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Swaiss ex rel. Swaiss v. Berryhill

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

July 10, 2017

Venera Swaiss ex rel. Hazem Swaiss deceased husband, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


          Honorable Thomas M. Durkin United States District Judge.

         Venera Swaiss (“Plaintiff”) brings this action on behalf of her deceased husband, Hazem Swaiss (“Swaiss”), pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final decision of the Commissioner of Social Security denying Swaiss's claim for disability benefits and supplemental security income. Plaintiff seeks an award of benefits, or in the alternative, remand to the Commissioner. The Commissioner also seeks summary judgment in her favor. R. 24. For the following reasons, the Commissioner's decision is reversed and remanded for further proceedings consistent with this opinion and order.

         Legal Standard

         Judicial review of a final decision of the Social Security Administration is generally deferential. The Social Security Act requires the court to sustain the administrative law judge's (“ALJ”) 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 . . . where the ALJ's findings rest on an error 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. 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 allows 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).


         I. Procedural History

         On January 19, 2010, Swaiss filed applications for Disability Insurance Benefits and Supplemental Security Income. R. 14 at 2. The Commissioner of Social Security denied these applications. Id. The Administrative Law Judge (ALJ) subsequently upheld this decision. Id. Swaiss passed away on Feburary 13, 2013.

         Plaintiff subsequently filed a complaint in this district. Id. Magistrate Judge Brown reversed the ALJ's decision and remanded the case to the Commissioner of Social Security. See Swaiss v. Colvin, 2015 WL 231473 (N.D. Ill. Jan. 16, 2015).

         Upon remand, the ALJ denied Plaintiff's claims on November 12, 2015. R. 7-13 at 2. On February 24, 2016, Plaintiff filed the instant complaint. R. 1.

         II. Factual History

         Until his death on February 13, 2013, plaintiff Swaiss allegedly suffered from a variety of health issues including, but not limited to, chest pain, peripheral vascular disease, leg pain and spasms, sinus tacychardia, diabetes, neuropathy, and edema. R. 14 at 3-5. The ALJ found that Swaiss had severe impairments of hypertension, diabetes mellitus, peripheral vascular disease, generalized osteoarthritis, restless leg syndrome, and peripheral neuropathy. R. 7-13 at 8. Swaiss testified that, starting in 2008, he became unable to work. R. 14 at 5. Swaiss underwent heart surgeries in May and June 2009. R. 7-13 at 11. Swaiss testified that his medical condition prevented him from sitting for more than 45 minutes, standing for more than 20 minutes, walking for more than one block, repeatedly lifting more than ten pounds, participating in activities with his children, and completing household chores. R. 14 at 5. Over the years, Swaiss's condition fluctuated. R. 7-13 at 753. For example, Swaiss denied having chest pain at his September 2011 doctor's appointment. Id. at 754. However, he reported non-cardiac chest pain at his February 2012 appointment. Id. Other records from that appointment indicate that Swaiss's arteriosclerotic heart disease and peripheral vascular disease were also stable. Id. In November 2012, professionals at a cardiovascular clinic noted that Swaiss's condition was stable. On February 13, 2013, Swaiss was admitted into the emergency room and died not long after. As per the death certificate, the causes of death were hypertensive arteriosclerotic cardiovascular disease, quetiapine toxicity, and diabetes mellitus. Id.


         In order to determine whether an individual is disabled, an ALJ must follow the five-step analysis provided by 20 C.F.R. § 404.1520(a)(4). At step one, if the ALJ determines that the claimant is “doing substantial gainful activity, ” then the claimant is not disabled and no further analysis is necessary. If the claimant is not engaged in gainful activity, at step two, the ALJ must determine whether the claimant has a “severe” impairment or combination of impairments. If the ALJ finds that the claimant has such a severe impairment, and the impairment is one provided for in the Social Security regulation listings, then at step three, the ALJ must find that the claimant is disabled. If the ALJ finds that the impairment is not in the listings, then at step four, the ALJ must assess the “residual functional capacity” (“RFC”) the claimant continues to possess despite the claimant's impairment. If the claimant's RFC enables the claimant to continue his or her “past relevant work, ” then the ALJ must find that the claimant is not disabled. But if the claimant cannot perform past relevant work, at step five, the ALJ must determine whether the claimant “can make an adjustment to other work.” If the claimant cannot make such an adjustment, then the claimant is disabled.

         Here, Swaiss does not challenge the ALJ's decision at steps one, two, or three. Rather, Swaiss argues that the ALJ erred at steps four and five.

         I. Step Four: Swaiss's RFC

         Plaintiff asserts that the ALJ improperly assessed Swaiss's residual functional capacity by (1) rejecting her testimony, (2) failing to properly account for Swaiss's chest pain, and (3) failing to account for Swaiss's alleged need to periodically elevate his legs. R. 14 at 8.

         A. ALJ's Rejection of Plaintiff's Testimony

         Plaintiff asserts that the ALJ erred by rejecting her testimony regarding Swaiss's condition. R. 14 at 13. The ALJ perceived Plaintiff's testimony as inconsistent and accordingly rejected it.

         An ALJ is entitled to determine whether a witness's testimony is credible. See Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir. 2012). A court should “uphold an ALJ's credibility determination if the ALJ gave specific reasons for the finding that are supported by substantial evidence.” Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009).

         The ALJ's rejection of Plaintiff's testimony was sufficiently supported. The ALJ fully detailed why she did not find Plaintiff's testimony to be credible, identifying a number of inconsistences between her testimony and the evidence. R. 7-13 at 756. For example, Plaintiff testified that pain medication did not improve her husband's condition. Id. This testimony is contradicted by medical records, which demonstrate that the medication generally caused her husband's condition to improve. Id. In addition, Plaintiff testified that Swaiss did not work, but that testimony is contrary to evidence in the record that Swaiss worked up to 72 hours per week in a restaurant after the alleged onset date of his disability. Id. Furthermore, Plaintiff testified that her husband never worked as a cook, but Swaiss himself told healthcare providers that he did. Id. In light of these inconsistencies, the ALJ's rationale for discrediting Plaintiff's testimony is apparent. Consequently, the ALJ appropriately used her discretion in finding Plaintiff's testimony not credible, and that credibility determination is not a basis to reverse the ALJ's decision. See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010) (“[W]e reverse credibility determinations only if they are patently wrong.”).

         B. ALJ's Assessment of Swaiss's Chest Pain

         Plaintiff also argues that the ALJ erred in her calculation of Swaiss's RFC by failing to account for certain physical restrictions. Specifically, Plaintiff argues that the ALJ failed to consider the following facts:

Swaiss testified that he could lift ten pounds at one time but that he could not continuously lift that amount of weight without suffering chest pain. He had difficulty even pushing a grocery cart due to chest pain. Chest pain restricted his ability to lift overhead. In the Adult Function Report that he completed, Mr. Swaiss averred that he was unable to perform yard work due to chest pain and that he had difficulty carrying items such as a bag of groceries. At the 2015 hearing, [Plaintiff] testified that Mr. Swaiss frequently suffered chest pains and that he avoided lifting as a result. He had trouble lifting even a gallon of milk.

R. 14 at 11 (internal record citations omitted). But the ALJ acknowledged all of these facts. R. 7-13 at 752, 755. As Plaintiff concedes, the ALJ's decision was not a result of ignoring these facts, but rather weighing them against the other anecdotal and medical evidence in the record. As Plaintiff herself explains in her brief, the ALJ relied on

evidence . . . that Mr. Swaiss'[s] chest pain improved with the placement of stents and that Mr. Swaiss'[s] chest pain was “generally” stable until the date of his death. The ALJ further found that [Plaintiff's] descriptions of Mr. Swaiss'[s] chest pain were belied by evidence that reflected that Mr. Swaiss worked up to 72 hours a week subsequent to the alleged disability onset date.

R. 14 at 11-12. Clearly, the ALJ decided that the medical reports of Swaiss's lifting ability and the general stability of his heart condition were more credible and persuasive than the Swaisses' testimony. Plaintiff's testimony undermined her credibility for the reasons already explained. And Swaiss's own testimony was undermined by evidence that he was able to work 72 hours per week, evidence that his initial claim that he stopped working due to his disability was false, and that he actually stopped working because he was not being paid. R. 7-13 at 755-56. These inconsistencies in the Swaisses' testimony make it reasonable for the ALJ to have relied on the contrary medical reports in determining Swaiss's RFC.

         Plaintiff also argues that the ALJ failed to address that fact that Swaiss's heart condition contributed to his death in determining his RFC. It is true that hypertensive arteriosclerotic cardiovascular disease contributed to Swaiss's death. R. 7-13 at 12. But as the ALJ noted, quetiapine toxicity and diabetes mellitus also contributed to his death. Id. In fact, the death certificate describes Swaiss's death as a case of a “person with heart disease [who] took too many pills.” Id. at 754. Plaintiff also cites an abnormal electrocardiogram from the day of Swaiss's death as evidence that his heart condition was more serious than is reflected in the ALJ's RFC. But of course the result of the electrocardiogram from that day was at least partially the result of the fact that Swaiss overdosed on his medication. In light of the overdose, Swaiss's condition on the day he died cannot be taken as evidence of the general condition of his health at that time. Thus, Swaiss's cause of death and the electrocardiogram from the day he died, are not bases to conclude that the ALJ underestimated the severity of Swaiss's chest pain condition.

         C. ALJ's Assessment of Swaiss's Need to Elevate His Legs

         Swaiss also argues that the ALJ's decision should be reversed because the ALJ failed to articulate why she did not include Swaiss's alleged need to periodically elevate his legs as a functional limitation in assessing his RFC. R. 14 at 9. But the only evidence in the record that Swaiss needed to elevate his legs was Plaintiff's testimony. As discussed, the ALJ's decision to discount Plaintiff's testimony was justified by multiple inconsistencies between her testimony and the record.

         Plaintiff also argues that Swaiss suffered from edema (or swelling) in his legs, and that leg elevation is frequently a treatment for that condition. Plaintiff, however, cites only two places in the record that mention edema. A record from June 2012 notes that Swaiss “complain[ed] of one month of lower leg swelling . . . which was somewhat better in the [morning].” R. 7-18 at 1032. The June 2012 record does not prescribe any treatment for that complaint specifically. Id. at 1033. A record from October 2012 also noted “trace, ” or minimal, edema. Id. at 1030. Again, no treatment was prescribed for this condition. ...

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