United States District Court, N.D. Illinois, Eastern Division
Venera Swaiss ex rel. Hazem Swaiss deceased husband, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge.
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.
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).
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.
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.
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.
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.
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.
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.
Step Four: Swaiss's RFC
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.
ALJ's Rejection of Plaintiff's Testimony
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.
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).
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.”).
ALJ's Assessment of Swaiss's Chest Pain
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.
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.
ALJ's Assessment of Swaiss's Need to Elevate His
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.
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.