JAMES D. PETERSON, District Judge.
Plaintiff Daniel Cavegn seeks judicial review of a final decision of defendant Nancy Berryhill, Acting Commissioner of the Social Security Administration, finding Cavegn not disabled within the meaning of the Social Security Act. The administrate law judge (ALJ) concluded that Cavegn suffered from physical impairments related to his left and right ankles as well as depression and anxiety, but that he retained the capacity to perform a significant number of jobs in the economy, including an assembler, mail clerk, and food preparer.
On appeal Cavegn focuses on his physical impairments, contending that the ALJ erred by failing to: (1) obtain a medical opinion about his left ankle and right knee impairments; (2) adequately consider several of his limitations; and (3) consider the effect of his obesity on his ability to work. The case is scheduled for an oral argument on September 20, 2018, but the court concludes that no oral argument is needed in light of the relatively straightforward nature of the claim. For the reasons discussed below, the court agrees with Cavegn's first two arguments and will remand the case for further proceedings.
Cavegn says that the ALJ erred by failing to obtain a medical opinion on his left ankle and right knee impairments. (The ALJ did not find that Cavegn suffered from a severe impairment related to his right knee and Cavegn does not challenge that conclusion, but the ALJ was still required to consider the impairment in determining Cavegn's residual functional capacity. Williams v. Colvin, 757 F.3d 610, 613 (7th Cir. 2014).) Neither side describes the cause of those impairments, but the ALJ stated that Cavegn suffers from degenerative joint disease and peroneal tendinopathy in his left ankle.
The ALJ gave great weight to the opinions of the state agency consultants, but the consultants prepared those opinions in June 2014,
In reliance on the consultant opinions, the ALJ concluded that Cavegn retained the following residual functional capacity:
Cavegn says that, if the ALJ had incorporated his ankle and knee impairments and limited him to sedentary work, he would be disabled as a matter of law under 20 C.F.R. Part 404, Subpart P, Appendix 2. § 201.12. The Commissioner does not deny that Cavegn would qualify for benefits if he were limited to sedentary work and she does not deny that the new medical records are potentially significant. Instead, she says that the absence of any medical opinions on Cavegn's left ankle and right knee impairment is not a problem because the ALJ considered all of the relevant evidence himself and determined that the alleged limitations "are not wholly consistent with the evidence of record."
It is well established that "ALJs are required to rely on expert opinions instead of determining the significance of particular medical findings themselves." Stage v. Colvin, 812 F.3d 1121, 1125 (7th Cir. 2016) (internal quotations omitted). See also Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) ("ALJs must not succumb to the temptation to play doctor and make their own independent medical findings."). The Commissioner simply ignored this rule in her opposition brief, even though Cavegn cited several cases in which the court of appeals relied on it. Because the ALJ provided no grounds in his decision for failing to obtain a medical opinion about Cavegn's left ankle and right knee impairments, Cavegn is entitled to a remand.
Cavegn says that the ALJ noted but failed to adequately consider three alleged limitations that Cavegn testified about at the administrative hearing: (1) the need to use a cane to ambulate; (2) the need to elevate his legs when sitting for more than 15 minutes because of swelling; and (3) the inability to stand or walk for more than a half hour.
As for Cavegn's use of a cane, the Commissioner points to two references that the ALJ made. First, the ALJ wrote that Cavegn "did not establish that he would need his cane once he got to his workstation and began working."
Second, the ALJ wrote that Cavegn did not use a cane at a physical therapy appointment in 2015.
As for Cavegn's leg swelling, the Commissioner's only response is that Cavegn did not ask the ALJ for a limitation for keeping his legs elevated. But that argument fails because it is well established that "it is the ALJ who carries the burden of developing the record," even when the claimant fails to do so. Yurt v. Colvin, 758 F.3d 850, 860 (7th Cir. 2014).
As for Cavegn's ability to walk and stand, the Commissioner relies on the ALJ's more general reasoning for finding that Cavegn's statements "are not fully consistent with the evidence as a whole."
Again, the Commissioner relies on the ALJ's conclusions that Cavegn's ankles were improving, and again, that argument fails because it relies on the ALJ's own medical judgment. The ALJ also observed repeatedly that Cavegn had a part-time job as a building manager. But the court of appeals has cautioned against relying too heavily on a claimant's continued working. "[T]he fact that someone works is not a sufficient ground for concluding that she's not disabled. We have explained that even persons who are disabled sometimes cope with their impairments and continue working long after they might have been entitled to benefits. This is especially likely when the work is part time." Goins v. Colvin, 764 F.3d 677, 679 (7th Cir. 2014).
That was the situation in this case: Cavegn only worked 20 hours a week. And the ALJ acknowledged that Cavegn was the building manager "at the apartment complex where he lives, which helps him maintain his housing,"
The ALJ also observed that Cavegn performed activities such as volunteering and driving,
Cavegn's last objection is that the ALJ did not discuss how Cavegn's obesity affected his limitations. Cavegn does not explain how his obesity heightened any of his limitations, so that is not an independent ground for reversal. Stepp v. Colvin, 795 F.3d 711, 720 (7th Cir. 2015) ("[A]n ALJ's failure to explicitly consider an applicant's obesity is harmless if the applicant did not explain how her obesity hampers her ability to work.") (internal quotations omitted). On remand, if Cavegn can identify additional evidence in the record, he is free to ask the ALJ to consider that evidence.
The ALJ erred by acting as his own medical expert and by failing to adequately consider three of Cavegn's alleged limitations. On remand, the ALJ should (1) obtain an expert to review the records related to Cavegn's left ankle and right knee impairments; (2) consider all of the alleged limitations and explain his conclusions; and (3) conduct a new credibility assessment.
IT IS ORDERED that the decision of defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, denying plaintiff Daniel Cavegn's application for disability insurance benefits is REVERSED AND REMANDED under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. The September 20, 2018 oral argument is CANCELED as unnecessary.