United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JEFFREY COLE MAGISTRATE JUDGE.
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
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).
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.
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).
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).
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.
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).
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).
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).
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, ...