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Vernia v. Berryhill

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

July 23, 2018

Karen Vernia, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.



         The Claimant brings this action under 42 U.S.C. §405(g), seeking remand of the decision by Respondent, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying the Claimant's application for disability insurance benefits under Title II of the Social Security Act (“SSA”) and denying the Claimant's application for supplemental security income (SSI) under Title XVI of the SSA. This matter is before the Court on cross-motions for summary judgment. (Dkt. #12, 17).

         The Claimant argues that the Commissioner's decision denying her applications for benefits should be remanded for further proceedings because the Administrative Law Judge's (“ALJ”) decision is not supported by substantial evidence. The Commissioner argues that the ALJ's decision should be affirmed because it is supported by substantial evidence. For the reasons set forth more fully below, the Claimant's motion for summary judgment is granted, and the Commissioner's motion is denied. The matter is remanded to the Commissioner.

         I. BACKGROUND

         The Claimant's last date of insured is September 30, 2009. R. 20. In March 2011, the Claimant filed applications for disability alleging a disability onset date of December 31, 2005, due to neck, back, hip, foot, and shoulder issues, as well as headaches, depression, and emphysema. R. 20. The claims were denied on June 28, 2011, and again denied upon reconsideration on November 14, 2011. R. 20. Several state agency consultants evaluated the Claimant's impairments during this period. A psychological evaluation was performed by Dr. John Peggau, Ph.D. R. 28. Dr. Donna Hudspeth, Psy.D. also completed a psychiatric review of the Claimant. R. 29. Dr. Marion Panepinto and Dr. Towfig Arjmand each completed a residual functional capacity (“RFC”) assessment for the Claimant regarding the Claimant's physical impairments. R. 29. On February 27, 2013, a hearing took place before an Administrative Law Judge (“ALJ”). R. 20. At the hearing Craig Johnson testified as a vocational expert. R. 20. The record also included two RFC forms completed by Dr. Michael Maloney, the Claimant's long-time treating physician. R. 30-31. On March 8, 2013, the applications were denied. R. 35. The Claimant's request for review by the Appeals Council was denied and she subsequently filed a complaint in federal court.

         On June 5, 2014, while this matter was still pending in federal court, the Claimant filed an application for Title XVI benefits. R. 1502. The state agency obtained two medical opinions for the June 2014 application. An opinion was submitted by Erika Gilyot-Montgomery, Psy.D. regarding the Claimant's mental impairments. R. 1502. An opinion was also submitted by Richard Bilinsky, M.D. regarding the Claimant's physical impairments. R. 1502. On August 25, 2014, the application was granted, finding the Claimant disabled as of March 9, 2013. R. 1502.

         On April 1, 2015, this court granted the parties' agreed motion to remand and remanded the case concerning the original two applications. R. 1498. The Appeals Council then reviewed prior proceedings to determine if further proceeding were warranted before the ALJ. On September 11, 2015, the Appeals Council affirmed the finding that the Claimant was disabled, but found that since the 2014 state agency determination related only to a Title XVI application, the earliest onset date would be the date of application, which was June 5, 2014. R. 1502. The Appeals Council remanded the case to the ALJ to gather further evidence and conduct a hearing to determine whether the Claimant was disabled before June 5, 2014. R. 1504.

         On January 28, 2016, a second hearing was conducted for the March 2011 applications. R. 1355. At the hearing Dr. Allen W. Heinemann, Ph.D. testified as a non-examining medical expert and Jill Radke testified as a vocational expert. R. 1355. On February 17, 2016, the ALJ issued a partially favorable decision, finding the Claimant had the RFC to perform light work, and that the Claimant was disabled as of March 24, 2014. R. 1362, 1379. The Claimant then filed this appeal pursuant to 42 U.S.C. §405(g). The Claimant requests a finding that she was disabled as of December 31, 2005. In the alternative, the Claimant requests a finding that she was disabled as of March 9, 2013. As another alternative request, the Claimant seeks to have the ALJ's decision vacated and have this matter remanded to the ALJ for further proceedings.

         The medical record includes treatment records for the Claimant's various physical and mental conditions. The records that are particularly pertinent for this appeal include the opinions of the various state agency consultants concerning the Claimant's physical conditions, as well as the medical record records from Dr. Maloney, who became the Claimant's primary physician in 2004 and treated the Claimant for the variety of physical ailments that she asserts in her applications. R. 273. Dr. Maloney submitted a RFC assessment on July 17, 2012, and a second assessment on November 19, 2012. R. 30-31. The medical record also includes treatment records from Dr. Brian Bear, who performed surgery on the Claimant's right shoulder rotator cuff in 2009 and made certain findings concerning the Claimant's ability to lift. R. 26, 272, 1366.


         The Claimant argues (1) that the ALJ failed to properly apply the treating physician rule, (2) that the ALJ erred by substituting her own opinions for the opinions of medical experts, (3) that the ALJ failed to properly consider the statements of the Claimant's boyfriend and father when determining the Claimant's onset date of disability, and (4) that the Claimant exhausted administrative remedies after the Appeals Council's remand. It is important to note initially that the Claimant has not challenged the ALJ's finding regarding the Claimant's mental RFC and that on appeal the Claimant is only challenging the finding regarding the Claimant's physical RFC. The Claimant does not argue that any of the expert opinions concerning her mental health were improperly considered and instead argues that such expert opinions offered the ALJ no guidance in the determination of the Claimant's physical RFC.[2]

         A. Treating Physician Rule

         The Claimant contends that the ALJ failed to properly apply the treating physician's rule when assessing the opinions of Dr. Maloney. Under the treating physician rule, a treating physician's opinion is entitled to controlling weight if it is supported by medical findings and consistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); Moore v. Colvin, 743 F.3d 1118, 1127 (7th Cir. 2014). If the ALJ does not give the treating physician's opinion controlling weight, the ALJ cannot simply disregard it without further analysis. Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010). Instead, the ALJ must determine what specific weight, if any, the opinion should be given. Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009). To make this determination, the ALJ must apply the checklist of six factors set forth in 20 C.F.R. § 404.1527(c)(2). Campbell, 627 F.3d at 308 (referring to the factors as a “required checklist”). Failure to apply the checklist is reversible error. Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010) (ALJ disregarded checklist).

         Regarding the Claimant's physical impairments, the Commissioner did not have any medical examination of the Claimant performed by a state agency physician before either hearing. Nor did any medical expert testify at the January 28, 2016 hearing regarding the Claimant's physical conditions. The records from Dr. Maloney, including his two RFC assessments, address the treatment of the wide array of the Claimant's physical impairments over an extended period of time and provided the most comprehensive look at the Claimant's physical condition. Yet the ALJ decided to give little or limited weight to Dr. Maloney's opinions and gavesubstantial weight to the opinions of certain non-examining and non-treating medical experts. R. 1375. To the extent that the ALJ gave great ...

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