United States District Court, N.D. Illinois
January 27, 2004.
MARISELA YNOCENCIO, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security Defendant
The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Marisela Ynocencio ("Claimant" or "Plaintiff") seeks
judicial review of the final decision of the Commissioner of Social
Security, Jo Anne B. Barnhart ("Commissioner"), denying her application
for Disability Insurance Benefits ("DIB") under § 216(i) and §
223 of the Social Security Act. 42 U.S.C. § 416(i), 423(d). This case
comes to this Court on cross-motions for summary judgment. Plaintiff
raises the issues of whether the Administrative Law Judge ("ALJ")
properly disregarded the testimony of Claimant's treating physician in
favor of the testimony of the Medical Expert ("ME") and whether the ALJ
committed legal error by failing to clarify important ambiguities in the
record, resolve conflicts, and obtain important medical information. For
the reasons stated below, Claimant's motion for summary judgment is
granted and the Commissioner's motion
for summary judgment is denied. The case is remanded to the
Commissioner for further proceedings.
A. PROCEDURAL HISTORY
Claimant applied for DIB on September 11, 2001, claiming that she
became disabled on September 14, 2000. R. 84-86. Her application was
denied on October 17, 2001, R. 66, and she filed a timely request for
reconsideration on October 31, 2001, R. 72, which was denied, R. 67. On
April 26, 2002, Claimant requested an administrative hearing.
On April 3, 2003, ALJ James A. Horn conducted a hearing at which
Claimant, who appeared with counsel, and ME Dr. George Tsatsos testified.
R. 32-65. ALJ Horn issued a decision on May 27, 2003, denying Claimant's
application for DIB on the grounds that Claimant was not disabled because
she retained the residual functional capacity ("RFC") to perform a full
range of sedentary work. R. 11-18. Claimant timely requested a review of
the ALJ's decision by the Appeals Council, R. 10, which denied the
request on July 25, 2003, R. 5-9. Thus, the ALJ's decision is the final
decision of the Commissioner. Claimant filed a timely complaint with this
Court on August 22, 2003, and jurisdiction is proper pursuant to
42 U.S.C. § 405(g) and § 1383(c)(3).
B. HEARING TESTIMONY
1. Claimant's Testimony
At the time of the administrative hearing, Claimant was a thirty-one
year-old married woman with a ninth-grade education and two children,
ages ten and four. R. 41. Prior to September 2000, Claimant had worked in
various positions, such as waitress, cashier, and stock person, at retail
stores and at restaurants. R. 42-43. Her most recent position was as a
department supervisor at a Kohl's store in Batavia, Illinois. R. 41. Her
duties as department supervisor included moving part of the store's stock
from the dock and the stockrooms to the display racks on the main floor
of the store. R. 42. She has not worked since September 2000. R.43.
Claimant stated that she presently can not work because she can "barely
do anything" as a result of the pain in her neck caused by a work-related
injury that occurred on September 14, 2000. See R. 41, 43, 46.
She complains of constant pain running from the back of her neck, down
her spine, into her right shoulder, and down her arm to her elbow. R.
46-48, Turning her neck and sitting too long tend to cause an increase in
the pain. R. 52. Claimant testified that she can sit only for a duration
of twenty to thirty minutes. R. 53. She also states that she can not
stand or walk for long periods of time. R. 118. Claimant has received
injections for the pain, but they have given her only "a little bit" of
relief for only a couple of days. R. 48-49. Narcotic pain relievers are
ineffective because she has problems with dependency and has gone through
withdrawal in the past. R. 44. To manage the pain, she
takes Tylenol or Advil, R. 49. To relieve the pain, she must lay
down several times a day for an hour or more at a time. R. 48,
A typical day for the Claimant involves preparing something for her
child to eat in the morning and laying on the couch to watch television,
R. 52. The extent of her activities involves tending to her children.
Id. Her husband does the cleaning. Id. Although
Claimant states that she can not drive because she can not move her neck,
she also states that she does drive when she takes her older child to and
from school or when someone can provide her with side vision. R. 118.
2. Dr. Bruce Montella Treating Physician
The testimony of Claimant's treating physician, Dr. Bruce Montella, an
orthopaedic surgeon, was presented to the ALT in the form of an evidence
deposition taken for the purpose of Claimant's workers compensation
claim. R. 49, 188. Dr. Montella first saw Claimant on May 17, 2001, at
which time he physically examined her, finding no "inconsistency or
incongruency in the way she described her symptoms or behaved." R.
190-91. He determine that she had ongoing spasms around her neck and
"limited cervical spine range of motion on all planes with reproduction
of symptoms in extremes of cervical range of motion" resulting from an
injury sustained at work while doing heavy lifting. Id. A review
of Claimant's MRJ revealed disc bulges at C5-6 and C6-7, as well as a
larger bulge or protrusion at C4-5. R, 191. Dr. Montella prescribed
non-operative treatments and concluded that "it was unreasonable for her
to participate in work in any way." R. 191-92.
On May 26, 2001, Claimant underwent an EMG study, which Dr. Montella
found to be normal. R. 192, He remarked, however, that an "EMG is noted
to be insensitive to determining the presence of pathology," which he
opined to be true in this case. Id.
By June 29, 2001, Dr. Montella surmised that Claimant's condition was
not improving with the non-operative treatment he had prescribed, so he
recommended and performed four series of epidural steroid injections with
limited transient benefit. R. 193.
On July 14, 2001, Dr. Montella admitted Claimant to Alexian Brothers
Medical Center for intractable pain of the nature he had been treating.
Id. At that time, another MRI was performed of Claimant's
cervical spine. Id. That MRI generally was consistent with
Claimant's prior MRI, but there were changes at discs C4-5 and C5-6 and
more pronounced changes at disc C3-4. R. 194.
Dr. Montella then referred Claimant to Dr. Scott Greenwald for a second
opinion on July 16, 2001. Id.; R. 144. According to Dr.
Montella, Dr. Greenwald's prognosis of Claimant's condition was
essentially the same as his own, and Dr. Greenwald ordered another series
of injections on July 18, 2001. R. 194-95. After that set of injections,
Claimant experienced persistent and debilitating pain that was managed by
oral pain medications. R. 195.
Dr. Montella next examined Claimant on August 2, 2001. Id. At
that time, Claimant had ongoing difficulties consistent with prior
evaluations. R. 196. Dr. Montella continued Claimant on pain management
with oral medications, considered additional injections,
prescribed anti-inflammatories and physical therapy, and
recommended that she not work. Id. Between August 30, 2001, and
December 23, 2002, Claimant's last visit with Dr. Montella, Dr. Montella
evaluated Claimant eleven times, finding no significant changes in her
condition. R. 196-202. His assessment of her condition did not change,
and the only change to her pain management strategy came in the form of
narcotic medications, to which she had an allergic reaction that
hospitalized her on December 13, 2001. Id.
Dr. Montella's final diagnosis is that Claimant has cervical disc
herniation at multiple levels and subsequent cervical radiculitis. R.
202, 205. He believes the condition is permanent. R. 202. Surgery,
according to Dr. Montella, is a last resort because multiple levels of
pathology diminish the likelihood of surgical benefits and increases the
morbidity inherent in the surgery. R. 205.
3. Dr. George Tsatsos Medical Expert
Dr. George Tsatsos, an orthopaedic specialist, testified as the medical
expert. R. 54-64, 81. He reviewed Claimant's medical records but never
examined her. R. 59. Dr. Tsatsos's review of the medical records
indicates that Claimant has degenerative disc disease of the cervical
spine and symptoms of radiculopathy going down to the right lower
extremity. R. 56. Her neurological exams were normal. Id. That
leaves an element of pain remaining. Id. Consequently, Dr.
Tsatsos opines that Claimant's condition does not meet or equal a
Dr. Tsatsos concluded that Claimant could lift twenty pounds
occasionally and ten pounds less than frequently, making the work level
she would be capable of performing sedentary with some light work. R.
56-57. In other words, she could pull or push ten or twenty pounds
occasionally but not necessarily lift that much. R. 57. She would have to
use her right hand to assist her left hand, and she would have to take
over-the-counter pain medication to do this level of work. R. 57-58. One
hour breaks would be too long for her condition. R. 58-59.
Dr. Tsatsos testified that Dr. Montella's finding of disc problems at
multiple levels was accurate. R. 59. However, he expressed concern with
Dr. Montella's diagnosis of herniated discs because such a diagnosis was
at odds with the radiologist's MRI report, which indicates degenerative
disc disease. R. 59-60. Dr. Tsatsos noted that Dr. Montella also referred
to the discs as bulging, which is a different condition, and speculated
that Dr. Montella may have had a "slip of the tongue" when he said the
discs were herniated. R. 61. It was unclear to Dr. Tsatsos whether Dr.
Montella intended to say "herniated." Id.
Dr. Tsatsos concluded that the record does not support a pathology
severe enough to cause pain as intense and persistent as Claimant claims
to suffer because the discs do not impinge upon the spinal cord and the
EMG tests were normal. R. 57. However, he could not disagree with Dr.
Montella's testimony about Claimant's subjective symptoms, such as neck
spasms and radiating arm pain, R. 61-62, and admitted that there would be
some pain, R. 57,
Furthermore, he agreed with Dr. Montella's use of conservative
treatment and stated that dissuading Claimant from surgery was
appropriate. R. 62-63.
C. OTHER MEDICAL EVIDENCE
1. Objective Medical Evidence
On July 14, 2001, an MRI of Claimant was performed. R. 154. The
diagnostic imaging report identifies disc degeneration and posterior disc
protrusion at levels C3-4, C4-5, and C5-6, the most pronounced being at
level C3-4. Id. There was no evidence of "significant spinal
stenosis or cord impingement." Id.
The MRI report that Dr. Montella testified to reviewing on May 17,
2001, R. 191, is not in the record.
On July 17, 2001, Claimant underwent an EMG study of her right upper
extremity. R. 152. The EMG results were normal. Id. There
existed no clear evidence of mononeuropathy, plexopathy, or
radiculopathy. Id. The report stated that clinical correlation
was required. Id.
On June 14, 2001, an x-ray was taken of Claimant's neck. R. 177. The
results were normal, and the disc spaces were well-preserved.
On July 19, 2001, another x-ray was taken of Claimant's neck. R. 150.
No arthritic changes were identified, the soft tissue was not remarkable,
and the cervical spine was within normal limits. Id.
2. Medical Consultants
a. Scott Greenwald, M.D.
On July 16, 2001, Dr. Scott Greenwald examined Claimant at the request
of Dr. Montella. R. 144-46. His impression was that Claimant had cervical
disc degeneration, cervical radiculopathy, and myofascial pain. R. 145.
From a physical examination, Dr. Greenwald determined that Claimant had a
decreased cervical range of motion, with severe pain in all directions
that radiates down her right arm to her right hand. Id. He
referred Claimant to physical therapy. R. 146.
b. Bryce Staker, D.C., and Maggie O'Brien, P.T.
On June 6, 2001, Dr. Bryce Staker, a chiropractor, began treating
Claimant. R. 180. He observed that Claimant was very protective of her
neck and her right upper extremity, making evaluation of cervical
restrictions and hypermobility difficult. Id. Claimant stated
that her pain was a "ten" out of "ten." Id. Dr. Staker's
diagnosis was cervical disc HNP. Id.
On October 1, 2001, Dr. Staker provided information about Claimant to
the Bureau of Disability Determination Services. R. 156. He reported a
neck injury located at
the cervical spine, which causes debilitating pain, tingling, and
numbness in Claimant's right arm. Id. Dr. Staker reviewed
Claimant's MRI and identified a herniated disc. Id.
On June 14, 2001, Maggie O'Brien, a physical therapist, treated
Claimant. R. 176. She noted that Claimant's cervical and right shoulder
ranges of motion were within normal limits. Id. Claimant could
not tolerate upper extremity stretching or strengthening exercises.
Id. After several sessions, Ms. O'Brien observed some mild
improvements in Claimant's arm movement, but she noted that Claimant
continued to complain of a severe increase in pain with a forward bend in
the neck and a moderate increase in pain with a right rotation. R. 175.
Ultimately, Ms. O'Brien reported a lack of progress and poor tolerance to
almost all therapies and recommended discontinuing physical therapy. R.
171. On October 29, 2001, after forty sessions with Claimant, Ms. O'Brien
discharged Claimant, reporting no lasting change in Claimant's functional
status, noting that Claimant is "emotionally labile" whenever manual
therapy is attempted, and diagnosing Claimant with cervical radiculitis
and cervical disc injury. R. 169.
c. Charles Kenney, M.D. State Agency Physician
On October 12, 2001, Dr. Charles Kenney, the State Agency Physician,
reviewed the evidence in the file to assess Claimant's condition. R.
157-64. He opined that, based on the normal but equivocal EMG, Claimant
could lift, push, or pull twenty pounds occasionally and ten pounds
frequently and could stand, walk, or sit about six hours in an eight-hour
workday. R. 158. He stated that, based upon the objective
evidence, most of Claimant's basis for her disability was based upon her
own complaints. R. 163.
D. DECISION OF THE ALJ
On May 27, 2003, ALJ Horn decided that Claimant is not disabled because
she has the capacity to perform a full range of sedentary work. R. 11-18.
The ALJ followed the familiar five-step process. At step one, he found
that Claimant was not engaged in substantial gainful activity since the
alleged onset of her disability. R. 17.
At step two, the ALJ found Claimant's impairments were severe. R. 17.
Claimant has an orthopaedic impairment that significantly limits her
ability to perform basic work activities. Id.
At step three the ALJ found Claimant had no impairment or combination
of impairments that met or equaled a listed impairment. Id.
At step four, the ALJ determined that Claimant is unable to perform any
past work. Id. To reach this conclusion, he assessed Claimant's
residual functional capacity. R. 18. Adopting the ME's RFC, the ALJ found
Claimant to be able to perform a full range of sedentary work with the
additional ability to push and to pull up to twenty pounds. R. 16-18.
The ALJ disagreed with Dr. Montella's opinion that Claimant
experienced debilitating pain and was unable to work for two reasons.
Id. First, the fact that the radiologist's interpretation of
Claimant's MRI identified only arthritic changes and disc protrusions
contradicted Dr. Montella's opinion that Claimant had disc herniations at
multiple levels. R. 17. Second, there is no indication in the record that
Dr. Montella performed any physical
examinations to justify his opinion because his notes for September
through December 2002, as well as for other office visits, failed to
contain physical examination notations. Id. The ALJ pointed out
that the only physical examination by Dr. Montella disclosed an absence
of neurological findings. Id.
At step five, the ALJ noted that the Commissioner bore the burden of
establishing whether other jobs that Claimant could perform exist in the
national economy, given her age, education, work experience, and
functional limitations. Id. Finding skill acquisition and
transferability to be immaterial to the outcome, the ALJ applied
Medical-Vocational Rules 201.24 to 201.26, which directed a finding of
"not disabled" because there are a significant number of jobs existing in
the economy that Claimant could perform. Id.
III. LEGAL STANDARDS
A. STANDARD OF REVIEW
Judicial review of a Commissioner's final decision is governed by
42 U.S.C. § 405(g), which provides that the findings of the ALJ are
conclusive if supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Diaz v.
Chater, 55 F.3d 300, 306 (7th Cir. 1995) (citing Richardson v.
Perales, 402 U.S. 389, 401 (1971)). A mere scintilla of evidence is
not enough. Id. Even if there is adequate evidence in the record
to support the decision, the findings will not be upheld if the "reasons
given by the trier of fact do not
build an accurate and logical bridge between the evidence and the
result." Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996).
A reviewing court may not re-evaluate the facts, re-weigh the evidence,
or substitute its own judgment for that of the Social Security
Administration. Diaz, 55 F.3d at 305-06. Thus, judicial review
is limited to determining whether the ALT applied the correct legal
standards in reaching his decision and whether there is substantial
evidence to support the findings. Id.; Scivally v. Sullivan,
966 F.2d 1070, 1075 (7th Cir. 1992). The reviewing court has the power to
enter a judgment "affirming, modifying, or reversing the decision of the
Secretary, with or without remanding the cause for a rehearing."
42 U.S.C. § 405(g).
B. DISABILITY STANDARD
An individual is disabled if that individual has the "inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
However, a disabled individual is eligible for DIB benefits
only if that individual is under a disability. Id. § 423(a).
An individual is under a disability if she is unable to do her previous
work and cannot, considering her age, education, and work experience,
partake in any gainful employment that exists in the national economy.
Id. § 423(d)(2)(A).
The Commissioner uses a five-step sequential process in order to
determine if an individual is disabled. 20 C.F.R. § 404.1520(a). The
sequential evaluation ends if the ALJ,
at any step of the process, finds that the claimant is not
disabled. Id. The ALJ must inquire: (1) whether the claimant is
working in any substantial gainful activity, (2) whether the claimant's
impairment is severe, (3) whether the impairments meet or equal a listed
impairment in 20 C.F.R. pt. 404, subpt. P, Appendix 1, (4) whether the
claimant is able to perform his past relevant work, and (5) whether the
claimant's age, education, and past relevant work experience in reference
to his residual functional capacity, enables him to do other work.
20 C.F.R. § 404.1520(a)(4)(i)-(v). In order to determine whether the
claimant can perform any past relevant work (step 4), the ALJ assesses
the claimant's residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(e).
The RFC is defined as the most that an individual can do
after considering the effects of physical and mental limitations that
affect her ability to perform work-related activities. 20 C.F.R. § 404.1545.
The burden of proof is on the claimant through step four; the
burden shifts to the Commissioner only at step five. Clifford v.
Apfel, 227 F.3d 863, 868 (7th Cir. 2000),
C. CREDIBILITY DETERMINATIONS
Credibility determinations of the ALJ are given particular weight and
will be reversed only if patently wrong. Powers v. Apfel,
207 F.3d 431, 435 (7th Cir. 2000). A court can not properly sustain an ALJ's
credibility findings regarding pain that are supported by incorrect
information or illogical reasoning. Dominguese v. Massanari,
172 F. Supp.2d 1087, 1095 (E.D. Wis. 2001) (citing Sarchet v.
Chafer, 78 F.3d 305, 307 (7th Cir. 1996)).
If the ALJ rejects an entire line of reasoning, he must give his
reasoning in order to provide for a meaningful review. Zurawski v.
Halter, 245 F.3d 881, 888 (7th Cir. 2001). "In the absence of an
explicit and reasoned rejection of an entire line of evidence, the
remaining evidence is `substantial' only when considered in isolation."
Zblewski v. Schweiker, 732 F.2d 75, 78-79 (7th Cir. 1984). The
ALJ is not required to discuss his reasons for rejecting every piece of
evidence; he must, however, discuss the claimant's evidence that
contradicts the Commissioner's position. Godbey v. Apfel,
238 F.3d 803, 808 (7th Cir. 2001). The required level of articulation is
heightened when there is conflicting evidence. Hodes v. Apfel,
61 F. Supp.2d 798, 807 (N.D. Ill. 1999) (citing Amax Coal Co. v,
Beasley, 957 F.2d 324, 327 (7th Cir. 1992)).
Claimant argues that the ALJ's decision should be reversed for two
reasons. First, the ALJ improperly discredited and disregarded the
opinion of Claimant's treating physician. Second, the ALJ selected and
discussed only evidence that favored his ultimate decision and erred by
failing to clarify important ambiguities in the record, resolve
conflicts, and obtain important medical information. This Court will
discuss each reason in turn.
A. THE ALJ IMPROPERLY DISCREDITED AND DISREGARDED THE OPINION
OF CLAIMANT'S TREATING PHYSICIAN.
Generally, more weight is given to medical sources who have examined a
claimant than to sources who have not. 20 C.F.R. § 404.1527(d)(1)-(2).
This is so especially on issues concerning the nature and severity of
a claimant's impairments. S SR 96-5p (1996).
Giving more weight to treating sources is appropriate because such
sources are most able to provide a detailed, longitudinal picture of a
claimant's medical impairment, and "bring a unique perspective
to the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual examinations."
20 C.F.R. § 404.1527(d)(2) (emphasis added). Moreover, a treating
physician's opinion is controlling unless it is unsupported by the
objective medical evidence and is inconsistent with other evidence in the
record. 20 C.F.R. § 404.1527(d)(2); Henderson ex rel. Henderson
v. Apfel, 179 F.3d 507
, 514 (7th Cir. 1999).
Claimant argues controlling weight should be given to the opinion of
her treating physician, Dr. Montella, with regard to the severity and
persistence of the pain she experiences. The Commissioner argues that the
ALT properly discredited that opinion because it is unsupported by
objective medical evidence and is inconsistent with the other evidence in
the record. The Court finds that the current record is insufficient
because it is ambiguous and requires clarification.
1. The Objective Evidence in this Case Is Clouded by Ambiguities
and Conflicts that Have Not Been Resolved
The ALT points to an MRI as the objective evidence that does not
support Dr. Montella's opinion. However, there is both unresolved
ambiguity about Dr. Montella's opinion and conflict in the interpretation
of the MRI, as well as uncertainty as to whether Dr. Montella physically
examined Claimant. These unanswered issues lead this Court to
find that the current record is insufficient to determine whether
the objective evidence supports Dr. Montella's opinion.
a. The Ambiguity and Conflict Surrounding Dr. Montella's Opinion
and the Objective Evidence
During his evidence deposition, Dr. Montella opined that Claimant had
disc herniations at multiple levels, which caused the pain alleged by
Claimant. R. 202. The ALJ found this opinion to be unsupported by the
July 14, 2001, MRI report, which found only protrusions and degenerative
discs. R. 16-17.
Dr. Montella's opinion, however, was ambiguous. As the ME pointed out,
in one instance Dr. Montella referred to Claimant's discs as bulging and
later referred to the discs as herniated. R. 61. The ME thought it
possible that Dr. Montella may have had a "slip of the tongue" when he
referred to the discs as herniated, especially because he had not gone
into great detail about his findings and had tried to give a short answer
to the question he had been asked. Id. Furthermore, it is
unclear whether Dr. Montella believes that Claimant could experience the
pain she alleges if she suffers from bulging discs instead of herniated
Moreover, the objective evidence upon which the ALJ relies is not
concrete. For instance, Claimant's MRI appears to be subject to various
interpretations. The radiologist's report interprets the July 14, 2001,
MRI as showing disc protrusions, R. 17, but both Dr. Montella and Dr.
Staker interpret the MRI as showing disc herniations, R. 202, 156.
Additionally, a May 17, 2001, MRI reveals that Claimant has disc bulges
at C5-6 and C6-7, as well as a larger bulge or protrusion at C4-5. R.
191. The subsequent July 14, 2001,
MRJ report notes protrusions at discs C4-5 and C5-6 and a more
pronounced protrusion at discC3-4. R. 194. There are inconsistencies
between the MRI findings. The July MRI does not mention a bulge at C6-7,
and the May MRJ does not mention a protrusion at disc C3-4. The July MRI
shows that the more pronounced protrusion is at C3-4, and the May MRI
shows that the most pronounced protrusion is at C4-5. Dr. Montella
testified that he compared the May MRJ with the July MRI and found
changes at discs C4-5 and C5-6 and more pronounced changes at disc C3-4.
R. 154. Moreover, the May MRI was not in the record.
There is no indication in the record that the ALJ attempted to resolve
these ambiguities and conflicts surrounding Dr. Montella's opinion and
the objective evidence. Without clarification of these issues, the record
is inadequate to make a determination of disability.
b. The Confusion as to Whether Dr. Montella Physically Examined
The ALJ disagrees with Dr. Montella's opinion that Claimant has
debilitating pain and is unable to work because the record does not
disclose that Dr. Montella performed any physical examination to justify
the opinion. R. 17. The Court is befuddled by this statement.
While questioning Dr. Tsatsos during the hearing on this case, the ALJ
discusses a physical examination of Claimant performed by Dr. Montella,
during which Dr. Montella found "no sign of inconsistency or incongruency
in the way [Claimant] described her symptoms or behaved during the
physical exam." R. 61. Furthermore, the ALJ asked Dr.
Tsatsos directly whether, at any point during any one of Claimant's
visits to Dr. Montella in September, October, or December of 2002, Dr.
Montella performed a physical examination of Claimant. R. 63. Dr. Tsatsos
replied affirmatively, identifying one date within those three and
another date the year before. Id. According to Dr. Tsatsos, Dr.
Montella examined Claimant less than seven months before the hearing: on
September 20, 2002, Dr. Montella noted, "neurologic exam is in tact."
Id. Dr. Tsatsos also noted that Dr. Montella provided detailed
findings from a physical examination of Claimant that was performed on
July 14, 2001. R. 64.
A review of Dr. Montella's notes reveal explicit notations of physical
examinations on May 17, 2001, July 12, 2001, July 14, 2001, August 2,
2001, and September 20, 2002. R. 132, 173-74, 178, 185. In some
instances, when a physical examination was not explicitly noted, there is
a notation that Dr. Montella made "an objective assessment of her
functional capacity." See, e.g., R. 167. It is unclear if this
notation is meant to indicate that a physical examination occurred. In
each of the thirteen reports submitted by Dr. Montella, he diagnosed
Claimant with pain. The pain persisted for over a year-and-a-half, and
was severe and debilitating by the end of that time. R. 183. The pain
stemmed from the neck and radiated down the arm. R. 184. It is unclear
how, without performing a physical examination, Dr. Montella came to
these conclusions. It is even more unclear how a doctor could perform
several series of epidural steroid injections without physically
examining the patient. Therefore, it clearly appears that Dr. Montella
examined Claimant. There is no
evidence that the ALJ attempted to re-contact Dr. Montella to
determine whether he did physically examine Claimant before concluding
that no examinations were performed.
c. The ALJ Erred in Failing to Resolve the Ambiguity and
Conflict Surrounding Dr. Montella's Opinion and the Objective
If the evidence received from a treating physician or other medical
source is inadequate to make a determination of disability, those sources
must be re-contacted to obtain any readily available additional
information. 20 C.F.R. § 404.1512(e)(1). Additional evidence or
clarification from a medical source must be sought when there is a
conflict or an ambiguity that must be resolved, necessary information is
missing, or a report does not appear to be based upon objective evidence.
Id. It is the duty of the ALJ to develop a full and fair record.
Henderson ex rel. Henderson v. Apfel, 179 F.3d 507
, 513 (7th
Cir. 1999). Failure to fulfill this obligation is "good cause" to remand
for the gathering of additional evidence. Smith v. Apfel,
231 F.3d 433
, 437 (7th Cir. 2000).
In this case, the ALJ failed to develop a full and fair record. He
should have re-contacted Dr. Montella to determine whether the doctor
diagnosed a disc herniation, especially because Dr. Staker also
determined that the MRI revealed a disc herniation. That determination is
key to supporting Claimant's allegations of pain. Additionally, the ALJ
should have made an attempt to obtain the May MRI from Dr. Montella.
20 C.F.R. § 404.1512(e)(1). The condition of Claimant's discs are vital
to the outcome of this case because it could provide Claimant with the
objective evidence necessary for her to show the existence of a medical
impairment resulting from anatomical or physiological abnormalities
that reasonably could be expected to produce the pain she alleges.
See 42 U.S.C. § 423(d)(5)(A).
Finally, to the extent that there is any doubt as to whether Dr.
Montella physically examined Claimant, the ALJ should re-contact Dr.
Montella to find out. The ALJ should determine whether Dr. Montella
physically examined Claimant, on what dates, and the conclusions reached
as a result.
2. Dr. Montella's Opinion Is Not Inconsistent with the Record
Controlling weight is given to a treating physician's opinion unless it
is "not inconsistent" with other substantial evidence in the record.
20 C.F.R. § 404.1527(d)(2). The opinion need not be "consistent" with
the record. Dominguese, 172 F. Supp.2d at 1100. This is not a
matter of mere semantics. Id. The "not inconsistent" standard
presumes that the treating physician's opinion is predominate and
requires the ALJ to search the record for inconsistent evidence in order
to give the treating source's opinion less than controlling weight.
Id. Under the "consistent" standard, the opinion has controlling
weight only if the record supports it. Id.
Even if Dr. Montella's opinion should not be given controlling weight,
several factors must be applied to determine the weight to give that
opinion. 20 C.F.R. § 404.1527(d)(2). The ALJ must consider the
following factors: (1) the length of the treatment relationship and the
frequency of examinations; (2) The nature and extent of the treatment
relationship; (3) the amount of relevant evidence, especially medical
signs and laboratory findings, that
supports the opinion; (4) the consistency between the opinion and
the record; (5) whether the treating physician's opinion is related to
that physician's area of specialty; (6) any other factors, which can be
raised by the claimant or any one else, that tend to support or
contradict an opinion. Id. § 404.1527(d)(2)-(6).
The Court agrees that the MRI results are significant to the weight to
be given to Dr. Montella's opinion. That controversy must be resolved as
a threshold issue. However, putting the controversy surrounding the
interpretation of Claimant's MRI aside, Dr. Montella's opinion regarding
the severity and persistence of Claimant's pain is "not inconsistent"
with the record. In fact, the bulk of the evidence is consistent with his
opinion, and even if the ALJ determines that Dr. Montella's opinion does
not deserve controlling weight, the following should be considered in
determining what weight to give that opinion.
First, Plaintiff failed to improve after forty sessions of physical
therapy because she could not tolerate stretching and strengthening of
her right upper extremity. R. 176. The inability to tolerate such minor
exercise is not inconsistent with Dr. Montella's opinion.
Second, contrary to the ME's testimony, the MRI report of July 14,
2001, states that there is no evidence of "significant spinal
stenosis or cord impingement." R. 154 (emphasis added). This statement
does not say that the discs do not impinge upon the spinal cord;
to the contrary, the statement suggests that there is some impingement.
The existence of even slight impingement is not inconsistent with the
existence of the pain diagnosed by Dr. Montella.
Third, although the ALT contends that the normal EMG results support a
finding that Claimant is not experiencing the severity and persistence of
pain that she alleges, Dr. Montella's remark that an "EMG is noted to be
insensitive to determining the presence of pathology," which he opined to
be true in this case, is not inconsistent with the record. R. 192. The
EMG report, which one doctor labeled equivocal, R. 158, states that there
existed no clear evidence of radiculopathy, R. 152, yet Drs. Montella, R.
202, Tsatsos, R. 56, and Greenwald, R. 145, as well as Ms. O'Brien, R.
169, diagnosed Claimant with the condition. The diagnosis of a pathology
where the EMG could not find evidence of one is not inconsistent with Dr.
Fourth, Dr. Montella obtained a second opinion from Dr. Greenwald, Dr.
Greenwald's findings, based on a physical examination of Claimant, were
consistent with Dr. Montella's opinion. For example, Dr. Montella
indicated that Dr. Greenwald agreed that Claimant was having problems
with her neck.
Finally, the Claimant's own testimony as to the severity and
persistence of her pain and its debilitating effects lends credence to
Dr. Montella's opinion. The foregoing facts illustrate that the record is
not inconsistent with Dr. Montella's opinion.
3. Claimant Should be Examined by the ME or by an Independent
If a conflict in the medical evidence persists, Claimant should undergo
additional consultative examinations by a different physician to
determine whether her pain is as severe and debilitating as she alleges.
20 C.F.R. § 404.1512(f). If there is a significant difference
in opinion between a claimant's treating physician and the ME about
a diagnosis, the ALJ should have the ME or another physician examine the
claimant to determine whether there can be agreement with the treating
physician's diagnosis. Blackwell v. Barnhart, 258 F. Supp.2d 851,
862 (N.D. 111. 2003). In this case, there is a significant
difference in opinion between Dr. Tsatsos and Dr. Montella on the
important fact of whether Claimant does experience severe and persistent
pain to the degree alleged, notwithstanding whether she suffers from
bulging or herniated discs. However, Dr. Tsatsos has never examined
Claimant. Doing so may eliminate the differences of opinions.
This case is about pain. In this case, pain is the factor upon which
the fifth step of the disability analysis turns because a decision of
"disabled" may be appropriate if, per her RFC, Claimant does not have the
ability to perform a full range of sedentary work. See
20 C.F.R. Ft. 404, Subpt. P, App. 2, § 201.00(h)(3). Dr. Montella
opines that the pain experienced by Claimant prevents her from performing
a full range of sedentary work. Dr. Tsatsos, on the other hand, opines
that Claimant can perform a full range of sedentary work because the
objective evidence does not support a finding of pain as severe and
persistent as Claimant alleges. It is difficult to understand how the ALJ
could have disposed of this case by relying on the opinion of a doctor
who never physically examined the claimant to evaluate such a subjective
symptom as pain.
The regulations recognize that pain causes a disorder commonly
associated with disc problems to affect individuals differently: "someone
with a low back disorder may be fully
capable of the physical demands consistent with those of sustained
medium work activity, but another person with the same disorder, because
of pain, may not be capable of more than the physical demands consistent
with those of light work activity on a sustained basis."
20 C.F.R. § 404.1545(e). When assessing symptoms as subjective as pain, it is
imperative that the ALJ consider the evidence provided by treating
sources and give their opinions as much weight as possible, even if not
In this case, the ALJ gave more weight to Dr. Tsatsos's opinion than to
Dr. Montella's opinion. Dr. Tsatsos, however, can not give a satisfactory
opinion about the pain being experienced by Claimant without physically
examining her. He testified that he could not disagree with Dr. Montella
about Claimant's subjective symptoms. R. 61-62. Therefore, he cannot
assess the actual degree of pain experienced by Claimant and how that
pain affects her disorder.
Because of the significance of the difference of opinion between Dr.
Tsatsos and Dr. Montella and the fact that the ALJ relied heavily upon a
non-treating physician for evidence of a subjective symptom, Claimant
must be examined by Dr. Tsatsos or an independent physician. The doctor
who exams Claimant must determine if Dr. Montella's diagnosis regarding
the severity and persistence of Claimant's pain can be supported.
In this case, remand is warranted because there is reason to believe
that it might lead to a different decision. See Fisher v. Bowen,
869 F.2d 1055, 1057 (7th Cir. 1989).
Furthermore, the record is not so clear that benefits can be
awarded or denied. See Campbell v. Shalala, 988 F.2d 741, 744
(7th Cir. 1993). The determination of a benefits award is essentially a
factual finding best left to the Commissioner because the record can not
yield one supportable conclusion. Id.
The Court remands this case so the issues surrounding the condition of
Claimant's discs and the degree of pain experienced by Claimant can be
clarified. The following should be addressed on remand:
1. Whether Dr. Montella diagnosed Claimant with a
herniated disc and the objective medical basis
for the diagnosis;
2. Whether Dr. Montella physically examined
Claimant, on what dates, and with what
3. Whether a medical examination conducted by Dr.
Tsatsos or an independent doctor reaches the
same diagnosis as Dr. Montella and the
objective medical basis for the diagnosis.
Claimant's entitlement to DIB turns on the issue of whether Dr.
Tsatsos's diagnosis of Claimant's functional limitations is correct. The
record contains too many conflicts and ambiguities to make a disability
determination feasible at this time. Dr. Montella must be contacted to
resolve these ambiguities. Furthermore, Claimant should be examined by
Dr. Tsatsos or an independent physician to see whether they agree with
Dr. Montella's diagnosis.
For the aforementioned reasons, Claimant's motion for summary
judgment is granted, and the Commissioner's motion for summary judgment
is denied. This case is remanded to the Commissioner for further
proceedings consistent with this opinion.
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