United States District Court, N.D. Illinois, Eastern Division
September 13, 2004.
PATRICK T. BARRY, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Patrick T. Barry seeks review of the final decision
of the Commissioner ("Commissioner") of the Social Security
Administration ("Agency") denying his application for Disability
Insurance Benefits ("DIB") under Title II of the Social Security
Act ("Act"), 42 U.S.C. §§ 416(i), 423(d). This matter is before
the court on the parties' cross-motions for summary judgment.
Barry asks the court to reverse and remand the Commissioner's
decision, while the Commissioner seeks an order affirming the
decision denying Barry's application. For the reasons set forth
below, the court grants Barry's motion and remands this case to
the Commissioner for further proceedings consistent with this
Barry filed an application for DIB on November 2, 2000,
alleging that he had been disabled since June of 2000, due to
congestive heart failure, fatigue, and stress. (Administrative
Record ("R.") at 48-50, 65). The Agency denied his application at
the initial levels of administrative review (R. 29-34, 38-40), and he
requested an administrative hearing. (R. 41-41A). On March 19,
2002, an administrative law judge ("ALJ") conducted a hearing at
which Barry, represented by counsel, appeared and testified. (R.
216-245). In addition, Ashok Jilhewar, M.D., testified as a
medical expert. (R. 219-21, 231-32, 243-44). In a decision dated
April 23, 2003, the ALJ found that Barry was not disabled because
he retained the ability to perform his past relevant work as an
inside telephone salesperson and customer service representative.
(R.14-18). This became the final decision of the Commissioner
when the Appeals Council denied Barry's request for review of the
decision on August 8, 2003. (R. 5-7). See 20 C.F.R. §§ 404.955;
404.981. Barry has appealed that decision to the federal district
court, where the parties have consented to the jurisdiction of
the Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Barry was born on October 15, 1945, making him fifty-seven
years old at the time of the ALJ's decision. (R. 48). He
graduated from high school in 1964, and went to work as a
customer service and sales representative for Svedala Industries.
(R. 66, 71, 225). He did his work over the telephone, spent most
of the day sitting, and did not have to lift more than three or
four pounds at a time. (R. 66, 225-227). He left the job after
thirty-six years when he was hospitalized for a blood clot in his
leg in June of 2000. (R. 227).
A. Medical Evidence The relevant medical evidence in this case dates from June 29,
2000, when Barry was hospitalized at Rush-Copley Medical Center
with complaints of leg pain. (R. 107-109). Barry had significant
edema, and was jaundiced as well. (R. 110). Examination and
x-rays revealed evidence of congestive heart failure and
cardiomyopathy.*fn1 (R. 108, 120). An EKG showed minor,
nonspecific changes, but an ECG showed left ventricular ejection
fraction to be just 10-15%.*fn2 (R. 108). A Doppler study
revealed deep vein thrombosis in the left leg. (R. 108). A liver
function test was abnormal, with elevated enzymes and bilirubin.
(R. 108, 111). Ultrasound of the gal bladder and pancreas
revealed a large, right pleural effusion. (R. 111, 117). Hepatic
veins were prominent. (R. 111). The physician performing the
liver consultation felt Barry suffered from chronic liver
disease, perhaps due to cardiac cirrhosis or alcohol abuse. (R.
111). Barry admitted to drinking a six-pack of beer per day for
many years. (R. 110). Dr. Costanzo, of the cardiac transplant
service, recommended that if Barry abstained from alcohol for six
months, and potentially became a candidate for a heart
transplant, a liver biopsy would be necessary to rule out cirrhosis. (R. 108). While Barry weighed
179 pounds upon admission, his discharge weight was 139 following
anticoagulant treatment with Coumadin and Heparin. (R. 108). On
July 9, 2000, Barry was discharged on several medications,
including Coumadin (an anticoagulant to treat thrombosis), Lasix
(a diuretic), and Vasotec (for hypertension). (R. 108).
Following his hospitalization, Barry followed a course of
treatment with Dr. Santosh Gill, and made regular visits to the
Coumadin treatment clinic to monitor the therapeutic levels of
that medication and watch for side effects. (R. 143-162). On July
14, 2000, Barry reported that he had no chest pain or shortness
of breath. (R. 162). He exhibited 2 pedal edema. (R. 162). Dr.
Gil encouraged Barry to walk five to ten minutes daily, comply
with his diet, and abstain from alcohol. (R. 162). By July 27,
2000, Dr. Gil thought Barry might be capable of part-time
sedentary work, but recommended that he apply for long-term
disability. (R. 159). His cardiomyopathy and congestive heart
failure were stable, but he suffered shortness of breath even
when lying down. (R. 159). On August 14, 2000, Barry stated that
he had no chest pains or shortness of breath, and was sleeping
okay. (R. 156). He was abstaining from alcohol and following his
diet. (R. 156). Barry reported that he had applied for disability
as recommended. (R. 156). Dr. Gil indicated that there was no
ankle edema and pedal pulses were good. (R. 156). He also felt
that Barry would have to undergo a cardiac catheterization to
rule out coronary artery disease in about three months. (R. 156).
He encouraged Barry to walk five to ten minutes per day. (R. 156).
On September 14, 2000, Barry reported that he was not
experiencing any chest pain or shortness of breath. (R. 152). At
that time, he was walking two blocks per day; Dr. Gil recommended
he increase that to fifteen minutes per day. (R. 152).
By October 25, 2000, Barry's deep vein thrombosis had
stabilized, and he returned to the hospital for a cardiac
catheterization. (R. 132). An ECG was abnormal, showing left
ventricular hypertrophy with repolarization abnormality. (R.
142). According to Dr. Gil, cardiac catheterization revealed
coronary artery, but it was not severe enough to explain the left
ventricular dysfunction. (R. 147). Barry continued to report he
felt "okay" and had no chest pains or shortness of breath. (R.
147). He was trying to walk thirty minutes per day. (R. 147). His
physical examination was essentially normal. (R. 147). He
reported that he had been granted disability from work, but was
also trying to get social security disability. (R. 147). His
condition remained essentially unchanged over the next few
visits. (R. 143, 206-207).
On January 10, 2001, Dr. Roopa Kari examined Barry at the
request of the state disability agency. (R. 169-172). Dr. Kari
noted Barry's history of congestive heart failure and deep vein
thrombosis. (R. 169). The doctor also noted Barry's complaints of
tiring easily and shortness of breath when walking uphill or up
stairs. (R. 169-170). Barry reported that, prior to being
hospitalized, he drank four beers per day and smoked
one-and-a-half to two packs of cigarettes per day. (R. 170).
Physical examination was essentially normal, and cardiac rhythm and heart sounds were
normal. (R. 171). Peripheral pulses were normal as well. (R.
171). Dr. Roopa felt Barry's shortness of breath was due to his
coronary artery disease or alcoholic cardiomyopathy. (R. 172).
The doctor also noted that his deep vein thrombosis was being
treated with Coumadin, and that there were no current problems
with alcohol. (R. 172).
On February 7, 2001, Dr. Virgilo Pilapil, a state disability
agency physician, reviewed the preceding medical records and
found that Barry could occasionally lift or carry up to twenty
pounds, frequently lift or carry up to ten pounds, stand or walk
about six hours of an eight-hour workday, sit about six hours of
an eight-hour workday, and push or pull hand or foot controls
without limitation. (R. 174). He felt that Barry would be able to
occasionally climb ramps, stairs, ladders, ropes, or scaffolds.
Barry underwent an ECG on April 18, 2001. (R. 199-200, 206).
Ejection fraction at that time was 40%. (R. 199). On June 5,
2001, Barry reported that he had no chest pain, but occasionally
became short of breath upon exertion. (R. 199). His finger tips
were numb all the time. (R. 199). He was walking twenty to thirty
minutes per day. (R. 199). Because Barry's deep vein thrombosis
had been treated for a year and his left ventricular function had
improved, Dr. Gil felt that Coumadin treatment should be
discontinued. (R. 199). He also questioned Barry's compliance
with his diet, as he had been gaining weight. (R. 199). Dr. Reynaldo Gotanco, a state disability agency physician
reviewed the medical records accumulated as of July 18, 2001, and
found that Barry could occasionally lift or carry up to twenty
pounds, frequently lift or carry up to ten pounds, stand or walk
about six hours of an eight-hour workday, sit about six hours of
an eight-hour workday, and push or pull hand or foot controls
without limitation. (R. 185). According to Dr. Gotanco, Barry
could occasionally climb ladders, ropes, or scaffolds, and he
could frequently climb ramps or stairs. (R. 186).
By August 7, 2001, Barry had lost ten pounds, and was
continuing to walk twenty to thirty minutes per day. (R. 198). He
stated he was not experiencing shortness of breath or chest pain.
(R. 198). On October 30, 2001, Barry and Dr. Gil met to discuss
Barry returning to work. (R. 202). Barry reported that he got
tired easily, but did not suffer shortness of breath or chest
pains. (R. 197). Noting how easily Barry became fatigued, Dr. Gil
stated that he "doubt[ed] he can tolerate a full time job, even
if sedentary." (R. 197). Dr. Gil placed Barry on medication for
high cholesterol. (R. 197). Over the next three visits, Barry
continued to complain of tiring easily and a constant numbness in
his hands. (R. 194-197).
B. Plaintiff's Testimony
At the administrative hearing, Barry testified that he lived in
a house with his wife and fifteen-year-old daughter. (R. 224). He
said he had a driver's license and drove four or five times a
week. (R. 224). He was drawing a disability payment from where he previously worked. (R. 225). Barry testified that he left work on
June 29, 2000, because of a blood clot in his leg, and had not
returned since then. (R. 227).
Barry stated that he continued to see Dr. Gil every two months.
(R. 228). She advised him to stay on his medications and walk for
exercise. (R. 228). He indicated he was taking several
medications, including Coreg (for heart failure or left
ventricular dysfunction), Lanoxin (for heart failure), and
Aldacort (diuretic). (R. 231). Barry said the medication he took
would make him dizzy every once in awhile. (R. 232). He testified
that he has not had a drink or a cigarette since he was
hospitalized in June of 2000. (R. 233). According to Barry, on a
good day, he could walk a mile. (R. 233). He said when he had bad
days, he would only walk up and down the block. (R. 240). He said
he could stand still for about fifteen minutes before he had to
move. (R. 233). He had no trouble sitting. (R. 233). Barry
testified that his hands became numb at times, and his fingers
felt tingly all the time. (R. 230). As a result, he stated that
he tended to drop things. (R. 2340. He said he had no trouble
buttoning buttons, however. (R. 234). Barry estimated that he
could lift about ten pounds. (R. 235).
Barry testified that, at home, he cooked, loaded the dishwasher
and did some vacuuming. (R. 235-236). He explained that
activities such as vacuuming or climbing stairs left him short of
breath. (R. 240). According to Barry, he usually got up about six
each morning, and got his daughter ready for school, although he
did not take her to school. (R. 238). He said he was able to
grocery shop. (R. 236). Barry said he did not mow the lawn, but was able to do some yard work, "pulling
flowers." (R. 237). On bad days, however, his activities were
sharply curtailed. (R. 239-40). Barry testified that he was
always tired, and that he had to take naps in the morning and
afternoon. (R. 238). Barry said he could not return to his job
because it would wear him out; everything seemed to make him
tired. (R. 242).
C. Medical Expert's Testimony and Report
Dr. Ashok Jilhewar appeared at the administrative hearing,
scheduled to testify as a medical expert ("ME"). Prior to the
hearing, however, Dr. Jilhewar indicated that the medical record
was inadequate for him to testify. (R. 219). He explained what
records were needed, and Barry's attorney promised to supplement
the record accordingly. (R. 219-223). Dr. Jilhewar thought that
recovery from alcoholic cardiomyopathy should take took about six
months. (R. 219). He also indicated that if an ECG was performed
more recently than June of 2000, it might be significant in
determining whether Barry could work. (R. 219-220). An ejection
fraction of 35-40% would be consistent with a capacity for light
work, according to Dr. Jilhewar, while 30-35% would be consistent
with sedentary work. (R. 220).
Following the administrative hearing, Dr. Jilhewar reviewed the
supplemented record, and responded in writing to interrogatories
the ALJ submitted. (R. 208-214). Dr. Jilhewar felt Barry had
congestive heart failure and deep vein thrombosis of the left
leg, that seemed to stem from alcoholic cardiomyopathy. (R. 208).
He stated that treating physicians indicated that the congestive heart failure had
resolved, and there had been no alcohol use since the June 2000
hospitalization. (R. 208). According to Dr. Jilhewar, there was a
closed period from June 29, 2000, to sometime in April of 2001,
during which Barry would have had a capacity for less than
sedentary work. (R. 208). This period lasted less than twelve
months based upon Barry's ECG in April of 2001, at which time his
ejection fraction was 40%. (R. 208). Dr. Jilhewar further
indicated that none of Barry's impairments met or equaled an
impairment listed as disabling in the regulations. (R. 208). He
felt the medical evidence documented Barry's complaints of
fatigue and shortness of breath when climbing stairs. (R. 208).
The doctor also noted that despite Barry's fatigue, Barry's
treating physician stated "the claimant could return to work full
time and the claimant is `going back to work' on 10/04/01 &
10/03/01." (R. 208). Dr. Jilhewar felt Barry could perform the
same level of work Dr. Gotanco had concluded he was capable of in
July of 2001: light work, which included frequently climbing
ramps or stairs, and occasionally climbing ladders, ropes, or
scaffolds. (R. 185-186, 214).
D. The ALJ's Decision
The ALJ found that Barry had not engaged in substantial gainful
activity since June of 2000, the date he alleged he became
disabled. (R. 15, 17). Next, he determined that Barry had three
severe impairments: congestive heart failure, chronic venous
insufficiency, and coronary artery disease. (R. 15, 17). These
impairments, according to the ALJ, met the Agency's requirement
that a severe impairment significantly limit the ability to perform basic work activities. (Id.). See
20 C.F.R. § 404.1520(c). The ALJ further determined, however, that
none of these impairments, either singly or in combination, met
or equaled an impairment listed in the Agency's regulations as
disabling. (R. 15, 17). See 20 C.F.R. Pt. 404, Subpt. P, App.
1, Listing of Impairments.
Next, the ALJ assessed Barry's residual functional capacity
("RFC"). In so doing, the ALJ reviewed the medical evidence,
beginning with the record of Barry's hospitalization in June of
2000. (R. 15). The ALJ noted that Barry was diagnosed with deep
vein thrombosis, cardiomyopathy, congestive heart failure, and
hepatic insufficiency. (R. 15). The ALJ also noted that an ECG
revealed an ejection fraction of between 10% and 20%. (R. 15). He
commented on Barry's course of treatment, including long term
Coumadin therapy for deep vein thrombosis. (R. 15). The ALJ found
it significant that Barry's condition was reported as stable by
December of 2000. (R. 15-16).
The ALJ considered the medical opinions in the record. He
related Dr. Jilhewar's testimony and report, noting that the
doctor felt that Barry was unable to perform even sedentary work
from June 29, 2000, until sometime in April of 2001. (R. 16). At
that point, the ALJ explained, Barry's ejection fraction had
improved to 40% which, according to Dr. Jilhewar, was consistent
with a capacity for light work. (R. 16). Thus, the ALJ concluded
that Barry had not been incapacitated for the continuous
twelve-month period required for entitlement to benefits. (R. 16). The ALJ
discounted the opinions of the state agency physicians because
they were not based on all of the evidence that eventually made
its way into the record. (R. 16). The ALJ also addressed the
opinion of Barry's treating physician, Dr. Gil. The ALJ said that
Barry "was planning to return to work" by October 2001, but that
Dr. Gil expressed doubt that he could tolerate even sedentary
work in December 2001. (R. 16).*fn3 The ALJ found Dr. Gil's
opinion to be "quite conclusory" as the doctor's report failed to
mention the type of significant clinical and laboratory
abnormalities that might be expected of one who were disabled.
(R. 16). The ALJ also stated that it was at odds with the other
medical evidence, and with the other medical opinions of record.
The ALJ assessed Barry's symptoms and complaints, stating that
he considered the factors described in 20 C.F.R. § 404.1529 and
Social Security Ruling 96-7p. (R. 16). According to the ALJ,
Barry's complaints of shortness of breath were documented in the
record, but Dr. Jilhewar indicated that the medical evidence did
not support all of Barry's allegations. (R. 16). The ALJ also
noted that Barry had reported being able to partake in a variety
of daily activities, albeit for brief periods with opportunities
for rest. (R. 16). The ALJ stated that Barry's treating physician
had put no restrictions on his activities and had encouraged him
to walk for exercise. (R. 16). The ALJ acknowledged that Barry
had sought and received various forms of treatment for his symptoms,
and found that this treatment had generally been successful in
controlling those symptoms. (R. 16).
After considering the foregoing evidence, the ALJ essentially
adopted Dr. Jilhewar's opinion as to Barry's RFC. The ALJ
determined that Barry retained the capacity to perform a somewhat
restricted range of light work (R. 17), which the regulations
define as involving:
occasionally lifting no more than twenty pounds with
frequent lifting or carrying of objects weighing up
to ten pounds, or it may involve infrequent lifting
but require substantial walking or standing or
sitting with the pushing or pulling of arm or leg
20 C.F.R. § 404.1567(b). The ALJ found that Barry was further
restricted insofar as he could only occasionally climb ladders,
ropes, or scaffolding, and should avoid exposure to hazardous
machinery and work at heights. (R. 17). The ALJ then compared
this capacity with the requirements of Barry's past work as an
inside salesperson and customer representative. Recalling that
Barry had reported that his past work required him to lift no
more than ten pounds, sit for five-and-a-half hours of an
eight-hour workday, and walk or stand for the rest of the day,
the ALJ felt that this work was within Barry's residual
functional capacity. (R. 17). Accordingly, the ALJ concluded that
Barry retained the capacity to perform his past relevant work.
(R. 17, 18). As a result, the ALJ found that Barry was not
disabled and was not entitled to DIB under the Act. (R. 17, 18). DISCUSSION
A. Standard of Review
The applicable standard of review of the Commissioner's
decision is a familiar one. The court must affirm the decision if
it is supported by substantial evidence. 42 U.S.C. §§ 405(g).
Substantial evidence is such relevant evidence as a reasonable
mind might accept to support a conclusion. Binion v. Chater,
108 F.3d 780, 782 (7th Cir. 1997), citing Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). The
court may not reweigh the evidence, or substitute its judgment
for that of the Social Security Administration. Binion,
108 F.3d at 782. Where conflicting evidence would allow reasonable
minds to differ as to whether the plaintiff is disabled, the
Commissioner has the responsibility for resolving those
conflicts. Id. Conclusions of law are not entitled to such
deference, however, so where the Commissioner commits an error of
law, the court must reverse the decision regardless of the volume
of evidence supporting the factual findings. Id.
While the standard of review is deferential, the court cannot
act as a mere "rubber stamp" for the Commissioner's decision.
Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). In
order for the court to affirm a denial of benefits, the ALJ must
have "articulated" the reasons for his decision at "some minimum
level." Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir.
2001). This means that the ALJ "must build an accurate and
logical bridge from [the] evidence to [the] conclusion." Id.
Although the ALJ need not address every piece of evidence, the ALJ cannot limit his
discussion to only that evidence that supports his ultimate
conclusion. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir.
1994). The ALJ's decision must allow the court to assess the
validity of his findings and afford the plaintiff a meaningful
judicial review. Scott, 297 F.3d at 595.
B. Five-Step Inquiry
The Social Security Regulations provide a five-step sequential
inquiry to determine whether a plaintiff is disabled:
1) is the plaintiff currently unemployed;
2) does the plaintiff have a severe impairment;
3) does the plaintiff have an impairment that meets
or equals one of the impairments listed as disabling
in the Commissioner's regulations;
4) is the plaintiff unable to perform his past
relevant work; and
5) is the plaintiff is unable to perform any other
work in the national economy.
20 C.F.R. §§ 404.1520; Scheck v. Barnhart, 357 F.3d 697
(7th Cir. 2004). An affirmative answer leads either to the
next step or, on steps 3 and 5, to a finding that the plaintiff
is disabled. 20 C.F.R. § 416.920; Stein v. Sullivan,
892 F.2d 43
, 44 (7th Cir. 1990). A negative answer at any point, other
than step 3, stops the inquiry and leads to a determination that
the plaintiff is not disabled. 20 C.F.R. § 404.1520; Stein,
892 F.2d at 44. The plaintiff bears the burden of proof through step
four; if it is met, the burden shifts to the Commissioner at step
five. Brewer v. Chater, 103 F.3d 1384, 1391 (7th Cir.
1997). C. Analysis
Barry challenges the ALJ's decision on just one ground: his
treatment of Dr. Gil's opinion as to Barry's ability to work.
(Plaintiff's Motion to Reverse the Final Decision of the
Commissioner, at 6-8). As already noted, Dr. Gil, Barry's
treating physician, wrote on October 30, 2000, that Barry "[g]ets
tried easily, doubt he can tolerate a full time job even if
sedentary." (R. 197). According to Barry, the ALJ should have
given this opinion controlling weight because it was "well
supported by medically accepted clinical and laboratory
diagnostic techniques and [was] not inconsistent with the other
substantial evidence in the record." (Plaintiff's Motion to
Reverse the Final Decision of the Commissioner, at 6-7). Failing
that, Barry submits that the ALJ should have at least accorded
Dr. Gil's opinion the greatest weight of any opinion in the
record. (Plaintiff's Motion to Reverse the Final Decision of the
Commissioner, at 7).
As Barry suggests, this case does indeed present a choice
between conflicting medical opinions. According to Barry's
treating physician, Dr. Gil, Barry is not able to perform even
sedentary work on a full time basis. According to the ME, Dr.
Jilhewar, Barry has the residual functional capacity to perform
light work, including the frequent climbing of ramps or stairs,
and the occasional climbing of ladders, ropes, or scaffolds. The
ALJ clearly chose to accord great, or perhaps controlling weight
to Dr. Jilhewar's opinion, while rejecting outright or assigning
little weight to Dr. Gil's opinion. While it is up to the ALJ
which doctor to believe, his decision must be supported by
substantial evidence, and must be articulated in such a fashion to assure the
court that the relative merits of each opinion have been duly
considered. Books v. Chater, 91 F.3d 972, 979 (7th Cir.
1996). In this case, the ALJ failed to adequately explain his
reasons for adopting the ME's opinion and rejecting the opinion
of Barry's treating physician, and the few conclusory reasons he
did mention are not supported by substantial evidence. For both
of these reasons, the court must remand this case to the
Commissioner for further proceedings.
An ALJ must accord a treating physician's opinion regarding the
nature and severity of a medical condition controlling weight if
it is well supported by medical findings and not inconsistent
with other substantial evidence in the record. See
20 C.F.R. § 404.1527(d)(2); Dixon, 270 F.3d at 1177. Should an ALJ
determine that a treating physician's opinion is not entitled to
controlling weight, he must consider the following factors in
determining the weight to accord the opinion: length of treatment
relationship and frequency of examination; nature and extent of
the treatment relationship; supportability; consistency with the
record as a whole; and specialization.
20 C.F.R. § 404.1527(d)(2)(i)-(v). Moreover, an ALJ is required to explain
the weight given to the opinions of treating physicians; failure
to do so is grounds for remand 20 C.F.R. § 404.1527(d)(2);
Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). Here,
the ALJ failed to address many of the factors the regulations
required him to consider when he assessed Dr. Gil's opinion, leaving the court to speculate whether he
considered them at all, and making a remand necessary.
It is unclear, for example, whether the ALJ adequately
considered the treating relationship between Barry and Dr. Gil.
The ALJ did not mention that Dr. Gil began treating Barry from
the date of his hospitalization in June of 2000 and continued to
treat him though the close of the record in this case (R.
108-121, 228), or that she saw Barry on a monthly basis for the
first six months after his hospitalization (R. 143-162), and on a
bimonthly basis thereafter. (R. 194-207). This would certainly
seem to be the type of treating relationship that would give Dr.
Gil a "longitudinal picture" of Barry's condition, which ought to
entitle her opinion to more weight than that of a non-treating
source, such as Dr. Jilhewar. 20 C.F.R. § 404.1527(d)(2)(i);
Clifford, 227 F.3d at 870 ("more weight is generally given to a
treating physician because of his greater familiarity with the
claimant's conditions and circumstances"). In this instance, it
is impossible to tell whether the ALJ brought this factor to bear
upon his analysis.
The regulations also require consideration of the "nature and
extent of the treatment relationship."
20 C.F.R. § 404.1527(d)(2)(ii). As the regulations explain, "the more
knowledge a treating source has about [a claimant's]
impairment(s) the more weight [the ALJ] will give to the source's
medical opinion." Id. Notably, in this instance, Dr. Gil's
opinion assessed the effect of the very impairments for which she
was treating Barry. Under the regulations, this "reasonable
knowledge" entitles her opinion, once again, to more weight. Id. Once again, however, the ALJ
seemingly ignored this factor. Similarly, the ALJ failed to note
that Dr. Gil, licensed to practice medicine since 1981, is a
board-certified internist with a primary specialization in
cardiovascular diseases. (R. 193). This factor, too, should
account for more weight being accorded a treating physician's
opinion regarding the effects of cardiovascular disease.
20 C.F.R. § 404.1527(d)(5).
The ALJ ignored the preceding factors, and focused instead on
two other factors the regulations regard as necessary to the
assignment of weight to any medical opinion: supportability and
consistency. 20 C.F.R. § 404.1527(d)(3); (4). In this case, the
ALJ faulted Dr. Gil's opinion for "providing very little
explanation of the evidence relied on," and for failing to reveal
the type of significant clinical and laboratory abnormalities one
might expect if [Barry] were in fact disabled." (R. 16). He
determined that Dr. Gil's opinion was "without substantial
support from the other evidence of record, and at odds with the
other medical opinions of record." (R. 16-17). As a result of
these conclusions, he determined that Dr. Gil's opinion was
entitled to little, if any, weight.
The ALJ can reject a treating physician's opinion, but only for
reasons that are supported by substantial evidence in the record.
Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003).
Moreover, the ALJ must adequately explain his reasons for doing
so. Id.; Clifford, 227 F.3d at 870-71. Here, the ALJ simply
discounted Dr. Gil's opinion, in conclusory fashion, for failing
to reveal laboratory findings, and for being unsupported by the record or other medical opinions, without an articulation
of his analysis that "build[s] an accurate and logical bridge
from [the] evidence to [the] conclusion." Dixon,
270 F.3d at 1176. As such, the court is unable to assess the validity of his
findings and afford the plaintiff a meaningful judicial review.
Scott, 297 F.3d at 595. This is significant here, because,
without the benefit of an adequately articulated analysis from
the ALJ, the court's review of the record suggests that the ALJ
was incorrect in his characterization of Dr. Gil's opinion.
Contrary to the ALJ's criticism, Dr. Gil's treatment notes, in
fact, reveal laboratory findings that would seem to be rather
significant: the results of Barry's three ECGs. See
20 C.F.R. § 404.1528(c) (defining laboratory findings). In June of 2000, an
ECG revealed Barry's left ventricular ejection fraction to be
10-15% (R.108). In October of 2000, an ECG was consistent with
left ventricular hypertrophy. (R. 142). In April of 2001, Barry's
ejection fraction was 40%. (R. 194-199). A normal ejection
fraction is said to be between 57% and 73%. DORLAND'S, at 660
(ejection faction is usually 65% ± 8%). Thus, while Barry's
ejection faction had improved from a reading of 10-15% in June
2000, it was still abnormally low at 40% despite ten months of
treatment. By way of comparison, under the Listing of
Impairments, a claimant suffering from congestive heart failure
or cardiomyopathy, and experiencing a marked limitation of
physical activity as demonstrated by fatigue, will be found
disabled based upon evidence of left ventricular ejection
fraction of 30% or less. 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 4.02(B); 4.08. Even Barry's improved ejection fraction, then,
would seem to be a laboratory finding that provides support for
Dr. Gil's misgivings about Barry returning to even sedentary work
full time, but the ALJ failed to acknowledge it as such.
In addition to finding that Dr. Gil failed to provide any
evidentiary support for his opinion, the ALJ also discounted Dr.
Gil's opinion for being inconsistent with the other medical
opinions of record. Because the ALJ found that the opinions of
the state agency physicians were not probative, the only other
medical opinion of record would be that of Dr. Jilhewar. Dr.
Jilhewar adopting the conclusions one of those state agency
physicians found that Barry could perform light work, including
climbing ramps and stairs frequently, and climbing ropes, ladders
and scaffolds occasionally. (R. 185-186, 214). Not only did the
ALJ rely on Dr. Jilhewar's opinion to undermine the opinion of
Dr. Gil, but essentially adopted it as his RFC finding. (R. 17).
In so doing, the ALJ accorded great, or more likely controlling
weight to Dr. Jilhewar's opinion, although he failed to address
any of the factors the regulations indicate he should have
considered in rendering such a judgment.
Dr. Jilhewar, whom the ALJ consulted as a medical expert in
this case, is a "nonexamining source" under the regulations.
20 C.F.R. § 404.1527(f). As such, the weight to be accorded his
opinion is subject to the same considerations as would be the
weight to be accorded the opinion of any medical source.
20 C.F.R. § 404.1527(f); (f)(2)(iii). Here, however, the ALJ did not
assess Dr. Jilhewar's opinion under any of the factors set out in the regulations, despite that fact that he
obviously assigned it great weight. Again, unless an ALJ
adequately articulates his analysis of the evidence, the court is
unable to perform a meaningful review of his decision. Dixon,
270 F.3d at 1176; Scott, 297 F.3d at 595. In this instance, the
ALJ's uncritical acceptance of the ME's opinion, without the
thorough consideration the regulations require, thwarts review of
The court's own evaluation of Dr. Jilhewar's opinion in light
of the factors set out in the regulations raises several concerns
regarding the weight it ought to be accorded. Obviously, because
Dr. Jilhewar never treated or even examined Barry, his opinion
should not be entitled to more weight than that of Dr. Gil's
based on examining or treating relationship.
20 C.F.R. 404.1527(d)(1);(2). In addition, while Dr. Gil is a specialist in
the type of impairment at issue here cardiovascular disease
Dr. Jilhewar is a consulting gastroenterologist with a small
practice in primary care internal medicine. (R. 47). Again, this
should counsel that more weight be accorded Dr. Gil's opinion.
20 C.F.R. § 404.1527(d)(5). That leaves the remaining two factors of
supportability and consistency; the factors under which the ALJ
found Dr. Gil's opinion wanting. 20 C.F.R. § 404.1527(d)(3);(4).
In the case of Dr. Jilhewar, however, the ALJ eschewed criticism
and simply accepted the doctor's conclusions without comment. Had
the ALJ assessed the ME's opinion under the regulations, however,
he may well have found it less than convincing. Unlike Dr. Gil, Dr. Jilhewar considered Barry's abnormally low
ejection fraction to be favorable; positive evidence that Barry
can perform light work. This seems counterintuitive, but it may
simply be a difference of medical opinion, which would be the
ALJ's province to resolve. The ALJ did not do so, however, at
least not in writing or in a manner that would assure the court
that he performed the requisite analysis. Without any discussion
from the ALJ regarding this conflict which appears to be
central to the question of whether Barry is disabled the court
is unable to meaningfully review the ALJ's analysis. The court
also finds it curious that Dr. Jilhewar, while indicating that
Barry's complaints of fatigue and shortness of breath when
climbing stairs are supported by the medical evidence (R. 208,
210), nevertheless finds Barry capable of climbing stairs and
ramps frequently during a workday, to say nothing of climbing
ropes, ladders and scaffolds occasionally. (R. 185-186, 214).
This would seem to be the type of internal inconsistency that
ought to lead an ALJ to, at the very least, question the weight a
nonexamining physicians opinion deserves.*fn4 Knight v.
Chater, 55 F.3d 309, 314 (7th Cir. 1995).
In addition to neglecting such inconsistencies, the ALJ also
overlooked a flaw in Dr. Jilhewar's opinion that should have
impacted upon the weight the ALJ accorded it. As already
discussed, the ALJ questioned Dr. Gil's "misgivings" about Barry
being able to return to work, and opted instead to rely upon Dr. Jilhewar's
feeling that Barry had the capacity to perform light work. But
Dr. Jilhewar's opinion is based, perhaps to a substantial degree,
on one or more mischaracterizations of Dr. Gil's opinion. Dr.
Jilhewar seemingly discounts Barry's complaints of fatigue
because his "treating physician states [Barry] could return to
full time work and . . . is `going back to work.'" (R. 208).
There is nothing in the record, however, to suggest Dr. Gil ever
expressed such an opinion. The portions of the record to which
Dr. Jilhewar cites, in fact, either fail to support or directly
contradict his characterization of Dr. Gil's thoughts regarding
Barry returning to work. (R. 197, 202). Elsewhere in his report,
Dr. Jilhewar misquotes Dr. Gil as indicating Barry "[c]an
TOLERATE full time job, even if sedentary." (R. 209). Dr. Gil
actually expressed his "doubt that [Barry] can tolerate a full
time job, even if sedentary." (R. 197). These are major
mischaracterizations of not only the medical opinion of Barry's
treating physician, but of the only other probative medical
opinion in the record. (R. 208). These mischaracterizations
provide a significant basis for the opinion the ALJ looked to in
his critique of Dr. Gil's opinion, and which he adopted as his
RFC finding. To the extent Dr. Jilhewar based his opinion on a
misreading of Dr. Gil's reports, then, the ALJ's opinion is based
on that same misreading, and cannot be found to be supported by
substantial evidence. CONCLUSION
For the foregoing reasons, the court grants summary judgment in
favor of the plaintiff, Patrick Barry, and remands this case to
the Commissioner for further proceedings consistent with this