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Tolbert v. Colvin

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

July 18, 2017

ROCHELLE TOLBERT Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE THOMAS M. DURKIN UNITED STATES DISTRICT JUDGE.

         Rochelle Tolbert brings this action for judicial review of the decision of the Commissioner of Social Security denying her claim for disability insurance benefits (“DIB”) and social security income (“SSI”). Ms. Tolbert moved this Court for summary judgment. R. 16. In lieu of a response, the Commissioner filed a motion for remand, conceding errors in the decision of the Administrative Law Judge (“ALJ”). R. 30 at 1. The Commissioner's motion for remand is granted in part in that the case will return to the Social Security Administration for final disposition; Ms. Tolbert's motion for summary judgment is also granted in part in that the remand order is with instructions to calculate and award benefits to Ms. Tolbert retroactive to April 1, 2005. The Court's reasoning is set forth below.

         Background

         This is the second appeal of this case to the district court. The opinion on the first appeal, decided by Judge Mason in 2012, sets forth in extensive detail the medical history relevant to this case. See Tolbert v. Astrue, 2012 WL 1245611 at *1-8 (N.D. Ill. Apr. 13, 2012) (remanding to the Social Security Administration for further proceedings). The Court will not recite that entire medical history here, as it is voluminous. Instead, it incorporates by reference Judge Mason's recitation of the medical evidence, and summarizes the salient facts as follows.

         Ms. Tolbert was 43 years-old at the time this appeal was filed, and claims that she became disabled within the meaning of 42 U.S.C. § 416(i)(1) on April 1, 2005. R. 1. At all times relevant to this case, Ms. Tolbert has been a single mother of three children, the youngest of whom is disabled. A.R. 454-58.[1] She has at all times lived with her children and her grandchild in an apartment in Chicago. Id.

         Ms. Tolbert completed the 8th grade and part of her first year of high school. Id. She does not now, nor has she ever, had a driver's license. Id. As an adult, she received vocational and on-the-job training in home care services, landscaping and security work. Id. She has not been substantially gainfully employed since April 1, 2005. Id. at 157-68.

         Ms. Tolbert has maintained that since that date, she has been unable to complete housework due to back and joint pain, unable to stand for more than several minutes at a time, unable to walk more than a half-block without pain and difficulty breathing, and unable to complete even sedentary tasks such as reading or watching a television show without falling asleep. Id. at 11-61, 157-68, 444-508. The medical records, including x-rays and other medical imaging reports, support Ms. Tolbert's representations. See, e.g., id. at 228-245, 261-271, 293-97, 315, 333-34, 358-360, 372-382, 731-33. Ms. Tolbert has been prescribed a host of medications over time to treat shortness of breath and wheezing, see Id. at 689 (Albuterol), as well as pain and inflammation, see, e.g., Id. at 166 (Feloditine, Indapamide, Aspirin, Folic Acid, Cyclobenzaprine to control pain and inflammation), id. at 336 (adding Tylenol 3 with codeine). In addition, Ms. Tolbert's longstanding complaints of daytime drowsiness and lack of energy, coupled with an acute cardiac incident in 2008, led her to undergo a sleep study in 2009, which ultimately resulted in a diagnosis of sleep apnea. Id. at 280-82; 299-300; 335-57. Ms. Tolbert was prescribed a CPAP machine to treat her symptoms, id. at 361-66, however, the daytime drowsiness persists, see Id. at 317, 461, 802-03. Ms. Tolbert has also consistently reported, and more recently sought treatment for depression. Id. at 393-94, 401-09.

         Procedural History

         Ms. Tolbert filed the DIB and SSI applications at issue on May 8, 2006, alleging disability beginning April 1, 2005. A.R. 135-42, 157-81. She claimed then, as she has claimed for more than a decade since, that arthritis, diabetes, hypertension, hypothyroidism, sleep apnea, and morbid obesity (weight in excess of 350 pounds, body mass index of greater than 50) prevent her from obtaining gainful employment. Id.

         Ms. Tolbert's claims were initially denied on August 17, 2006, id. at 62-63, 66-80, and again upon request for reconsideration five months later, id. at 64-65, 81-87 . She appeared unrepresented before the ALJ on March 18, 2009, and again on June 10, 2009 after medical records had been added to her file. See Id. at 11, 46. On August 31, 2009, the ALJ issued a written decision denying Ms. Tolbert's applications for benefits. Id. at 66-76. Central to the ALJ's determination of Ms. Tolbert's claims were his unfavorable assessment of her credibility and rejection of the opinion of her treating physician, Dr. Ahmed. Id. at 72-75. Ms. Tolbert requested further review of her case by the Social Security Administration's Appeals Council. Id. at 131-34. The Appeals Council denied her request for review, set aside that denial to consider additional medical records, and then denied the request again, rendering the decision final and appealable. Id. at 1-10.

         As previously noted, Ms. Tolbert then sought judicial review in this district. Tolbert, 2012 WL 1245611 at *1. On April 23, 2012, Judge Mason issued a lengthy Memorandum Opinion and Order granting in part and denying in part her motion for summary judgment and remanding the case for further review. Id. Specifically, the court found the ALJ's credibility assessment of Ms. Tolbert “unreasonable and not supported by the record, ” replete with findings contradicted by the medical evidence and based on considerations that were either impermissible under Seventh Circuit precedent or not grounded in common sense. Id. at *11-12. In particular, the court took issue with the ALJ's finding that Ms. Tolbert's claims of daytime drowsiness lacked support in the medical record. Id. at *12. The Court furthermore cautioned that on remand, “if the ALJ declines to give th[e] opinion [of Dr. Ahmed, Ms. Tolbert's treating physician] controlling weight, he must properly articulate his reasons for doing so.” Id. at *12-13.

         During the pendency of the first appeal to the district court, Ms. Tolbert filed a second application for DIB and SSI. See A.R. 641-48. The reviewing medical consultant opined at that time, based on evidence of chronic hip, lower back and knee pain, degenerative arthritis, and limited range of motion, that Ms. Tolbert's severe impairments equaled listing-level disability 1.02A (Major dysfunction of a joint(s) due to any cause). Id. at 782-85. She identified the date of onset as November 19, 2009 “based on evidence which shows that claimant weighed 404 lbs. on this date.” Id. at 784. The Appeals Council reviewed and affirmed the determination. See Id. at 537-40.

         In accordance with Judge Mason's order, the Appeals Council remanded the case to the ALJ for a determination of disability for the period from April 1, 2005, the alleged onset date in Ms. Tolbert's first application for benefits, to November 19, 2009, the onset date identified by the physician who reviewed and approved Ms. Tolbert's second application for benefits. Id. Ms. Tolbert re-appeared before the ALJ on December 9, 2013, with the assistance of counsel. See Id. at 444-508. Her testimony at that hearing was consistent with the testimony she had given a few years earlier, though she reported that the condition of her left knee had become more painful over time. See Id. at 455-77.

         The ALJ's Decision

         On June 26, 2014, the ALJ again denied Ms. Tolbert's claims. See A.R. 421-43. Specifically, he found that while Ms. Tolbert had the severe impairments of morbid obesity, osteoarthritis in the knees and lumbar spine, obstructive sleep apnea, insulin dependent diabetes mellitus, and depression from April 1, 2005 through November 18, 2009, these impairments were insufficiently severe to constitute a disability, because Ms. Tolbert had the residual functional capacity (“RFC”) to perform restricted sedentary work. Id. 427-35. In reaching this conclusion, the ALJ again made adverse credibility determinations as to both Ms. Tolbert and her treating physician, Dr. Ahmed. See Id. He relied instead on the RFC determinations of three state agency physicians, none of whom considered the impact of Ms. Tolbert's sleep apnea and daytime drowsiness when reaching their conclusions about her ability to perform restricted sedentary work. See Id. at 433-35. Ms. Tolbert once again appeals, this time seeking summary judgment in her favor on a complete medical record. R. 17.

         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 ALJ's 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 when the ALJ has made errors 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 (quoting Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014)). 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 would allow 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) (internal quotation marks and citation omitted).

         However, the ALJ's decision need not be affirmed, and “[c]ourts have the statutory power to affirm, reverse, or modify the Social Security Administration's decision, with or without remanding the case for further proceedings.” 42 U.S.C. § 405(g). Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011). “This power includes the courts' ability to remand with instructions for the Commissioner to calculate and award benefits to the applicant, ” and “an award of benefits is appropriate . . . if all factual issues involved in the ...


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