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Barbara B. v. Saul

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

January 7, 2020

Barbara B., Plaintiff,
v.
Andrew Saul, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER [1]

          Lisa A. Jensen Magistrate Judge

         This is an appeal from a partially favorable decision. The administrative law judge (“ALJ”) found that plaintiff was disabled, as of June 1, 2016. In reaching this conclusion, the ALJ relied heavily on the testimony of Dr. Sai Nimmagadda, the impartial medical expert, who opined that plaintiff's back and knee problems-the two impairments she identified as the most disabling-had worsened such that she could only do sedentary work. However, the decision was only partially favorable because plaintiff was seeking to be found disabled as of January 1, 2014, some two and half years earlier. For this period, the ALJ found that plaintiff could do light work, rather than sedentary work. In reaching this conclusion, the ALJ again relied on Dr. Nimmagadda's testimony. Plaintiff is seeking a remand regarding the latter finding. She argues that the ALJ failed to fully consider two additional impairments-namely, her carpal tunnel syndrome and her psychological problems.

         BACKGROUND

         Plaintiff filed her disability applications (Title II and XVI) on September 12, 2013. Thereafter, she completed the written adult function questionnaires, as did her sister. Exs. 8E, 12E, 16E. In addition, she was examined by two consultative examiners-Dr. John Peggau (psychological) and Dr. K.P. Ramchandani (physical)-both of whom prepared reports. Exs. 2F, 8F. The record contains no opinions from any treating physicians.

         There were two administrative hearings. Plaintiff was represented by counsel, although not the same counsel now representing her. As will be shown below, during the administrative proceedings, counsel did not focus on the two impairments that are center stage here.

         The first hearing, which did not go forward on the merits, was on December 7, 2016. At the start of this hearing, counsel raised a concern that the state agency doctors had rendered their opinions without having seen 300 pages of records. The main issue covered by these records, according to counsel, was plaintiff's recent treatment with Dr. Robin Hovis, a rheumatologist. Id. Counsel explained that Dr. Hovis had diagnosed plaintiff with “pseudoarthrosis of the legs” and had administered injections to her left leg. R. 108. Counsel asked the ALJ to postpone the hearing so that an expert could be obtained because “this issue” (i.e. the pseudoarthrosis) was important. R. 109. Counsel stated that an orthopedist or rheumatologist or even an internist “would be fine.” R. 110. Counsel, however, did not ask that a psychological expert be called.

         The second hearing was held on March 9, 2017. Plaintiff testified first, followed by Dr. Nimmagadda and then a vocational expert. The ALJ first questioned plaintiff.

         After asking some background questions, the ALJ asked the following basic question:

Q So Ms. [B], tell me if you would why you believe you cannot work?
A Because when I stand I have swelling of my knees. And then the swelling goes up in my hip to my back, and it causes real excruciating pains.

R. 58. To make explicit what is probably obvious, plaintiff did not mention either the carpal tunnel syndrome or psychological problems.

         After asking a few follow-up questions, the ALJ returned a second time to the “why can't you work” question. The following colloquy ensued:

Q So besides your knees, do you have any other issues that affect your ability to work or to function?
A Yeah. When I, when I do lifting, it causes me to have joint pains in my shoulders. And it flares up and causes real bad pains.

R. 60. Again, neither of the current problems were mentioned.

         After more follow-up, the ALJ returned-now for the third time-to the original question:

Q And so besides your shoulder and your knees, any other issues that affect your ability to work or to function?
A No. No. more than just, you know, lifting things.

R. 62. Plaintiff explained that lifting hurt “in [her] shoulder.” R. 63. When asked about “her understanding” of the possible cause, she referred to her “different activities or things” and mentioned that she had surgery on her shoulder. R. 64. But she not tie the lifting problem to either carpal tunnel syndrome or to a problem in the hands.

         Eventually, the ALJ asked directly about possible hand problems, leading to the following exchange:

Q And what about your hands? Do you have any trouble using your hands?
A Yeah. My hands are kind of weak.
Q What do you mean by weak?
A Because when I pick up on something, you know, I lose the grip.
Q In both hands or just one hand?
A Both hands.
Q Is one worse than the other?
A Yes.
Q Which one is ...

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