirely credible' yields no clue to what weight the trier of fact gave the testimony"). In addition to using boilerplate language, the ALJ failed to assess Plaintiff's credibility before determining Plaintiff's RFC. That Plaintiff's statements were "not credible to the extent that they are inconsistent with the above residual functional capacity assessment" (R. at 23), is "backward reasoning," Dogan v. Astrue, 751 F.Supp.2d 1029, 1042 (N.D.Ind.2010). The ALJ's "post-hoc statement turns the credibility determination process on its head by finding statements that support the ruling credible and rejecting those
"In determining credibility an ALJ must consider several factors, including the claimant's daily activities, her level of pain or symptoms, aggravating factors, medication, treatment, and limitations, and justify the finding with specific reasons." Villano, 556 F.3d at 562 (citations omitted); see 20 C.F.R. § 404.1529(c)(3); Social Security Ruling ("SSR")
The ALJ discredited Suess's credibility because: (1) "her complaints of extensive side effects are not supported" in the medical evidence; (2) she received only intermittent counseling; (3) she was able to handle numerous situations and responsibilities with the deaths of her stepfather and mother; (4) she worked from home after her onset date, selling items online which "show[ed] the claimant's daily activities have, at least at times, been somewhat greater than the claimant has generally reported;" (5) she worked at Honeywell for 25 years with anxiety; (6) she was not compliant with getting exercise and "she continues to smoke;" and (7) her use of medications does not suggest a more limiting impairment. (R. at 23).
The ALJ found Suess not credible because "her complaints of extensive side effects are not supported" in the medical evidence. (R. at 23). However, it is not accurate that the records do not support Suess's assertions of difficulty with the side-effects of medications. Instead, the records contain numerous instances where treating physicians modified prescriptions and substituted medications in an effort to find treatment that worked and that Suess could tolerate in light of the side-effects. (Id. at 35, 37-38, 42, 320-22, 333, 418-22).
The ALJ expressed doubt about Plaintiff's credibility because she saw no doctors between August 2005 and March 2007 (R. at 17), and had gaps in her counseling thereafter (id. at 23). An ALJ "must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information in the case record, that may explain infrequent or irregular medical visits or failure to seek medical treatment." SSR 96-7p, at *7. Furthermore, the SSA "has expressly endorsed the inability to pay as an explanation excusing a claimant's failure to seek treatment." Roddy v. Astrue, 705 F.3d 631, 638 (7th Cir.2013) (remanding where ALJ found plaintiff not credible in part based on her failure to get consistent treatment where plaintiff had lost insurance); see SSR 96-7p, at *8 ("The individual may be unable to afford treatment and may not have access to free or low-cost medical services.").
The record contains numerous references to Plaintiff's financial hardships. (R. at 35-37, 63, 308, 324-25, 410). The ALJ does not address the evidence of financial hardship in the record, but states "[Suess] claims she has no money to have gotten other treatment [for her anxiety], but she continues to smoke one-half to three-fourths a pack of cigarettes a day."
The ALJ also doubted Plaintiff's credibility because she failed to exercise. This is factually inaccurate. Plaintiff testified that she did yoga stretching at home and that she walked her dog to the post office and back. (R. at 38, 42-43, 71-72). There is nothing in the record to suggest that more exercise was medically required.
The Commissioner contends that although "[Plaintiff] did not have insurance during the entirety of the period under review, the record demonstrated that she was nevertheless able to obtain free medical care." (D's Mot. 10). The Court, however, must limit its review to the rationale offered by the ALJ. See SEC v. Chenery Corp., 318 U.S. 80, 90-93, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir.2010) ("the government's brief and oral argument . . . seem determined to dissolve the Chenery doctrine in an acid of harmless error"). And here, the ALJ provided no reasoning for rejecting her credibility because she had access to free medical care but choose not to pursue it. On the contrary, the ALJ acknowledged Plaintiff's statement that she only recently learned about the availability of a free clinic. (R. at 17).
The ALJ noted that Suess "worked at Honeywell for almost 25 years, but had panic attacks maybe once a week when she was in data entry and more often when they moved her to customer service. The anxiety was there when she worked but had not turned into full panic attacks." (R. at 17). A long employment history is not a proper basis to find a claimant lacks credibility. To the contrary, a lengthy work history supports a claimant's credibility. Aidinovski v. Apfel, 27 F.Supp.2d 1097, 1104 (N.D.Ill.1998) (criticizing ALJ's failure to consider plaintiff's eleven year work history as "favorable to [plaintiff's] credibility"). Moreover, it is uncontested that the panic attacks were worsening over time, while Suess was working, and decreased in frequency, only when she was at home and relaxed. (R. at 40).
In terms of Plaintiff's other work history, she testified that when she was first laid off from Honeywell, she and her husband attempted to sell items online. (R. at 34). The ALJ found that "[a]lthough that work did not constitute disqualifying substantial gainful activity, does show the claimant's daily activities have, at least at times, been somewhat greater than the claimant has generally reported." (Id. at 23). There is little in the record about what tasks Suess performed regarding the on-line sales. Assuming she listed items on-line and did so on her own schedule, there is nothing inconsistent with that and her claim of disability. Similarly, the ALJ provides no explanation for how Plaintiff's ability to handle some responsibilities related to the deaths of her mother and stepfather (id.) supports finding Plaintiff not credible. The Seventh Circuit has repeatedly cautioned against placing undue weight on a claimant's household activities in assessing the claimant's ability to hold a job outside the home. Mendez v. Barnhart, 439 F.3d 360, 362-63 (7th Cir.2006) ("The pressures, the nature of the work, flexibility in the use of time, and other aspects of the working environment as
Under the circumstances, the ALJ's credibility finding requires remand.
Plaintiff contends that the ALJ failed to give proper weight to the opinion of Dr. Dansdill, Plaintiff's treating physician. (P's Mot. 14-15). Plaintiff asserts that even if the ALJ did not give controlling weight to Dr. Dansdill's opinion, the ALJ was required to assess the weight in accordance with the regulatory checklist of factors. (Id. 15).
By rule, "in determining whether a claimant is entitled to Social Security disability benefits, special weight is accorded opinions of the claimant's treating physician." Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825, 123 S.Ct. 1965, 155 L.Ed.2d 1034 (2003). The opinion of a treating source is entitled to controlling weight if the opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence." 20 C.F.R. § 404.1527(d)(2); accord Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir.2008). A treating physician typically has a better opportunity to judge a claimant's limitations than a nontreating physician. Books v. Chater, 91 F.3d 972, 979 (7th Cir.1996); Grindle v. Sullivan, 774 F.Supp. 1501, 1507-08 (N.D.Ill.1991). "More weight is given to the opinion of treating physicians because of their greater familiarity with the claimant's conditions and circumstances." Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). Therefore, an ALJ "must offer `good reasons' for discounting a treating physician's opinion," and "can reject an examining physician's opinion only for reasons supported by substantial evidence in the record; a contradictory opinion of a non-examining physician does not, by itself, suffice." Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.2010) (citing 20 C.F.R. § 404.1527(d)(2); other citation omitted).
If a non-treating physician contradicts the treating physician's opinion, it is the ALJ's responsibility to resolve the conflict. Books, 91 F.3d at 979 (ALJ must decide which doctor to believe). An ALJ may reject the opinion of a treating physician in favor of the opinion of a non-treating physician where the non-treating physician has special, pertinent expertise and where the issue is one of interpretation of records or results rather than one of judgment based on observations over a period of time. Micus v. Bowen, 979 F.2d 602, 608 (7th Cir.1992) ("[I]t is up to the ALJ to decide which doctor to believe—the treating physician who has experience and knowledge of the case, but may be biased, or . . . the consulting physician, who may
Plaintiff's treating rheumatologist, Dr. David Dansdill, found that Suess could walk three to four blocks without severe pain, could stand less than two hours and sit about four hours in an eight-hour work day. (R. at 334). These physical limitations contradict the ALJ's RFC finding. (See id. at 16). Dr. Dansdill further found that Suess was "severely limited by panic attacks [and] agoraphobia." (Id. at 333). He indicated that Plaintiff was incapable of "even `low stress' jobs" and that her attention and concentration would be interrupted between "frequently and occasionally" during a typical work day. (Id.).
The ALJ rejected Dr. Dansdill's opinion because it is, in the ALJ's opinion, "inconsistent and contrast sharply with the other evidence in the record," and "appear[s] to rest . . . on an assessment of impairments outside his area of expertise." (R. at 23). The ALJ critiqued Dr. Dansdill's opinion as (1) failing to contain the "significant clinical and laboratory abnormalities" one should see if Suess is truly disabled; (2) "rel[ying] quite heavily on [Suess's] subjective report of symptoms" despite the ALJ's "good reasons for questioning [Suess's] reliability"; and (3) conflicting with the State Disability Determination Services finding of "not disabled." (Id.).
Dr. Dansdill opined that Suess's mental impairments severely limit her ability to work; he also opined that her physical ailments impose specified limitations that would make her unable to perform even light work. Dr. Dansdill's opinions regarding Suess's physical limitations are clearly not outside his area of expertise; he was Suess's treating rheumatologist. (The ALJ incorrectly refers to him as an internist. (R. at 24)). Furthermore, there is no agency finding that contradicts Dr. Dansdill's opinion regarding Suess's physical limitations. Therefore, it appears that the ALJ discounted Dr. Dansdill's opinions regarding Suess's physical limitations because they relied on Suess's reported symptoms and the ALJ found them not supported by clinical and laboratory tests.
The Court has already remanded the ALJ's credibility finding. On remand, the ALJ should also revisit her rejection of Dr. Dansdill's reliance on Suess's subjective reporting consistent with her reconsideration of Suess's credibility. Moreover, almost all diagnoses—especially mental health evaluations—require some consideration of the claimant's subjective symptoms, and here, Plaintiff's statements were necessarily factored into Dr. Dansdill's analysis. See McClinton v. Astrue, No. 09 C 4814, 2012 WL 401030, at *11 (N.D.Ill. Feb. 6, 2012) ("Almost all diagnoses require some consideration of the patient's subjective reports, and certainly [the claimant's] reports had to be factored into the calculus that yielded the doctor's opinion."). And there is nothing in the record
Furthermore, the physical basis of the disability in this case is fibromyalgia, dizziness, headaches, and back ache. Such conditions are not measured by x-rays and laboratories. See 20 C.F.R. § 404.1529(c)(2) (pain will not be rejected solely based on objective findings); Scott, 647 F.3d at 736 (reversing denial of benefits where although the "objective medical evidence" showed the plaintiff's "knees were normal and her spine showed only minimal degeneration", "her medical records are replete with instances in which she complained to other doctors about back and knee pain"); Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996) (fibromyalgia is based on subjective, rather than laboratory, findings). The decision to reject Dr. Dansdill's opinions require remand.
"The RFC is an assessment of what work-related activities the claimant can perform despite her limitations." Young, 362 F.3d at 1000; see 20 C.F.R. § 404.1545(a)(1) ("Your residual functional capacity is the most you can still do despite your limitations."); SSR 96-8p, at *2 ("RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities.").
Plaintiff argues that the ALJ's RFC finding must be remanded because: (1) it lacks support in the record (P's Mot. 4-5); and (2) it ignores several of Suess's symptoms, including headaches, fatigue and need to rest, fibromyalgia, panic attacks, and somatoform syndrome (id. 12-14).
The ALJ determined that Suess was capable of light work as defined in 20 C.F.R. § 404.1567(b) as a person who is able to sit for 6-8 hours per day, stand or walk 6-8 hours per day, lift or carry 10 pounds regularly and 20 pounds occasionally, and is not required to perform repetitive grasping. (R. at 16). The ALJ further limited Plaintiff's functional capacity by requiring that the work involve a simple, routine, low-stress job with no regular general contact with public. (Id.). Suess argues that the ALJ failed to identify any medical evidence in the record supporting this finding. (P's Mot. 5). This Court agrees.
It is uncontested that there is no Physical Functional Capacity Assessment in the record.
A careful review of the ALJ's findings shows a thorough recitation of (1) Plaintiff's testimony, (2) the medical records regarding her physical ailments, and (3) the medical records regarding her mental conditions. (R. at 17-23). This is then followed immediately by the ALJ's rejection of Suess's testimony based on a lack of credibility and the ALJ's rejection of Plaintiff's treating sources' (Dr. Dansdill and Freeburg) opinion evidence.
Plaintiff argues that the ALJ's RFC violated SSR 96-8p by ignoring her symptom-related functional limitations related to her anxiety, panic attacks, depression, fibromyalgia, dizziness, and headaches. (P's Mot. 12-14). Describing Suess's treatment as "routine and/or conservative" and "successful in controlling any symptoms" (R. at 23), the ALJ found that the objective medical evidence, x-rays, and laboratory findings, do not establish the presence of conditions "greater than those" for light work with the limits imposed by the ALJ (id.). In fact, the ALJ was clear that she considered Suess's symptoms only to the "extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence." (Id. at 16).
Furthermore, the ALJ's discussion does not address Suess's headaches and fatigue, which require her to lie down daily. Indoranto, 374 F.3d at 474 (ALJ failed to properly evaluate claimant's headaches in hypothetical questions to the VE); Phillips v. Astrue, 601 F.Supp.2d 1020, 1034 (N.D.Ill. 2009) (ALJ failed to properly assess need to lie down because of headaches); Dogan, 751 F.Supp.2d at 1046 (ALJ erred in failing to consider need to lie down during the day). Most significantly, the ALJ's RFC neglected to account for the symptoms related to the Plaintiff's panic attacks and somatoform, the primary bases for the disability request.
This Court cannot sustain the ALJ's finding where there is no indication in the record that she considered Suess's uncontested panic attacks, headaches, fatigue and need to rest and somatoform disorder—all of which can be expected to impact concentration and attendance.
In sum, the ALJ has failed to "build an accurate and logical bridge from the evidence to her conclusion." Steele, 290 F.3d at 941 (internal quotation omitted). This prevents the court from assessing the validity of the ALJ's findings and providing meaningful judicial review. See Scott, 297 F.3d at 595. For the reasons set forth herein, the ALJ's decision is not supported by substantial evidence. On remand, the ALJ shall reevaluate the weight to be afforded Dr. Dansdill's opinions, explicitly addressing the required checklist of factors. The ALJ shall reassess Plaintiff's credibility with due regard for the full range of medical evidence. The ALJ shall then reevaluate Plaintiff's physical and mental impairments and RFC, considering all of the evidence of record, including Plaintiff's testimony, and shall explain the basis of her findings in accordance with applicable regulations and rulings.
For the reasons stated above, Plaintiff's Motion for Summary Judgment [12] is