# Beauprez v. Berryhill

> District Court, C.D. Illinois · March 31, 2020

URL: https://www.frixlaw.com/law-library/cases/10135758

## Case

- **Court:** District Court, C.D. Illinois
- **Decided:** March 31, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10135758

## How later opinions describe it (automated extraction)

- holding that the ALJ impermissibly played doctor when one of the plaintiff’s physicians prescribed her a cane and the ALJ found that the plaintiff’s “examinations and test results showed that [she] did not need to use a cane” (quotation marks omitted)
- holding that “while the ultimate question of whether a claimant is disabled to a degree to qualify for benefits is . . . a matter reserved to the Commissioner[,] . . . that’s not a valid reason to accord a treating physician’s opinion little weight”

## Opinion text

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION

BRYAN B., )
)
Plaintiff, )
)
v. ) Case No. 4:18-cv-04203-SLD-JEH
)
ANDREW SAUL,1 )
)
Defendant. )

ORDER
Before the Court are Plaintiff Bryan B.’s Motion for Summary Judgment, ECF No. 13;
Defendant Commissioner of the Social Security Administration Andrew Saul’s (“the
Commissioner”) Motion for Summary Affirmance, ECF No. 18; Magistrate Judge Jonathan
Hawley’s Report and Recommendation (“R&R”), ECF No. 19, recommending that the Court
grant Bryan’s motion, deny the Commissioner’s, and remand the case to the Commissioner for
further proceedings; and the Commissioner’s objection to the R&R, ECF No. 20. For the
reasons that follow, the objection is OVERRULED, the R&R is ADOPTED, the Motion for
Summary Judgment is GRANTED, and the Motion for Summary Affirmance is DENIED.
BACKGROUND2
I. Procedural History
In December 2013, Bryan applied for disability insurance benefits and supplemental
security income, alleging disability beginning October 25, 2013.3 His application was denied

1 Pursuant to Federal Rule of Civil Procedure 25(d), Andrew Saul is substituted for his predecessor, Nancy
Berryhill. The Clerk is directed to update the docket accordingly.
2 Judge Hawley’s R&R provides a detailed summary of the background of this case and the ALJ’s decision. See
R&R 1–10. The administrative record can be found at ECF No. 7. Citations to the record take the form: R.__.
3 Initially, Bryan claimed disability beginning in 2011, but he later amended his alleged date of onset to October 25,
2013.
initially and on reconsideration. At Bryan’s request, a hearing was held before an administrative
law judge (“ALJ”) on August 8, 2016. The ALJ denied Bryan’s application for benefits in a
decision dated December 22, 2016. The Appeals Council granted Bryan’s request for review and
remanded the case back to the ALJ. The ALJ held another hearing on June 5, 2018 and denied
both claims in a decision dated June 15, 2018. The Appeals Council denied review thus making

the June 15, 2018 decision the Commissioner’s decision. See Nelms v. Astrue, 553 F.3d 1093,
1097 (7th Cir. 2009). Bryan then sought judicial review pursuant to 42 U.S.C. § 405(g).
Compl., ECF No. 1.
II. ALJ Decision
The ALJ conducted the standard five-step sequential analysis set forth in 20 C.F.R.
§ 404.1520(a)(4),4 concluding that Bryan was not disabled. At step one, he determined that
Bryan had not engaged in substantial gainful activity since October 25, 2013. R. 16. At step
two, he determined that Bryan had the following severe impairments: degenerative disc disease
of the lumbar and cervical spine, personality disorder, anxiety, and affective disorders. Id. At

step three, the ALJ determined that none of Bryan’s impairments met or equaled the criteria of
an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 16–18. Next, the ALJ
made the following residual functional capacity (“RFC”) assessment:
[T]he claimant has the [RFC] to perform light work . . . except he is limited
to occasional climbing of ladders; limited to no climbing of ropes and
scaffolds; limited to occasional crawling; limited to frequent reaching in
front and to the side with the non-dominant upper extremity; limited to
occasional overhead reaching with the non-dominant upper extremity;
because of all the claimant’s mental impairments and symptoms combined, he
may, during times of symptoms exacerbation have moderate limitations in (1)
concentration, persistence and/or pace when attempting certain detailed tasks, so

4 The standards for establishing a disability to receive disability insurance benefits and supplemental security income
are materially the same. Compare 20 C.F.R. §§ 404.1501–404.1576 (disability insurance benefits), with id. §§
416.901–416.976 (supplemental security income). For efficiency, the Court will cite only to the disability insurance
benefit regulations.
he is limited to jobs that only require up to detailed but uninvolved tasks
with few concrete variables, little in the way of change in job process from
day to day, jobs that can be learned in 30 days or fewer, and jobs with
multistep, self-evident tasks, easily resumed after momentary distraction,
and (2) social functioning, so he is limited to jobs that do not require more
than occasional work-related interaction with the public, co-workers and
supervisors.

Id. at 18–19.5 At step four, the ALJ determined that Bryan did not have the RFC to perform his
past relevant work. Id. at 30. Proceeding to step five, the ALJ, relying on the testimony of a
vocational expert, determined that there were jobs that existed in significant numbers in the
national economy that Bryan could perform. Id. at 30–31. Specifically, Bryan could perform the
requirements of marker and cleaner/housekeeper. Id. at 31.
DISCUSSION
I. Legal Standards
When a magistrate judge considers a pretrial matter dispositive of a party’s claim or
defense, he must enter a recommended disposition. Fed. R. Civ. P. 72(b)(1). Parties may object
within fourteen days of being served with a copy of the recommended disposition. Id. 72(b)(2).
The district judge considers de novo the portions of the recommended disposition that were
properly objected to, and may accept, reject, or modify the recommended disposition, or return it
to the magistrate judge for further proceedings. Id. 72(b)(3). The district judge reviews the
unobjected portions of the recommendation for clear error only. Johnson v. Zema Sys. Corp.,
170 F.3d 734, 739 (7th Cir. 1999).
The court reviews a decision denying benefits to determine only whether the ALJ applied
the correct legal standard and whether substantial evidence supports the ALJ’s decision. Barnett
v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). Substantial evidence means “such relevant

5 The ALJ stated that only the bold type “constitutes the [RFC]. The remaining language is merely introductory and
does not constitute any portion of the [RFC].” R. 19 n.1.
evidence as a reasonable mind might accept as adequate to support a conclusion.” McKinzey v.
Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (quotation marks omitted). The ALJ does not have “to
provide a complete and written evaluation of every piece of testimony and evidence, but must
build a logical bridge from the evidence to his conclusion.” Minnick v. Colvin, 775 F.3d 929,
935 (7th Cir. 2015) (quotation marks omitted). On review, the court cannot reweigh the

evidence, decide questions of credibility, or substitute its own judgment, but must “nonetheless
conduct a critical review of the evidence.” McKinzey, 641 F.3d at 889.
II. Analysis
In his Motion for Summary Judgment, Bryan argues that the ALJ erred in seven ways
when he made the determination that Bryan was not disabled. See Mem. Supp. Mot. Summ. J.
10–23, ECF No. 14. Of these seven arguments, Judge Hawley finds two persuasive and
recommends that the Court remand this case for further proceedings before the Commissioner.6
See R&R 12–18. He concludes that the ALJ: (1) improperly weighed the opinions of Dr.
Hershkowitz, Dr. Potaczek, and Advanced Practice Nurse (“APN”) Fullerton, three of Bryan’s

treating physicians, see id. at 12–16; and (2) played doctor by affording no weight to Dr.
Hershkowitz’s opinion that Bryan needs a cane, see id. at 16–18. In his objection, the
Commissioner argues that “the ALJ reasonably considered the medical opinion evidence,”
Objection 1, and that “[s]ubstantial evidence supported the ALJ’s assessment that [Bryan] did
not require the use of a cane on a consistent basis,” id. at 9.
a. Treating Physician Opinion

6 Judge Hawley did not address Bryan’s remaining arguments, concluding that “the two above-identified errors
alone warrant remand.” R&R 18. Thus, in ordering remand, the Court takes no position on these unaddressed
arguments.
If an ALJ finds that a treating source’s opinion “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record, [the ALJ] will give it controlling weight.” 20 C.F.R.
§ 404.1527(c)(2). If the treating source’s opinion is not given controlling weight, the amount of
weight it is given is determined by: the length of the treatment relationship and frequency of

examination, id. § 404.1527(c)(2)(i); the nature and extent of the treatment relationship, id.
§ 404.1527(c)(2)(ii); how much relevant evidence the source provides to support its opinion, id.
§ 404.1527(c)(3); the consistency of the opinion with the record as a whole, id. § 404.1527(c)(4);
the source’s specialization, id. § 404.1527(c)(5); and any other factor brought to the Social
Security Administration’s attention, id. § 404.1527(c)(6). “If the ALJ discounts the physician’s
opinion after considering these factors, [the court] must allow that decision to stand so long as
the ALJ minimally articulated his reasons—a very deferential standard that [the Seventh Circuit
has], in fact, deemed lax.” Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008) (quotation marks
omitted). An ALJ need not consider each factor under § 404.1527(c) to minimally articulate his

or her opinion. See Henke v. Astrue, 498 F. App’x 636, 640 n.3 (7th Cir. 2012) (“The ALJ did
not explicitly weigh every factor while discussing her decision to reject Dr. Preciado’s reports,
but she did note the lack of medical evidence supporting Dr. Preciado’s opinion and its
inconsistency with the rest of the record. This is enough.” (citations omitted)).
Five treating medical professionals opined that Bryan was unable to work. See R. 938,
939, 1030, 1034, 1614, 1734. Dr. Hershkowitz, Bryan’s primary care physician, opined in 2014
that Bryan would not “be able to hold down any meaningful type [of] employment because of his
. . . medical conditions,” id. at 1034, and stated in 2015 that he considered Bryan to be disabled,
id. at 1030. Dr. Potaczek opined that Bryan was unable to return to work due to his cervical and
spine conditions. Id. at 938. APN Fullerton reviewed Dr. Potaczek’s opinion and concurred that
Bryan was unable to work. Id. at 939. Dr. Slavin stated that Bryan’s “pain . . . is so severe that it
would qualify him for disability and I do not expect him to be able to return to productive work
as long as he suffers from the severe pain and requires high doses of opioids.” Id. at 1614.
Finally, Dr. Yadla opined that “[g]iven [Bryan’s] complaints, I think he would have difficulty

finding meaningful work.” Id. at 1734.
In his decision, the ALJ discounted the opinions of Dr. Hershkowitz, Dr. Potaczek, and
APN Fullerton together, giving them little weight. Id. at 28. To support this conclusion, the ALJ
stated that “all of these letters are conclusory and do not cite specific objective medical findings
to support their conclusions.” Id. The ALJ gave the opinions of Dr. Slavin and Dr. Yadla no
weight. See id. at 29. He stated that “the doctors do not cite any objective findings to support
[their opinions that Bryan’s pain would prevent him from working]; such as physical exam
findings.” Id. at 30. Moreover, the ALJ noted that the opinions “appear to be based solely on
the claimant’s subjective complaints of severe pain.” Id. at 29–30.

The Commissioner objects to Judge Hawley’s finding that the ALJ improperly weighed
the opinions of Dr. Hershkowitz, Dr. Potaczek, and APN Fullerton and makes four arguments.
First, the Commissioner argues that ALJ could properly discount the opinion letters because they
did not include specific functional limitations.7 See Objection 4−5. This is a post hoc
rationalization that the Commissioner cannot use to defend the ALJ’s decision. The Chenery
doctrine, see SEC v. Chenery Corp., 318 U.S. 80, 87−88 (1943), forbids the Commissioner from
“defend[ing] the [ALJ]’s decision on grounds that the [ALJ] [him]self ha[s] not embraced.”

7 The Commissioner makes a related argument that Bryan “has not put forth functional limitations that were
supported by the evidence and unreasonably rejected by the ALJ.” Objection 5. The Court disagrees—Bryan
clearly argues that the ALJ should have found that he could not stand or walk six hours in an eight-hour day because
of his significant back pain. See, e.g., Mem. Supp. Mot. Summ. J. 13.
Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010). Here, the ALJ noted only that the opinions
of Dr. Yadla and Dr. Slavin did not include functional limitations. See R. 29 (noting that the
opinions “do not offer any specific work related limitations”). Thus, this argument cannot be
used to defend the ALJ’s weighing of the opinions of Dr. Hershkowitz, Dr. Potaczek, and APN
Fullerton.

As part of its first argument, the Commissioner seems to suggest that the ALJ could
discount the treating source opinions because they opined on a question reserved to the
Commissioner, whether a claimant is disabled or unable to work. See Objection 4; 20 C.F.R.
§ 404.1527(d)(1) (“A statement by a medical source that you are ‘disabled’ or ‘unable to work’
does not mean that we will determine that you are disabled.”). This argument is faulty because
an ALJ must still consider and give weight to opinions which state that a claimant cannot work.
Whether a claimant qualifies for benefits is a question of law, but a medical
opinion that a claimant is unable to work is not an improper legal conclusion.
Indeed, ALJs must consider medical opinions about a patient’s ability to work full
time because they are relevant to the RFC determination.

Lambert v. Berryhill, 896 F.3d 768, 776 (7th Cir. 2018) (citations omitted); see Larson v. Colvin,
26 F. Supp. 3d 798, 808 (N.D. Ill. 2014) (holding that “while the ultimate question of whether a
claimant is disabled to a degree to qualify for benefits is . . . a matter reserved to the
Commissioner[,] . . . that’s not a valid reason to accord a treating physician’s opinion little
weight”). Thus, the ALJ could not give little weight to the opinions of Dr. Hershkowitz, Dr.
Potaczek, and APN Fullerton simply by stating that their opinions touched on issues reserved to
the Commissioner.
Second, the Commissioner asserts that the ALJ properly weighed the treating source
opinions because they failed to cite to objective examination findings that supported their
opinions. Objection 5−6. However, Dr. Hershkowitz, Dr. Potaczek, and APN Fullerton did
offer medical support for their opinions—including their diagnoses, some examination findings,
and Bryan’s treatment history—that the ALJ did not consider in affording their opinions little
weight. See 20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents relevant evidence
to support a medical opinion, particularly medical signs and laboratory findings, the more weight
we will give that medical opinion.”). Dr. Hershkowitz explained that Bryan has a “history of

cervical spinal stenosis and lumbar radiculopathy” and has had epidural steroid injections. R.
1030. In his other opinion letter, Dr. Hershkowitz again explained that “Bryan has a significant
medical history with regards to degenerative cervical disease as well as degenerative lumbar disk
disease of which he has had previous surgery.” Id. at 1034. He noted that Bryan’s “examination
is still very significant with regards to limping with regards to the left leg, significant decreased
range of motion of the cervical spine, back pain with straight leg raising, paresthesias with
regards to the fingers.” Id. Dr. Potaczek explained that Bryan had cervical and spine conditions
and that his prognosis was guarded. Id. at 938. APN Fullerton reviewed Dr. Potaczek’s note and
concurred in his conclusion. Id. at 939. Moreover, to the extent the ALJ found that the opinions

were inadequately explained, he should have determined whether the treatment notes clarified
them. See Cooley v. Berryhill, 738 F. App’x 877, 880 (7th Cir. 2018) (“An ALJ may discount a
doctor’s statements that are not adequately explained if the treatment notes do not clarify the
doctor’s reasoning.” (quoting Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010)).
The Commissioner’s third argument is related: that the opinions could be afforded little
weight because their notes did not contain objective findings that supported an RFC with
extreme limitations. Objection 6−8. This is another post hoc rationalization that the
Commissioner cannot use to defend the ALJ’s decision. Here, the ALJ did describe his
interpretation of the medical records, see R. 26, but nowhere does he state that he based his
decision to give little weight to the opinions of Dr. Hershkowitz, Dr. Potaczek, and APN
Fullerton on inconsistency of their opinions with their treatment records.8 See Parker, 597 F.3d
at 922.
Fourth, the Commissioner asserts that the ALJ properly discounted the treating source
opinions because they appeared to be based on Bryan’s subjective complaints. Objection 8. The

Commissioner again offers a post hoc rationalization. The ALJ only discounted the opinions of
Dr. Slavin and Dr. Yadla under this rationale, see R. 29−30, thereby preventing the
Commissioner from using this argument to defend the ALJ’s decision to afford little weight to
the opinions of Dr. Hershkowitz, Dr. Potaczek, and APN Fullerton, see Parker, 597 F.3d at 922.
Thus, the Court agrees with Judge Hawley that the ALJ improperly weighed the opinions
of Dr. Hershkowitz, Dr. Potaczek, and APN Fullerton. The ALJ did not minimally articulate his
reasons for affording their opinions little weight. The ALJ conducted a faulty § 404.1527(c)(3)
analysis when he found that the opinions did not cite objective medical findings, and did not
consider any other § 404.1527(c) factor.9 On remand, the ALJ must consider more thoroughly

the regulatory factors listed in § 404.1527(c) when deciding what weight to afford the relevant
opinions.
b. Weight Afforded to Cane

8 The ALJ does conclude that Dr. Hershkowitz’s statement that Bryan had a limping gait was inconsistent with
physical examinations “which all note a normal gait.” R. 28. But the ALJ fails to acknowledge that there are
records showing that Bryan had an antalgic gait, or limp. See R. 707 (noting that Bryan was “[p]ositive for gait
problem” on October 3, 2012); id. at 949 (noting that Bryan walked with a limp and slow gait on March 31, 2014);
id. at 1647 (noting that Bryan had an antalgic gait on December 28, 2017); id. at1734 (noting that Bryan walked
with an antalgic gait on April 18, 2018). Regardless, Bryan’s gait was not the extent of Dr. Hershkowitz’s opinions
and the ALJ did not suggest that any other statements in Dr. Hershkowitz’s opinions were inconsistent with
treatment records.
9 The Commissioner seems to suggest that the ALJ weighed the opinions of the treating physicians against the
record as a whole pursuant to § 404.1527(c)(4). See Objection 6−7. However, the ALJ did not assert this as a
reason for affording the opinions little weight, thus making this argument a post hoc rationalization that cannot be
used to defend the ALJ’s decision. See Parker, 597 F.3d at 922.
“ALJs must not succumb to the temptation to play doctor and make their own
independent medical findings.” Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996). “Typical
cases of ALJs impermissibly playing doctor are when they either reject a doctor’s medical
conclusion without other evidence or when they draw medical conclusions themselves about a
claimant without relying on medical evidence.” Back v. Barnhart, 63 F. App’x 254, 259 (7th

Cir. 2003) (quotation marks and citation omitted).
Dr. Hershkowitz prescribed Bryan a cane for the rest of his life to participate in “one or
more mobility-related activities of daily living . . . in the home.” R. 1590. The associated
diagnosis for the prescription was “[l]ow back pain radiating to both legs.” Id. The ALJ
afforded Dr. Hershkowitz’s opinion that Bryan needs a cane no weight because “[t]he medical
evidence fails to establish the claimant needs any assistive device to ambulate.” Id. at 29.
The Commissioner objects to Judge Hawley’s finding that the ALJ played doctor and
makes two arguments. First, the Commissioner argues that Bryan has not established that his
cane is medically required in all circumstances. Social Security Regulation (“SSR”) 96-9p, 1996

WL 374185, at *7 (July 2, 1996), provides that for an ALJ to find that a hand-held assistive
device is medically required “there must be medical documentation establishing the need for a
hand-held assistive device to aid in walking or standing, and describing the circumstances for
which it is needed.” Here, there is medical documentation, but the Commissioner argues that the
circumstances were limited to use inside the home. The Court will not be unduly literal and find
that an ALJ need not consider the use of a cane in crafting an RFC when the claimant’s doctor
writes a cane prescription that provides for home use—particularly where, as is the case here, a
form order was used and the “in the home” limitation was included in the form. See R. 1590. In
addition, nowhere in his decision does the ALJ state that he gave Dr. Hershkowitz’s opinion no
weight because the prescription only provides for home use. See id. at 29. Thus, this argument
is another post hoc rationalization that the Court will not consider. See Parker, 597 F.3d at 922.
Second, the Commissioner asserts that the ALJ’s decision to afford the prescription no
weight was proper because “the record included contradictory evidence regarding [Bryan]’s need
for a cane.” Objection 10. For example, Bryan did not use a cane at his hearing. See R. 56. The

Court acknowledges that certain aspects of the record indicate that Bryan did not often use his
cane. However, the ALJ impermissibly played doctor here by affording Dr. Hershkowitz’s
opinion no weight without citing “any medical report or opinion that contradicts” Dr.
Hershkowitz’s opinion. Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). To properly
conclude that Bryan did not need a cane, the ALJ needed to cite to a medical report which opined
that Bryan did not need a cane. Instead, the ALJ cited only to a physical evaluation conducted
by Dr. Yadla, see R. 29, which stated that Bryan had normal muscle strength in his lower
extremities, see id. at 1734. See Czarnecki v. Colvin, 595 F. App’x 635, 644–45 (7th Cir. 2015)
(holding that the ALJ impermissibly played doctor when one of the plaintiff’s physicians

prescribed her a cane and the ALJ found that the plaintiff’s “examinations and test results
showed that [she] did not need to use a cane” (quotation marks omitted)). Moreover, Dr. Yadla’s
evaluation actually supports Bryan’s need to use a cane because it describes Bryan as walking
with an antalgic gait, or limp. R. 1734.
Thus, the Court agrees with Judge Hawley that the ALJ impermissibly played doctor by
concluding that Bryan did not need a cane after it was prescribed by Dr. Hershkowitz. On
remand, the ALJ must reevaluate the weight due to Dr. Hershkowitz’s opinion that Bryan needs
a cane.
CONCLUSION
Accordingly, the Report and Recommendation, ECF No. 19, is ADOPTED and the
Commissioner’s objection to the Report and Recommendation, ECF No. 20, is OVERRULED.
Plaintiff Bryan B.’s Motion for Summary Judgment, ECF No. 13, is GRANTED, and the
Commissioner’s Motion for Summary Affirmance, ECF No. 18, is DENIED. The
Commissioner’s decision is REVERSED and the cause is REMANDED pursuant to 42 U.S.C.

§ 405(g) for further proceedings consistent with the Report and Recommendation. The Clerk is
directed to enter judgment and close the case.
Entered this 31st day of March, 2020.
s/ Sara Darrow
SARA DARROW
CHIEF UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10135758. Public record. Not legal advice.