MARY M. ROWLAND, Magistrate Judge.
Plaintiff Christopher E. Arias filed this action seeking reversal of the final deci-sion of the Commissioner of Social Security denying his application for Disability Insurance Benefits under Title II of the Social Security Act (Act). 42 U.S.C. §§ 405(g), 423 et seq., 1381 et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and filed cross motions for summary judgment. For the reasons stated below, the case is remanded for further proceedings consistent with this Opinion.
To recover Disability Insurance Benefits (DIB), a claimant must establish that he or she is disabled within the meaning of the Act.
20 C.F.R. §§ 404.1509, 404.1520; 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, stops the inquiry and leads to a determination that a claimant is not disa-bled." 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 protectively applied for DIB on March 1, 2012, alleging that he became disabled on January 13, 2011, because of cervical and shoulder injuries. (R. at 20, 136, 172). The application was denied initially and on reconsideration, after which Plaintiff filed a timely request for a hearing. (Id. at 20, 69, 75). On June 17, 2013, Plaintiff, represented by counsel, testified at a hearing before an Administrative Law Judge (ALJ). (Id. at 20, 32-66). The ALJ also heard testimony from Bernard Stevens, M.D., a medical expert (ME), and GleeAnn L. Kehr, a vocational expert (VE). (Id. at 120, 32-66, 129-31).
The ALJ denied Plaintiff's request for benefits on August 9, 2013. (R. at 20-27). Applying the five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity since January 13, 2011, the alleged onset date. (Id. at 22). At step two, the ALJ found that Plaintiff's cervical spine disease, spinal stenosis, status post fusion at C4-C7, mild arthritis, and left shoulder tendon tear are severe impairments. (Id.). At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impair-ments that meets or medically equals the severity of any of the listings enumerated in the regulations. (Id. at 23).
The ALJ then assessed Plaintiff's residual functional capacity (RFC)
(R. at 23). Based on Plaintiff's RFC and the VE's testimony, the ALJ determined at step four that Plaintiff could not perform his past relevant work as a courier. (Id. at 26). At step five, based on Plaintiff's RFC, his vocational factors, and the VE's tes-timony, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including work as an office helper, information clerk, or counter clerk. (Id. at 26-27). Accordingly, the ALJ concluded that Plaintiff is not under a disability, as defined by the regulations. (Id. at 27).
The Appeals Council denied Plaintiff's request for review on December 21, 2014. (R. at 1-5). Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).
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 Regula-tions. 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 gen-eral, 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 accept it as adequate to support a conclusion." Indoranto v. Barnhart, 374 F.3d 470, 473 (7th Cir. 2004); see Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir. 2014) ("We will uphold the ALJ's decision if it is supported by substantial evidence, that is, such relevant evidence as a reasonable mind might ac-cept as adequate to support a conclusion.") (citation omitted). "Substantial evidence must be more than a scintilla but may be less than a preponderance." Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). "In addition to relying on substantial evi-dence, the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit meaningful appellate review." Briscoe ex rel. Taylor v. Barn-hart, 425 F.3d 345, 351 (7th Cir. 2005).
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). "This deferential standard of review is weighted in favor of upholding the ALJ's decision, but it does not mean that we scour the record for supportive evidence or rack our brains for reasons to uphold the ALJ's decision. Rather, the ALJ must identify the relevant evidence and build a `log-ical bridge' between that evidence and the ultimate determination." Moon v. Colvin, 763 F.3d 718, 721 (7th Cir. 2014). 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, a high school graduate who was 53 years old at the time of his 2013 hearing, worked as a package delivery courier/driver for approximately 25 years. (R. 40-43, 173). Plaintiff suffered neck and shoulder pain after a motor vehicle collided with his delivery truck on January 13, 2011. A January 25, 2011 right shoulder MRI revealed a partially torn tendon and tendon strain. (Id. at 634). An MRI of the cervical spine taken the same day displayed disk protrusion and spinal stenosis. (Id. at 229).
Plaintiff's right shoulder pain resolved, but he continued to experience pain in his neck, sharp pain in his right shoulder, numbness in his left hand, and weakness in his left hand and arm. (Id. at 274, 616-17, 751). Two injections and several months of physical therapy did not improve his symptoms. (Id. at 637-92, 698). Plaintiff also tried muscle relaxants, but quit because they were ineffective and made him sleepy. (Id. at 275, 750).
At an independent medical examination on August 26, 2011, John L. Andreshak, M.D., noted some tenderness and muscle tightness in his left shoulder, and some areas of decreased strength on the left, reduced reflexes on the left triceps muscle, and subjective reports of numbness in the ring and small fingers of the left hand. (R. at 230-31). After a physical exam and a review of Plaintiff's medical records and cervical MRI, Dr. Andreshak assessed cervical spondylosis (a degenerative joint disease) with myelopathy (a disturbance to the spinal cord), and cervical disk herni-ation. (Id. at 232). He opined that the herniation was consistent with Plaintiff's left arm radiculopathy and weakness. (Id.). He recommended cervical spine surgery fol-lowed by physical therapy, and estimated that Plaintiff would be able to return to work four to five months after the surgery. (Id.). However, the doctor noted that he had not seen a shoulder MRI, and "sometimes shoulder issues may be masked by cervical pathology." (Id.). He concluded that Plaintiff's shoulder impairments would be determined after his cervical surgery and therapy. (Id.).
In November 2011, Plaintiff underwent an anterior cervical discectomy and spi-nal fusion at C4-C7. (R. 241, 274-79, 600-02). He appeared to heal well from the neck surgery, but continued to suffer symptoms in his left shoulder, including pain on movement and "clicking." (Id. at 578, 727-28). As of March 29, 2012, he was still taking Norco (a combination of acetaminophen and hydrocodone), although he took it only rarely because of the side effects. (Id. at 727). Though his doctors recom-mended a left shoulder MRI, it took several months for Plaintiff to receive insurance approval for the scan. (Id. at 698, 727, 966).
In May 2012, agency reviewer Francis Vincent, M.D., reviewed and summarized Plaintiff's medical records and determined that he retained the capacity to perform work-related functions up to the date of his surgery, and that he was still improving from the surgery. (R. at 867). He also noted Plaintiff's limited ranges of motion and continuing left shoulder pain. (Id. at 861-62). Dr. Vincent determined that Plaintiff was capable of light work, but with only occasional climbing of ladders or scaffolds and occasional reaching in all directions, with no other limitations. (Id. at 861-63.) Another reviewing doctor, Richard Lee Smith, M.D., reviewed and affirmed Dr. Vin-cent's assessments in July 2012. (Id. at 947-49).
Plaintiff continued physical therapy through 2012. (R. at 956-1059). In July 2012, his left shoulder pain was still present with all activities and caused him to wake up three to five times per night. (Id. at 881). Progress notes dated October 2012 and January 2013 indicate that the pain increased as his last cortisone injec-tion wore off. (Id. at 960, 963). His neck and left shoulder ranges of motion were somewhat limited. (Id.).
Scans done by X-ray and MRI in October 2012 showed that Plaintiff had a left rotator cuff tear with superior migration of the humeral head and advanced arthro-sis. (R. at 954). His doctor was unsure whether the condition was repairable through surgery. (Id.) A repeat MRI on April 16, 2013, revealed that the suprasp-inatus and infraspinatus tendons of his left shoulder were completely ruptured, with 4.5 centimeters of retraction of the tendon and a superior migration of the hu-meral head. (Id. at 951-53). Plaintiff indicated in May 2013 that he did not wish to proceed with surgery at that time and instead planned to seek a second opinion from another doctor. (Id. at 953-4).
At the request of the ALJ, medical expert Bernard Stevens, M.D. reviewed Plaintiff's available medical record and testified at the June 2013 hearing. (R. at 32, 36-41, 62-63). Dr. Stevens opined that, based on his review of the record, Plaintiff appears to have had a successful cervical fusion and decompression, but still has problems in both shoulders. (Id. at 36-38). Dr. Stevens further advised that Plain-tiff's shoulder problems do not rise to the level of Listing 1.02(B), but do limit him to light work with no climbing ladders and only occasional overhead reaching bilater-ally. He remains capable of frequent but not constant reaching below shoulder level. (Id. at 38-39, 62-63). He has no limitations in handling, fingering or feeling. (Id.). His post-status cervical fusion, however, limits him to only occasional bending, stooping, crouching, or crawling; and his other impairments preclude working at unprotected heights, commercial driving, and working with dangerous machinery. (Id. at 39).
At the hearing, Plaintiff testified that he is right-hand dominant. (R. at 41). Af-ter the motor vehicle collision, he had pain across his right shoulder which eventu-ally went away. (Id. at 45). He still has clicking and grinding in his left shoulder, with constant pain at 3/10 which frequently shoots up to 10/10. (R. at 43-45). To prevent this, he is cautious in his movements; for example, he holds his left arm with his right arm to close the car door. (Id. at 44, 49). The pain radiates into his left hand, and he has numbness in the fingers. (Id. at 51). Reaching overhead in-creases his pain, which makes it difficult for him to put on a T-shirt. (Id. at 45). Plaintiff also has constant neck pain that makes it difficult to look down for long pe-riods of time. (Id. at 44). His neck and shoulder pain cause him to wake up two or three times a night. (Id. at 44-46, 51). He has lost motion in his neck to the point that he needs to turn his whole body to look to the left, and he feels as if there's a ball at the site of the fused vertebrae. (Id. at 45, 52). His neck also bothers him if he stays in a sitting position or looks down. (Id. at 44). It is difficult to concentrate on anything but the pain. (Id. at 46). He takes a muscle relaxant, which makes him tired and dizzy. (Id. at 45). He also takes pain medication at least once and some-times twice per day, but when he takes it during the day he gets tired and needs to lie down afterward. (Id. at 48). He was told that repairing the shoulder would take extensive surgery, and he "didn't want to have any part of it." (Id. at 51-52).
Plaintiff estimated he can lift up to twenty pounds, but only for a short period of time, and not for two or three hours in a workday. (R. at 46-47). His daily activities include attending physical therapy twice a week and light housework such as put-ting laundry in the machine, walking the dog a short distance, and helping his wife with preparing and cleaning up after dinner. (Id. at 47-48, 52). He occasionally drives to a shopping area across the street to do errands, but relies on his wife and son to take him longer distances because he does not feel like he is in full control under the influence of his medications. (Id. at 49). He also testified to having prob-lems with his left ear, which makes it difficult to hear well in a noisy room. (R. at 50).
The VE testified that Plaintiff's prior work as a courier was heavy work as per-formed by Plaintiff. (R. at 54, 131). The ALJ then asked the VE to consider an indi-vidual of Plaintiff's age, education, and work experience who could perform light work, except that such person could not climb ladders, ropes, or scaffolds; could only occasional bend, stoop, crouch, or crawl; could only occasionally reach overhead with either arm; could frequently but not constantly reach below shoulder level; could not do commercial driving; and could not work at unprotected heights, with dangerous machinery, or in a loud noise environment. (Id. at 54-55). The VE testified that, due to the restriction on driving, Plaintiff would not be able to do his past work as a cou-rier, but he could perform other jobs including office helper, information clerk, and housekeeper. (Id. at 55). When further questioned about the amount of neck rota-tion, extension, and flexion required for these jobs, the VE noted that the house-keeper job would require a worker to look up and down. She testified, however, that the office helper and information clerk jobs, and the additional position of counter clerk, would be available even to someone with the hypothetical restrictions and limited neck movement. (Id. at 55-56). Those three jobs would be possible even if the person could use the non-dominant hand only occasionally, but not if there were no use at all of the non-dominant hand. (Id. at 60-62). If the same individual were limited to sedentary instead of light work, there would be no jobs available, and the person would be classified as disabled. (Id. at 56-57). The VE further testified that employers typically tolerate no more than one day per month of absences, and no more than 15% of a workday spent off task in addition to regularly scheduled breaks. (Id. at 57).
Following the hearing, Plaintiff, with leave from the ALJ, submitted additional medical evidence for her to consider, consisting of physical therapy records, a report from nonexamining medical consultant Dr. Julian Freeman, and Dr. Freeman's re-sume. (R. 63-65, 956-1068). In his June 25, 2013 report, Dr. Freeman summarized Plaintiff's medical conditions and treatment to date. (Id. at 1060-63). Based on those findings, Dr. Freeman opined that Plaintiff's impairments did not meet the criteria for Listing 1.02, Major Dysfunction of a joint. However, he opined that Plaintiff's arthritis meets the criteria for Listing 14.09, inflammatory arthritis, spe-cifically Listing 14.09(A)(2). (Id. at 1062-63). He also opined that, functionally, Plaintiff is capable of walking and standing about six hours a day and sitting about eight hours a day, but he cannot perform even occasional lifting, carrying, pushing or pulling. (Id. at 1064). He can lift five pounds only rarely, and ten pounds with one hand or twenty pounds bimanually only "very rarely," which he defined as one per-cent of the time. Dr. Freeman also specified that Plaintiff cannot reach overhead with either arm, can only occasionally use either arm above waist level, and cannot use hand controls above chest level; he can only rarely use his hands from the waist to very low chest level. (Id.). He cannot use ladders, ropes, or scaffolds; he has limi-tations in his neck ranges of motion; and he cannot be exposed to more than low levels of vibration. Finally, he is subject to "frequent interruption of mental and physical activities by pain." (Id.).
Plaintiff raises four arguments in support of his request for reversal: (1) the ALJ erred in omitting Listing 14.09, Inflammatory Arthritis, from her step-three analy-sis; (2) the ALJ improperly evaluated the medical opinion evidence; (3) the ALJ's analysis of his credibility was flawed; and (4) the ALJ's assessment of Plaintiff's RFC failed to account for all of his impairments.
Plaintiff argues that, in light of Dr. Freeman's opinion that Plaintiff's arthritis meets the criteria for Listing 14.09(A)(2), it was error for the ALJ to omit considera-tion of that Listing from her step three analysis. In order to prove disability at step three, a claimant "first has the burden to present medical findings that match or equal in severity all of the criteria specified by a listing." Knox v. Astrue, 327 F. Appx 652, 655 (7th Cir. 2009) (unpublished opinion). As a general rule, an ALJ ana-lyzing disability at this step "must discuss the listing by name and offer more than perfunctory analysis" of its criteria. Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015) (quoting Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.2004)). However, even where an ALJ has failed to address a specific listing by name, a thorough analysis of the elements of the listing may suffice. See Jolievette v. Astrue, 332 F. Appx. 326, 327 (7th Cir. 2009) ("It is not necessary to cite a regulation by number; the agency's obligation is to apply the law to the facts, and this ALJ did so by cover-ing each ingredient of [the Listing.]")
Here, the ALJ provided an analysis of Listing 1.02(B), Major Dysfunction of a Joint, ultimately concluding that Plaintiff does not demonstrate one criterion, the "inability to perform fine and gross movements effectively," which is defined in the regulations as "an extreme loss of function of both upper extremities." See Listings, § 1.00(B)(2)(c) (emphasis added). The ALJ cited substantial evidence to show that Plaintiff's impairments do not meet this criteria. According to Plaintiff's own testi-mony and to medical records, his severe upper extremity impairments are limited to just the left side, leaving him the functional ability to do many tasks with his domi-nant right arm, which is inconsistent with an "extreme loss of function in both up-per extremities."
Plaintiff now asserts that he meets the criteria for Listing 14.09(A)(2), which is "[p]ersistent inflammation or persistent deformity of . . . [o]ne or more major pe-ripheral joints in each upper extremity resulting in the inability to perform fine and gross movements effectively." The relevant functional limitation, the "inability to perform fine and gross movements effectively," is defined the same way for both Listings. Because the ALJ considered the relevant evidence for that criterion in her analysis of Listing 1.02(B) and Plaintiff has provided no additional evidence that his arthritis has caused him an "extreme limitation" in use of both of his upper extremi-ties, the ALJ did not err in omitting a separate discussion of Listing 14.09(B).
Plaintiff argues that the ALJ erred in giving the opinion of consultant Dr. Free-man less weight than the opinion of consultant Dr. Stevens. The two opinions differ in several material respects. In particular, while both doctors opined that Plaintiff is capable of standing or walking for up to six hours in an eight-hour workday, they disagreed as to Plaintiff's ability to use his arms. Dr. Stevens stated that Plaintiff can do light work, which requires the ability to lift 10 pounds occasionally, meaning up to one-third of a work day, and to sometimes lift up to 20 pounds. (R. at 38-39); see 20 C.F.R. § 404.1567. In contrast, Dr. Freeman opined that Plaintiff can lift five pounds only "rarely" and can lift ten pounds with either hand or twenty pounds with both hands only very rarely, defined as "not over 1% of the time." (R. at 1064). Those restrictions, if accepted by the ALJ, would preclude even sedentary work, which requires the ability to lift small articles like docket files up to one-third of the time. See 20 C.F.R. § 404.1567(a); Social Security Ruling (SSR)
Where, as here, neither medical source has treated or examined the claimant, an ALJ must weigh all medical opinions considering such factors as "the length, na-ture, extent of the treatment relationship; frequency of examination; [each] physi-cian's specialty, the type of tests performed, and the consistency and supportability of [each] opinion." Scott v. Astrue, 647 F.3d at 740; Books v. Chater, 91 F.3d 972, 979 (1996). Other factors may include each doctor's familiarity with the claimant's case record and with the rules of the Social Security disability programs. 20 C.F.R. § 404.1527(c)(3)-(6). See 20 C.F.R. § 404.1527(c)(3)-(6). The ALJ must provide a "sound explanation" for the weight given each opinion. Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011).
The ALJ stated that she accepted that portion of Dr. Freeman's opinion about Plaintiff's abilities to walk, stand and sit, and that she "generally agree[d]" with the shoulder and postural limits he assessed. But her RFC does not reflect even general agreement with Dr. Freeman's shoulder limits: he opined that Plaintiff could do no overhead reaching whatsoever and could only rarely use his arms at the waist-to-chest level, restrictions that are not reflected in the ALJ's RFC assessment. (Id. at 1064).
The ALJ then gave two reasons for discounting the remaining opinions of Dr. Freeman. First, she found his statement regarding interruptions in mental activi-ties to be outside the scope of his expertise. (R. at 25). But as Plaintiff notes in his brief, Dr. Freeman specifically opined that interruptions would arise from pain caused by Plaintiff's physical impairments, not as manifestations of any mental im-pairment. (Id. at 1064) (describing "frequent interruption of both mental and physi-cal activities by pain [from] joint inflammation and spinal stenosis"). Therefore, it was appropriate for Dr. Freeman, who practices in internal medicine and neurology, to offer an opinion on this point. (Id. at 1065). Moreover, even if Dr. Freeman's statement could be bifurcated to mean that Plaintiff's pain somehow interrupts his physical activities without interrupting his mental activities, the ALJ included no limitation due to interruptions in either her RFC assessment or her questioning of the VE, leaving no explanation for her omission of the physical portion of Dr. Free-man's opinion.
Second, the ALJ found that "no evidence" supports the lifting limitations as-sessed by Dr. Freeman. Plaintiff in response compares Dr. Freeman's finding that Plaintiff can lift up to twenty pounds "no more than 1% of the time" with Plaintiff's hearing testimony that he can lift twenty pounds "for three to five minutes," ex-plaining that 1% of a work day equates to 4.8 minutes, which falls within the esti-mate provided by Plaintiff. (Dkt. 17 at 4). Such calculations are not necessary. As Dr. Freeman stated in his report, he relied in part on physical therapy notes in de-termining Plaintiff's capacities. (R. at 1061). Detailed notes from Plaintiff's physical therapy sessions document the fact that Plaintiff gradually increased his heaviest lifts to a maximum of just nine pounds, and for many exercises lifted just two or six pounds, over dozens of sessions in 2012 and 2013. (Id. at 1037-59). Additionally, Plaintiff's physical exams consistently revealed strength deficits and reports of pain on motion in the left shoulder. (Id. at 231, 727, 954). That Plaintiff lifts no more than nine pounds for a limited number of repetitions, even under the close supervi-sion of a trained therapist, provides at least some support for Dr. Freeman's finding that Plaintiff can safely lift light items only rarely and other items only very rarely while at work.
Because the ALJ has not provided the requisite "sound explanation" for choosing the opinion of consultant Dr. Stevens over that of consultant Dr. Freeman, her re-sulting RFC assessment is not supported by substantial evidence and this case must be remanded to rectify the error.
Plaintiff next asserts that the ALJ's assessment of his credibility is based on fac-tual and legal error. The regulations describe a two-step process for evaluating a claimant's own description of his or her impairments. First, the ALJ considers "whether there is an underlying medically determinable physical or mental im-pairment(s) that could reasonably be expected to produce the individual's symp-toms, such as pain." SSR 16-3p, at *2;
The Court will uphold an ALJ's evaluation of symptoms if the ALJ gives specific reasons for that finding, supported by substantial evidence. Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009). "Without an adequate explanation, neither the appli-cant nor subsequent reviewers will have a fair sense of how the applicant's testimo-ny is weighed." Steele, 290 F.3d at 940. On remand, after a proper consideration of the opinion evidence as described above, the ALJ should take care to reevaluate Plaintiff's subjective complaints in accordance with SSR 16-3p.
Plaintiff's final contention, that the ALJ failed to account for his time off task in formulating her RFC assessment, flows directly from his criticism of the ALJ's treatment of the opinion evidence, as described above. Therefore, the Court will not address Plaintiff's final argument directly at this time, but instead instructs the ALJ on remand to explain how she assessed Dr. Freeman's opinion on this point.
For the reasons stated above, Plaintiff's Motion for Summary Judgment [13] is
