United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
DAVID WEISMAN UNITED STATES MAGISTRATE JUDGE
H. brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the Social Security Administration's
(“SSA's”) decision denying his application
for benefits. For the reasons set forth below, the Court
reverses the SSA's decision.
applied for benefits on July 20, 2015, alleging a disability
onset date of January 4, 2014. (R. 65.) His application was
denied initially and on reconsideration. (R. 74, 85.)
Plaintiff requested a hearing, which was held by an
administrative law judge (“ALJ”) on October 2,
2017. (See R. 28-64.) In a decision dated January
19, 2018, the ALJ found that plaintiff was not disabled. (R.
13-23.) The Appeals Council declined review (R. 1-3), leaving
the ALJ's decision as the final decision of the SSA,
reviewable by this Court pursuant to 42 U.S.C. § 405(g).
See Villano v. Astrue, 556 F.3d 558, 561-62 (7th
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(a),
416.920(a). The SSA 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 (“RFC”) 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. 20
C.F.R. §§ 404.1520(a), 416.920(a); see Zurawski
v. Halter, 245 F.3d 881, 885 (7th Cir. 2001).
one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since the alleged onset date.
(R. 15.) At step two, the ALJ determined that plaintiff has
the severe impairments of “degenerative disc disease
and a history of cervical spine fracture.” (R. 16.) At
step three, the ALJ found that plaintiff's impairments do
not meet or medically equal the severity of a listed
impairment. (Id.) At step four, the ALJ found that
plaintiff cannot perform any past relevant work but has the
residual functional capacity (“RFC”) to perform
sedentary work with certain exceptions. (R. 16, 22.) At step
five, the ALJ found that there are a significant number of
jobs in the national economy that plaintiff can perform, and
thus he is not disabled. (R. 22-23.)
contends that the ALJ erred in rejecting the opinion of
plaintiff's treaters, Dr. Schaffer and Nurse Practitioner
Margarita Kos. 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), 416.927(c)(2); see Scott v. Astrue,
647 F.3d 734, 739 (7th Cir. 2011). “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), 416.927(c).
other things, Dr. Shaffer opined that plaintiff cannot walk
“for a long time, ” he is unable to “sit
upright for prolonged periods due to neck pain, ” and
he has “problems using upper extremities more than
occasionally.” (R. 467-68.) The ALJ credited Dr.
Schaffer's opinion about plaintiff's walking
limitation but said:
[T]he rest of [the doctor's] statement is not consistent
with the overall record. The claimant's physical exam
signs and nerve testing does [sic] not show any numbness,
abnormal sensation, or weakness to support the upper
extremity limitations assed [sic] by Dr. Schaffer. The record
does not show that the claimant is unable to sit for
prolonged periods. Indeed, he often reports spending most of
his day sitting down, and he was able to sit in a regular
office chair for about 40 minutes during his hearing. . . .
The evidence indicates [Dr. Shaffer] last saw the claimant in
April 2016, when she felt the claimant could manage his pain
with home exercises. Her suggested treatment plan is
inconsistent with her opinion statement.
record does not support the ALJ's assessment. With
respect to the upper extremity limitation, the record shows
that plaintiff had a normal EMG and nerve conduction study in
December 2015. (R. 487.) Nonetheless, it also shows that
plaintiff repeatedly complained of pain and numbness in his
arms and was diagnosed with cervical radiculopathy (R. 692,
730, 756-57, 762-63, 772-73, 778-79, 784-85, 798, 804, 810,
818), a condition that “may cause pain that radiates
into the shoulder, as well as muscle weakness and numbness
that travels down the arm and into the hand.” See
(last visited July 15, 2019). As for the sitting limitation,
the record shows that plaintiff sits most of the day, but he
does so leaning back with his neck propped on a pillow (R.
39-40), a qualification the ALJ neglected to mention.
Finally, the ALJ's last statement, that Dr. Schaffer
“last saw the claimant in April 2016, when she felt the
claimant could manage his pain with home exercises, ”
mischaracterizes the record. The evidence shows that Dr.
Schaffer's most recent exam of plaintiff occurred on
January 18, 2017. (R. 466.) Moreover, the record does not
show that Dr. Schaffer said exercise would manage
plaintiff's pain. Rather, it shows that plaintiff told
Ms. Kos that Dr. Schaffer had not recommended “anything
specific or new” for his pain except home exercise. (R.
480.) In short, the ALJs assessment of Dr. Schaffer's
opinion is not supported by substantial evidence.
ALJ's assessment of Ms. Kos's opinion is also flawed.
Ms. Kos opined that plaintiff has chronic neck pain that
“markedly impact[s] . . . [his] ability to sustain
concentration and attention, resulting in frequent failure to
complete tasks, ” would increase if he returned to
work, and makes him unable to engage in full-time employment.
(R. 446.) The ALJ rejected this opinion because: (1)
“[a] statement that a claimant cannot work is reserved
for the Commissioner;” (2) “Ms. Kos is not
acceptable medical source;” (3) her opinion was
inconsistent with plaintiff's ...