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Malinowski v. Colvin

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

January 18, 2017

Sandra G. Malinowski Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


          Iain D. Johnston United States Magistrate Judge

         Plaintiff Sandra G. Malinowski brings this action under 42 U.S.C. §405(g), challenging the denial of social security disability benefits.


         On January 26, 2012, plaintiff filed her Title II disability application, alleging that she suffered from degenerative spinal disorders, fibromyalgia, and pulmonary problems. She claimed a disability onset date in April 2011, although she stopped working in early 2010 and had worked for most of the previous 30 years at various jobs.

         On September 10, 2014, a hearing was held before an administrative law judge (“ALJ”). The hearing consisted mostly of plaintiff's testimony, as no medical expert testified. Plaintiff testified that she was 60 years old, weighed 260 pounds, and lived with her husband. Her daughter and granddaughter had been living there since the middle of June (i.e. for approximately three months). Plaintiff spent “most of [her] day in [a] recliner” with her legs elevated. R. 50. She was depressed and no longer did activities, such as reading, which she used to enjoy. Several times during the hearing, she pejoratively referred to her life. R. 63, 99 (“I'm getting very depressed here thinking about my pathetic life.”).

         She mentioned several times that she had problems getting medical treatment because of lack of insurance. R. 53, 63. She was thankful for her husband who did a lot of the work around the house. She had tried various treatments for her back and leg pain, including epidurals and pain medications. Her back pain flared up if she walked 50 feet or tried to sweep or mop or swing her arms. Her daily pain was a 5 to 6 on a 10-point scale. She used an inhaler and nebulizer several times a day. She had been diagnosed with fibromyalgia and her legs would “throb 24 hours a day.” R. 76. She was taking medication for depression, which was diagnosed in 2008. When asked how her depression affected her, she stated: “I just feel like I want to die.” R. 77. She used to be a workaholic who loved to work, and found it “very depressing” not to be able to work anymore. She could stand for 5 minutes and sit for 30 minutes at a time. In her last job, she kept her feet elevated by putting them on pillows resting on a trash can. Her treating physician, Dr. Hoffman, told her to keep her feet elevated. During the hearing, she kept her feet elevated on a chair, and had to stand up at one point to relieve the pain. She wore shorts and sandals to the hearing because long pants, socks, and shoes irritated her skin.

         On January 9, 2015, the ALJ found plaintiff not disabled. The ALJ found that plaintiff suffered from numerous impairments, but found that she had the residual functional capacity (“RFC”) to do sedentary work subject to certain restrictions.[1] The 16-page opinion contains a lengthy narrative of plaintiff's numerous medical visits, followed by a shorter “analysis” section.[2] The ALJ's rationales are discussed below.


         A reviewing court may enter judgment “affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). If supported by substantial evidence, the Commissioner's factual findings are conclusive. Substantial evidence exists if there is enough evidence that would allow a reasonable mind to determine that the decision's conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399-401 (1971). Accordingly, the reviewing court cannot displace the decision by reconsidering facts or evidence, or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). However, the Seventh Circuit has emphasized that review is not merely a rubber stamp. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). A reviewing court must conduct a critical review of the evidence before affirming the Commissioner's decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). Even when adequate record evidence exists to support the Commissioner's decision, the decision will not be affirmed if the Commissioner does not build an accurate and logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).

         In her opening and reply briefs, plaintiff asserted multiple arguments for remand. Some were more developed than others; several arguments overlap and arguably could have been combined with others. After reviewing the briefs, Court finds that a remand is warranted based on the following two major arguments: (1) the ALJ played doctor in analyzing the evidence; and (2) the ALJ's credibility analysis was improper.

         I. Playing Doctor.

         Plaintiff argues that the ALJ failed to fully develop the record and should have called an expert to testify about her physical and mental problems. These arguments are connected to plaintiff's claim that the ALJ repeatedly played doctor by interpreting technical medical reports. This Court agrees with this argument; several specific examples are discussed below in connection with other arguments.

         The Government's main response is to note that the ALJ, although not calling a medical expert, did rely on two State agency doctors (Dr. Kenney and Dr. Hinchen) who in turn relied on a consultative examiner (Dr. Karri).[3] The Government's observation is accurate insofar as it goes, but it overlooks important countervailing factors. First, these two doctors were able review “only a fraction” (specifically 15 pages) of the much larger record later reviewed by the ALJ.[4]Dkt. #25 at 1. Second, they reviewed these pages “nearly two years prior to the [ALJ's] decision.” Id. As plaintiff notes, these doctors found that plaintiff suffered from only a few impairments; whereas, the ALJ found that there were fourteen. Third, the ALJ only gave these opinions “some weight.” The ALJ's rejection of some of these recommendations means that he imposed some limitations based on his own layperson analysis.[5] Fourth, it is undisputed that plaintiff suffers from numerous problems, some of which were hard to diagnose or involve what appear to this Court are technical medical issues, including fibromyalgia, spinal problems, and breathing problems. She was treated by numerous doctors; the record is lengthy and filled with many technical medical terms. Plaintiff also complains that the ALJ never fully considered the combined effect of these many impairments, and ignored the additional complicating factor of her obesity. This complexity is yet another reason why the ALJ (and this Court) would have benefitted from the calling of an expert witness, especially regarding her physical problems.[6]Indeed, the Administration's own internal working document would appear to require the ALJ to seek a medical expert under these circumstances. HALLEX I-2-34A.2. On remand, the ALJ must call a medical expert or otherwise develop the record to address these questions. HALLEX I-2-5-34A.1.

         II. ...

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