Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McNeal v. Berryhill

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

March 21, 2018

VALVELLA T. MCNEAL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          M. David Weisman United States Magistrate Judge.

         Valvella T. McNeal appeals the Commissioner's decision denying her application for Social Security benefits. For the reasons set forth below, the Court reverses the Commissioner's decision.

         Background

         Plaintiff filed an application for benefits on February 11, 2010. (R. 70.) Her application was denied initially on April 21, 2010 and again on reconsideration on December 1, 2010. (R. 70, 72.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on October 25, 2012. (R. 33-69.) On January 14, 2013, the ALJ issued a decision denying plaintiff's application. (R. 20-27.) The Appeals Council denied review (R. 1-3), and plaintiff appealed to this Court, which reversed and remanded the case for further proceedings. (R. 674-75, 683-705.) On October 11, 2016, the ALJ held another hearing (R. 624-51), and on January 27, 2017, she issued a second decision denying plaintiff's application. (R. 604-17.) Plaintiff did not seek Appeals Council review of the second decision, and the Appeals Council did not otherwise assume jurisdiction over it, leaving the ALJ's second decision as the final decision of the Commissioner. See 20 C.F.R. § 416.1484(d); see also 42 U.S.C. § 405(g).

         Discussion

         The 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) (citation omitted).

         Under 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(a). The Commissioner must consider whether: (1) the claimant has performed any substantial gainful activity during the period for which she claims disability; (2) the claimant has a severe impairment or combination of impairments; (3) the claimant's impairment meets or equals any listed impairment; (4) the claimant retains the residual functional capacity to perform her past relevant work; and (5) the claimant is able 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. 20 C.F.R. § 404.1560(c)(2); Zurawski, 245 F.3d at 886. If that burden is met, at step five, the burden shifts to the Commissioner to establish that the claimant is capable of performing work existing in significant numbers in the national economy. 20 C.F.R. § 404.1560(c)(2).

         At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since the alleged onset date, July 14, 2008. (R. 606.) At step two, the ALJ determined that plaintiff has the severe impairments of “bilateral carpal tunnel syndrome, left cubital syndrome, [1] DeQuervain's Syndrome, [2] degenerative changes of both knees, asthma, and obesity.” (R. 607.) At step three the ALJ found that plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (R. 609.) At step four, the ALJ found that plaintiff is unable to perform any past relevant work (R. 615) but retains the residual functional capacity (“RFC”):

[T]o perform sedentary work . . . except she can never climb ladders, ropes, or scaffolding. She can no more than occasionally climb ramps and stairs, balance, stoop, crouch, kneel, crawl, bend, or twist. She can use her upper extremities no more than frequently to finger, feel, handle, and reach. She can use her upper extremities no more than occasionally to push and/or pull. She must be allowed a sit-stand option which allows her to stand one to two minutes after sitting for 30 minutes. She must be allowed to use a cane as needed to get to and from her workstation. She must avoid concentrated exposure to lung irritants, operating motor vehicles, and work hazards such as unprotected heights and dangerous moving machinery.

(R. 610-11.) At step five, the ALJ found that jobs exist in significant numbers in the national economy that plaintiff can perform, and thus she is not disabled. (R. 615-16.)

         Plaintiff argues that the ALJ failed to properly assess the opinion of treating physician Dr. Law. 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] record.” 20 C.F.R. § 404.1527(c)(2); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). The ALJ must give good reasons for the weight that it assigns a treating physician's opinion. Bates v. Colvin, 736 F.3d 1093, 1101 (7th Cir. 2013. “If an ALJ does not give a treating physician's opinion controlling weight, the regulations require the ALJ 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.” Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009); see 20 C.F.R. § 404.1527(c).

         The ALJ failed to consider these factors in her first decision denying plaintiff's application (see R. 25), a defect this Court in its remand order directed the ALJ to correct. (See R. 700 (“On remand, the ALJ shall reevaluate the weight to be afforded Dr. Law's opinion. If the ALJ finds ‘good reasons' for not giving the opinion controlling weight . . ., the ALJ shall explicitly ‘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, ' Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009), in determining what weight to give the opinion . . . .”).) The ALJ was required to make this assessment both by the doctrine of law of the case and the plain language of the regulations. See Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998) (“The law of the case doctrine, which requires the trial court to conform any further proceeding on remand to the principles set forth in the appellate opinion unless there is a compelling reason to depart is applicable to judicial review of administrative decisions.”) (quotation and citation omitted); 20 C.F.R. § 404.1527(c) (“Unless we give a treating source's medical opinion controlling weight . . ., we consider all of the [enumerated] factors in deciding the weight we give to any medical opinion.”). The ALJ's failure to do so, notwithstanding the explicit instruction in the remand order, is puzzling.

         As defendant points out, however, a failure to explicitly discuss every regulatory factor is not necessarily fatal. It “is enough” if the ALJ “note[s] the lack of medical evidence supporting [the doctor's] opinion . . . and its inconsistency with the rest of the record.” See Henke v. Astrue, 498 Fed.Appx. 636, 640 n.3 (7th Cir. 2012) (citing Elder v. Astrue, 529 F.3d 408, 415-16 (7th Cir. 2008)). That is precisely what the ALJ did here. (See R. 613-14.) Thus, the ALJ's failure to discuss the other regulatory factors, though not laudable, does not doom her decision.

         Plaintiff also challenges the ALJ's RFC determination, arguing first that the sit/stand option, is not supported by the record. The Court agrees. The ALJ did not cite any medical or other evidence for incorporating a sit/stand option that contemplates standing for “one to two minutes after sitting for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.