United States District Court, N.D. Illinois, Eastern Division
MICHAEL E. PURVIS, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
M. Dow, Jr. United States District Judge.
the Court is Plaintiff Michael Purvis's motion for
summary judgment  regarding the Social Security
Administration Commissioner's decision to deny his
application for disability benefits. Plaintiff asks the Court
to reverse that decision and remand the case for further
proceedings. For the reasons set forth below, the Court
grants Plaintiff's motion  in part and remands this
case for further proceedings consistent with this opinion.
applied for supplemental security income (“SSI”)
on May 7, 2012, alleging that he became disabled on April 1,
2011. [Administrative Record (“AR”), at 36.] His
application was denied initially on July 3, 2012, and upon
reconsideration on October 22, 2012. Id. Plaintiff
then filed a written request for a hearing with an
Administrative Law Judge (“ALJ”) from the Social
Security Administration (“SSA”). Id.
This hearing was held on August 26, 2013. Id.
Plaintiff appeared and testified at this hearing.
Id. An impartial vocational expert
(“VE”), Lee O. Knutson, testified as well.
Id. Plaintiff was informed of his right to have an
attorney or other representative at the hearing, but he
declined that invitation on the record and then waived his
right to representation in writing. Id. at 51-55,
November 27, 2013, the ALJ issued a written decision denying
Plaintiff's SSI application on the grounds that he was
not disabled. [AR, at 36-44.] Shortly thereafter, Plaintiff
retained counsel and appealed the ALJ's decision to the
SSA's Appeals Council, arguing that the ALJ had failed to
weigh the medical opinions of Plaintiff's treating
physician properly and develop the evidentiary record
properly. Id. at 201-203. On February 5, 2016, the
Appeals Council denied Plaintiff's appeal, id.
at 21-23, making the ALJ's decision the final decision of
the SSA Commissioner. 20 C.F.R. § 404.981; Luna v.
Shalala, 22 F.3d 687, 689 (7th Cir. 1994). Following
that decision, Plaintiff filed suit in this Court. [See 1.]
was born on August 23, 1953. [AR, at 63.] He was fifty-seven
years old on his alleged disability onset date of April 1,
2011. Id. Plaintiff has a high school education
through the 11th Grade. Id. He last worked as an
“apartment inspector/lock changer” for Mac
Properties and, before that, as a postal service mail
handler. Id. at 63-65, 68-69.
apartment inspector, Plaintiff was responsible for visiting
apartments when tenants moved out, documenting any damage,
and changing the locks on the apartment doors and mail boxes.
Id. at 64-65. The heaviest weight that he would lift
was about 35 pounds. As a mail handler, Plaintiff was
responsible for “taking skids [a platform used for
stacking goods] off of 18-wheelers” and loading
packages or skids onto a conveyer belt for sorting based on
zip code. Id. at 68. The heaviest weight that
Plaintiff would lift as a mail handler was approximately 80
pounds, but he typically lifted closer to 35 or 40 pounds.
Id. at 68-69.
2008, Plaintiff “twisted his back at work” at Mac
Properties and began experiencing pain in his lower
extremities. [AR, at 213.] He went to the University of
Chicago Medical Center for treatment. Id. Tests
showed that he had a “large herniated disk” in
his back and blood pressure of 178/108. Id. at 215.
After discussing a “conservative treatment including
physical therapy” and medication, Plaintiff opted for
surgery for the disc between his L4 and L5 vertebrae.
Id. at 215; see also id. at 211-12.
Following surgery in September 2008, Plaintiff underwent 35
weeks of physical therapy, but continued to experience pain
in his tailbone and left leg. Id. at 66-67. His
physician cleared him for “light duty” work and
Plaintiff returned to Mac Properties, but he was terminated
because, as he was told, his employer “didn't hire
[him] for light duty.” Id. at 67-68.
September 2010, Plaintiff sought care from his primary care
physician, Dr. Monica Peek at the University of Chicago
Medical Center. [AR, at 226.] Her evaluation indicates that
Plaintiff's last appointment at the medical center was
his September 2008 surgery. Id. Plaintiff told Dr.
Peek that he was taking his hypertension medicine until about
two weeks before the appointment, when he ran out.
Id. While he was “essentially
asymptomatic” since his back surgery, he had recently
“reinjured his back and had similar symptoms to his
initial presentation, although not as severe.”
Id. Plaintiff described “difficulty with
flexion of his back” and some leg pain, but he was
“absolutely against” another back surgery or even
injections, and instead agreed to a “conservative
treatment” of anti-inflammatories and muscle relaxants.
Id. at 226-27. He was also prescribed a hypertension
medicine and was told that “he would likely, given his
family history, need to be on a medication for the rest of
his life, ” although he might be to scale back his
medications based on changes to his diet and exercise.
did not go to the doctor again before applying for SSI
benefits on May 7, 2012. His disability application reported
a herniated disk and high blood pressure, but omitted most
details about his medical and work history. [AR, at 155-69.]
As will become apparent, the lack information about
Plaintiff's medical history affected the SSA's
evaluation of his application.
2012, the medical consultant who reviewed Plaintiff's
application concluded that there was “insufficient
medical evidence to evaluate the severity” of
Plaintiff's conditions and so denied his application.
[AR, at 89-90.] Plaintiff appealed that decision on July 27,
2012. Id. at 173-77. His appeal noted that he had
high blood pressure, a hernia, skin cancer, and difficulty
with his short-term memory. Id. at 174. He stated
that he could not remember what he did an hour earlier, could
not lift anything over 10 pounds, and his skin was itching
and irritated. Id. He also reported that he
“always uncomfortable, ” he was “never able
to remember where [he] put things, ” his skin was
“always itching, ” and he “always need[ed]
help lifting heavy-objects.” Id. Plaintiff
still did not submit most of his medical records or describe
his work history.
completed a Function Report on September 17, 2012. [AR, at
178-191.] In that report, Plaintiff stated that he could not
“lift anything heavy or medium heavy, ” he could
not “stand or sit more than 30 [to] 45 minutes
without” experiencing pain or stiffness in his back, he
could not sit in a chair without a cushion for more than 10
minutes without experiencing pain (but could sit for two
hours with a cushion), and he has a hernia that needs
surgery. [AR, at 181, 191.] He also indicated that
“sometimes” he has difficulty dressing himself
(id. at 182) and could not pay attention for more
than 20 minutes (id. at 186).
October 4, 2012, Dr. Roopa K. Karri conducted an internal
medicine consultative examination of Plaintiff for the Bureau
of Disability Determination Services. [AR, at 204.] In that
examination, Plaintiff indicated that he had a history of
hypertension, a left-sided hernia, and lower back pain since
1975. Id. He had been experiencing pain for the last
three years, his tailbone hurt “all the time, ”
and that sitting more than 30 minutes aggravates this pain.
Id. at 204-05. Plaintiff told Dr. Karri that he has
a headache “all the time.” Id. at 205.
Dr. Karri recorded Plaintiff's blood pressure as 216/130,
reduced lumbar flexion of 70 degrees and extension of 10
degrees, and lumbar spine tenderness. Id. at 206. He
found that Plaintiff could get on and off the exam table,
walk 50 feet without support, had normal grip strength, and
normal range of motion for his shoulders, elbows, wrists,
hips, knees, and ankles. Id. Dr. Karri's
diagnostic impression was that Plaintiff had run out of his
blood pressure medication, his blood pressure was
“markedly elevated, ” and he should “go to
the emergency room or call his doctor immediately.”
Id. at 207. Dr. Karri also noted Plaintiff had a
“mildly decreased range of motion” as well as a
history of low back pain and left-sided hernia. Id.
October 15, 2012, another medical consultant, Dr. Francis
Vincent, reconsidered Plaintiff's SSI application and
reviewed the evidence in Plaintiff's file, including the
July 2012 initial application denial, Plaintiff's
September 2012 function report, and Dr. Karri's October
2012 evaluation. Based on that evidence, Dr. Vincent found
that Plaintiff had impairments of hypertension, unspecified
joint diseases, and spine disorder. Id. at 95. He
also concluded that Plaintiff's “statements about
the intensity, persistence, and functionally limiting effects
of the symptoms [were] substantiated by the objective medical
evidence alone.” Id. Dr. Vincent did not
mention Plaintiff's complaints about headaches, memory
loss, or skin cancer. Ultimately, Dr. Vincent concluded that
Plaintiff could lift 50 pounds occasionally, 20 pounds
frequently, and stand, walk, or sit for six hours in an
eight-hour workday. Id. at 96. Based on the record
evidence, Dr. Vincent found that Plaintiff had no past
relevant work, but could work as a maid or cleaner, core
extruder for electrical equipment, and a racker of bakery
products. Id. at 97.
October 26, 2012, Plaintiff requested a hearing before an
ALJ. [AR, at 110.] On December 3, 2012, a social security
employee performed a case analysis of Plaintiff's file.
Id. at 209-10. That analysis summarizes
Plaintiff's Function Report and Dr. Karri's
evaluation, but states that there is “no MER [medical
evidence of record] submitted from any treating
sources.” Id. at 209. The analysis finds that
Plaintiff's statements of his medical conditions are only
“partially credible” because “[t]hey are
not supported by evidence in the file.” Id.
“The [Plaintiff] showed only mildly decreased [range of
movement] of the back at the exam in file. This is the only
evidence in file. There is no MER that documents the alleged
herniated discs or hernia.” Id. Therefore,
“[b]ased on the MER in the file, ” Plaintiff
“is capable of medium work with no postal,
manipulative, visual, communicative, or environmental
limitations.” Id. at 210.
March 2013, Plaintiff returned to University of Chicago
Medical Center to see Dr. Peek. Dr. Peek notes that Plaintiff
was last seen in September 2010. [AR, at 224.] She recorded
that Plaintiff took his hypertension medicine until it ran
out but did not restart because he was “feeling good,
” although his systolic blood pressure readings were
still between 170 and 190. Id. Plaintiff reported
“[s]everal episodes of nausea, ” vomiting, and
“visual changes before [the] onset of
headache[s].” Id. His headaches last for
“3-4 days” and he described “significant
psychosocial stressors” related to his lack of
financial resources. Id. Dr. Peek proscribed a new
hypertension medication, recommended medications for his
headaches, and made a referral to general surgery for his
hernia. Id. at 225.
Hearing Before the ALJ
hearing before the ALJ took place on August 26, 2013. At the
start of the hearing, the ALJ noted “the only medical
documents we have for [Plaintiff] are from the doctor that
Social Security * * * sent you to for an examination.”
[AR, at 55.] In other words, the ALJ did not have
Plaintiff's medical records documenting his 2008 surgery
or his follow-up visit from 2010 and 2013. Plaintiff stated
that his primary care physician was named “Peck,
” and the ALJ promised to help Plaintiff track down
those records from the University of Chicago. Id. at
58-61. Plaintiff told the ALJ that his back surgery,
“to be absolutely certain, * * * was in October 2009,
” and the last time he went for medical treatment
“was in 2012.” Id. at 57. He also stated
that he “refused to take” his pain medication
related to his surgery because it was “habit
forming” and gave him high blood pressure. Id.
asked Plaintiff questions about his work as an apartment
inspector and mail handler, how he injured himself, his
surgery, physical therapy, and termination by Mac Properties.
Id. at 64-69. In response to the question of when he
last saw Dr. Peek for an appointment, Plaintiff stated,
“I'd say about a year and half. It was at least
‘13 I last saw her. Oh, I just saw her in May and I was
supposed to go back[.] * * * I just couldn't get back
because I don't have any money.” Id. at
69. He testified that his blood pressure was down to about
150/90, but when it was high, he felt badly and would see
“green spots, ” his right eye “flickers,
” and he has a headache. Id. at 70. He stated
that he has headaches “every other day” and they
last for “four to five hours, ” or a shorter
period if he “just sit[s] down” and is patient.
asked about whether he continues to experience any
back-related issues, Plaintiff testified that he can put on
his pants only while sitting, he cannot sit for more than 45
minutes without experiencing discomfort, and he has
difficulty bending. Id. at 70-71. He also explained
that he has pain if he tries to pick up something
“heavy.” The ALJ asked, “What's the
heaviest thing that you can pick up without having that kind
of problem?” Id. at 71-72. Plaintiff answered,
“About 20 pounds. * * * And I really have to position
myself to do that. I try to lift with my legs but if I just
bend over and tried to pick it up that won't work.”
Id. at 72.
Plaintiff testified that he did not have difficulty cleaning
or grooming himself and he might empty the garbage, but
otherwise did not do household chores. Id. at 73.
When asked if he had any other medical problems to add,
Plaintiff indicated that he has “a hernia about as big
as a golf ball, ” which he “need[s] to have that
corrected too, but [he] do[es]n't have insurance.”
Id. at 73-74. The hernia “prevents [him] from
doing the other things, too, because [he] can't strain
too much because of that problem.” Id. at 74.
Plaintiff testified that the hernia had grown from the size
of a peanut at the time of his initial surgery to its present
also heard testimony from the VE, who was asked to classify
Plaintiff's past work for Mac Properties and the postal
service. Id. at 77. The VE opined that there is not
a Dictionary of Occupational Titles (“DOT”)
description for Plaintiff's apartment inspection job.
[AR, at 78.] However, because Plaintiff lifted 35 pounds at
this job, “he performed at medium [exertion]” and
this job could be classified as “semi-skilled at the
lower end, SVP [Specific Vocational Preparation]: 3, as it
takes a little bit of special skill to put in, install, and
take out a lock.” Id. The VE also opined that
there is a mail handler job in the DOT that is categorized as
light exertion and semi-skilled, SVP: 4. Id. at
78-79; DOT, Mail Handler, 209.687-014, available at
(last visited Mar. 16 2017). That position is defined as:
Sorts and processes mail in post office: Sorts incoming or
outgoing mail into mail rack pigeonholes or into mail sacks
according to destination. May feed letters into electric
canceling machine or hand-stamp mail with rubber stamp to
cancel postage. May serve at public window or counter. May
transport mail within post office [MATERIAL HANDLER (any
industry)]. May sort mail in mobile post office and be
designated Distribution Clerk, Railway Or Highway Post Office
(government ser.). May sort mail which other workers have
been unable to sort and be designated Special-Distribution
Clerk (government ser.).
Id. The VE further testified Plaintiff
“performed [this job] at heavy” exertion and
“that's not unusual because mail handlers at the
postal service often do heavy work.” [AR, at 79.]
then asked the VE about three hypothetical scenarios. First,
he asked the VE to assume that a hypothetical worker could
lift 50 pounds occasionally and 20 pounds frequently and
could walk or sit for six hours in an eight-hour workday.
Id. at 80. He then asked if this person could
perform any of Plaintiff's past work. The VE opined that
this person could perform Plaintiff's “past work
with Mac Properties changing locks as he performed it”
and he “could perform as a mail handler as described by
the DOT but not as [Plaintiff] performed his job.”
the ALJ asked the VE to assume a hypothetical person with the
same characteristics as the first example except that this
person “can engage in only occasional stooping”
from the waist. Id. at 81. The VE opined that
“most medium [exertion] jobs require frequent stooping
and * * * so if he's limited to occasional stooping,
[this person] should be limited to a light job * * * because
[the VE] would say no, he couldn't do his past work if he
could only occasionally stoop.” Id. The ALJ
then clarified-and the VE agreed-that “if the
limitation were to frequent stooping, ” the
hypothetical worker would “still be able to perform
past work including [the] mail handler [job] * * * as usually
performed.” Id. at 81.
the ALJ asked the VE to assume that the hypothetical person
had these same limitations and was “reasonably likely
to be off task for 20 percent of the workday due to pain and
other physical health symptoms.” [AR, at 81.] The VE
opined that this individual could not do any of
Plaintiff's past work with this limitation. Id.
at 82. He explained that an employer's usual tolerance
for an employee who is off task varies but even fifteen
percent of the workday or nine minutes per hour would likely
to lead to the employee's termination. Id. As a
result, the employee would need to be on task “a little
bit more than 85 percent of the time” to retain their
job. He clarified that this estimate was based on his
professional experience, not the DOT.
hearing concluded without Plaintiff asking any questions of
The ALJ's Findings
written decision, the ALJ denied Plaintiff's application
for SSI benefits. [See AR, at 36-44.] The ALJ found that
Plaintiff had not engaged in substantial gainful employment
since his May 7, 2012 application date. Id. at 38.
He found that Plaintiff had severe impediments of a L4-L5
disc herniation and hypertension. Id. The ALJ also
concluded that neither of these impairments alone or in
combination meets or medically equals the severity of one of
the impairments listed in the appendix to the relevant SSA
regulations. Id. The ALJ found there was no evidence
that Plaintiff was unable to “ambulate
effectively” as he did not use a walker, crutches, or a
cane, he entered and left the hearing room without apparent
difficulty, and he could to use public transportation, climb
stairs, and perform other activities of his daily life.
next concluded that Plaintiff has the residual functional
capacity to perform medium work, see 20 C.F.R. §
416.967(c), “except lifting and carrying up to 50
pounds occasionally and 25 pounds frequently; standing and
walking up to 6 hours in an 8 hour workday; sitting up to 6
hours in an 8 hour workday; and frequent stooping.”
Id. at 39. The ALJ explained that he had
“accepted” and “given great weight”
to Dr. Vincent's opinion. Id. at 42- 43. He
recounted Plaintiff's testimony that he “would lift
up to 80 pounds” when working as a mail handler and
“up to 35 pounds and even more at the apartment
inspector job.” Id. at 39. He also noted
Plaintiff's testimony that “he sees spots and has
headaches that last four to five hours every other day”
when his blood pressure is high and he experiences
“pain after sitting for 45 minutes so he has to walk it
out or reposition himself in the chair.” Id.