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Donna Lee Boycott v. Michael J. Astrue

May 21, 2012

DONNA LEE BOYCOTT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Young B. Kim

MEMORANDUM OPINION and ORDER

Donna Lee Boycott applied for Social Security disability benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act ("Act"), 42 U.S.C. §§ 416 and 423, claiming that her obesity and disorders of the back preclude her from working. An administrative law judge ("ALJ") concluded that Boycott's impairments are severe but not disabling. The ALJ denied Boycott's application for benefits-a decision Boycott challenges in the current motion for summary judgment. For the following reasons, Boycott's motion is granted insofar as it requests a remand and the Commissioner's motion for summary judgment is denied:

Procedural History

Boycott applied for SSI and DIB in 2008, claiming that she became disabled on September 1, 2007. (Administrative Record ("A.R."), 36, 123.) The Commissioner denied her disability claim initially and upon reconsideration. (Id. at 59-62, 65.) Boycott requested, and was granted, a hearing before an ALJ. (Id. at 73-74.) After conducting a hearing, the ALJ determined that Boycott was not "disabled" within the meaning of the Act. (Id. at 40-53.) After requesting review before the Appeals Council, Boycott submitted new evidence in support of her claim. (Id. at 218-23, 253-63.) When the Appeals Council denied review, (id. at 1-3), the ALJ's decision became the final decision of the Commissioner. See Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007). Boycott then filed the current suit seeking judicial review of the ALJ's decision. See 42 U.S.C. § 405(g). The parties have consented to the jurisdiction of this court. See 28 U.S.C. § 636(c).

Facts

Boycott was over the age of 55 when she applied for benefits. (A.R. 132). Boycott claims that she is disabled due to obesity and disorders of the back. (Id. at 36.) She also claims to suffer from osteoarthritis. (Id. at 156.) When she appeared before the ALJ, she weighed 290 pounds at a height of 5'8". (Id. at 14.) She testified that she can walk only a few feet and only if she "hang[s] on to something," due to problems with balance. (Id. at 16-17.) Still, she tries to do without a cane. (Id. at 17.) She can stand for "10 minutes, 15 minutes" at a time before pain in her knees causes her to sit. (Id.) She can sit for about a half-hour in a soft chair (id. at 17), and can sit for "[m]aybe 15 minutes at a crack" to use a computer (id. at 20). She complains of difficulties in reaching overhead due to rotator cuff problems. (Id.) On damp days, the arthritis in her hands makes it hard for her to "lift things" or "do very much." (Id. at 18.) She takes over-the-counter ibuprofen for pain every day and feels worse on the 15 days a month or more that the weather is damp. (Id. at 25-26.) She drives a car a couple of times a week and is able to load the washing machine, dress herself, make her bed, though slowly, and load the dishwasher if she "hang[s] onto the counter." (Id. at 19, 21).

Boycott worked as an office manager for Dr. Michael Skaredoff from March 1993 until he closed his office in September 2005. (A.R. 15-16, 24, 259.) As an office manager, Boycott greeted patients, gave them their paperwork, helped them onto the examination table, occasionally held their hands or let them lean against her during procedures, typed forms, and occasionally slid boxes weighing up to 50 pounds on the floor. (Id. at 22-23.) At the hearing, she testified that she would no longer be able to perform the job because of pain in her lower back; specifically, she would not be able to move boxes or sit at the desk "for any length of time." (Id. at 23.)

Other than visits to a doctor between the late 1970s and early 1990s, Boycott did not formally consult a doctor regarding her pain or obesity before applying for benefits. (Id. at 158-159.) Rather, the doctor that she worked for "sort of" treated her as needed. (Id. at 23-24.) Dr. Skaredoff did not maintain a file on her or prescribe medications for her. (Id. at 23-24, 159.) He gave her "samples from the office" for her pain from osteoarthritis. (Id. at 159.) After Dr. Skaredoff closed his office, her condition deteriorated, she maintains, though she did not consult a doctor for treatment. (Id. at 24). As a result, Boycott did not have any medical evidence to submit in support of her application for benefits.

The state agency sent Boycott to an internist, Dr. Anand Lal, for an evaluation. (Id. at 228-35.) In April 2008, Dr. Lal performed a physical evaluation, neurological evaluation, mental status evaluation, and a musculoskeletal evaluation that included a battery of range of motion testing. (Id.) He concluded that the "range of motion is generally limited in all the joints due to her size." (Id. at 230.) He also noted that Boycott's grip strength was "only about 3/5 power." (Id.) He commented that her "wrists were fine with no swelling noted. The finger motion is normal." (Id.) He remarked that there "was soft tissue swelling and huge thighs and calves were noted in proportion to her obesity. There was no atrophy noted." (Id. at 230-31.) He also observed that Boycott walked without a cane. (Id. at 231.) Regarding Boycott's cooperation during the exam, Dr. Lal wrote that "[w]hen I tried to help her lift, she was pressing down rather than going up. . . . The claimant was appropriate, polite, pleasant but not very well motivated to perform the testing, but could well be from the pain she was having." (Id.) He concluded his report with his "impression" identifying the following six problems: (1) morbid exogenous obesity; (2) low back pain; (3) history of sacroiliitis; (4) history of mid-gluteal pain; (5) pain in both shoulders; (6) osteoarthritis of both knees and possibly both hips. (Id.)

The next month, Dr. Virgilio Pilapil, a medical consultant retained by the state agency, relied on Dr. Lal's evaluation to assess Boycott's physical residual functional capacity ("RFC"). (Id. at 236-43.) Dr. Pilapil concluded that Boycott could occasionally lift 20 pounds, frequently lift 10 pounds, "stand and/or walk (with normal breaks) for a total of . . . about 6 hours in an 8-hour workday," and sit for about 6 hours in an 8-hour workday. (Id. at 237.) Dr. Pilapil explained that he based his conclusions on Boycott's BMI of 49, Dr. Lal's observation of Boycott's ability to walk unassisted, her unremarkable neurological exam and her reduced range of motion due to obesity. (Id.) Dr. Pilapil questioned the credibility of Boycott's reduced grip strength for two reasons: (1) the objective exam did not support this finding; and (2) Dr. Lal had noted that Boycott had exhibited some uncooperative behavior during the exam and had pushed against him when he tried to help her lift. (Id. at 243.)

In September 2008, Dr. Vidya Madala performed another RFC assessment and, like Dr. Pilapil, relied on Dr. Lal's evaluation as the basis for the assessment. (Id. at 244-51.) Like Dr. Pilapil, Dr. Madala registered some credibility concerns stemming from Boycott's lack of cooperation during Dr. Lal's exam. (Id. at 249.) Dr. Madala also noted that Boycott walked unassisted. (Id. at 246.) Dr. Madala's RFC varied from Dr. Pilapil's in one key respect: she opined that Boycott is limited to standing and/or walking, with normal breaks, for a total of two hours in an eight-hour workday. (Id. at 245.)

Later that month, a vocational expert ("VE"), Sandra Garlin, used Dr. Madala's RFC assessment to formulate Boycott's vocational assessment. (Id. at 183.) Garlin opined that "the claimant is limited to the lifting and carrying capacity generally associated with the ability for light work, but that the claimant cannot walk and stand for 6 hours per 8-hour workday. Therefore, [the] ability for sedentary work must be considered." (Id.) Garlin concluded that Boycott's restricted abilities to climb, stoop, kneel, crouch, crawl, and reach with her right arm precluded her from performing her past work as she described it. (Id.) Specifically, Garlin found that Boycott is no longer able to push a large box across the floor. (Id.) Garlin further opined that Boycott's former job closely resembled that of an office manager of any industry, a job that, as described within the dictionary of occupational titles, was within Boycott's RFC. (Id.) Upon reviewing Garlin's assessment, Boycott requested that the Commissioner order x-rays of her lower back, hips, knees, shoulders and hands. (Id. at 212-213.) These x-rays were not ordered.

At the hearing before the ALJ, another VE testified regarding Boycott's past work and abilities. (Id. at 27-34.) The VE opined that Boycott's past work as a receptionist or office manager at a doctor's office is described as "light" in the DOT (Dictionary of Occupational Titles), but that Boycott's job, as she performed it, was "medium." (Id. at 27-28.) The VE commented that Boycott's transferable skills would enable her to serve as a receptionist, information clerk or customer service representative, which are all classified as sedentary jobs. (Id. at 28.) The ALJ then asked the VE to consider a hypothetical individual with Boycott's age, education, and work experience that is capable of lifting 20 pounds occasionally and 10 pounds frequently, standing, sitting and/or walking a total of six hours during an eight-hour day, and other limitations. The VE testified that this hypothetical individual would be capable of the occupations she previously listed in addition to the following additional sedentary positions: general office clerk, claims clerk, and order clerk.

(Id. at 29-30.) The VE then commented that the hypothetical individual would be capable of working as a receptionist in a doctor's office, again classified as sedentary. (Id. at 30.) The ALJ then modified one element of the hypothetical: she asked the VE to consider whether the hypothetical individual would be able to perform those occupations if she were limited to standing and/or walking a total of two hours during an eight-hour day. (Id.) Again, the VE testified that the hypothetical individual would be capable of performing the jobs previously discussed because they are all sedentary positions. (Id.) Responding to questions from Boycott's attorney, the VE further testified that Boycott's past work, as described in the DOT, is "done at a light and sedentary level." (Id. at 31.) She confirmed that a ...


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