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Mike H. v. Saul

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

July 31, 2019

MIKE H.,[1] on behalf of Mary H., Plaintiff,
ANDREW SAUL,[2] Commissioner of Social Security, Defendant.


          Iain D. Johnston Magistrate Judge.

         Plaintiff Mike H., on behalf of his wife and original claimant, Mary H., [3] brings this action under 42 U.S.C. § 405(g) seeking remand of the decision denying his wife's social security benefits. For the reasons below, the Plaintiff's motion for summary judgment is denied, the Commissioner's motion for summary judgment is granted, and the ALJ's decision is affirmed.

         I. BACKGROUND

         Claimant filed for disability benefits on November 5, 2014. She alleged a February 1, 2006 disability onset date caused by cervical spondylosis with myelopathy, coronary artery disease, and hyponatremia. R. 20, 213. She stopped working because of her impairments on February 15, 2006. R. 213. Claimant's date last insured is December 31, 2011. R. 22. On February 10, 2017, Claimant, represented by counsel, [4] appeared for a hearing before an Administrative Law Judge (“ALJ”). At the hearing, she testified about her work history and various impairments, including difficulty raising her right arm; difficulty manipulating three fingers on her left hand; and lower back and right leg pain. R. 46-57. Mary's husband (and now Plaintiff) Mike H. also testified regarding the effect of Mary's impairments on her functioning. R. 61-66.

         An impartial medical expert (ME), Dr. Ashok Jilhewar, also testified at the hearing.[5] R. 69. Along with discussing impairments not relevant to this appeal, the ME discussed the record evidence regarding the Claimant's left hand. R. 69-82. He testified that after cervical spine surgery in March 2006 and subsequent physical therapy, Claimant's left hand was improving. Additionally, by July 2006, her extensor was working well, and she could fully stretch her pinky finger on her left hand; therefore, the ME testified that these and other functional improvements indicated that Claimant did not have a “claw” left hand following her March 2006 surgery. R. 71-72, 76.

         After the hearing, the ALJ followed the five-step evaluation process set forth by the Social Security Administration 20 C.F.R. § 404.1520(a)(4) and found that the Claimant was not disabled. R. 20, 33. The ALJ specifically found the following: (1) at Step One, that Claimant had not engaged in any substantial gainful activity between her onset date of February 1, 2006 through December 31, 2011, her date last insured, R. 22; (2) at Step Two, that Claimant had “the following severe impairments: moderately severe cervical facet joint arthritis at multiple levels without central canal stenosis, cervical radiculitis with some neurologic deficit, C8-T1 radiculopathy, and status post March 2006 fusion surgery” during the relevant insured period, R. 23; (3) at Step Three, that Claimant did not have an impairment or combination of impairments that met or equaled any listed impairment, Id.; (4) Claimant had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(h) except that she could only occasionally lift and carry 10 pounds and frequently lift and carry 5 with the upper-left extremity, could “frequently stoop, crouch, crawl, kneel, and balance, ” and occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds. R. 24. The ALJ also found the Claimant was “restricted from working at unprotected heights, working near heavy equipment, or operating machinery” but could “frequently reach, handle, and finger with her bilateral upper extremities, ” id.; and (5) at Step Four, the ALJ found that Claimant could perform her past relevant work as an accounting clerk.[6] R. 32.


         A reviewing court may enter judgment “affirming, modifying, or reversing the decision of the Commissioner [], with or without remanding the cause for rehearing.” 42 U.S.C. § 405(g). The Commissioner's denial of disability is conclusive when supported by substantial evidence. Id.; Skinner v. Astrue, 487 F.3d 836, 841 (7th Cir. 2007). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 399-400 (1971). The court may not displace the ALJ's judgment by reconsidering facts and evidence, reweighing evidence, or by making independent credibility determinations. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008); Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Similarly, even if reasonable minds could differ on whether a claimant is disabled, a reviewing court must affirm the ALJ's decision if it is adequately supported. Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009).

         However, review of an ALJ's decision is not a rubber stamp of approval. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (“mere scintilla” not substantial evidence). The court must critically review the ALJ's decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). The ALJ's conclusion will not be affirmed where he fails to build a logical bridge between the evidence and his conclusion, even if evidence exists in the record to support that conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008); Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002) (where opinion is “so poorly articulated as to prevent meaningful review” the case must be remanded). Additionally, courts may not build a logical bridge for the ALJ. Mason v. Colvin, 13 CV 2993, 2014 U.S. Dist. LEXIS 152938, at *19-20 (N.D. Ill. Oct. 29, 2014).

         III. ANALYSIS

         Plaintiff argues that the ALJ ignored evidence that Claimant's left hand became worse, not better, after surgery, and as a result erroneously concluded at Step Four that she could perform her past relevant work. Specifically, Plaintiff points to a neurosurgery evaluation from 2008 by Dr. Sean A. Salehi, in which he indicates that Claimant complained of “left hand weakness and numbness in her fourth and fifth digits in her left hand” and that her left-hand weakness “has not responded to therapy.” R. 694. Upon Claimant's examination, Dr. Salehi indicated normal upper extremity strength “except in the left hand which is significantly diminished on wrist extension and finger abduction” before recommending surgery. R. 696. Plaintiff argues that based on Dr. Salehi's 2008 report, and contrary to the ME's opinion that Claimant's left hand improved after her March 2006 surgery, Claimant's left hand had gotten worse after surgery and subsequent physical therapy. Therefore, Plaintiff argues the ALJ erred by relying on the ME's flawed testimony regarding improvements to Claimant's left hand when making his Step Four determination.

         Plaintiff also points out that the ALJ relied on the ME's testimony that the Claimant “had virtually no restrictions on reaching, handling, and fingering, except she was limited to constant as opposed to frequent use.” Dkt. 13 at 6. In formulating his opinion, the ME relied in part on spine surgeon Dr. J. Scott Smith's post-surgery treatment note from July 19, 2006, that Claimant's fingers in her left hand were working well. See R. 26, 70-71. However, Plaintiff argues that this treatment note “does not appear in the file, based on a diligent search by counsel.” Dkt. 13 at 6. Thus, Plaintiff contends the ALJ failed to account for the 2008 post-surgery report which rebuts the ME's testimony regarding her left hand, the ME otherwise relied on a treatment note that doesn't exist in the record, and use of the left hand directly effects Claimant's ability to perform her past relevant work; therefore, the ALJ erred by mischaracterizing and cherry-picking the administrative record to support his decision at Step Four. See Punzio v. Astrue, 630 F.3d 710, 711 (7th Cir. 2011); Steele, 290 F.3d at 940-41; Dkt. 13 at 6.

         However, Plaintiff identifies no error warranting remand because these arguments suffer from the same problem: Plaintiff's misreading of the record. First, Dr. Salehi's report, which Plaintiff states was made in 2008, is in fact dated January 26, 2006. R. 694.[7] Thus, Dr. Salehi's report identifying Claimant's left-hand issues and recommending surgery came approximately one month before her March 2006 surgery and has no bearing on the ME's opinion that Plaintiff's left-hand condition improved after her March 2006 surgery. The ALJ did not address Dr. Salehi's 2008 report as described by Plaintiff because no such report exists in the record.

         Second, Dr. Smith's July 19, 2006 post-surgery treatment note, which Plaintiff argues “does not appear in the file, based on a diligent search by counsel, ” can be found on page 698 of the administrative record.[8] Indeed, the treatment note indicates that several months after surgery, Claimant was “doing very well, ” her triceps strength had almost returned to normal, and despite some weakness in the third and fourth digits of her left hand, her “extensor digiti minimi” was “working well and she [had] made quite a bit of progress.” R. 698. Thus, contrary to Plaintiff's argument, the treatment note does ...

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