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Purvis v. Berryhill

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

March 16, 2017

MICHAEL E. PURVIS, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         Before the Court is Plaintiff Michael Purvis's motion for summary judgment [16] 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 [16] in part and remands this case for further proceedings consistent with this opinion.

         I. Background

         A. Procedural History

         Plaintiff 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, 138.

         On 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.]

         B. Factual Background

         Plaintiff 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.

         As an 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.

         In June 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.

         In 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. Id.

         Plaintiff 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.

         In July 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.

         Plaintiff 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).

         On 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.

         On 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.

         On 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.

         In 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.

         C. Hearing Before the ALJ

         Plaintiff's 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.

         The ALJ 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. Id.

         When 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.

         Otherwise, 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 size.

         The ALJ 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 http://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT02A.HTM (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.]

         The ALJ 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.” Id.

         Second, 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.

         Third, 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.

         The hearing concluded without Plaintiff asking any questions of the VE.

         D. The ALJ's Findings

         In a 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. Id.

         The ALJ 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. at ...


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