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Lewis v. Berryhill

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

November 9, 2017

JEFFREY L. LEWIS Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM OPINION AND ORDER

          Susan E. Cox, Magistrate Judge

         Plaintiff Jeffrey L. Lewis (“Plaintiff”) appeals the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his disability insurance benefits under Title II of the Social Security Act. Plaintiff filed a brief [Dkt. 15] to reverse the Decision of the Commissioner of Social Security, and Defendant responded with a motion for summary judgment [Dkt. 16]. We hereby construe Plaintiff's brief in support of reversing the decision of the Commissioner as a motion. For the following reasons, Plaintiff's motion is granted and the Commissioner's motion is denied. The Administrative Law Judge's (“ALJ”) decision is remanded for further proceedings consistent with this opinion.

         I. Background

         a. Procedural History and Claimant's Background

         Plaintiff filed an application for disability insurance benefits on July 31, 2012 with an alleged onset date of disability of May 18, 2004. [Record (“R.”) 166.] His last day of work coincided with his alleged onset date. [Id.] Plaintiff was last insured for disability insurance benefits on December 31, 2010. [R. 18.] To obtain benefits, Plaintiff would have to establish disability onset on or before his date last insured, which was December 31, 2010. See 42 U.S.C. § 416(i).

         During the application process for disability insurance benefits, Plaintiff claimed that he stopped working on the alleged onset date due to a combination of physical impairments: high blood pressure, lower back pain, high sugar level, and bad knees. [R. 202.] Plaintiff's relevant past work consisted of one occupation: from January 1979 through May 2004, he worked as a yard manager at the Chicago Transportation Authority (“CTA”). [R. 40, 203.] In this role, Plaintiff controlled about 20 switchmen, maintained the rolling stock, pulled carts into the yard, stored and repaired carts, and was responsible for adding and cutting the number of trains during rush hours. [R. 204.]

         Plaintiff's disability insurance benefits application was denied initially on January 8, 2013, and again upon reconsideration on June 13, 2013. [R. 17.] Thereafter, Plaintiff requested an administrative hearing, which was held on February 23, 2015 before ALJ Regina M Kossek. [R. 17-26, 91.] At his hearing before the ALJ, Plaintiff testified that he was admitted to the hospital for six days in May 2004 due to high blood pressure and dizziness. [R. 41.] Plaintiff testified that he received short term disability from the CTA following his hospitalization. When his short term disability benefits expired, the Plaintiff did not apply for long term disability benefits because he had income through rental properties and claimed that he “didn't really get fully informed as to my rights to my benefits.” [R. 43.] Plaintiff also testified that he did not make a claim for worker's compensation benefits because his brother passed away around the same time “and [Plaintiff] didn't exercise the rights that [he] should at the time . . . they should have been exercised.” [R.45.] Instead, Plaintiff took early retirement from the CTA because he did not feel he could perform his job as a yard manager. [R. 42, 44.] Plaintiff posited two reasons why he could no longer perform his duties. First, the dizziness that had led to his hospitalization made working around heavy moving equipment perilous. [R. 50.] Second, he stated that he could no longer do the walking and climbing that his work required because his back pain was too severe. [R. 44.]

         The medical treatment documentation in the administrative record is fairly sparse. The majority of the medical records consists of treatment notes from Dr. Claudia Johnson, M.D., of the Claude Mandel Clinic. The treatment notes are from visits between June 2011 and November 2014 (all after Plaintiff's date last insured), and show that Plaintiff regularly reported knee and back pain. There is very little in the way of objective findings or plans for Plaintiff's care in the notes, and there are no diagnostic tests. On March 8, 2013, Dr. Johnson completed a Physical Residual Functional Capacity Questionnaire. [R. 279-82.] Dr. Johnson reported that Plaintiff suffered from daily back and knee pain that was aggravated by standing; she further opined that he would be limited to one hour of standing and 45 minutes of sitting at one time, and could sit for four hours and stand/walk for two hours in an eight-hour workday. [R. 280-81.] Dr. Johnson also claimed that Plaintiff could walk two blocks without rest or severe pain. [R. 280.] Plaintiff's counsel attempted to subpoena older records from the Claude Mandel Clinic, but was unable to do so. Plaintiff requested a subpoena from the ALJ on the Friday, February 20, 2015, which was shortly before the ALJ hearing on Monday, February 23, 2015; at the hearing, Plaintiff's counsel stated that he had been trying to get the older record from the Claude Mandel Clinic since December 2013, but despite getting “every indication . . . that they were going to comply and produce these records, ” the clinic did not provide Plaintiff with the records. [R. 34-35.] As a last resort, Plaintiff filed the late subpoena to alert the ALJ to the fact that the records were not available. [R. 35-36.] On three occasions, the ALJ asked Plaintiff's counsel “how dare [he]” seek such a late subpoena, and stated that she found it “disrespectful to the process.” [R. 33-34, 36.]

         On March 23, 2015, the ALJ denied Plaintiff's claim, finding that Plaintiff was capable of performing his past relevant work as a yardmaster as generally performed, thus making him not disabled within the meaning of the Social Security Act. [R. 25.] The Appeals Council then denied Plaintiff's request for review, leaving the ALJ's decision as the final decision of the Commissioner. [R. 1.] The ALJ's decision is currently under review by this Court under 42 U.S.C. § 405(g).

         b. The ALJ's Decision

         The ALJ issued a written decision on March 23, 2015 following the five-step analytical process required by 20 C.F.R. 404.1520. [R. 14-26.] As an initial matter, the ALJ found that Plaintiff met the insured status requirements of the Act through December 31, 2010. [R. 19.] At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity from the alleged onset date of May 18, 2004 through the date last insured of December 31, 2010. [Id.] At step two, the ALJ concluded that Plaintiff had the severe impairments of degenerative disc disease and osteoarthritis. [Id.] Other impairments were determined to be non-severe. [R. 20.] At step three, the ALJ concluded Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. [Id.] Prior to step four, the ALJ found that through the date of last insured, Plaintiff maintained the residual function capacity (“RFC”) to perform light work, except that Plaintiff could frequently climb stairs, ramps, ladders, or scaffolds, balance, stoop, kneel, crouch, and crawl. [R. 21.]

         In making this finding, the ALJ determined Claimant's creditably to be “somewhat limited” and his symptoms to be “unsupported and inconsistent with the medical records.” [R. 23.] Factors considered by the ALJ included minimal treatment received by Claimant (2-3 doctor visits per year, no aggressive treatment) as of his date last insured, failure of Claimant to seek disability or worker's compensation upon retirement, no emergency room visits, and Claimant's testimony that his alleged degenerative condition had not worsened since 2009-2010. [R. 23.]

         Second, the ALJ gave extremely minimal weight to the medical opinion of Claimant's treating physician, Claudia M. Johnson, M.D., and the RFC questionnaire she completed on March 8, 2013. [R. 23.] The ALJ determined Dr. Johnson's opinion to be speculative, based in Claimant's subjective complaints, and “inconsistent with the longitudinal medical record, ” which consisted of “no aggressive treatment, no imaging or clinical findings, and no emergency room visits or hospitalizations to support [Dr. Johnson's] assessment.” [R. 23, 24.] Furthermore, the ALJ found Dr. Johnson's RFC assessment used a check-list form, lacked explanation, was completed more than two years after claimant's date last insured, did not specify a time period for which her opinion applied, and contradicted her earlier statements which indicated Claimant's treatment posed no restrictions on his work ability. [R. 24.]

         Third, the ALJ did not weigh the opinion of the Medical Expert who testified at Claimant's hearing because the expert did not have access to the medical record at the time of the hearing ...


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