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Ritchie v. Colvin

United States District Court, N.D. Illinois, Eastern Division

December 16, 2016

J. Marie Ritchie Plaintiff,
v.
Carolyn Colvin, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE

         On March 25, 2011, Plaintiff Marie Ritchie filed an application for supplemental security income, alleging disability beginning December 30, 2007. The claim was denied initially on June 10, 2011, and upon reconsideration on July 27, 2011. Thereafter, Ritchie filed a written request for hearing on August 9, 2011. The hearing was held before an Administrative Law Judge (“ALJ”) on August 16, 2012. Ritchie was represented by counsel at the hearing, at which only Ritchie and a vocational expert testified.[1] On August 31, 2012, the ALJ issued a written decision denying Ritchie's application. Ritchie appealed that decision to the Appeals Council of the Social Security Administration, which denied Ritchie's request for review. Acting pro se, Ritchie then filed this action seeking judicial review. The Court appointed Ritchie an attorney, who filed an amended complaint, followed by a motion for summary judgment asking the Court to reverse the ALJ's decision. The Commissioner of Social Security (“Commissioner”) filed a cross-motion for summary judgment asking the Court to affirm. For the reasons that follow, Ritchie's motion is granted, the Commissioner's motion is denied, and the case is remanded for further proceedings.

         STANDARD OF REVIEW

         Judicial review of a final decision of the Social Security Administration is generally deferential. The Social Security Act requires the court to sustain the ALJ's findings if they are supported by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). The court should review the entire administrative record, but must “not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute [its] own judgment for that of the [ALJ].” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). “However, this does not mean that [the court] will simply rubber-stamp the [ALJ's] decision without a critical review of the evidence.” Id. A decision may be reversed if the ALJ's findings “are not supported by substantial evidence or if the ALJ applied an erroneous legal standard.” Id. In addition, the court will reverse if the ALJ does not “explain his analysis of the evidence with enough detail and clarity to permit meaningful appellate review.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). “Although a written evaluation of each piece of evidence or testimony is not required, neither may the ALJ select and discuss only that evidence that favors his ultimate conclusion.” Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994); see Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“This ‘sound-bite' approach to record evaluation is an impermissible methodology for evaluating the evidence.”). Additionally, the ALJ “has a duty to fully develop the record before drawing any conclusions, ” Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007), and deference in review is lessened when the ALJ has made errors of fact or logic, Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). In oft-quoted words, the Seventh Circuit has said that the ALJ “‘must build an accurate and logical bridge from the evidence to his conclusion.'” Clifford, 227 F.3d at 872 (quoting Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014)). When the ALJ has satisfied these requirements, the responsibility for deciding whether the claimant is disabled falls on the Social Security Administration, and, if conflicting evidence would allow reasonable minds to differ as to whether a claimant is disabled, the ALJ's decision must be affirmed. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990) (internal quotation marks and citation omitted).

         BACKGROUND

         A. Ritchie's Conditions

         Ritchie was born in 1958. Her work history over the past 15 years includes selling health insurance from 1994 through 1995, and selling real estate from 2002 until 2007. AR 186.[2] Ritchie obtained her real estate license in 2002 and initially started out working for an agency. AR 42, 43. In 2005, she opened her own real estate business. AR 43. In November 2007, Ritchie was admitted to Jackson Park Hospital following an incident in which she passed out at her home. AR 268. Hospital records indicate that she had pneumonia. In addition, she was diagnosed with malignant hypertension, syncope (fainting), and anemia. Id. She was referred to a cardiologist, who diagnosed her with cardiomyopathy[3] and hypertensive heart disease.[4] AR 322. Ritchie testified that her job as a realtor required her to be on her feet about six or seven hours in a day, that she did not work a normal eight-hour day, and that she was “[o]n call 24/7.” AR 63-64. She also testified that she was required to lift and carry yard signs that weighed an average of 30 pounds and to dig the holes for the signage. AR 64. Ritchie stopped working at the end of 2007 because of her illness. The symptoms she was experiencing that made her stop work included “headaches, chest pains, nosebleeds, nausea, frequent urination, occasional constipation, fatigue, and dizziness. AR 48. She testified that “[i]t was like my heart would race and you could almost see the [ ] chest pain.” AR 48.

         At the hearing before the ALJ, Ritchie was asked about her then-current level of functioning. She testified that she gets up at 5:30 a.m. every morning. Id. AR 52. She spends more than half her day sleeping because she experiences chest pains, dizziness, and nausea. AR 56. Her dizziness is once or twice a day typically occurring “early mornings or midday.” AR 50-51. The dizziness is over in a matter of seconds, and, when it happens, she has to sit down. Id. In addition, she experiences fatigue, which comes and goes throughout the day “without rhyme or reason” and causes her to sleep intermittently. AR 50, 64. She also has headaches, which tend to occur “two or three days out of the week.” AR 49-50. She deals with the headaches by sleeping. The only household chores Ritchie is able to do is wash dishes. AR 55. She cooks a light lunch and dinner, and drives locally every three days or so to the grocery store. AR 53, 55. The only exercise in which she engages is walking outside for about ten minutes (four to six blocks) every other day. AR 55. She does not have any hobbies and does not spend time visiting with friends. AR 57. When she is awake at home she spends her time either talking to her mother by phone or reading the Bible. AR 56. She goes to bed around 9:00 or 9:30 every night. AR 52. She sleeps well at night except for having to get up to urinate two to three times a night. Id.

         Ritchie estimated that she spends a total of two hours on her feet standing or walking, AR 57-58, and five to six hours sitting upright, AR 58. She spends at least six or more hours of each day sleeping. AR 56. She estimated that she could sit for thirty or forty minutes straight before having to make a change because of leg cramps, and that she could stand for thirty minutes at a time and walk for about ten minutes. AR 60-61. She can only climb about three or four stairs because she gets tired and her heart starts beating faster and racing. AR. 65. She also testified that she suffers from poor vision, needs glasses but lost them so is not able to see very well, and has had trouble with cloudy peripheral vision even when she had her glasses. AR 65-66. Ritchie reports that she takes Enalapril for her heart, Hydrochlorothiazide as a diuretic, iron pills for her anemia, and Nifedipine to slow her heartbeat and keep the blood from flowing backwards. She stated that she suffers from “nausea, ” “headaches, ” and “fatigue” as side effects of her medications. AR 59. Following her 2007 hospitalization, Ritchie began receiving monthly care for check-ups and medication refills at Jackson Park Clinic. Her current treating physician is Dr. Farkash, but prior to August 3, 2012, she was treated by Dr. Ali. AR 61.

         B. The ALJ's Decision

         A person is disabled under the Social Security Act if she has an “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). “To determine disability, the ALJ makes a five-step inquiry: (1) whether the claimant is currently employed, (2) whether the claimant has a severe impairment, (3) whether the claimant's impairment is one that the Commission considers conclusively disabling, (4) if the claimant does not have a conclusively disabling impairment, whether she can perform her past relevant work, and (5) whether the claimant is capable of performing any work in the national economy.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citing 20 C.F.R. § 404.1520). “‘An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled. A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination that a claimant is not disabled.' The burden of proof is on the claimant through step four; only at step five does the burden shift to the Commissioner.” Clifford, 227 F.3d at 868 (quoting Zalewski v. Heckler, 760 F.2d 160, 162 n.2 (7th Cir. 1985)).

         The ALJ found that Ritchie had not engaged in substantial gainful activity since March 25, 2011, the application date (Step 1); that the medical evidence showed Ritchie had severe impairments (see 20 C.F.R. § 404.1520(c)) consisting of valvular heart disease with regurgitation, [5] hypertension, and anemia (Step 2); and, that none of Ritchie's impairments were of the type that the Social Security Administration considers conclusively disabling (Step 3). Neither party disputes these findings. Instead, the area of dispute involves the ALJ's Step 4 and Step 5 determinations of whether Ritchie can perform her past relevant work as a real estate agent, and, if not, whether she is capable of performing any other work in the national economy.

         Before turning to Step 4, the ALJ was required to make a determination of Ritchie's residual functional capacity (“RFC”). See 20 C.F.R. § 416.920(e). A claimant's RFC “is the most [the claimant] can still do despite [the claimant's] limitations.” 20 C.F.R. § 416.945(a)(1). The ALJ found that Ritchie had the ability to occasionally lift and carry 20 pounds, frequently lift and carry ten pounds, stand or walk six of eight hours with customary breaks, and sit six of eight hours with customary breaks. AR 25. This finding put Ritchie's RFC in the light work category.[6] Due to Ritchie's history of dizziness and her 2007 episode of syncope (fainting), the ALJ also imposed the additional limitation that she avoid concentrated exposure to hazards such as unprotected heights, hazardous moving machinery, and open and unprotected conditions. AR 25.

         After determining Ritchie's RFC, the ALJ turned to the Step 4 question of whether Ritchie has past relevant work. The ALJ found that Ritchie had past relevant work in 2007 as a real estate broker, and, based on the testimony of the vocational expert, that Ritchie's description of her prior job would result in that work falling in the “medium” category.[7] AR 30. The ALJ also found based on the testimony of the vocational expert that the job of real estate broker as it is typically performed falls within the category of light work. Id. The ALJ then compared Ritchie's RFC “with the physical and mental demands of” work as a real estate agent, and concluded that Ritchie was able to perform the work of real estate agent “as [it] generally [is] performed.” Id.; see also AR 68 (vocational expert testimony). In the alternative, the ALJ concluded that even if Ritchie was not capable of performing past relevant work as a real estate agent, other jobs existed in the national economy that she was able to perform given her vocational profile and RFC for light work. The ALJ determined that Ritchie could make a successful adjustment to some of the jobs in this category (such as cashier II, mail clerk, and hand packager), taking into consideration Ritchie's vocational profile, her RFC of light work, and the additional limitations the ALJ had imposed regarding hazards such as unprotected heights, moving machinery, and open and unprotected conditions. AR 31; see also AR 68 (vocational expert testimony). Accordingly, the ALJ concluded that Ritchie could perform either her past relevant work as a real estate broker or one of several other jobs available in the national economy, and that she therefore was not disabled. Id.

         DISCUSSION

         A. Treating Physician Opinion

         Ritchie's primary argument for reversal of the ALJ's decision is that the ALJ improperly discounted the opinion of her treating physician, Dr. Ali. The Court's review of this issue is governed by well established legal principles.

         1. The ALJ's Decision Not To Accord Dr. Ali's Opinion “Controlling Weight”

         “Under a rule adopted by the Commissioner of Social Security, in determining whether a claimant is entitled to Social Security disability benefits, special weight is accorded opinions of the claimant's treating physician.” Black & Decker Disability Plan v. Nord, 538 U.S. 822, 825 (2003) (citing 20 CFR §§ 404.1527(d)(2), 416.927(d)(2)). The rule is that “[g]enerally, ” the Social Security Administration will “give more weight to opinions from [the claimant's] treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.” 20 C.F.R. § 404.1527(c)(2). If the ALJ finds “that a treating source's opinion on the issue(s) of the nature and severity of [the claimant's] impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record, [he] will give it controlling weight.” Id.; accord Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). “An ALJ can reject an examining physician's opinion only for reasons supported by substantial evidence in the record; a contradictory opinion of a non-examining physician does not, by itself, suffice.” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003); see Humphries v. Colvin, 2015 WL 9268211, at *4-6 (N.D. Ill.Dec. 21, 2015).

         Dr. Ali treated Ritchie from sometime in 2009 until August 3, 2012. AR 61. On October 18, 2011, Dr. Ali completed a form questionnaire titled “Medical Assessment of Condition And Ability To Do Work Related Activities.” Dr. Ali answered “yes” to the question whether Ritchie could be expected to have “good days” and “bad days, ” and “yes” to the question whether during “bad days” Ritchie would have difficulty in sustained performance of even ordinary activity of daily living and household chores. AR 263. Dr. Ali answered “10 pounds” for the amount of weight Ritchie could be expected to lift occasionally and “5 pounds” for the amount of weight she could be expected to lift frequently. AR 264. She answered “5 to 6 out of an 8-hour workday” for the number of hours Ritchie could be expected to sit on a “good day” and only “2” for a “bad day.” AR 263. She answered “3” for the number of hours uninterrupted that Ritchie could sit on a good day and 1½ hours for a bad day. Id. These numbers are lower than the ALJ's RFA “light work” determination. If accepted, they likely would have placed Ritchie in the sedentary work category, [8] which probably would have resulted in a finding of disability.[9] But the ALJ “reject[ed]” Dr. Ali's opinion, stating that it was entitled to “little weight.” AR 29.

         The first reason the ALJ gave for rejecting Dr. Ali's opinion is that Dr. Ali “fails to give a reason for limiting [Ritchie] to only 10 pounds occasionally and 5 pounds frequently.” Id. It is true that Dr. Ali's responses in the questionnaire do not contain any explanatory analysis. But even the ALJ recognized that “the basis stated for the limitations is the valvular heart regurgitation, hypertension and dizziness.” Id. “Although by itself a check-box form might be weak evidence, the form takes on greater significance when it is supported by medical records.” Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010); see also Roth v. Colvin, 2016 WL 890750, at *8 (N.D. Ill. Mar. 9, 2016) (rejecting ALJ's finding fault with treating physician for not providing a narrative commentary on form where form “did not provide space for such narrative” and where claimant's medical records supported treating physician's assessment).

         The ALJ should have explained why Ritchie's medical records did not support Dr. Ali's weight lifting limitation. See Clifford, 227 F.3d at 872 (“the ALJ does not explain why the objective medical evidence does not support Clifford's complaints of disabling pain”). The ALJ cannot dispute that Ritchie's medical conditions have the potential to justify the restrictions noted by Dr. Ali in his opinion, because those conditions meet the criteria of a “severe impairment” under Step 2. Moreover, the limitations noted by Dr. Ali appear to be consistent with what could be expected for someone with Ritchie's medical conditions.[10] Without a discussion of why Dr. Ali's form responses were not supported by Ritchie's medical records, it appears that the ALJ's decision was based simply on his own conclusion that Ritchie's medical conditions were not sufficiently severe to warrant the restrictions noted by Dr. Ali. As the Seventh Circuit “has counseled on many occasions, ALJs must not succumb to the temptation to play doctor and make their own independent medical findings.” Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996).

         “[T]o the extent a treating physician's opinion is consistent with the relevant treatment notes and the claimant's testimony, it should form the basis for the ALJ's determination.” Bates v. Colvin, 736 F.3d 1093, 1100 (7th Cir. 2013) (citation omitted). The ALJ did not find any inconsistencies between Dr. Ali's weight lifting limitation and Ritchie's medical records, [11] and instead merely criticized Dr. Ali for failing to connect the dots. While the Court does not disagree with the ALJ that additional information or analysis connecting Ritchie's conditions/symptoms with the limitations stated in Dr. Ali's opinion would have been helpful, that observation alone does not justify rejecting Dr. Ali's opinion. Instead, the absence of a better explanation warranted a further investigation into the basis for Dr. Ali's opinions. See, e.g., Barnett v. Barnhart, 381 F.3d 664, 669 (7th Cir. 2004) (noting that the treating physician's opinion was not inconsistent with the claimant's record of past treatment” and that, “if the ALJ's real concern was the lack of backup support for [the] opinion, ” then the ALJ had “a duty to solicit additional information to flesh [it] out”)) (citing 20 C.F.R. § 404.1527(c)(3), S.S.R. 96-2p at 4, and Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (“If the ALJ thought he needed to know the basis of [medical] opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them.”)); see also Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000) (“Although a claimant has the burden to prove disability, the ALJ has a duty to develop a full and fair record. Failure to fulfill this obligation is ‘good cause' to remand for gathering of additional evidence.”) (citation omitted); Humphries, 2015 WL 9268211, at *6 (“[i]f the ALJ has any questions about whether to give controlling weight to Dr. Ahmad's opinion, he is encouraged to re-contact him”). The ALJ did not undertake any further investigation, and erred in rejecting Dr. Ali's opinion without doing so.

         The ALJ also rejected Dr. Ali's opinion (1) for indicating the need to lie down intermittently during the day without also indicating the total time required, and (2) for indicating that Ritchie could sit for five to six hours on a good day and only one to three hours on a bad day without defining what is meant by “good day” and “bad day.” Neither criticism is justified. The Seventh Circuit has noted that the need to lie down during the day by itself (regardless of total time) would likely prevent a person from maintaining full-time employment. See Stark v. Colvin, 813 F.3d 684, 688 (7th Cir. 2016) (“Stark's need for frequent breaks is not consistent with light work activity”) (emphasis in original) (citing Roddy, 705 F.3d at 639 (“inability to get through the day without lying down every hour does not indicate ability to work even sedentary job”); see also Humphries, 2015 WL 9268211, at *6 (the “modern workplace” would not accommodate a plaintiff who “reported that she has to rest for 10 to 15 minutes after walking a block and rests and naps after her volunteer work ‘due to weakness and fatigue'”). And the terms “good day” and “bad day” do not need defining; they obviously mean days in which Ritchie is feeling well and days in which she is not feeling well. The fact in itself that Ritchie might experience good days and bad days would make maintaining full-time work difficult. See Allensworth v. Colvin, 814 F.3d 831, 833 (7th Cir. 2016) (“gainful employment . . . normally requires an ability to work a 40-hour week without missing work more than twice a month”). The Seventh Circuit understands and has provided instruction on this:

A person who has a chronic disease . . . and is under continuous treatment for it with heavy drugs, is likely to have better days and worse days; that is true of the plaintiff in this case. Suppose that half the time she is well enough that she could work, and half ...

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