LYNN ADELMAN, District Judge.
Plaintiff James Eacret seeks judicial review of the denial of his application for social security disability benefits. Plaintiff alleged that he could not maintain full-time employment due to fatigue and shortness of breath associated with his impairments of asthma, hypertension, sleep apnea, and gout. An Administrative Law Judge ("ALJ") agreed with him, awarding benefits, but the Appeals Council vacated that decision, remanding the case for rehearing before a different ALJ. The second judge denied plaintiff's application, and the Council refused to review the denial.
When the Council denies review, the court evaluates the ALJ's decision as the final word of the Commissioner.
From 2001 to 2006, plaintiff owned and managed a bar, which he sold when his breathing problems made it too difficult to continue. (Tr. at 40-41, 45, 79.) After that, he bartended part-time (generally less than 20 hours per week) at establishments owned by two friends. (Tr. at 40, 77-78, 367.) Plaintiff testified that his friends were pretty lenient with him, scheduling him for day shifts when the bar wasn't busy, limiting the amount he had to lift, and allowing him to sit as needed. (Tr. at 51-52, 83-84, 91.) The employers indicated in letters submitted to the agency that plaintiff still had difficulty performing his duties; one said she might have to replace him, the other that he became short of breath carrying a case of beer after only a short time. (Tr. at 426, 431.) Plaintiff testified that despite the accommodations he still missed one or two shifts per month due to exacerbations of symptoms. (Tr. at 52, 91.)
Plaintiff further supported his application with two reports from Dr. Lyle Weintraub, his primary physician. In the first report, Dr. Weintraub opined that plaintiff's symptoms would occasionally interfere with the attention and concentration needed to perform simple work tasks; that plaintiff was capable of low stress jobs; and that he could walk two blocks, sit for 45 minutes, and stand for one hour. (Tr. at 547.) Dr. Weintraub further opined that plaintiff required a job that allowed shifting positions at will from sitting to standing, unscheduled breaks every hour of five minutes duration, use of a cane during a gout flare, and no lifting beyond 10 pounds. (Tr. at 548.) Finally, Dr. Weintraub opined that plaintiff would have good and bad days and would miss about two days of work per month. (Tr. at 549.) In the second report, Dr. Weintraub indicated that plaintiff's symptoms would frequently interfere with attention and concentration; that plaintiff could not work more than a six hour shift; and that he would miss about four days per month due to his impairments. (Tr. at 589-92.)
The agency denied plaintiff's application initially (Tr. at 108-09, 153), relying on the residual functional capacity ("RFC") assessment of Syd Foster, D.O., who reviewed the medical evidence and found plaintiff capable of light work with no concentrated exposure to hazards. (Tr. at 503-10.) Plaintiff requested reconsideration (Tr. at 157, 543-45), but the agency denied that request as well (Tr. at 110-11, 159), relying on the opinion of Pat Chan, M.D., who reviewed the record and concluded that plaintiff could perform light work with avoidance of even moderate exposure to dust and fumes (Tr. at 119-20).
Following a hearing, however, ALJ Thomas Sanzi found plaintiff disabled. ALJ Sanzi found plaintiff's statements regarding his symptoms and limitations credible, and adopted Dr. Weintraub's opinion over the opinions of the Drs. Foster and Chan, limiting plaintiff to a range of sedentary work. This RFC precluded plaintiff from performing his past work as a bartender and bar manager, and given his age, education, and work experience, qualified plaintiff as disabled under the agency's Medical-Vocational Guidelines. (Tr. at 138-45.)
The Appeals Council reviewed the matter on its own motion, vacating ALJ Sanzi's decision and remanding the matter for further proceedings. The Council found that ALJ Sanzi overlooked medical evidence inconsistent with the degree of limitation assessed in the decision, gave too much weight to Dr. Weintraub's opinions, and failed to consider indications in the record that plaintiff abused alcohol. (Tr. at 148-49.) The Council instructed the ALJ on remand to update the medical record, which may include a consultative exam or evidence from a medical expert; further evaluate plaintiff's subjective complaints; and, if warranted, obtain supplemental evidence from a vocational expert. (Tr. at 150.)
On remand, the agency arranged for plaintiff to be examined by Kauseruzzaman Khan, M.D. (Tr. at 436, 626.) On respiratory exam, plaintiff's breath sound was clear to auscultation bilaterally, with no wheeze or crackles. On musculoskeletal exam, Dr. Khan found no joint swelling, tenderness or gross restriction of range of motion; bilateral big toes showed no swelling, redness, or restriction of range of motion, but plaintiff did have a tophus on his right big toe. On neurological exam, plaintiff showed no sensory deficit; normal tone, power, coordination, and reflexes; normal hand grip strength and no restriction to fine activity; and normal gait. However, Dr. Khan noted that he saw plaintiff in between asthma and gout attacks. (Tr. at 627.)
Dr. Khan completed a physical ability form based on his observations and plaintiff's history (Tr. at 628), opining that plaintiff could lift and carry up to 10 pounds frequently, 20 pounds occasionally; continuously sit for 30 minutes, stand for 30 minutes, and walk for 15 minutes. In an eight hour workday, plaintiff could sit for four hours, stand for four hours, and walk for one hour; and needed a cane to ambulate during a gout flare. (Tr. at 631-32.) Dr. Khan further opined that plaintiff could frequently use his hands for reaching, handling, fingering, and feeling, occasionally for pushing/pulling; and occasionally use his feet for operation of foot controls. (Tr. at 633.) Finally, Dr. Khan opined that plaintiff should avoid any exposure to unprotected heights, moving mechanical parts, and pulmonary irritants. (Tr. at 635.)
Plaintiff also submitted a pulmonary RFC questionnaire from Dr. Fouad Husnain. (Tr. at 642.) Dr. Husnain indicated that plaintiff's symptoms would frequently interfere with the attention and concentration needed to perform even simple work tasks, and that plaintiff was capable of low stress jobs. (Tr. at 644.) He opined that plaintiff could walk two blocks without rest, continuously sit for two hours, and stand for one hour; in an eight hour day, plaintiff could sit and stand/walk about four hours. Plaintiff required hourly breaks of 10-15 minutes duration; could rarely lift 10 pounds, never more; occasionally twist, bend, and climb stairs; rarely squat; and never climb ladders. He had to avoid all exposure to cigarette smoke and even moderate exposure to extreme heat/cold, high humidity, perfumes, solvents/cleaners, fumes, dust, and chemicals. (Tr. at 644-46.) Finally, Dr. Husnain indicated that plaintiff would have good and bad days and likely miss about four days per month. (Tr. at 647.)
The case was on remand reassigned to ALJ Thomas Springer, who held a second hearing, summoning a vocational expert ("VE"). (Tr. at 32.) The VE classified plaintiff's past work as a bar manager as light, skilled work, and as a bartender as light, semi-skilled work. (Tr. at 60-61.) ALJ Springer then posed a hypothetical question, assuming a person of plaintiff's age, education, and work experience, able to lift and carry 20 pounds occasionally and 10 pounds frequently, stand and walk about five hours collectively, and sit about six hours, so long as allowed to alternate between sitting and standing every 30 minutes. The person also had to avoid more than occasional exposure to extreme cold and fumes, dust, odors, gases, and poorly ventilated environments. (Tr. at 61.) The VE testified that these limitations would rule out the bartender job but would not "totally preclude" the bar manager position. (Tr. at 61-62.) The ALJ asked plaintiff how much time he spent on his feet when he owned a bar, and plaintiff indicated that it probably would not have exceeded four or five hours per day because he did not bartend all that much. (Tr. at 62.) The VE subsequently testified that with a limitation of five hours standing and walking, the bar manager job could not be done as generally performed in the economy (Tr. at 63) but could be done as plaintiff performed it (Tr. at 67). However, adding a further limitation of occasional pushing and pulling with the upper and lower extremities would preclude the bar manager job, generally and as performed. (Tr. at 63, 67.)
ALJ Springer issued an unfavorable decision. (Tr. at 6.) Following the familiar five-step sequential evaluation process,
ALJ Springer next determined that plaintiff retained the RFC to perform less than the full range of light work, lifting and carrying 20 pounds occasionally and 10 pounds frequently; standing/walking about five hours collectively and sitting about six hours, as long as he was allowed to alternate between sitting and standing every 30 minutes; and avoiding more than occasional exposure to extreme cold and fumes, dust, odors, gases, and poorly ventilated environments. (Tr. at 13.) In making this determination, the ALJ gave some weight to the opinions of the agency consultants, Drs. Foster and Chan, but giving plaintiff the full benefit of the doubt the ALJ found plaintiff more limited based on additional evidence received at the hearing level. The ALJ gave less than great weight to the opinions from Drs. Husnain and Weintraub, noting that the record did not support many of their proposed limitations. (Tr. at 16-17.) The ALJ gave the most weight to the opinion of the consultative examiner, Dr. Khan, but he nevertheless rejected several of Dr. Khan's proposed limitations, including on pushing/pulling. The ALJ declined to include other limitations plaintiff alleged because he did not find plaintiff fully credible. (Tr. at 17.)
Relying on the VE's testimony, the ALJ found at step four that plaintiff could perform his past work as a bar manager, as actually performed. (Tr. at 18.) He therefore found plaintiff not disabled and denied the application. (Tr. at 18-19.)
Plaintiff argues that the ALJ erred in weighing the medical opinion evidence, evaluating credibility, and determining RFC at step four. I address each contention in turn.
The ALJ must consider all medical opinions in the record.
The ALJ is also required to consider any opinions in the record from agency medical and psychological consultants, as they "are highly qualified physicians and psychologists who are experts in the evaluation of the medical issues in disability claims under the Act." SSR 96-6p, 1996 SSR LEXIS 3, at *4. In weighing these opinions, the ALJ considers the supportability of the opinion in the evidence, the consistency of the opinion with the record as a whole, any explanation for the opinion provided by the consultant, and any specialization of the consultant.
Here, the ALJ purported to give the most weight to Dr. Khan's opinion, but he omitted from the RFC several of Dr. Khan's proposed restrictions, including the limitation to no more than occasional pushing and pulling (Tr. at 17), which the VE testified would preclude plaintiff's past work (Tr. at 67). The ALJ excluded this (and several other limitations) on the assumption that they were designed to accommodate potential restrictions during a gout flare, as plaintiff did not demonstrate need for those restrictions during the exam, which revealed no joint swelling, tenderness or gross restriction of range of motion; normal power, coordination, and reflexes; no abnormalities in handgrip strength or pinch grip strength; and normal gait, without a limp. The ALJ further explained that, because plaintiff testified to a reduced number of gout flare-ups and the record contained no more than minimal evidence showing active flare-ups, he would not include these proposed limitations in the RFC. (Tr. at 17.)
In his report, Dr. Khan specifically related plaintiff's need for a cane to gout flares (Tr. at 632), but he did not similarly attribute to gout the other limitations the ALJ omitted.
The ALJ stated that he gave "less than great weight" to the opinions of Drs. Husnain and Weintraub, but he never explained what weight their opinions did deserve under the regulatory factors. Further, the reasons the ALJ gave for rejecting the portions of these reports he did discuss are problematic. For example, the ALJ found that the record contained no support for the opinion that plaintiff should be limited to low stress work, as treating sources consistently described plaintiff as alert and oriented, and they did not identify deficits in his cognitive functioning or note that he presents as persistently fatigued. (Tr. at 16.) However, Drs. Husnain and Weintraub did not relate the stress limitation to alertness, cognitive functioning, or fatigue.
The ALJ further found that the record contained no objective evidence supporting the doctors' opinions that plaintiff would likely miss two to four days of work per month. The ALJ suspected that this limitation was instead based on plaintiff's subjective statements regarding his level of functioning, noting that in March 2012 and July 2012 plaintiff advised Dr. Weintraub of his capabilities and the number of days of work that he would likely miss each month. (Tr. at 17, citing Tr. at 557, 606.) While medical opinions should amount to more than a mere recitation of the claimant's subjective complaints,
The Commissioner correctly notes that an ALJ need not adopt a doctor's opinion verbatim. But this does not mean the ALJ may read such reports selectively, adopting the portions that support the RFC while rejecting without inadequate explanation those that do not.
In evaluating the credibility of a claimant's statements about his symptoms and limitations, the ALJ must follow a two-step procedure. First, the ALJ must determine whether the claimant suffers from a medically determinable impairment or impairments that could reasonably be expected to produce the claimant's symptoms. If not, the alleged symptoms cannot be found to affect the claimant's ability to work. SSR 96-7p, 1996 SSR LEXIS 4, at *5.
Second, if the claimant does have such an impairment, the ALJ must evaluate the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit the claimant's ability to work.
In the present case, the ALJ stated:
(Tr. at 17-18, internal record citations omitted.)
The biggest problem with this assessment is that it backwardly implies that the ability to work should be determined first, based on the "objective" evidence, with the "subjective" testimony then compared to that determination.
Looking past these procedural flaws, the substantive reasons the ALJ gave fail to withstand scrutiny, even under the deferential standard of review adopted by the Seventh Circuit.
Second, the ALJ noted that plaintiff was not forthcoming with treating providers regarding the extent of his alcohol consumption. While this lack of forthrightness might in the abstract diminish plaintiff's credibility, the ALJ failed to explain how plaintiff's minimization of his drinking meant he was overstating the severity of his functional limitations. Earlier in his decision, the ALJ found that plaintiff's alcohol use caused no more than mild restriction of his activities (Tr. at 12), so it is hard to see how plaintiff's statements about his drinking amount to all that much.
Third, the ALJ indicated that he saw no evidence of limitation at the hearing. While ALJs may consider their own observations in evaluating credibility,
Finally, the ALJ stated that the objective evidence did not provide strong support for plaintiff's claims. As indicated, that is not required once the claimant produces evidence of a medical impairment that could produce the symptoms.
Therefore, the matter must also be remanded for reconsideration of plaintiff's credibility. The ALJ should on remand also consider the observations of the SSA employees, who noticed discomfort and shortness of breath, while helping plaintiff complete paperwork. (Tr. at 378, 403.)
RFC is an assessment of the claimant's ability to do sustained work activities on a regular and continuing basis, i.e., eight hours per day for five days per week or an equivalent work schedule. SSR 96-8p, 1996 SSR LEXIS 5, at *1. In making this determination, the ALJ must perform a function-by-function assessment of the claimant's capacities before expressing RFC in terms of the exertional categories of sedentary, light, medium, or heavy work. This is so because the first consideration at step four is whether the person can perform past work as he actually performed it.
Here, the ALJ found that:
(Tr. at 13.)
Missing from this assessment is a discussion of plaintiff's ability to maintain full-time work. Perhaps such a finding could be implied in some cases, but not so here, where plaintiff's primary contention was that fatigue and shortness of breath limited him to part-time work.
Plaintiff further argues that the ALJ erred in relying on the VE's testimony, which conflicted with the
However, as the Commissioner notes (and plaintiff concedes), plaintiff's counsel did not raise the issue; therefore, remand is required only if the conflict between the testimony and the DOT is "apparent."
The ALJ should also more clearly define the requirements of plaintiff's past work and then assess, in light of the entire record, plaintiff's ability to perform those tasks.
Plaintiff seeks remand for an award of benefits. However, that remedy is appropriate only if all factual issues have been resolved and the record supports a finding of disability.
