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Sam K. v. Saul

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

August 19, 2019

Sam K., [1] Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          JEFFREY COLE MAGISTRATE JUDGE.

         Sam K. applied for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. 416(i), 423, six and a half years ago. (Administrative Record (R.) 180-86). He claimed that he became disabled as of October 26, 2010 (R. 266), due to a torn right meniscus, two knee surgeries, and a broken jaw and TMJ. (R. 232). Over the next five years, his claim was denied at every level: initial, reconsideration, administrative law judge (ALJ), and appeals council. Plaintiff filed suit under 42 U.S.C. § 405(g) and the case was remanded to the Commissioner. The plaintiff's claim was then denied at the ALJ and appeals council levels again and, again, plaintiff filed suit in federal court. It is the most recent ALJ's decision that is before the court for review. See 20 C.F.R. §§404.955; 404.981. The parties consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c) on May 3, 2018. [Dkt. # 5]. The case was then reassigned to me a half of a year later, on January 10, 2019. [Dkt. #23]. Plaintiff asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

         I.

         Plaintiff was born on September 24, 1949 (R. 180), and was 61 at the time he alleges he became disabled, and nearly 66 on the date his insured status expired, June 30, 2015. Plaintiff has an excellent work record, working consistently since about 1981. (R. 209). In the last couple of years, he's had a handful of jobs. (R. 260). He's been a truck driver delivering bread, he's tested water and sold treatments, and worked at grocery stores in a variety of positions: unloading and stocking, cashiering, cleaning, and supervising. (R. 261-65). But, along the way, he has had setbacks. He injured his right knee shoveling snow in 2007 and had to have arthroscopic surgery. He got better, but suffered another injury at work in October 2010 when a pallet fell and hit him in the face. He suffered a tear in his jaw, and reinjured his knee as he fell. (R. 33). He's gone through surgeries for both issues and continues to suffer pain from both injuries. And, to make matters worse, he twisted his knee yet again while attempting a return to work in February 2012. (R. 35, 39).

         Following an administrative hearing - at which plaintiff represented by counsel, testified along with a vocational expert - the ALJ determined plaintiff was not disabled. The ALJ found that plaintiff had the following severe impairment: “status post-surgical repair of medial meniscus tear, right knee.” (R. 743). The ALJ dismissed plaintiff's sinus tachycardia and high blood pressure as asymptomatic and non-severe. (R. 743). He also found plaintiff's TMJ injury and surgical repair to be non-severe as well. (R. 744). The ALJ determined that plaintiff's knee impairment did not meet or equal a listed impairment - specifically, listing 1.02 for major dysfunction of a weight-bearing joint - assumed to be disabling in the Commissioner's listings. (R. 751).

         The ALJ then determined that plaintiff could “lift and/or carry up to 20 pounds occasionally and 10 pounds frequently, and has no limitations in his ability to sit, stand, or walk throughout an 8-hour workday. The [plaintiff] can never kneel on his right knee, and he can crouch for only brief periods.” (R. 751). The ALJ said that he found “the claimant's statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely consistent with the medical evidence and other evidence in the record for reasons explained on this decision.” (R. 752). The ALJ said there “must be some objective evidence that reasonably supports the extent of the alleged limitations” and found that the “treatment record did not provide such support.” (R. 755). The ALJ went on to note that plaintiff's pain was never so bad that he had to go to an emergency room after work, that treatment had been conservative and non-invasive, and that plaintiff was not ready to have knee replacement surgery. (R. 756).

         The ALJ, at one point, seemed to accept the opinion of plaintiff's treating physician that plaintiff could not perform physical labor for more than a four hour shift, but could perform sedentary work on a regular full-time basis. (R. 754). But, in doing so, the ALJ interpreted this as meaning the plaintiff could, every day, do four hours of physical labor and four hours of sedentary work. (R. 754). Later on, however, the ALJ said he gave little weight to the treating physician's opinion “that appeared to limit him to working no more than four hours a workday . . . .” (R. 756). The ALJ gave no weight to the opinion of one agency reviewing physician that plaintiff could perform essentially medium work because the medical evidence showed plaintiff was more limited. (R. 757). Similarly, the ALJ rejected the same opinion from the medical expert who testified as the previous hearing. (R. 757). Finally, the ALJ gave “some weight” to the opinion of a second agency reviewing physician, who determined plaintiff could perform essentially light work with few if any postural limitations because the ALJ felt the evidence supported a kneeling restriction. (R. 757). As the ALJ conceded, his opinion was not drawn exactly from any physician's opinion. (R. 757).

         The ALJ then noted that the vocational expert testified that plaintiff could perform his past relevant work as a water treatment sales representative. (R. 758). The ALJ agreed with the vocational expert and concluded that the plaintiff was not disabled prior to the expiration of his insured status on June 30, 2015, and was not entitled to DIB under the Act. (R. 758).

         II.

         If the ALJ's decision is supported by substantial evidence, the court on judicial review must uphold that decision even if the court might have decided the case differently in the first instance. See 42 U.S.C. § 405(g). 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, 401 (1971); Beardsley v. Colvin, 758 F.3d 834, 836 (7th Cir. 2014). To determine whether substantial evidence exists, the court reviews the record as a whole but does not attempt to substitute its judgment for the ALJ's by reweighing the evidence, resolving material conflicts, or reconsidering facts or the credibility of witnesses. Beardsley, 758 F.3d at 837. “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is entitled to benefits, ” the court must defer to the Commissioner's resolution of that conflict. Binion v. Chater, 108 F.3d 780, 782 (7th Cir.1997); Schloesser v. Berryhill, 870 F.3d 712, 717 (7th Cir. 2017).

         But, in the Seventh Circuit, the ALJ also has an obligation to build an accurate and logical bridge between the evidence and the result to afford the claimant meaningful judicial review of the administrative findings. Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015); O'Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir.2010). The court has to be able to trace the path of the ALJ's reasoning from evidence to conclusion. Minnick v. Colvin, 775 F.3d 929, 938 (7th Cir. 2015); Jelinek v. Astrue, 662 F.3d 805, 812 (7th Cir. 2011). Even if the court agrees with the ultimate result, the case must be remanded if the ALJ fails in his or her obligation to build that logical bridge. Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)(“. . . we cannot uphold a decision by an administrative agency, any more than we can uphold a decision by a district court, if, while there is enough evidence in the record to support the decision, the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result.”); see also Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010)(“The government seems to think that if it can find enough evidence in the record to establish that the administrative law judge might have reached the same result had she considered all the evidence and evaluated it as the government's brief does, it is a case of harmless error. But the fact that the administrative law judge, had she considered the entire record, might have reached the same result does not prove that her failure to consider the evidence was harmless. Had she considered it carefully, she might well have reached a different conclusion.”). On the other hand, the Seventh Circuit has also called this requirement “lax.” Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008); Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008).

         III.

         The ALJ determined that plaintiff is not disabled because he can perform his past relevant work as a water-treatment sales representative. This was based on the vocational expert's testimony that plaintiff's water treatment sales representative position was light work, as generally performed and as described in the Dictionary of Occupational Titles (“DOT”). (R. 772, 811). The job required at least occasional - up to one third of the day - crouching, bending, stooping, kneeling. (R. 773). A person could kneel on just one knee, but they had to be able to get down to ground level somehow on an occasional basis. (R. 773). The job required being on one's feet the bulk of the day. There would be no possibility of alternating between standing and sitting. Sitting would be possible only during breaks. (R. 773). There would only be three breaks each day totaling one hour. (R. 797).

         So, a 61- to 65-year-old man, with pain from bone on bone contact in his right knee, was found able to work on his feet most of every day, and crouch or kneel up to a third of every day, sitting only during three breaks each day? “That sounds too strenuous for someone of the plaintiff's physical condition.” Allensworth v. Colvin, 814 F.3d 831, 835 (7th Cir. 2016). Plaintiff's counsel asked a similar question at the hearing, but the ALJ disabused him of the notion that sympathy could trump adherence to the regulations. (R. 777). The ALJ is correct, of course, but common sense does have to enter into the calculus. Castile v. Astrue, 617 F.3d 923, 930 (7th Cir. 2010); Wise v. Wachovia Sec., LLC, 450 F.3d 265, 270 (7th Cir. 2006)(“[J]udges . . ., are allowed to use their common sense and background knowledge to draw inferences from what the evidence shows.”); United States v. Jones, 858 F.3d 221, 228 (4th Cir. 2017)(“We do not leave our common sense at the courthouse door.”). It's a tough sell, given the evidence, that plaintiff could perform such work on a regular basis. From a logical bridge standpoint, there are problems with the manner in which the ALJ tried to “make the sale.” It would be easy enough to accept that plaintiff could perform sedentary work full time, as his treating physician said he could. But there's an elephant in the room: under the Commissioner's regulations, if the 65-year old plaintiff is able to do sedentary work but no more, he is disabled under the Medical-Vocational Guidelines, unless other work requires “very little, if any, vocational adjustment.” 20 CFR Pt. 404, Subpt. P, App. 2, Sec. 201.00(f). That would even be the case with a full capacity for light work. 20 CFR Pt. 404, Subpt. P, App. 2, Sec. 202.00(f). So, ...


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