The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
KAREN J. GROSS, )
)
Plaintiff, )
)
v. ) No. 18-cv-3225
)
ANDREW SAUL, )
Commissioner of Social Security, )
)
Defendant. )
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
Plaintiff Karen J. Gross, a/k/a Karen Middleton, appeals from the
denial of her application for Supplemental Security Income (SSI) under Title
XVI of the Social Security Act. 42 U.S.C. §§ 416(i), 1381a and 1382c. This
appeal is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c). Gross filed
a Motion for Summary Judgment (d/e 14). The Defendant Commissioner
filed a Motion for Summary Affirmance (d/e 17). The parties have
consented to proceed before this Court. Consent to the Exercise of
Jurisdiction by a United States Magistrate Judge and Reference Order
entered September 19, 2018 (de/ 8). For the reasons set forth below, the
Decision of the Commissioner is REVERSED and REMANDED for further
proceedings under 42 U.S.C. § 405(g) sentence four.
STATEMENT OF FACTS
Gross was born on August 1, 1965. She attended special education
classes in school. She completed the eighth grade.1 She has no prior
relevant work experience. She applied for SSI on September 10, 2014.
She suffers from the severe impairments of lumbar disc degeneration and
facet arthropathy at L4-5 and L5-S1; degenerative changes of the cervical
spine status post fusion of the C5-6 and C6-7 vertebrae, chronic
obstructive pulmonary disease (COPD), obesity, generalized anxiety
disorder, and low intelligence. Gross previously applied for SSI in 2008. In
2011, the Commissioner’s Appeals Council refused to review the denial of
her 2008 application. Certified Transcript of Proceedings before the Social
Security Administration (d/e 11 and 12) (R.), at 17, 29, 47, 50, 101, 113,
980,1463.
On May 29, 2008, state agency psychologist Dr. Delores Trello,
Psy.D., conducted a mental status examination of Gross as part of Gross’
2008 application for SSI. R. 374-79. Dr. Trello conducted the examination
primarily to determine if Gross was able to handle money in her own best
interest. Gross lived with her boyfriend at the time. She had been married
1 Gross has stated on one occasion that she quit school in the eighth grade and on another occasion
stated that she completed the eighth grade. R. 50, 980, 1463.
three times. Her last husband died of a heart attack. Gross said she
applied for SSI because of her medical issues with tendonitis in both
hands. Gross said she quit school in the eighth grade. She reported that
she was dependent on alcohol, but said she quit drinking a year earlier. R.
374-76. During her mental status exam, Gross spoke coherently and had a
normal affect, her memory was intact, she was adequately informed, she
had difficulty with simple calculations, she attempted to provide abstract
meanings to simple proverbs, and she provided solutions to hypothetical
situations. Dr. Trello assessed alcohol dependence with no alcohol for one
year, generalized anxiety disorder, and personality disorder not otherwise
specified. R. 377.
Dr. Trello gave Gross a Global Assessment of Functioning (GAF)
score of 50. R. 377. The GAF score was a measure of a clinician’s
judgment of an individual’s overall level of functioning on a hypothetical
continuum of mental health and illness. American Psychiatric Assn,
Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text Rev.)
(DSM IV-TR), at 32-35. A GAF score of 41 to 50 indicated either serious
symptoms or a serious impairment in social, occupational, or school
functioning. DSM IV-TR, at 34. The American Psychiatric Association no
longer recommends use of the GAF score. Diagnostic and Statistical
Manual of Mental Disorders (5th ed. 2013), at 16.
Dr. Trello concluded, in part:
Mrs. Gross seems able to handle funds in her own best interest
except she did have trouble with arithmetic. She has used no
alcohol for one year. Her understanding and memory seemed
fair. Her sustained concentration and persistence, social
interaction and adaptation seemed impaired.
R. 378.
On April 24, 2014, Gross saw her primary care physician Dr. Roger
McClintock, M.D., for swelling in her neck. R. 437-38. On examination, her
neck was supple and her extremities were unremarkable. Dr. McClintock
ordered several tests, including an ultrasound of her neck and a chest x-
ray. R. 438.
On June 11, 2014, Gross saw Dr. McClintock for a follow up
examination of a cough. R. 435-36. On examination, her neck was supple
and her extremities were unremarkable. R. 436.
On June 22, 2014, Gross was in a one-vehicle automobile accident.
R. 386-404, 410-12. Gross left the scene of the accident, but then
returned. She was taken to Taylorville Memorial Hospital in Taylorville,
Illinois (Taylorville Memorial). She reported chest pain, abdominal pain,
abdominal bruising, and a headache. She was taken to the Southern
Illinois Trauma Center at Memorial Medical Center in Springfield, Illinois
(Springfield Memorial). She suffered injuries when she apparently drove off
the road into a culvert. R. 386, 389. The transporter notes indicated that
Gross was intoxicated. R. 388. Subsequent medical tests showed a blood
ethanol level of 0.148. R. 412. Gross’ examination at the trauma center
reported minimal tenderness in her neck, good movement and normal
muscle strength in her extremities, and intact sensation. She had good
movement of her upper extremities. Her lower extremities were
immobilized on a back board during the examination. She had some
bruising and her back was not tender. R. 391-92, 412. Gross had a CT
scan done of her head, cervical spine, thoracic spine, lumbar spine, chest,
abdomen, and pelvis. The results were normal except for mild
degenerative changes in her thoracic and lumbar spine. R. 398-403.
On July 16, 2014, Gross saw Dr. McClintock to talk about her
medication. Gross reported having some neck pain. Gross said she was
having weakness in her arms and she dropped things occasionally. She
asked for stronger pain medication. She reported no other problems. On
examination, her neck was supple and her extremities were unremarkable.
Dr. McClintock observed no focal deficits on examination. Gross had some
pain on palpation of her left scapular area. Her grip strength was “pretty
good.” Dr. McClintock saw no evidence of radicular pain. Dr. McClinton
ordered a nerve conduction study of Gross’ upper extremities. R. 434.
On August 20, 2014, Gross saw Dr. Fortin who administered trigger
point injections in her trapezii bilaterally. R. 510.
On September 15, 2014, Gross saw nurse practitioner Chris Carver
for a follow up on Gross’ neck and back pain. Gross reported numbness in
her left arm, numbness and tingling in her right leg, and toe cramping in her
right foot. She said her pain was 7 out of 10. Gross reported her pain was
about the same. She said that the trigger point injections were not helpful.
Carver ordered x-rays of her cervical and lumbar spine. R. 503. The
cervical spine x-rays showed narrowing of the C5-C6 interspace, but no
fracture, displacement or destruction. R. 547. Her lumbar spine results
were normal except for minor degenerative changes in the lower thoracic
spine. Carver noted that the degeneration at C5-C6 was present on past x-
rays. R. 546. Carver’s examination showed adequate concentration and
attention span, normal shoulder shrug, normal muscle bulk and tone,
normal strength in upper and lower extremities, pinprick sensation reported
as dull in lower extremities, and her gait was steady. R. 506, 547.
On October 15, 2014, Dr. Claude Fortin, M.D., conducted an EMG
nerve conduction study. The study was unremarkable in both legs and
lumbar paraspinal muscles. Dr. Fortin found no evidence of lumbar
radiculopathy, lumbosacral plexopathy or polyneuropathy. R. 541.
On October 17, 2014, Gross saw Dr. McClintock due to neck pain.
Gross had some swelling on the right side of her neck consistent with a
muscle strain. Gross asked for a letter “for housing.” Dr. McClintock stated
he could explain her problems and her treatment history, but he “could not
do a disability determination.” R. 498. On examination, Gross’ extremities
were unremarkable, and no focal deficits were observed. Gross had
tension in her neck consistent with a muscle strain. Dr. McClintock
diagnosed a muscle strain and prescribed medication. R. 499.
On December 4, 2014, Gross’ mother Eileen Everlen completed a
Social Security Administration form entitled Function Report—Adult—Third
Party. R. 293-300. Everlen said she spent 24 hours a day with Gross
sitting, talking watching television, and shopping. Everlen said Gross had
rib pain, pain when she bent over, and pain when she lifted objects. She
said Gross “just lays around in pain.” She said Gross had trouble sleeping
due to pain in her ribs and back. Everlen said Gross watched television,
played games on the computer, and took naps. R. 293-94, 297.
On December 2, 2014, Gross prepared a Social Security
Administration form entitled Function Report – Adult. R. 278-85. Gross
reported that she spent her day watching television, playing games on her
computer, and taking naps. She said she was “up and down all throughout
the night” due to her back and rib pain. She said she had no trouble
handling her personal care. Gross said she needed help remembering to
take her medications and to make her appointments. She reported that
she prepared daily meals consisting of frozen dinners and sandwiches.
She took about five minutes to prepare a frozen dinner or make a
sandwich. She said that she did no household chores and no yardwork
due to her pain. She said she went out weekly. She drove and went out
alone. She went shopping for two hours once a week. She talked to others
daily over the phone or computer. R. 278-82.
Gross reported that her impairments affected her ability to lift, bend,
stand, reach, sit, concentrate, understand, and follow instructions. Gross
opined that she could not lift more than two pounds, and she could walk
half a block before she had to stop and rest for 10 minutes. She could not
follow written instructions very well. She could follow spoken instructions
“very will sometime’s my mind wonders off.” R. 283. She said she got
along well with authority figures. She said she had “a lot of anxiety and in
lots of pain.” R. 284. Her medication made her drowsy. R. 285.
Everlen said Gross had no trouble taking care of her personal needs.
She said Gross needed to be reminded to go to appointments and to take
medications. Gross prepared frozen dinners and sandwiches on a daily
basis, and took about five minutes preparing these meals. She said that
Gross did not do any household chores or yardwork. She said Gross went
outside weekly. Gross drove a car. Gross shopped once a week for two
hours. Gross was not good with math and not good at handling money.
Everlen said Gross talked on the phone or the computer daily. Gross did
not go anywhere on a regular basis. R. 296-97.
Everlen said that Gross’ pain affected her ability to lift, bend, stand,
reach, and sit. Gross’ pain also affected her memory, concentration,
understanding, and her ability to follow instructions. Everlen opined that
Gross could only lift two pounds, walk half a block, and pay attention for
five to ten minutes. Everlen said Gross did not finish what she starts, and
Gross got along with authority figures. R. 298-99. Everlen said Gross had
anxiety and fear of dying and “cries a lot form the pain and lack of
socialization.” R. 299.
On January 28, 2015, state agency physician Dr. Vittal Chapa, M.D.,
conducted a consultative examination. R. 974-76. Gross reported that she
had tendonitis in both wrists. She said she had rib fractures from the
automobile accident. She could not sit for long periods of time. She had a
tingling sensation in her feet. On examination, she was 65 ¼ inches tall
and weighed 207 pounds. Her gait was normal. She showed no motor
weakness or muscle atrophy. She could appreciate pin prick sensation in
her extremities. Her reflexes were symmetric. She had no joint redness or
heat. Her grip strength was normal. She could perform fine and gross
manipulations bilaterally. She complained of rib pain on flexion of her spine
at 40 degrees. Straight leg testing was normal. She had full range of
motion in all joints. Dr. Chapa assessed history of COPD and
musculoskeletal pain due to car accident. R. 976.
On the same day, January 28, 2015, state agency psychologist Dr.
Trello conducted another mental status examination of Gross. R. 980-85.
Dr. Trello conducted the examination to determine whether Gross was
capable of handling her own funds in her own best interest. R. 980. Gross
said she had a learning disability. She said she was in special education
classes in school and quit school in the eighth grade. Gross lived with her
mother after her boyfriend kicked her out of his home. She said she liked
to be on the computer. She said she did her own self-care. She used a
microwave to prepare food. Her mother had a housekeeper that did the
housework. She went shopping with her mother. Her mother paid the bills.
Gross said she could drive. R. 980-82. Gross told Dr. Trello that she
started drinking when she was 13. She stopped in 2008 but resumed in
2009. At the time of the examination, she said she drank a six-pack of beer
every day. She said she stopped using illegal drugs in 1982. She said she
smoked one to two packs of cigarettes a day. R. 982.
On examination, Gross’ memory was intact. She was adequately
informed. She had difficulties with simple calculations. She provided
abstract meanings to simple proverbs. She attempted to solve hypothetical
problems. Dr. Trello assessed alcohol dependence, generalized anxiety
disorder, and dysthymic disorder. Dr. Trello concluded that Gross “did well
enough on her mental status examination. However, it would be better if
she had a payee given her alcohol dependence.” R. 984.
On February 11, 2015, state agency psychologist Dr. Russell Taylor,
Ph.D., prepared a Psychiatric Review Technique and Mental Residual
Functional Capacity Assessment. R. 124-26, 129-31. Dr. Taylor opined
that Gross was moderately restricted in activities of daily living and had
moderate difficulties maintaining social functioning and maintaining
concentration, persistence or pace. Dr. Taylor found no evidence of any
decompensation of extended duration. R. 125. Dr. Taylor opined that
Gross retained the mental capacity to understand, remember, and
concentrate sufficiently to carry out simple instructions for a normal work
period. He opined that Gross could make simple work-related decisions
and could interact and communicate with others sufficiently in a work
setting with reduced social demands. He said that she could not work with
the public. Dr. Taylor opined that Gross could adapt to simple, routine
changes and pressures in the work environment. R. 131.
On February 12, 2015, Gross went to the emergency room at
Taylorville Memorial. Gross reported that she fell as she was picking up
her mother who had fallen. Gross reported pain in her right-side ribs and
shoulder. She rated the pain as 8 out of 10. She also complained of neck
pain. On examination, Gross had pain on palpation along the right-side rib
cage. Gross had full range of motion in her extremities. Her sensation was
intact. The emergency room physician diagnosed a muscle strain and
prescribed Naprosyn pain reliever and Flexeril muscle relaxer. R. 988-89,
1197-98.
On February 16, 2015, Gross saw nurse practitioner Chris Carver for
numbness and tingling in her arms and for neck pain. She said her pain
was the same as the last time she was seen. She rated her pain at 6 out of
10. She said the numbness and tingling in her arms worsened since
December 2014. She said she also has had low back pain since an
accident when she tried to lift something for her mother. R. 969. On
examination, Gross’ memory was intact and her attention and
concentration were adequate. Gross’ shoulder shrug was normal, her
muscle bulk and tone were normal, her strength was 4/5 in all extremities,
and her gait was steady. Carver ordered an EMG/nerve conduction study
of her upper extremities and an MRI of her cervical spine. R. 971.
On February 24, 2015, Gross saw nurse practitioner Patricia
Schneider, FNP-BC, complaining of right thumb pain. R. 998-1001. On
examination, Gross had full range of motion in her neck. The neck was
supple and not tender. She had adequate range of motion in her
extremities. She had a knot at the base of her thumb that was painful to
palpation. She could flex and extend her thumb and fingers without
difficulty. Her sensation was intact. Schneider took x-rays of the thumb
and prescribed anti-inflammatories.
On February 24, 2015, Gross had an MRI of her cervical spine. The
MRI showed cervical spondylosis at C4-5, moderate spinal stenosis and
left foraminal narrowing at C5-6, and central disc osteophyte complex at C-
6-7. These findings correlated with Gross’ radiculopathy symptoms. R.
986.
On March 18, 2015, Gross saw Dr. Claude Fortin, M.D., for a follow-
up after an EMG study. The EMG study demonstrated bilateral C6-7 poly
radiculopathies with mild to moderate spinal stenosis and left foraminal
narrowing. On examination, Gross’ range of motion was reduced, and she
had normal strength in her upper extremities. Dr. Fortin assessed bilateral
C6-7 poly radiculopathies and multilevel cervical spinal stenosis. R. 1159-
60.
From March 16, 2015, to April 13, 2015, Gross received physical
therapy for right shoulder pain. R. 1030-37. At the end of the treatment,
Gross showed some improvement in her range of motion in her upper
extremities. She had persistent pain in the back of her neck and tingling in
her hands. R. 1037.
On March 27, 2015, Gross saw Dr. Raj Sinha, M.D., for a consult
concerning Gross’ right hand. R. 1025-27. Gross told Dr. Sinha that the
knot had been at the base of her thumb for about a month. Dr. Sinha said
that the x-ray was negative by report. On examination, Gross had a normal
gait and her neck was supple. Dr. Sanha believed the knot was a ganglion
cyst. Gross decided to have the cyst removed. Dr. Sanha scheduled the
surgery. R. 1026.
On April 30, 2015, Gross saw surgeon Dr. Leslie Acakpo-Satchivi,
M.D., Ph.D., for evaluation for possible neck surgery. R. 1039-43, 1088-92,
1154-58. Gross reported that her pain has been worse since the June
2014 motor vehicle accident. She said that her pain was 5 out of 10. She
said the pain radiated down into her hands and she regularly dropped
things. Gross said that she has tried physical therapy, bed rest, steroids by
mouth, pain medication, and muscle relaxants. Nothing has worked. R.
1039, 1088, 1154. Dr. Acakpo-Satchivi stated that the February 24, 2015
MRI which showed bilateral C6/C7 radiculopathy and March 18, 2015 EMG
study results were consistent with that finding. On examination, Gross had
normal gait, normal strength, and intact sensation. Dr. Acakpo-Satchivi
assessed cervical spondylosis. Dr. Acakpo-Satchivi stated that Gross was
an ideal candidate for a C5-C6 and C6-C7 discectomy. Gross agreed. R.
1041-42, 1091-92, 1157-58.
On May 4, 2013, Gross saw Dr. McClintock for a preoperative
evaluation before her neck surgery. She had no other problems. R. 1086.
On examination, her neck was supple, her extremities were unremarkable,
and no focal deficits were seen. R. 1087.
On May 13, 2015, Dr. Acakpo-Satchivi performed cervical discectomy
and fusion at C5-6 and C6-7 in Gross’ cervical spine. R. 1060-63.
On May 26, 2015, Gross saw nurse practitioner Stephanie Solomon,
N.P., for a post-op visit. The incision showed no signs of infection. Gross
complained of difficulty swallowing. Gross reported that she still dropped
things, she had hand spasms, and she had pain across her shoulders.
Solomon stated that Gross’ radicular pain was resolved. Her medication
helped with the pain. She denied any new weakness, numbness, or
tingling. On examination her strength and gait were normal. Her incision
was normal. Her cervical range of motion was slightly limited. Solomon
stated that Gross could resume activities of daily living without lifting
greater than 20 pounds after her surgery. R. 1081.
On June 3, 2015, state agency physician Dr. Victoria Dow, M.D.,
prepared a Physical Residual Functional Capacity Assessment of Gross.
R. 127-29. Dr. Dow opined that Gross could occasionally lift 20 pounds
and frequently lift 10 pounds in an eight-hour workday; could stand and/or
walk six hours in an eight-hour workday; could sit about six hours in an
eight-hour workday; could occasionally climb ramps, stairs, ladders, ropes,
and scaffolds; and could occasionally balance; and should avoid
concentrated exposure to fumes, odors, dusts, gases, and poor ventilation.
R. 126-28.
On July 14, 2015, Gross’ friend Melissa Hall completed a Function
Report—Adult—Third Party form. R. 323-30. Hall said she had known
Gross for 13 years and visited with Gross daily. She said Gross was living
with a friend. Hall said that Gross was in constant pain. She said Gross
could not lift anything without hurting her neck and back. R. 323. She said
Gross “just lays around on the couch.” She said Gross had problems
sleeping because of the pain. R. 324. Hall said Gross needed help
remembering her doctors’ appointments and taking her medications. Hall
said Gross did not prepare meals, do housework, or do yardwork. Gross
did not want to do anything because she was “depressed and hurting all
the time.” R. 325.
Hall said that Gross drove to the grocery store once a week for about
an hour. R. 326. She said that Gross could not take care of money
because she could not concentrate for very long due to her pain. Hall said
that Gross went to see Gross’ mother weekly. R. 327. Hall opined that
Gross’ condition limited her ability to lift, bend, stand, walk, sit, climb stairs,
complete tasks, concentrate, understand, follow instructions, and use her
hands. Hall opined that Gross could walk for 15 minutes and pay attention
for five minutes. R. 328. Hall said Gross got along with authority figures.
She said Gross did not handle changes in routine or stress well. R. 328-
29. Hall said that Gross stayed in bed due to her pain. She said Gross
could not lift a gallon of milk, and had numbness in her hands, legs, and
feet. Gross’ feet and legs went numb when Gross sat for long periods. R.
330.
On July 20, 2015, Gross completed another Function Report – Adult
form. R. 339-46. Gross stated that she lived with friends. Gross said she
was depressed and in a great deal of pain. She kept dropping things. She
said she took “a lot of pain meds.” She said, “Spasms in nerves, I am
jumpy & shaky.” R. 339. She could take care of her personal care except
for fixing her hair. She needed reminders to take care of her personal
needs and to take her medication. She prepared meals daily and meal
preparation took five minutes. She also said that she did not cook. She
dropped things and could not lift a gallon of milk. She went outside every
day, and drove a car to the grocery store once a week. She could not
handle money and pay bills because she did not have any income and
could not count well. She was unable to concentrate due to the pain. She
visited with other people every day and went to her mother’s house
regularly. She could go places by herself. She said friends and family
made her mad. She was depressed and did not want to do anything. R.
340-44.
Gross said that her pain affected her ability to lift, bend, stand, sit,
and kneel. She could walk for 20 minutes, sit for 10 minutes, and pay
attention for 10 minutes. She did not finish what she started and did not
follow written or oral instructions well. R. 344. She got along with authority
figures, but did not handle stress or changes in routine well. R. 345.
On the same day, July 20, 2015, Gross completed a form entitled
Fatigue Questionnaire and a form entitled Pain Questionnaire. R. 332-33,
335-37.2 Gross reported that, in an average day, she slept. She said she
could not sustain activities due to depression and nerve pain. Her fatigue
started three years earlier. She said she napped “every couple of hours.”
Gross said sometimes she drifted off during conversations and often forgot
what she was doing. R. 332-33. Her pain began with her June 22, 2014
automobile accident. She said that her pain was located across her
shoulders, neck, and down her arms. She said that she hurt all the time.
Hydrocodone relieved her pain but made her sleepy. R. 335. Her daily
activities consisted of sleeping. She said that she did not do anything since
she started having this pain. R. 336. She also said that she could drive a
car and run errands such as going to the grocery store or post office
2 The Fatigue Questionnaire and Pain Questionnaire do not appear to be Social Security Administration
forms. The source of the two Questionnaire forms is not in the record.
without any assistance. She could walk less than ½ block, stand for 15
minutes, and sit for 20 minutes. She could take care of her personal care
but needed assistance to do household chores such as dusting and
cooking. R. 337.
From July 17, 2015 to August 12, 2015, Gross had physical therapy
on her neck after her surgery. R. 1213. Gross showed small progress in
her cervical spine flexion and extension, but a decline in her balance. She
reported continuing pain throughout the physical therapy. Gross reported
some improvement in her neck and back by the end of the physical
therapy. Therapy was stopped due to reports of chest pain and increases
in blood pressure. R. 1212. The physical therapist recommended
resuming physical therapy after Gross was cleared for further sessions by
Dr. McClintock. R. 1213.
On August 17, 2015, Gross saw Dr. McClintock for a medicine follow-
up. R. 1310-12.3 She said her antidepressant medication was working.
Gross said she wanted a refill of meclizine. Dr. McClintock said she had no
other complaints and looked better to him. R. 1310. On examination, her
neck was supple and her extremities had no edema. R. 1311.
3 The medical records from this point listed Gross’ last name as Middleton. The parties do not explain or
address the name change. Gross remarried at some point. R. 48. Gross, however, continued to use the
name “Gross” in all proceedings before the Social Security Administration and this Court. The Court
follows Gross’ preference and uses the name “Gross” throughout this Opinion.
On November 14, 2015 state agency psychologist Dr. Ellen
Rozenfeld, Psy.D., prepared a Psychiatric Review Technique and Mental
Residual Functional Capacity Assessment. R. 144-45, 149-51. Dr.
Rozenfeld opined that Gross was moderately restricted in activities of daily
living and moderately limited in maintaining social functioning and
maintaining concentration, persistence, or pace. R. 144. Dr. Rozenfeld
opined that Gross could make simple work-related decisions, could interact
with others sufficiently in a work setting with reduced social demands, could
not work with the public, and could adapt to simple routine changes and
pressure in the work environment. Gross retained the mental capacity to
understand, remember, and concentrate sufficiently to carry out simple
instructions / tasks for a normal work period in a work setting with routine
changes. Gross retained the ability to perform simple repetitive tasks on a
sustained basis in a predictable and socially undemanding work setting
with routine workplace changes. R. 150-51.
On November 16, 2015, state agency physician Dr. Michael Delphia,
M.D., prepared a Physical Functional Residual Capacity Assessment. R.
144-49. Dr. Delphia opined that Gross could lift 20 pounds occasionally
and 10 pounds frequently; could occasionally climb ramps, stairs, ladders,
ropes, and scaffold; could occasionally balance; and should avoid
concentrated exposure to fumes, odors, dusts, gases, and poor ventilation.
R. 147-48.
On November 17, 2015, Gross saw Dr. Acakpo-Satchivi for her six-
month post-operative exam. R. 1308-09. Gross reported that she
continued to have neck pain as well as arm pain with numbness and
tingling in bilateral hands. Gross said that she had not noticed much
improvement since her surgery. Gross reported popping sounds when she
moved her head. On examination, Gross’ strength was intact, and her gait
was normal. Her cervical range of motion was normal. Gross had multiple
areas of point tenderness. X-rays of the cervical spine showed good
alignment and hardware placement. R. 1309, see R. 1248.
On January 27, 2016, Gross saw nurse practitioner Schneider to
renew her prescriptions. She also reported neck and right shoulder pain,
and a cough. R. 1304-07. She reported continuing pain in her neck and
shoulder as well as intermittent dizziness. R. 1304. On examination,
Gross’ neck was supple but sore on the right on palpation. She had
decreased range of motion in her neck. She had normal range of motion in
her extremities except her right shoulder. She had soreness to palpation of
the upper right shoulder. Her gait was steady, and her sensation was
intact. Schneider renewed her prescriptions. R. 1307.
On February 1, 2016, Gross saw Dr. Toni Quinn, M.D., for her annual
gynecological examination. On examination, Gross’ neck was supple, and
she had full range of motion and good muscle tone. R. 1302.
On February 16, 2016, Gross saw Dr. McClintock. Gross said she
was fatigued and had tingling in her hands and feet. Gross reported
increased nerve pain. R. 1295. On examination, Gross’ neck was supple,
and she had no significant edema in her extremities. Dr. McClintock
ordered an EMG/nerve conduction study of Gross’ upper and lower
extremities. R. 1296-97.
On March 10, 2016, Gross saw Dr. Dawn Wietfeldt, M.D., for a
consult regarding a possible screening colonoscopy. R. 1291-94. On
examination, Gross had full strength in her extremities. Dr. Wietfeldt
recommended performing a screening colonoscopy. R. 1294.
On March 31, 2016, Gross saw Dr. Claude Fortin, M.D., for an
EMG/nerve conduction study. Gross had reported intermittent bilateral foot
numbness and bilateral upper extremity pain and numbness. Dr. Fortin
noted normal strength in the lower extremities. Dr. Fortin assessed mild
left median neuropathy and right C-6 radiculopathy similar to the March 18,
2015 study. Dr. Fortin also found that the C7 radiculopathy noted in the
March 18, 2015 study was resolved. R. 1289-90.
On May 5, 2016, Gross saw Dr. McClintock for pain in her legs and
abdomen. R. 1284-86. Gross reported nausea and vomiting. On
examination, Gross’ neck was supple, and her extremities had no
significant edema. Dr. McClintock assessed bronchitis. R. 1285.
On May 16, 2016, Gross saw Dr. Xinyan Huang, M.D., with
complaints of dysphagia. R. 1280-83. Gross reported frequent choking
and sore throat. On examination, Gross had a raspy voice and a deviated
septum with a bony spur protrusion. Gross’ neck was supple and
symmetric. Her gait was normal. Dr. Huang recommended that Gross stop
drinking soda, avoid alcohol and caffeine, and continue taking omeprazole.
Dr. Huang referred Gross to a gastroenterologist for further evaluation. R.
1282-83.
On June 21, 2016, Gross saw Dr. McClintock with left leg pain. R.
1274-76. She said the pain had gotten worse in the last month. She
denied any weakness. She said the pain woke her up at night. The pain
was in her gluteal area and her left hip. R. 1274. On examination, her
neck was supple. She had tenderness to palpation in her left gluteal area.
She had some minor discomfort on straight leg testing. She had some pain
with internal rotation of her hip. Left hip abduction and adduction were
intact. Dr. McClintock diagnosed left sciatic pain. Dr. McClintock
prescribed medications and ordered an x-ray of the hip. R. 1275.
On October 31, 2016, Gross saw nurse practitioner Patricia
Schneider for cough and congestion. R. 1269-72. She said she smoked.
She said she had been diagnosed with COPD. R. 1269. On examination,
Gross’ neck was supple and not tender. She had full range of motion in her
neck and all extremities. Her gait was steady, and her sensation was
intact. Schneider prescribed medication for her cough and recommended
that she stop smoking. R. 1272.
On December 7, 2016, Gross saw nurse practitioner Schneider for a
follow up on her sinusitis and bronchitis, and on her antidepressant
medication Buspar. R. 1261-64. She reported coughing frequently. At
times she cannot stop coughing. She reported that she continued to
smoke at this time. R. 1261. On examination, her neck was supple and
not tender. She had full range of motion in her neck and extremities. Her
gait was steady, and her sensation was intact. Schneider prescribed
levofloxacin and prednisone for her bronchitis and renewed her Buspar
prescription. R. 1264.
On December 23, 2016, Gross saw nurse practitioner Susan Willer,
NP, at Taylorville Memorial emergency room for lower extremity pain. R.
1186-88; see R. 1256.4 The pain was in her right hip radiating to her groin.
She reported increased pain in her hip and groin with walking and standing.
On examination, Gross’ neck was normal, her right hip was moderately
tender, her lower extremities had full range of motion, and she had no
motor deficit or sensory deficit. X-rays of the right hip and pelvis were
negative. R. 1187. Dr. Munoz assessed acute nontraumatic pain. She
was discharged in good and stable condition. R. 1188.
On December 27, 2016, Gross saw nurse practitioner Schneider for a
follow-up on her medications. R. 1256-59. On examination, Gross’ neck
was supple and not tender. Gross had full range of motion in her neck.
She had full range of motion in all extremities. She had soreness to
palpation in her right hip and right groin. Schneider said that the soreness
was a probable groin strain. Gross’ gait was steady, and her sensation
was intact. Schneider renewed Gross’ prescriptions. R. 1259.
On January 10, 2017, Gross saw nurse practitioner Schneider for
right leg and back pain. R. 1252-55. On examination, Gross’ neck was
supple and nontender with full range of motion. Gross had minimal LS
spine soreness with pain radiating into her right leg. Gross could sit down
4 The signatures on the records also indicate that Gross saw Willer and Dr. Gabriel Munoz, M.D.,
reviewed Willer’s notes and agreed with her findings and plan. R. 1188.
and get up with minimal difficulty. She had normal range of motion in all
extremities. Her gait was steady, and her sensation was intact. Schneider
assessed back pain and renewed Gross’ prescriptions. Schneider
recommended avoiding straining the back while lifting. R. 1255.
On April 17, 2017, Gross saw Dr. McClintock for a medicine refill and
complaint of stomach issues. Gross said she started vomiting a month
earlier. She reported pain in her lower rib cage. She reported numbness
and tingling in her legs and pain in her groin and back. R. 1249. On
examination, her neck was supple, and she had tenderness to palpation in
her lower rib cage. R. 1251.
On June 8, 2017, Gross had an MRI of her lumbar spine. The results
showed disc degeneration and facet arthropathy at L4-5 and L5-S1, with
mild to moderate foraminal stenosis at L4-L5, and central disc protrusion at
L5-S1. The study showed no significant change since the July 31, 2015
study. R. 1459.
On June 11, 2017, Gross saw educational psychologist Katherine S.
Ancell, M.Ed., Ed.S., for a cognitive evaluation and IQ test.5 Gross said
that she took special education classes at school and that she completed
the eighth grade. Gross reported that she lived with her husband at this
5 The record does not indicate whether Ancell was a licensed psychologist.
time. She said that he took care of the household chores. She could do
some household work, but her husband did a better job. She said that she
helped take care of her mother. She could not read a newspaper. She
mostly stayed at home but socialized some with friends. She could drive.
Ancell administered a Wechsler Adult Intelligence Scale—Fourth Edition
(WAIS-IV) examination. Gross had a full-scale IQ score of 66, which was
extremely low at the 1st percentile. Her working memory score was also
extremely low 69, in the 2nd percentile. Ancell said the test results showed
that her IQ test score fell into the extremely low range. R. 1463-65.
THE ADMINISTRATIVE HEARING
On June 22, 2017, the Administrative Law Judge (ALJ) conducted the
evidentiary hearing. R. 42-97. Gross appeared with her attorney.
Vocational expert Dr. James Lanier, Ph.D., also appeared. Gross testified
first. Gross testified that she was five feet six inches tall and weighed 230
pounds. She said she weighed 170 pounds in 2007. Gross lost weight
after her husband died in 2005 and subsequently gained back the weight.
She said her eating was out of control and she was depressed. R. 47-48.
Gross testified that she had remarried. All her children were over 18
years of age. She lived in a mobile home with her husband. The mobile
home had a ramp at the entrance. No one else lived with them. She lost
her driver’s license because she had a DUI conviction in November 2016.
She said a friend drove her to the hearing. R. 48-49.
Gross said she finished the eighth grade. She got pregnant in the
first week of the ninth grade and quit school. She tried to get a GED but
did not succeed. She said she had trouble with “The writing, reading and
math.” R. 50. She had no other vocational training. R. 51-52.
Gross said she could get the gist of a newspaper article but would not
understand the words she found to be hard to understand. She passed the
written portion of the driver’s license examination. She said she could read
and complete a job application form. Gross said she could perform some
addition, subtraction, and multiplication. Division was kind of hard. She
could correctly count change. She could read a clock to tell time. R. 52-
53. Gross said that when she took her driver’s test, she had to guess at
some of the answers. She did not understand everything on the test. R.
88. She last completed a job application in 1988. R. 83.
Gross testified that she could not work because of pinched nerves in
her back, neck, and tendonitis in her hands. She said that her legs and
toes went numb. Her lower back gave her the most trouble. She
experienced agonizing, stabbing pain that went down her legs to her toes.
R. 58-60. She had numbness in her right leg. R. 62. She said that after
sitting five to 10 minutes, her right leg would go numb. Her right leg would
“catch” when she stood up. The catching would happen whenever she
stood up. She had pain in her leg along with the numbness. R. 63. Gross
said she could not do a job where she could alternate between sitting and
standing because her back and her legs would hurt too much. Her legs
would also go numb. When her legs go numb, she must sit or lie down. R.
86.
Gross testified that she could walk for about 10 minutes before she
had to sit down and take a break. She said that she held on to the
shopping cart in the store so she could catch her breath. After 10 minutes
walking, she had to catch her breath and relax her back. R. 63-65.
Gross said her neck did not improve after the 2015 surgery. She
experienced pain if she turned her head. Her neck pain went into her arms
and hands. Her hands went numb. She dropped things such as pencils
and drinking glasses. R. 66-67. Gross disputed nurse practitioner
Solomon’s statement on May 26, 2015, two weeks after Gross’ neck
surgery, that she could resume activities of daily living without lifting greater
than 20 pounds after her surgery. She said that her neck surgery did not
provide any relief. R. 87.
Gross had burning pain from tendonitis in both wrists. She said that
injections did not help the pain. She could only carry less than half a gallon
of milk. She could not pick up half a gallon of milk. Gross said lifting that
much was too painful. R. 67-68. She could sit 10 minutes. R. 69. Gross
said that the numbness and tingling in her hands comes and goes and that
she had the numbness and tingling a few times a week. R. 87.
Gross said her anxiety interfered with her sleep at night. She slept
for three hours, stayed awake for a while, and then went back to sleep for
another three hours. She took naps during the day, and fell asleep
watching television. She estimated that she took five naps a day. The
naps lasted from 30 minutes to two hours. R. 69-71. Her antidepressant
and antianxiety medication made her sleepy. She said that her nerve pain
medication gabapentin also made her sleep. R. 73-74.
Gross said she could wash dishes for about five minutes and then
had to rest. Her husband did the cooking. She used a microwave oven to
heat up frozen dinners and she also cooked things like hot dogs, macaroni
and cheese, and frozen pizza. Gross could not stand long enough at the
stove to cook. She could read and follow a recipe with help. She would
usually not understand all the words in the recipe. She said she could
stand up long enough to cook. R. 75-79. Gross used a recipe a few days
earlier to make macaroni and cheese. She and her husband made
meatloaf a month ago. She got out the ingredients and he prepared the
meatloaf and cooked it. R. 88.
Gross said her husband did the housework. She used to do
housework, but stopped because of, “My back and all that. And now he
won’t let me do nothing.” She said he won’t let her and she cannot do
housework. R. 79-80.
Gross and her husband went grocery shopping together. She and
her husband also took Gross’ mother grocery shopping. Gross said she
did not do housework for her mother because her mother had a
housekeeper. Gross said her husband did the laundry. Her husband also
mowed the grass, took out the garbage, and cared for plants and flowers at
their home. R. 80-82.
Gross played games on her phone and watched television. She
said that she had many Facebook friends. She usually fell asleep when
she watched a movie on television. If she stayed awake through the
movie, she could discuss the movie with others. She would remember the
major details of the movie but would not remember everything she saw.
She said she liked mysteries and was “pretty good” at figuring out who did
it. R. 82-84.
Vocational expert Dr. Lanier then testified. The ALJ asked Dr. Lanier
the following hypothetical question:
I'd like you to consider a hypothetical individual for us
though. I'd like you to consider an individual 46 to 51 years of
age, who has completed eight grades of education, and who
has had no past relevant work.
This individual retains the ability to do light work, but this
individual can only occasionally climb ramps and stairs. Can
occasionally climb ladders, ropes and scaffolds. Can
occasionally balance.
Now, in addition, this individual can perform only simple,
routine and repetitive tasks and can make only simple, work
related decisions. Under these circumstances, would there be
jobs that would satisfy the hypothetical?
R. 91. Dr. Lanier opined that such a person could perform the jobs of
router, with 74,463 such jobs existing nationally; routing clerk, with 112,000
such jobs existing nationally and mail sorter, with 32,000 such jobs existing
nationally. Dr. Lanier opined that the person could also perform sedentary
jobs of addresser, with 18,829 such jobs existing nationally; document
preparer, with 66,430 such jobs existing nationally; and surveillance system
monitor, with 55,747 such jobs existing nationally. R. 91. All of the jobs Dr.
Lanier identified could be performed with the option to sit or stand while
performing them. R. 92. Dr. Lanier opined that if the person had to take
two additional unscheduled breaks a day, she would not be able to keep a
job. Dr. Lanier opined that the person could miss no more than 1 and ½
days a month and keep her job. R. 93. Dr. Lanier opined that no job would
allow the person to lie down during work hours other than scheduled
breaks. R. 94. The hearing then concluded.
THE DECISION OF THE ALJ
On October 17, 2017, the ALJ issued his decision. The ALJ followed
the five-step analysis set forth in Social Security Administration Regulations
(Analysis). 20 C.F.R. §§ 404.1520, 416.920. Step 1 requires that the
claimant not be currently engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1520(b), 416.920(b). If true, Step 2 requires the claimant to have a
severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If true, Step 3
requires a determination of whether the claimant is so severely impaired
that he is disabled regardless of his age, education and work experience.
20 C.F.R. §§ 404.1520(d), 416.920(d). To meet this requirement at Step 3,
the claimant's condition must meet or be equal to the criteria of one of the
impairments specified in 20 C.F.R. Part 404 Subpart P, Appendix 1
(Listing). 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant is not so
severely impaired, the ALJ proceeds to Step 4 of the Analysis.
Step 4 requires the claimant not to be able to return to his prior work
considering his age, education, work experience, and Residual Functional
Capacity (RFC). 20 C.F.R. §§ 404.1520(e) and (f), 416.920(e) and (f). If
the claimant cannot return to his prior work, then Step 5 requires a
determination of whether the claimant is disabled considering his RFC,
age, education, and past work experience. 20 C.F.R. §§ 404.1520(g),
404.1560(c), 416.920(g), 416.960(c). The claimant has the burden of
presenting evidence and proving the issues on the first four steps. The
Commissioner has the burden on the last step; the Commissioner must
show that, considering the listed factors, the claimant can perform some
type of gainful employment that exists in the national economy. 20 C.F.R.
§§ 404.1512, 404.1560(c); Weatherbee v. Astrue, 649 F.3d 565, 569 (7th
Cir. 2011); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir.
2005).
The ALJ found that Gross met her burden at Steps 1 and 2. Gross
had not engaged in substantial gainful activity since she filed her
application for SSI on September 10, 2014. She suffered from the severe
impairments of lumbar disc degeneration and facet arthropathy at L4-5 and
L5-S1, degenerative changes of the cervical spine status post fusion of C5-
6 and C6-7, COPD, obesity, generalized anxiety disorder, and low
intelligence. R. 17.6 The ALJ found that Gross’ impairments or
6 The ALJ stated that Gross’ alcohol dependence was in remission since 2008. R. 18. Gross does not
raise any issue with this finding. The Court, however, does not understand the finding in light of evidence
that at the time of the 2014 accident when she had a blood alcohol level of 0.148; she told Dr. Trello in
2015 that she drank a six-pack of beer every day; and at the evidentiary hearing she testified that she lost
her license due to a DUI conviction in 2016. On remand, the ALJ should explain his or her analysis of
Gross’ alcoholism more thoroughly in light of all the relevant evidence.
combination of impairments did not meet or medically equal a Listing. R.
18-22.
At Step 4, the ALJ found that Gross had the following RFC:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 416.967(b) except she
can occasionally climb ramps and stairs; occasionally climb
ladders, ropes and scaffolds; and occasionally balance. She
can perform only simple, routine and repetitive tasks, and she
can make only simple work related decisions. She can only
occasionally tolerate contact with co-workers, supervisors and
the general public. She must have the option to sit or stand at
will, with no loss in productivity.
R. 23. The ALJ relied on the 2015 examinations by psychologist Dr. Trello
and Dr. Chapa; the opinions of psychologists Drs. Taylor and Rozenfeld,
and the opinions of physicians Drs. Dow and Delphia. R. 26-27. The ALJ
also relied on imaging of her cervical and lumbar spine that showed mild to
moderate impairments some of which were addressed in the May 2015
surgery on her neck. The ALJ relied on the fact that the 2017 MRI showed
no changes from the 2015 MRI. The ALJ cited the March 2015 EMG nerve
conduction studies showed cervical poly radiculopathy and noted the fact
that the condition in her neck was addressed in the May 2015 surgery. The
ALJ relied on numerous physical examinations that showed normal range
of motion and normal gait. The ALJ noted the January 10, 2017
examination in which Gross reported lumbar soreness and pain radiating
down her right leg. The ALJ also noted, however, that Gross could still get
up and sit down with minimal difficulty and had a steady gait. The ALJ
relied on Dr. Trello’s 2015 examination that found Gross’ concentration and
attention span were intact and medical examinations that found her
memory was intact and she had unremarkable psychiatric signs. The ALJ
acknowledged the IQ score of 66 but found that based on the other
evidence on her memory and concentration, she could perform the limited
tasks described in the RFC. The ALJ also found that the medical and
psychological evidence did not corroborate Gross’ statements about the
limiting effect of her impairments. R. 24-26.
The ALJ also stated:
Third, the claimant has described daily activities that are not
limited to the extent one would expect given the functional
deficits alleged by the claimant, which is inconsistent with her
statements concerning the intensity, persistence and limiting
effects of her symptoms.
R. 26. The ALJ did not discuss or cite any evidence in this portion of his
decision to support the boilerplate conclusion stated above. The ALJ
stated earlier in Step 3 of his decision that Gross’ memory was intact, she
stated that she had never been fired because she could not get along with
others, she was able to microwave food, she performed all self-care, and
she shopped for groceries. The ALJ said Gross reported to Dr. Trello in
2015 that she lived with her mother at the time, she went shopping with her
mother, and she did not do housework because her mother had a
housekeeper. The ALJ noted that Gross testified that she watched
television and used social media websites. R. 20-22. The Court could find
no other discussion of Gross’ daily activities in the ALJ’s decision.
The ALJ found that Gross’ statements about the limiting effect of her
symptoms was not consistent with the medical evidence and the other
evidence in the record. The ALJ stated:
Based on the above, the relevant factors in this case, taken
together, support finding the claimant's statements concerning
the intensity, persistence and limiting effects of her symptoms
are not entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this
decision. While no single factor cited above is dispositive, the
totality of the facts and circumstances above made it difficult for
the undersigned to rely heavily on the claimant's subjective
complaints to assess the claimant's residual functional capacity.
Consequently, in determining the residual function capacity
noted in this decision, the undersigned relied heavily on the
available objective medical evidence of record, the qualified
medical opinions, other opinions, and other evidence in the
record.
R. 26.
The ALJ gave little weight to Dr. Trello’s 2008 examination report and
the GAF score of 50 because the report was several years before the
relevant 2014 application date and was not consistent with the more recent
evidence in the date.
The ALJ accepted the results of Ancell’s IQ testing in 2017, but gave
little weight to Ancell’s opinion that Gross had an impairment in adaptive
skills. The ALJ stated that Ancell did not opine on whether the impairment
was mild, moderate, or more severe and Drs. Taylor and Rozenfeld only
found moderate limitations in these areas. The ALJ also noted that Gross
reported that she could perform household chores but did not because her
mother had a housekeeper. R. 27.7
The ALJ gave little weight to the third-party reports from Everlen and
Hall because they were not consistent with the other evidence in the file
including the medical evidence. The ALJ specifically noted that the medical
evidence did not support Everlen and Hall’s statement that Gross could
only pay attention for five minutes. R. 27-28.
The ALJ determined at Step 4 that Gross did not have any relevant
past work. At Step 5, the ALJ determined that Gross could perform a
significant number of jobs in the national economy. The ALJ relied on his
RFC determination; the Medical Vocational Guidelines, 20 C.F.R. Part 404
Subpart P, Appendix 2; and the opinions of Dr. Lanier. The ALJ found that
Gross could perform the jobs of router, routing clerk, mail sorter, addresser,
7 The ALJ erroneously stated that Ancell issued her report in 2008. R. 27. The error was harmless
because the ALJ did not rely on the date of the examination in his analysis.
document preparer, and surveillance systems monitor. R. 30. The ALJ
concluded that Gross was not disabled.
Gross appealed to the Commissioner’s Appeal Council. As part of
the appeal, Gross submitted a physical therapy assessment dated
February 3, 2018. R. 8-11. Gross saw the physical therapist for an ataxic
gait and injury to her right hip. Gross reported that she fell and injured her
hip. She said she had arthritis in the hip since the June 2014 automobile
accident. She said she could not stand more than 10 minutes and could
not do household chores. Gross rated her pain as a 10 out of 10. On
examination, Gross’ range of motion of her lower extremities was limited
and painful. Gross’ strength in her right leg was 3/5 and testing was
painful. Gross could not walk without a walker. The physical therapist
recommended to her physician to prescribe a walker. The physical
therapist did not recommend additional physical therapy due to the pain.
R. 9-11.
On August 13, 2018, the Appeals Council denied Gross’ request for
review. The decision of the ALJ became the final decision of the Defendant
Commissioner. R. 1. Gross then brought this action for judicial review.
ANALYSIS
This Court reviews the Decision of the Commissioner to determine
whether it is supported by substantial evidence. Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate”
to support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971).
This Court must accept the findings if they are supported by substantial
evidence and may not substitute its judgment or reweigh the evidence.
Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003); Delgado v. Bowen, 782
F.2d 79, 82 (7th Cir. 1986). This Court will not review the ALJ’s evaluation
of statements regarding the intensity, persistence, and limiting effect of
symptoms unless the evaluation is patently wrong and lacks any
explanation or support in the record. See Pepper v. Colvin, 712 F.3d 351,
367 (7th Cir. 2014); Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008);
SSR 16-3p, 2016 WL 1119029, at *1 (2016) (The Social Security
Administration no longer uses the term credibility in the evaluation of
statements regarding symptoms). The ALJ must articulate at least
minimally his analysis of all relevant evidence. Herron v. Shalala, 19 F.3d
329, 333 (7th Cir. 1994). The ALJ must “build an accurate and logical
bridge from the evidence to his conclusion.” Clifford v. Apfel, 227 F.3d 863,
872 (7th Cir. 2000).
In this case, the ALJ made two errors. Each error, alone, might not
be sufficient to warrant a remand. Taken together, however, the
cumulative effect is sufficient to require reversal. The ALJ did not discuss
the March 31, 2016 EMG/nerve conduction study. That study showed that
after her May 2015 surgery, Gross still had radiculopathy at the C-6 level,
but the radiculopathy at the C-7 level was resolved. The EMG/nerve
conduction study in March 2015 before the May 2015 cervical spinal
surgery showed polyneuropathies at C-6 and C-7. Gross testified that the
surgery did not improve her condition. The March 31, 2016, EMG/nerve
conduction study showed that some of the radiculopathy was resolved, but
some remained. The test has bearing on the weight to give Gross’
testimony regarding her statements about the effect of the surgery on her
symptoms. The ALJ did not discuss the March 31, 2016 test, and so, the
Court cannot determine whether he considered the test in coming to his
decision about the weight to give Gross’ statements.
The ALJ also erred in not explaining the basis for his boilerplate
statement, quoted above on page 37, that Gross’ daily activities were not
as limited as one would expect from her testimony. The Seventh Circuit
has condemned such boilerplate without adequate explanation of the basis
for the statement. See e.g., Bjornson v. Astrue, 671 F.3d 640, 644-45 (7th
Cir. 2012). A claimant’s daily activities is one of the factors to be
considered in evaluating the weight to be given to a claimant’s statement
about the limiting effects of her symptoms and pain. 20 CFR
404.1529(c)(3) and 416.929(c)(3); SSR 16-3p, 2017 WL 5180304, at *7
(March 28, 2016, revised October 25, 2017). The ALJ mentioned a few
daily activities at Step 3 of the Analysis but did not explain how those
activities related to his determination of the weight to give Gross’
statements about the limiting effects of her symptoms. Without this type of
explanation, the Court cannot determine how Gross’ daily activities
supported the conclusion the ALJ made in the boilerplate statement.
Because the ALJ committed both of these errors, the ALJ failed to
minimally articulate all the material evidence. See Herron, 19 F.3d at 333.
The case, therefore, must be remanded for further proceedings.
Gross raises a number of other complaints about the ALJ’s decision.
The Court does not believe they have merit. Most of Gross’ other
arguments essentially ask the Court to reweigh the evidence. The Court
will not do so. See Jens, 347 F.3d at 212; Delgado, 782 F.2d at 82.
In addition, Gross also argues the ALJ erred in relying on the
opinions of state agency physicians because the doctors did not consider
evidence that developed after the date of the opinions. Gross relies on
Stage v. Colvin, 812 F.3d 1121 (7th Cir. 2016). In that case, the claimant
complained primarily of symptoms related to arthritis and deterioration in
her back. The state agency physicians issued their opinions on the
claimant based on this evidence. Seven months later, the claimant had
severe problems with her hip. An orthopedic surgeon recommended hip
replacement surgery. The ALJ erred in relying on the state agency
physician opinions because the state agency physicians did not consider
the material new evidence regarding the claimant’s hip condition. Stage,
812 F.3d at 1123. Here, Gross does not cite to any medical evidence that
showed her condition worsened after Dr. Chapa’s examinations or Drs.
Dow and Delphia rendered their opinions. The March 31, 2016,
EMG/nerve conduction study showed that some radiculopathy remained
after the surgery but did not show that her condition worsened. The 2017
MRI of her spine showed her condition had not changed from the 2015 MRI
study. The agency physicians, therefore, relied on evidence that was still
relevant at the time of the evidentiary hearing in 2017. The Court sees no
error in considering these opinions.
Gross also relies on the 2018 physical therapy report that she claims
showed a new problem related to her hip. The 2018 report was not in
existence when the ALJ rendered his decision. This Court can only
consider evidence that was before the ALJ when, as here, the Appeals
Council denied the request for review. Wolf v. Shalala, 997 F.2d 321, 323
n.3 (7th Cir. 1993). The 2018 physical therapy report, therefore, is not
relevant to evaluating the ALJ’s decision. On remand, however, Gross may
present new evidence related to her hip.
Gross also complains that the ALJ did not adequately address Gross’
limited intelligence in determining the RFC. The Court disagrees. The
2015 examination by Dr. Trello and the opinions of Drs. Taylor and
Rozenfeld provided ample support for the non-exertional limitations the ALJ
included in the RFC to address Gross’ intellectual limitations. The Ancell
IQ test is relevant and the ALJ considered it in light of the other evidence.
The Court sees no error in the ALJ’s analysis of this evidence.
THEREFORE, IT IS ORDERED Plaintiff Karen Gross’ Motion for
Summary Judgment (d/e 14) is ALLOWED, The Defendant Commissioner’s
Motion for Summary Affirmance (d/e 17) is DENIED, and the decision of
the Commissioner is REVERSED and REMANDED pursuant to 42 U.S.C.
§ 405(g) sentence four. THIS CASE IS CLOSED.
ENTER: February 19, 2020 s/ Tom Schanzle-Haskins _____
TOM SCHANZLE-HASKINS
UNITED STATES MAGISTRATE JUDGE