United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
David Weisman United States Magistrate Judge.
Veronica Hatcher appeals defendant's decision denying her
application for Social Security benefits. For the reasons set
forth below, the Court reverses the Commissioner's
decision and remands this case for further proceedings.
filed an application for benefits on May 9, 2013, alleging a
disability onset date of June 26, 2012. (R. 235.) Her
application was denied initially on August 2, 2013, and again
on reconsideration on March 6, 2014. (R. 168-73.) Plaintiff
requested a hearing before an Administrative Law Judge
(“ALJ”), which was held on February 3, 2015. (R.
77-132.) On March 13, 2015, the ALJ issued a decision denying
plaintiff's application. (R. 34-68.) The Appeals Council
denied review (R. 1-4), leaving the ALJ's decision as the
final decision of the Commissioner. See Villano v.
Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).
Court reviews the ALJ's decision deferentially, affirming
if it is supported by “substantial evidence in the
record, ” i.e., “‘such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” White v. Sullivan,
965 F.2d 133, 136 (7th Cir. 1992) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). “Although this
standard is generous, it is not entirely uncritical, ”
and the case must be remanded if the “decision lacks
evidentiary support.” Steele v. Barnhart, 290
F.3d 936, 940 (7th Cir. 2002).
the Social Security Act, disability is defined as the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). The regulations prescribe a five-part
sequential test for determining whether a claimant is
disabled. See 20 C.F.R. § 404.1520. Under the
regulations, the Commissioner must consider: (1) whether the
claimant has performed any substantial gainful activity
during the period for which she claims disability; (2) if
not, whether the claimant has a severe impairment or
combination of impairments; (3) if so, whether the
claimant's impairment meets or equals any listed
impairment; (4) if not, whether the claimant retains the
residual functional capacity (“RFC”) to perform
her past relevant work; and (5) if not, whether she is unable
to perform any other work existing in significant numbers in
the national economy. Id.; Zurawski v.
Halter, 245 F.3d 881, 885 (7th Cir. 2001). The claimant
bears the burden of proof at steps one through four, and if
that burden is met, the burden shifts at step five to the
Commissioner to provide evidence that the claimant is capable
of performing work existing in significant numbers in the
national economy. See 20 C.F.R. §
one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since the alleged disability
onset date. (R. 36.) At step two, the ALJ found that
plaintiff had the severe impairments of “obesity;
depression/bipolar disorder; post-traumatic stress disorder
(PTSD); congenital right eye blindness; sleep apnea;
degenerative joint disease of the knee; [and]
sciatica.” (Id.) At step three, the ALJ
determined that plaintiff did not have an impairment or
combination of impairments that met or medically equaled the
severity of one of the listed impairments. (R. 37.) At step
four, the ALJ found that plaintiff could not perform her past
relevant work but had the residual functional capacity to
perform sedentary work with additional restrictions. (R. 39,
66.) At step five, the ALJ found that there were jobs that
existed in significant numbers in the national economy that
plaintiff could perform, and thus she was not disabled. (R.
contends the ALJ erred in giving “little weight”
to the opinion of plaintiff's treating physician, Dr.
Forys. (See R. 65.) An ALJ must give a treating
physician's opinion controlling weight if “it is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.”
20 C.F.R. § 404.1527(c)(2). “If an ALJ does not
give a treating physician's opinion controlling weight,
the regulations require [him] to consider the length, nature,
and extent of the treatment relationship, frequency of
examination, the physician's specialty, the types of
tests performed, and the consistency and supportability of
the physician's opinion, ” in assessing the
opinion. Moss v. Astrue, 555 F.3d 556, 561 (7th Cir.
2009); see 20 C.F.R. § 404.1527(c).
other things, Dr. Forys said that plaintiff's complaints
of severe knee pain were corroborated by cracking and popping
in the knees, a positive x-ray for joint space narrowing, and
a positive straight leg raise test. (R. 1966.) He also noted
that plaintiff's pain was precipitated by walking and
prolonged sitting, and thus he limited her to sitting for two
hours and walking for one hour of an eight-hour workday. (R.
1967.) Dr. Forys opined that plaintiff's pain would
frequently interfere with her concentration and attention and
would cause her to miss work more than three times a month.
rejected Dr. Forys' opinion because:
[He] relied quite heavily on the subjective report of
symptoms and limitations provided by [plaintiff], and seemed
to uncritically accept as true most, if not all, of what
[plaintiff] reported. Yet, as explained elsewhere in this
decision, there exist good reasons for questioning the
reliability of [plaintiff's] subjective complaints. For
example, Dr. Forys noted that [plaintiff] had side effects
from medication, yet [plaintiff] denied such in her
testimony. Further, had such medications caused side effects,
it would have been reported in the records and or changed to
one that did not cause side effects. There is no report of
“good days” and “bad days” in Dr.
Forys' records. Further, because the records and findings
are so contradictory, the doctor's opinion is without
substantial support from the other evidence of record, or
even his own record, which obviously renders it less
on the perceived contradictory nature of the underlying
medical records, it is true that some of Dr. Forys'
records state that plaintiff denied having knee pain.
However, such notes generally appear in records of visits
that were prompted by issues wholly unrelated to her knees.
(See, e.g., R. 475, 488, 640, 676, 1654-55 (showing
that plaintiff did not complain of knee pain when she went to
the doctor for a sore throat and cough, perianal pain, a
keloid on her right foot, for treatment after a sexual
assault, and a rash on her breasts, respectively).) Moreover,
though plaintiff did not complain about her knees each time
she saw Dr. Forys, the record shows that she did so on a
regular basis from October 2011 through November 2014.
(See R. 441, 455-58, 470, 482, 498-501, 503-06, 649,
655, 662, 669, 1352, 1357, 1362, 1554, 1567-68, 1575,
1598-1600, 1606-07, 1625-27, 1639, 1647-48.) More
importantly, the record shows that when Dr. Forys'
treatment focused on plaintiff's knees, his clinical
findings consistently supported her complaints of pain and
decreased function. (See e.g., R. 455-58 (April 18,
2012 record noting “crepitus,  decreased extension,
decreased flexion, pain with exten[s]ion and pain with
flexion” in both knees); R. 470-73 (February 28, 2012
record noting same and mild effusion); R. 482-85 (January 11,
2012 record noting “crepitus, decreased extension,
decreased flexion, pain with exten[s]ion and pain with
flexion” in both knees); R. 499-501 (December 3, 2011
noting same and mild effusion); R. 503-06 (October 21, 2011
record noting crepitus, decreased extension and flexion and
pain with extension and flexion in both knees); R. 649-53
(April 27, 2013 record noting crepitus and decreased
extension and flexion in both knees); R. 655-59 (April 6,
2013 record noting crepitus in both knees, pain with
extension in right knee, and decreased flexion in left); R.
662-66 (March 9, 2013 noting same); R. 669-73 (January 3,
2013 record noting crepitus, and decreased extension and
flexion in both knees); R. 1357-60 (February 8, 2014 record
noting crepitus in both knees); R. 1362-66 (January 6, 2014
record noting crepitus and decreased extension and flexion in
both knees); R. 1352-55 (March 8, 2014 record noting
tenderness and decreased extension and flexion in both
knees); R. 1647-49 (April 16, 2014 record ...