Brown v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

FELECIA B., )

)

Plaintiff, )

)

v. ) No. 20 C 6108

)

KILOLO KIJAKAZI, Acting ) Magistrate Judge Finnegan

Commissioner of Social Security,1 )

)

Defendant. )

ORDER

Plaintiff Felecia B. seeks to overturn the final decision of the Commissioner of

Social Security (“Commissioner”) denying her applications for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the

Social Security Act. The parties consented to the jurisdiction of the United States

Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff filed a brief explaining why

the Commissioner’s decision should be reversed or the case remanded. The

Commissioner responded with a competing memorandum in support of affirming the

decision. After careful review of the record and the parties’ respective arguments, the

Court finds that the case must be remanded for further proceedings.

BACKGROUND

Plaintiff applied for DIB and SSI on September 19, 2017, alleging in both

applications that she became disabled on January 1, 2015 due to a herniated disc, knee

problems, cervical cancer in remission, a ruptured stomach ulcer, breathing problems,

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. She is

automatically substituted as the named defendant pursuant to FED. R. CIV. P. 25(d).

surgical removal of breast tumors, difficulty walking and standing, hearing loss in the right

ear, non-cancerous polyps, and hemorrhoids. (R. 188-200, 219). Born in 1963, Plaintiff

was 51 years old as of the alleged disability onset date, making her a person closely

approaching advanced age. (R. 188); 20 C.F.R. §§ 404.1563(d); 20 C.F.R. § 416.963(d).

She subsequently changed categories to a person of advanced age (age 55 or older).

(R. 188); 20 C.F.R. § 404.1563(e); 20 C.F.R. § 416.963(e). Plaintiff has a 10th grade

education and lives with her elderly mother. (R. 43, 220). She spent four years working

as a home healthcare provider from 2003 to 2007, and was self-employed as a hair stylist

from 2004 to 2007. (R. 45-46, 220). Most recently, Plaintiff worked part-time in the food

service industry from August 2013 until she quit on January 1, 2015 due to her conditions.

(R. 44, 220).

The Social Security Administration denied Plaintiff’s applications initially on

November 17, 2017, and again upon reconsideration on July 26, 2018. (R. 63-99).

Plaintiff filed a timely request for a hearing and appeared before administrative law judge

Lana Johnson (the “ALJ”) on September 25, 2019. (R. 38). The ALJ heard testimony

from Plaintiff, who was represented by counsel, and from vocational expert Linda Gels

(the “VE”). (R. 40-62). On October 29, 2019, the ALJ found that Plaintiff’s degenerative

joint disease of the knees, degenerative disc disease of the lumbar spine, and obesity are

severe impairments, but that they do not meet or equal any of the listed impairments in

20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 16-19). After reviewing the evidence, the

ALJ concluded that Plaintiff has the residual functional capacity (“RFC”) to perform light

work with: no climbing of ladders, ropes, or scaffolds; occasional climbing of ramps and

stairs; and occasional balancing, stooping, kneeling, crouching, and crawling. (R. 19-27).

The ALJ accepted the VE’s testimony that a person with Plaintiff’s background and

this RFC could perform Plaintiff’s past work as a hair stylist. (R. 27). As a result, the ALJ

concluded that Plaintiff was not disabled at any time from the January 1, 2015 alleged

disability onset date through the date of the decision. (Id.). The Appeals Council denied

Plaintiff’s request for review on September 4, 2020. (R. 1-6). That decision stands as

the final decision of the Commissioner and is reviewable by this Court under 42 U.S.C.

§§ 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005); Whitney v. Astrue,

889 F. Supp. 2d 1086, 1088 (N.D. Ill. 2012).

In support of her request for reversal or remand, Plaintiff argues that the ALJ: (1)

erred in weighing the opinion evidence of record; (2) made a flawed RFC determination

that failed to account for her mental impairments; and (3) improperly evaluated her

subjective statements regarding the limiting effects of her symptoms. For reasons

discussed in this opinion, the Court finds that the case must be remanded for further

consideration of Plaintiff’s ability to perform her past relevant work despite limitations in

concentration, persistence, or pace.

DISCUSSION

A. Standard of Review

Judicial review of the Commissioner’s final decision is authorized by the Social

Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). In reviewing this decision, the Court may

not engage in its own analysis of whether Plaintiff is severely impaired as defined by the

Social Security regulations. Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Nor

may it “‘displace the ALJ’s judgment by reconsidering facts or evidence or making

credibility determinations.’” Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010) (quoting

Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007)). See also L.D.R. by Wagner v.

Berryhill, 920 F.3d 1146, 1151-52 (7th Cir. 2019). The Court “will reverse an ALJ’s

determination only when it is not supported by substantial evidence, meaning ‘such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Pepper v. Colvin, 712 F.3d 351, 361-62 (7th Cir. 2013); Biestek v. Berryhill,

139 S. Ct. 1148, 1154 (2019).

In making its determination, the Court must “look to whether the ALJ built an

‘accurate and logical bridge’ from the evidence to her conclusion that the claimant is not

disabled.” Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (quoting Craft v. Astrue,

539 F.3d 668, 673 (7th Cir. 2008)). The ALJ need not, however, “‘provide a complete

written evaluation of every piece of testimony and evidence.’” Pepper, 712 F.3d at 362

(quoting Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (internal citations and

quotation marks omitted)). When the ALJ’s decision “‘lacks evidentiary support or is so

poorly articulated as to prevent meaningful review,’ a remand is required.” Hopgood ex

rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th Cir. 2009) (quoting Steele v. Barnhart, 290

F.3d 936, 940 (7th Cir. 2002)).

B. Five-Step Inquiry

To recover DIB or SSI, a claimant must establish that she is disabled within the

meaning of the Social Security Act.2 Shewmake v. Colvin, No. 15 C 6734, 2016 WL

6948380, at *1 (N.D. Ill. Nov. 28, 2016). A claimant is disabled if she is unable to perform

“any substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or can

2 Because the regulations governing DIB and SSI are substantially identical, for ease of reference,

only the DIB regulations are cited herein.

be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §

404.1505(a). In determining whether a claimant suffers from a disability, an ALJ must

conduct a standard five-step inquiry, which involves analyzing: “(1) whether the claimant

is currently employed; (2) whether the claimant has a severe impairment; (3) whether the

claimant’s impairment is one that the Commissioner considers conclusively disabling; (4)

if the claimant does not have a conclusively disabling impairment, whether he can perform

his past relevant work; and (5) whether the claimant is capable of performing any work in

the national economy.” Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012) (citing 20

C.F.R. § 404.1520). If the claimant meets her burden of proof at steps one through four,

the burden shifts to the Commissioner at step five. Moore v. Astrue, 851 F. Supp. 2d

1131, 1139-40 (N.D. Ill. 2012).

C. Analysis

1. Opinion Evidence

Plaintiff argues that the case must be reversed or remanded because the ALJ

erred in finding that the opinion from his treating family medicine physician David J.

Alengo, M.D. was not persuasive or supported by the record. Since Plaintiff filed her

claims in September 2017, the treating source rule used for claims filed before March 27,

2017 does not apply. This means the ALJ was not required to “defer or give any specific

evidentiary weight” to any medical opinion, including a treating physician’s opinion. 20

C.F.R. § 404.1520c(a). See also Social Security Administration, Revisions to Rules

Regarding the Evaluation of Medical Evidence, 2017 WL 168819 (Jan. 18, 2017).

Instead, the ALJ was required to “evaluate the persuasiveness of each medical opinion

based on certain factors: (1) supportability; (2) consistency; (3) the medical source’s

relationship with the claimant; (4) specialization; and (5) other factors, including the

source’s familiarity with other evidence in the claim or an understanding of Social Security

disability policies and requirements.” Michelle D. v. Kijakazi, No. 21 C 1561, 2022 WL

972280, at *4 (N.D. Ill. Mar. 31, 2022) (citing 20 C.F.R. § 404.1520c(c)(1)-(5)). An ALJ

must explain how she considered the first two factors (supportability and consistency) and

may but is not required to explain her consideration of the other factors. 20 C.F.R. §

404.1520c(b)(2). “Supportability measures how much the objective medical evidence and

supporting explanations presented by a medical source support the opinion.” Michelle

D., 2022 WL 972280, at *4 (citing 20 C.F.R. § 404.1520c(c)(1)). “Consistency assesses

how a medical opinion squares with other evidence in the record.” Id. (citing 20 C.F.R. §

404.1520c(c)(2)).

Dr. Alengo completed a Physical Residual Functional Capacity Questionnaire for

Plaintiff on May 11, 2018 opining that she suffers from severe functional limitations that

preclude all work activity. According to Dr. Alengo, Plaintiff’s diagnoses include: end

stage post-traumatic arthritis in both knees; degenerative disc disease of the lumbosacral

spine; moderate to severe chronic obstructive pulmonary disease (“COPD”) causing

dyspnea with exertion; severe depression; and GERD. (R. 739). The objective signs of

these conditions are marked tenderness and decreased range of motion in both knees

with mild effusion, and tenderness over the vertebral process of the lumbosacral spine

with paraspinal tenderness and occasional spasm. Dr. Alengo indicated that as a result

of her conditions, Plaintiff experiences chronic severe pain in the low back and knees that

is precipitated by activity and weather changes, leaving Plaintiff’s prognosis “poor.” (Id.).

Her treatment protocol includes NSAIDs, opioids, analgesics, and muscle relaxants,

which cause fatigue and occasional dizziness. Dr. Alengo also opined that Plaintiff suffers

from depression, and that during a typical workday, pain and other symptoms would

constantly interfere with the attention and concentration needed to perform even simple

work tasks. (Id.). Plaintiff can only walk 1/4 block without rest or severe pain, sit for 1

hour at a time, stand for 5 minutes at a time, and sit/stand/walk for less than 2 hours in

an 8-hour workday. (R. 739-40). She needs a cane to stand and walk and can never lift

and carry any amount of weight. (R. 740).

In discounting this opinion, the ALJ noted that it was unsupported by the objective

evidence and inconsistent with his own treatment notes. (R. 26). The Court finds no error

in this assessment. Though Dr. Alengo indicated that he had been treating Plaintiff

monthly for 2 1/2 years, the first time he actually saw her was on February 8, 2018. Prior

to that date, Plaintiff regularly sought treatment at Dr. Alengo’s practice, Family Medicine

Waukegan, but she saw a variety of nurse practitioners and physicians assistants. On

October 12, 2015, Plaintiff went to Kathleen Mariani, PA complaining of lower back pain.

Her PHQ-9 depression screening score was 0 and an exam revealed normal gait, normal

respirations, full and painless range of motion in the neck and back, and no edema. (R.

341-42). PA Mariani recommended some routine preventative health care measures. (R.

342). An x-ray of Plaintiff’s lumbosacral spine dated October 26, 2015 showed severe

degenerative disc disease at L5-S1 and facet arthropathy at L4-L5 and L5-S1, but an

exam the next day documented normal sensation, gait, and strength, as well as normal

mood, affect, and respiration. (R. 347, 514). Plaintiff was not taking any medication at

that time so Briana Aiken, PA prescribed a 30-day course of the NSAID Mobic. (R. 348).

Two days later, on October 29, 2015, Plaintiff saw gastroenterologist Cynthia Wait,

M.D., for episodes of vomiting. (R. 303). Plaintiff denied having any respiratory problems,

depression, anxiety, back pain, joint pain, or myalgia. Dr. Wait instructed Plaintiff to stop

taking Mobic and other NSAIDs because they cause ulcers. (R. 305). PA Mariani

examined Plaintiff again on November 9, 2015 and noted normal: respiration; mood and

affect; range of motion in the extremities; and sensation, strength, and gait. (R. 350). A

subsequent exam on December 9, 2015 remained the same except that Plaintiff had pain

in her low back with range of motion. Karen Ann Kowalczyk, APN, NP prescribed

Naproxen and Norco. (R. 355). Plaintiff continued to complain of low back pain on

January 11, 2016 but PA Mariani made no changes to her medication regimen. (R. 357-

58). The following month on February 9, 2016, Plaintiff started reporting pain in the right

knee. Her depression score was 1, meaning minimal depression, and an exam showed

normal lungs, normal range of motion in the spine with no tenderness, normal range of

motion in the extremities with no edema, and normal mood and affect. (R. 360-61).

Jennifer Horton, PA instructed Plaintiff to take ibuprofen. (R. 361). At a follow-up visit

with Dr. Wait on March 31, 2016, Plaintiff denied having respiratory problems, anxiety,

depression, back pain, joint pain, or myalgia. (R. 300).

Over the next year and a half, Plaintiff continued to complain of back and knee

pain, but exams routinely documented normal or only mild findings. On April 14 and

December 16, 2016, Plaintiff exhibited normal range of motion in the spine with no

tenderness, normal range of motion in the extremities with no edema, and mild to minimal

depression. (R. 363-64, 366-67). A December 16, 2016 x-ray of the knees showed

moderate degenerative joint disease (R. 540), but on December 22, 2016 Plaintiff had

normal range of motion in the extremities, normal sensation/strength/gait, and normal

mood/affect even though she was not taking any medication. (R. 369-70). Throughout

2017, Plaintiff’s exams continued to document normal lung function, normal sensation,

normal strength, normal gait, and minimal depression. (R. 371, 374-75, 377-78, 380, 383-

84, 386-87, 389-90, 393-94, 399-400, 402-03, 405-06, 408-09, 411-12, 628-29, 414-15,

443, 606-07, 609-10, 612-13, 615, 617). Plaintiff started taking Norco beginning January

31, 2017, added Flexeril (a muscle relaxant) in July 2017, switched to Soma in August

2017 because Flexeril was not working, then switched again to Carisoprodol because

Soma was too expensive. (R. 375, 409, 415, 623). Plaintiff also started taking Breo for

COPD on May 25, 2017, and added Advair and Anoro inhalers in December 2017. (R.

607, 622-23).

Plaintiff’s exams remained unchanged in January 2018. (R. 600-01, 603-04). On

February 8, 2018, Plaintiff had her first evaluation with Dr. Alengo. Plaintiff exhibited

tenderness of the vertebral process of the lumbar spine with paraspinal spasms, but

normal gait, sensation, and strength, and minimal depression. She reported that

medications helped to control the pain and Dr. Alengo instructed her to continue

Carisoprodol and Norco. He also prescribed a cane for her primary osteoarthritis. (R.

598-99). Plaintiff saw Dr. Alengo again on March 18, 2018 requesting that he complete

disability paperwork. Her back was tender to palpation of the lumbosacral spine with

paraspinal muscle tenderness, and she had tenderness to palpation of the medial/lateral

joint of both knees. Nevertheless, her sensation, strength, and gait remained normal and

there was no mention of a cane. (R. 596). Though Plaintiff’s depression score remained

minimal, Dr. Alengo assessed her with major depressive disorder, recurrent and

moderate, and prescribed Bupropion. (R. 596-97). He made no change to her pain

medications. (R. 597).

Plaintiff saw Dr. Alengo 8 more times through December 26, 2019 for medication

refills and routine monitoring. On June 14, 2018, Dr. Alengo prescribed a single cane but

continued to document normal gait, sensation, and strength with no medication changes.

(R. 766-67). On August 9, 2018, Dr. Alengo prescribed Buspirone for generalized anxiety

disorder. (R. 759). Plaintiff’s strength, sensation, and gait remained normal. (R. 758).

At her next four appointments, Plaintiff received medication refills for persistent

tenderness in both knees. (R. 745-47, 773-74, 776-77). On May 16, 2019, Plaintiff

reported chronic pain and discomfort in her left knee causing limited range of motion, but

an exam showed full range of motion in the extremities. Dr. Alengo prescribed

Carisoprodol. (R. 35). At her final appointment on December 26, 2019, Plaintiff started

complaining of severe left shoulder pain, dizziness, numbness/tingling, frequent falls, and

difficulty ambulating. This is the first record indicating Plaintiff was walking with a cane.

(R. 32). Dr. Alengo told Plaintiff to stop taking Norco and switch to Soma as needed. (R.

33).

Plaintiff ignores many of these records and fails to explain how they support the

extreme limitations set forth in Dr. Alengo’s opinion, including a complete inability to lift

any amount of weight at all, and a restriction to walking no more than 1/4 block, sitting for

no more than 1 hour at a time, and sitting/standing/walking for no more than 2 hours total

in an 8-hour workday. As the ALJ fairly observed, Dr. Alengo’s findings are inconsistent

with evidence that Plaintiff routinely presented with normal gait, strength, and sensation,

and was able to control her pain with nothing but medication without ever seeing any

specialists or undergoing even physical therapy. (R. 25, 26). It is true that Plaintiff was

routinely diagnosed with lumbar disc degeneration, knee osteoarthritis, muscle spasm,

and COPD (Doc. 19, at 11-12; Doc. 26, at 6), but “[a] mere diagnosis does not establish

functional limitations, severe impairments, or an inability to work.” Jeanine J. v. Kijakazi,

No. 4:21-CV-04044-SLD-JEH, 2022 WL 4483812, at *7 (C.D. Ill. Sept. 27, 2022) (quoting

Allen v. Astrue, No. 10 C 994, 2011 WL 3325841, at *12 (N.D. Ill. Aug. 1, 2011)).

Plaintiff appears to believe that the October 2015 x-ray showing “severe

degenerative disc disease” of the lumbar spine provides objective support for Dr. Alengo’s

findings. (Doc. 19, at 12; Doc. 26, at 6). To begin, this argument misleadingly suggests

that there was severe disease throughout Plaintiff’s entire back when, in fact, the severe

finding was limited to a single level (L5-S1) and there was facet arthropathy (arthritis)

noted at only two levels (L5-S1 and L4-L5). (R. 514). Moreover, Plaintiff fails to articulate

how this record demonstrates that she can barely sit, stand, and walk while requiring

nothing more than routine medication management for her pain. Similarly, the fact that

Plaintiff presented to the emergency department in November 2014 due to nausea,

vomiting, and shortness of breath does nothing to bolster Dr. Alengo’s opinion. (Doc. 19,

at 12; Doc. 26, at 7) (citing R. 458). This single event occurred before the alleged

disability onset date and related to her GERD, and a physical exam that day showed full

musculoskeletal range of motion, normal strength, and normal lung functioning. (R. 458-

59).

There is also no merit to Plaintiff’s suggestion that Dr. Alengo’s opinion was entitled

to greater weight simply because of his “long-time treating relationship” with her. (Doc.

19, at 11). As noted, the new regulations emphasize supportability and consistency, and

Dr. Alengo rendered his opinion after examining Plaintiff only three times. Nor did the

ALJ fail to consider Plaintiff’s obesity in evaluating the merits of Dr. Alengo’s opined

restrictions. The ALJ expressly acknowledged that Plaintiff’s degenerative joint disease,

degenerative disc disease and obesity would exacerbate pain symptoms and so limited

her to: no climbing of ladders, ropes, or scaffolds; only occasional climbing of ramps and

stairs; and only occasional balancing, stooping, kneeling, crouching, and crawling. (R.

19, 26).

Plaintiff finally objects that the ALJ did not properly consider Dr. Alengo’s opinion

that she suffers from severe mental impairments that would constantly interfere with her

ability to maintain concentration and attention. (Doc. 19, at 12-13; Doc. 26, at 8). Dr.

Alengo (a primary care physician) diagnosed Plaintiff with major depressive disorder after

seeing her twice. (R. 596). Yet from October 12, 2015 through July 11, 2019, exams

consistently documented minimal to mild depression that required nothing more than

medication. At her own instance Plaintiff did go to the Lake County Health Department

on February 7, 2018 for a mental health assessment. (R. 575) (noting Plaintiff referred

herself). But she never attended therapy sessions or received psychological counseling

of any kind. Plaintiff fails to address these normal records or explain how they support

the functional restrictions set forth by Dr. Alengo. Compare O’Connor-Spinner v. Colvin,

832 F.3d 690, 692-94 (7th Cir. 2016) (diagnosis of major depression made by mental

health professionals was alone evidence of impaired functioning where the plaintiff

routinely presented with a depressed mood and restricted affect, and her medications at

times had “limited efficacy.”).

Viewing the record as a whole, the ALJ did not commit reversible error in finding

that Dr. Alengo’s opinion was not persuasive. Plaintiff’s request to remand the case for

further consideration of this issue is denied.

2. RFC

Plaintiff argues that the case still requires reversal or remand because the ALJ

erred in determining her mental RFC. The Court agrees that further analysis of this issue

is required. A claimant’s RFC is the maximum work that she can perform despite any

limitations. 20 C.F.R. § 404.1545(a)(1); SSR 96-8p. “[T]he responsibility for the RFC

assessment belongs to the ALJ, not a physician, [but] an ALJ cannot construct his own

RFC finding without a proper medical ground and must explain how he has reached his

conclusions.” Amey v. Astrue, No. 09 C 2712, 2012 WL 366522, at *13 (N.D. Ill. Feb. 2,

2012). See also 20 C.F.R. § 404.1527(f)(2). “Both the RFC assessment and the

hypothetical question posed to the [VE] must include all of a claimant’s limitations

supported by the medical record.” Joshua J. H. v. Kijakazi, No. 21 C 837, 2022 WL

2905673, at *2 (N.D. Ill. July 22, 2022).

At step two, the ALJ concluded that though Plaintiff’s concentration was generally

found to be intact, she nonetheless has mild limitations in concentrating, persisting, or

maintaining pace (“CPP”) due to pain and reported depressive symptoms. (R. 18). In

formulating the RFC, however, the ALJ did not mention this mild CPP restriction or

incorporate it into the questions posed to the VE. The omission is concerning because

the ALJ found Plaintiff capable of performing her past relevant work as a hair stylist, which

the VE classified as semi-skilled. (R. 27, 56-57). Courts have found that “the inclusion

of even mild limitations in . . . concentration, persistence, or pace may preclude the ability

to perform such . . . semi-skilled work.” Cheryl C. v. Berryhill, No. 18 C 1443, 2019 WL

339514, at *3 (N.D. Ill. Jan. 28, 2019). Since the ALJ did not ask the VE whether mild

limitations in CPP would affect Plaintiff's ability to perform her past work, the Court cannot

be certain that the ALJ’s conclusion on this point is supported by substantial evidence.

Remand is therefore necessary.

3. Remaining Arguments

The Court does not find any specific error with respect to Plaintiffs remaining

arguments, but the ALJ should take the opportunity on remand to review all aspects of

Plaintiffs RFC and reconsider her subjective statements regarding pain.

CONCLUSION

For reasons stated above, Plaintiffs request to reverse or remand the ALJ's

decision is granted, and the Commissioner’s Motion for Summary Judgment [24] is

denied. Pursuant to sentence four of 42 U.S.C. § 405(g), the ALJ’s decision is reversed,

and this case is remanded to the Social Security Administration for further proceedings

consistent with this opinion.

ENTER:

Shut Paap

Dated: February 21, 2023

SHEILA FINNEGAN i

United States Magistrate Judge

14