Ferdinand v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

TAMARRA F.1, )

)

Plaintiff, )

)

v. ) CIVIL NO. 1:21cv416

)

KILOLO KIJAKAZI, Acting )

Commissioner of Social Security, )

)

Defendant. )

OPINION AND ORDER

This matter is before the court for judicial review of a final decision of the defendant

Commissioner of Social Security Administration denying Plaintiff's application for a period of

disability and Disability Insurance Benefits (DIB) under Title II of the Social Security Act.

Section 205(g) of the Act provides, inter alia, "[a]s part of his answer, the [Commissioner] shall

file a certified copy of the transcript of the record including the evidence upon which the findings

and decision complained of are based. The court shall have the power to enter, upon the

pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision

of the [Commissioner], with or without remanding the case for a rehearing." It also provides,

"[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall

be conclusive. . . ." 42 U.S.C. §405(g).

The law provides that an applicant for disability benefits must establish an "inability to

engage in any substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to last for a continuous period of no less than 12

months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment

1 For privacy purposes, Plaintiff’s full name will not be used in this Order.

is "an impairment that results from anatomical, physiological, or psychological abnormalities

which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques."

42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an impairment exists. It

must be shown that the impairment is severe enough to preclude the plaintiff from engaging in

substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372

U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that

the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds

v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).

Given the foregoing framework, "[t]he question before [this court] is whether the record

as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.

Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786

(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere

scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting

Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,

552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,

42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also

Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).

In the present matter, after a hearing, the Administrative Law Judge ("ALJ") made the

following findings:

1. The claimant meets the insured status requirements of the Social Security Act

through December 31, 2023.

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2. The claimant has not engaged in substantial gainful activity since December 30,

2018, the alleged onset date (20 CFR 404.1571 et seq.).

3. The claimant has the following severe impairments: obesity; idiopathic

angioedema; urticaria; rheumatoid arthritis; and fibromyalgia (20 CFR

404.1520(c)).

4. The claimant does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, the undersigned finds the claimant

has the residual functional capacity to perform light work as defined in 20 CFR

404.1567(b), except: the claimant can occasionally climb stairs or ramps, balance,

stoop, kneel, crouch, or crawl; and can never climb ladders, ropes or scaffolds.

Work [sic] an option to change positions no more frequently than every 30

minutes, while remaining on task.

6. The claimant is capable of performing past relevant work as a Case Manager. This

work does not require the performance of work-related activities precluded by the

claimant’s residual functional capacity (20 CFR 404.1565).

7. The claimant has not been under a disability, as defined in the Social Security Act,

from December 30, 2018, through the date of this decision (20 CFR 404.1520(f)).

(Tr. 41-50).

Based upon these findings, the ALJ determined that Plaintiff was not entitled to benefits,

leading to the present appeal.

Plaintiff filed her opening brief on March 1, 2022. On May 6, 2022 the defendant filed a

memorandum in support of the Commissioner’s decision to which Plaintiff replied on June 6,

2022. Upon full review of the record in this cause, this court is of the view that the

Commissioner’s decision should be remanded.

A five step test has been established to determine whether a claimant is disabled. See

Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 2290-

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91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test

as follows:

The following steps are addressed in order: (1) Is the claimant

presently unemployed? (2) Is the claimant's impairment "severe"?

(3) Does the impairment meet or exceed one of a list of specific

impairments? (4) Is the claimant unable to perform his or her

former occupation? (5) Is the claimant unable to perform any other

work within the economy? An affirmative answer leads either to

the next step or, on steps 3 and 5, to a finding that the claimant is

disabled. A negative answer at any point, other than step 3, stops

the inquiry and leads to a determination that the claimant is not

disabled.

Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162

n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). In the present

case, Step 4 was the determinative inquiry.

In support of remand, Plaintiff first argues that the ALJ failed to properly weigh the

medical opinion evidence. Because this claim was filed after March 27, 2017, 20 C.F.R. §

404.1520c applies. The “new rules” eliminate the former rule requiring the Commissioner to give

“controlling weight” to an uncontroverted treating medical opinion. 20 C.F.R. § 404.1520c

(Preamble to the rule, 82 FR 5844; January 18, 2017). Instead, the new rules require the

Commissioner to consider specific factors in weighing medical opinions. Id. However, these new

factors are based on the old factors. The rule change specifically elevates the factors of

“supportability” and “consistency” to the top of the hierarchy of the factors for consideration. 20

C.F.R. § 404.1520c(b)(2). Other two factors the Commissioner is required to consider remain

“relationship with the claimant” and “specialization.” Id. When considering the “relationship with

the claimant” factor, the Commissioner is required to consider the familiar sub-factors of length

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of treatment, frequency of examinations, purpose of the treatment relationship, extent of the

treatment relationship, and examining (as opposed to nonexamining) relationship. 20 C.F.R. §

404.1520c(c)(3)(i)-(v).

In this case, Plaintiff’s treating physician, Mohan Menon, M.D., an allergy and

immunology specialist, provided an opinion supportive of disability. In April 2021 Dr. Menon

opined that Plaintiff had recurrent episodes of angioedema and urticaria that were not under

control, that she had side effects from her medications, and “episodes” occurring 2-3 times a

week making it difficult to work (Tr. 867). Dr. Menon also noted that Plaintiff was on maximum

doses of antihistamines and that she had significant side effects from her medications.

Specifically, Xolair caused arthralgia, and Cyclosporine had interactions with other medications

(Tr. 867). The ALJ noted that Dr. Menon provided an opinion regarding Plaintiff’s ability to

sustain full-time employment; however, she discarded his opinion as “vague commentary” that

was not “fully persuasive” (Tr 46-47).

Plaintiff argues that despite any “vagueness” of Dr. Menon’s statement, his opinion

implies that Plaintiff would not be capable of sustaining full-time competitive employment (Tr.

47, 867). An RFC is an assessment of an individual’s ability to do sustained work-related physical

and mental activities in a work setting eight hours a day, for five days a week, or an equivalent

work schedule. SSR 96-8p. The VE testified that an individual who is absent more than two days

a month is unemployable (Tr. 110). Here, Plaintiff’s treating physician, who is a specialist,

specifically opined that, two or three times a week, Plaintiff experienced uncontrolled flares and

side effects from medications that made it difficult for her to work (Tr. 867). Plaintiff’s symptom

reports also corroborate her bad days with medication side effects interfering with her ability to

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even get to work let alone complete a workday (Tr. 102). Plaintiff contends that although the ALJ

acknowledged Dr. Menon’s status as a treating physician with a “specialization” and that Plaintiff

had “six encounters” with Dr. Menon since the onset date, the ALJ did not reconcile those

favorable factors with her rejection of Dr. Menon’s opinion (Tr. 46-47). 20 C.F.R. §

404.1520c(c)(3)(the frequency of treatment and specialization are factors for evaluating the

persuasiveness of medical opinions). Plaintiff concludes that the ALJ did not provide an accurate

and logical bridge from the evidence of record to her conclusion in finding Dr. Menon’s opinion

that Plaintiff would have difficulty sustaining work on a continuing basis “vague.” Clifford v.

Apfel, 227 F.3d 863, 873 (7th Cir. 2000).

The ALJ also found the opinion unpersuasive because Dr. Menon’s physical exams did

not note urticaria and angioedema (Tr. 46). The ALJ cites to the six exams from Dr. Menon

during the three years at issue (Tr. 46). Plaintiff points out that because her condition is

characterized by episodic flares, she does not always suffer from angioedema or urticaria. The

medical record, Plaintiff’s subjective statements, and even the ALJ’s own summary all note that

these impairments flare at unknown intervals. (AR 16, 45, 46, 96, 98, 255, 406, 621). Thus it is

unsurprising that Plaintiff was not in a flare during each exam throughout a period of several

years. Nonetheless, the ALJ relied on these sporadic exams to find Dr. Menon’s findings as

unsupportive of his own opinion, even though some of Dr. Menon’s exams do reveal swelling.

For example, Dr. Menon’s exam on March 13, 2020, revealed swelling of the lateral aspect of the

tongue, and he noted Plaintiff had experienced hives a few days earlier and needed prednisone

(Tr. 771-72). He administered an injection of epinephrine and Depo-Medrol which decreased the

tongue swelling (Tr. 772). Dr. Menon also noted the various medications that were tried including

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Xolair which worked well for several years and then started to cause muscle and joint aches and

was discontinued (Tr. 772). Another medication, Dapasone was tried without significant benefits

(Tr. 772). Plaintiff’s April 20, 2020, visit with Dr. Menon was a tele-visit and examination could

not be done; however, he noted Plaintiff appeared uncomfortable due to hives and had uriticarial

lesions on her face with questionable lip swelling (Tr. 769-70). Dr. Menon prescribed

Hydroxyzine along with Pepcid and increased prednisone (Tr. 769-70).

Dr. Menon described Plaintiff’s “episodes” that occurred two to three days a week leading

to difficulty sustaining work which was related to medication side effects and uncontrolled

urticaria and angioedema (Tr. 867). Dr. Menon was also aware of Plaintiff’s rheumatoid arthritis,

a condition also with episodic flares, which he diagnosed, and thought may be playing a

contributory role in the urticaria and angioedema (Tr. 767, 772). SSA’s consultative examiner,

Dr. Mericle, acknowledged at the conclusion of his exam report from September 2019 that

Plaintiff’s “chief problem is her episodic ra [rheumatoid arthritis] and generalized allergic

reactions”. This is consistent with Dr. Menon’s opinion (Tr. 630). The similarities between the

two opinions make them more persuasive. 20 C.F.R. § 404.1520c(c)(2) ("The more consistent a

medical opinion(s) or prior administrative medical finding(s) is with the evidence from other

medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s)

or prior administrative medical finding(s) will be.").

Plaintiff’s “episodes” limiting her ability to work were also multi-factorial. However, the

ALJ apparently did not consider this when evaluating Dr. Menon’s opinion. Additionally, the ALJ

failed to mention Dr. Mericle’s opinion about episodic flares/reactions being Plaintiff’s “chief ”

problem. Plaintiff asserts that the ALJ should have developed the record by re-contacting Dr.

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Menon (or asking Plaintiff’s counsel to do so) and Dr. Mericle for clarification regarding these

opinions as missing work more than two times a month due to episodes could qualify Plaintiff for

benefits. See Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000).

Plaintiff further notes that Dr. Menon’s opinion is consistent with Plaintiff’s multiple

visits to the emergency room, including her observational stays in the intensive care unit (Tr. 20,

406, 446, 487, 504, 514, 563, 568, 694, 698, 735). See 20 C.F.R. § 404.1520c(c). In June 2018

Plaintiff presented to the emergency room with throat swelling, hives, and difficulty swallowing

(Tr. 595-598). In July 2018 Plaintiff presented to the emergency room with abrupt tongue

swelling making it difficult to swallow; she was admitted from July 15-16, 2018, and received

Solumedrol, Benadryl, and Pepcid which resulted in minimal improvement (Tr. 568-578).

Plaintiff presented to the hospital on March 11 and 13, 2019 with angioedema, difficulty

breathing, and feeling her throat was closing with a feeling of hives in her throat and difficulty

swallowing (Tr. 504-536). On March 11, 2019, Plaintiff initially improved with steroids and

antihistamines but began having symptoms again, including observed tongue swelling, so she was

admitted (Tr. 528). Plaintiff was also admitted to the hospital from May 11-13, 2019, for

treatment of angioedema with observations of facial swelling (Tr. 487-503). On November 11,

2019, Plaintiff presented to the emergency room with swelling of her foot and right eye and

feeling like her throat was swelling with difficulty swallowing, and she was treated on an

outpatient basis with a steroid burst (Tr. 728-736). Plaintiff was admitted to the hospital again

from November 27-28, 2019 and started on IV steroids and Benadryl after presenting to the

emergency room with left facial and orbital swelling, throat dryness, and itching of her feet for the

past two days which was typically how her symptoms started (Tr. 694-699).

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The ALJ also apparently found Dr. Menon’s opinion about medication side effects and

notes about the medication Cyclosporine inconsistent and/or unsupportive of his opinion (Tr. 47).

Yet, the record reveals that just one month after Cyclosporine was begun, it was discontinued (Tr.

872). The record also reveals that the “unspecified” interactions were Cyclosporine’s

incompatibility with multiple medications, including RINVOQ and prednisone (Tr. 770, 798).

Due to Plaintiff’s significant rheumatoid arthritis symptoms, RINVOQ was started, and

Cyclosporine discontinued. (Tr. 770).

The ALJ further found Dr. Menon’s opinion not persuasive because Plaintiff related to

her primary care provider in July 2020 that she had not experienced a hive attack since April 2020

(Tr. 47, 869). Thus, the ALJ made a finding that Dr. Menon’s opinion was not consistent with

findings from other medical sources. 20 C.F.R. § 404.1520c(c)(2). However, the ALJ does not

sufficiently explain why this notation of improvement with Plaintiff’s hives is relevant, when the

longitudinal record indicates Plaintiff would likely be incapable of working on a regular and

continuing basis due to episodic flares, including from angioedema, urticaria, and rheumatic

arthritis and the side effects of the treatment. See Whitney v. Schweiker, 695 F.2d 784, 788 (7th

Cir. 1982) (“ALJ must weigh all the evidence and may not ignore evidence that suggests an

opposite conclusion.”); Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“[T]he ALJ . . .

ignored related evidence that undermined her conclusion. This ‘sound- bite’ approach to record

evaluation is an impermissible methodology for evaluating the evidence.”).

The ALJ found Dr. Mericle’s September 2019 consultative exam for the Indiana DDS

“persuasive” (Tr. 47). The ALJ held that Dr. Mericle had “program knowledge” and

“specialization,” though it is unclear what type of specialization he possessed (Tr. 47). The ALJ

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then acknowledged that Dr. Mericle did not give supportive comments regarding his conclusions

and did not have an ongoing treatment relationship, but the ALJ found that his conclusions were

consistent with the evidence and his examination (Tr. 47). However, the ALJ failed to explain

how Dr. Mericle’s exam and opinion supported that Plaintiff could stand and walk at least two

hours and lift over ten pounds occasionally (Tr. 622, 627). The ALJ assessed a light RFC, which,

by definition, finds that Plaintiff can stand and walk six hours in an eight-hour workday and can

carry up to twenty pounds occasionally. SSR 83-10p.

Additionally, the ALJ failed to acknowledge or evaluate Dr. Mericle’s conclusion that

Plaintiff’s “chief problem is her episodic ra [rheumatoid arthritis] and generalized allergic

reactions” (Tr. 630). This aspect of Dr. Mericle’s opinion is consistent with Dr. Menon’s opinion

about the impact of flares resulting in an inability to sustain work (Tr. 47, 630). This RFC

assessment finding was not accurately connected to Dr. Mericle’s exam, and the ALJ never

explained how the RFC accounted for Dr. Mericle’s opinion that Plaintiff’s problem was related

to episodic flares of the rheumatoid arthritis, urticaria and angioedema (Tr. 630).

The ALJ also failed to reconcile the opinion evidence with evidence concerning Plaintiff’s

difficulty sustaining work at the case manager job she held until December 2018. Plaintiff

testified that there were times she had to leave work and her employer had to call somebody

in because she experienced tongue or throat swelling requiring a trip to the emergency room (Tr.

95-96, 101-02). Some days she could not go to work because of the swelling and her medication;

Atarax made her unable to drive and caused her to sleep (Tr. 96, 102). The ALJ acknowledged the

testimony, but failed to state why it was not persuasive (Tr. 45). Plaintiff also reported that since

she left that job in December 2018, she had more aches and pains (Tr. 103).

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The ALJ considered the non-examining state agency physicians’ opinions of Drs. Sands

and Small rendered at the initial and reconsideration levels of review in September and December

2019 (Tr. 114-122, 124-133). Drs. Sands and Small opined that Plaintiff could work at the light

exertional level with lifting up to 20 pounds occasionally and 10 pounds frequently, standing/

walking and sitting about 6 out of 8 hours, and performing postural activities occasionally except

never climbing ladders/ropes/scaffolds (Tr. 117-120, 129-131). The ALJ acknowledged these

opinions were only partially persuasive given that they were not founded on the entire evidence.

Like Dr. Mericle’s opinion, these opinions were provided in 2019, prior to the additional

diagnosis of fibromyalgia, one of the issues raised by the ALJ herself (Tr. 47). The ALJ noted

that additional limitations allowing for “position changes every thirty minutes” were supported

due to Plaintiff’s diagnosis of fibromyalgia and rheumatoid arthritis and in consideration of her

testimony (Tr. 47). Here, as above, the reviewing consultants’ opinions were outdated given the

new and significant evidence found in the record. The ALJ rejected these opinions, and formed a

“middle ground” RFC based on her own interpretation of the medical evidence. Rohan v. Chater,

98 F.3d 966, 970 (7th Cir. 1996) (ALJs “must not succumb to the temptation to play doctor and

make their own medical findings”); Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir.

2003) (ALJs may not substitute their own opinions to fill gaps in the record).

Plaintiff points out that records after Dr. Mericle’s consultative exam, which were also not

available to the state agency reviewers, provide evidence of ongoing flares and worsening

conditions. In November 2019, just two months after Dr. Mericle’s exam, Plaintiff was admitted

to the hospital again due to her angioedema and started on IV medications due to her swelling (Tr.

694-699). Office visits with Dr. Menon in 2020 also note swelling and that Plaintiff was having a

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reaction to Xolair which had previously been helpful (Tr. 772). Plaintiff was also not yet

diagnosed with fibromyalgia when Dr. Mericle and the state agency reviewers provided their

opinions (Tr. 114-122, 124-133, 621, 784, 790 noting fibromyalgia diagnosis in the summer of

2020). Consequently, their assessments were not based on all of Plaintiff’s pain and fatigue

producing impairments. Akin v. Berryhill, 887 F.3d 314, 318 (7th Cir. 2018) (remanding as the

ALJ relied on an outdated opinion despite new records that revealed significant, new

developments that bore directly on claimant’s functioning).

The ALJ acknowledged Plaintiff had greater limitations than the state agency medical

consultants assessed and claimed to rely on Plaintiff’s testimony to support the addition of an

option to change positions every 30 minutes, while remaining on task (Tr. 44, 47, 107-108).

However, the ALJ did not identify what aspect of the testimony supported a light RFC with a sit/

stand option nor is it apparent from the testimony. Plaintiff testified that she sits “a lot” and that

getting up from sitting is difficuilt (Tr. 90, 96). She thought she could sit for about an hour before

she needed to get up and try to move around; yet, getting up was “hard” because her body was

“really, really stiff” and she had pain in her knees and sometimes her hips (Tr. 90-91). In addition

to having the flares of angioedema, Plaintiff also had pain and stiffness that prevented her from

going a lot of places and activity caused increased pain (Tr. 96). She sat in a jacuzzi tub at her

mother’s house at the recommendation of her rheumatologist but needed help getting out of the

tub and “tuckered [her]self out” trying to get out of the tub (Tr. 96). Her legs and hips hurt, and

sometimes her fingers got stuck (Tr. 96-97). She estimated she got flares of hives a couple of

times a week and took medication to help the hives (Tr. 98). She had fibromyalgia that was not as

bad as the rheumatoid arthritis, but it still caused her body to be in pain and hurt to the touch (Tr.

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99-100). Plaintiff testified that she is always tired, and her medication “zonks” her out (Tr. 105).

Thus, it is unclear what, if any, aspect of Plaintiff’s testimony supports the ALJ’s conclusion that

Plaintiff could sustain full-time work at the light exertional level, which requires standing/

walking for at least 6 out of 8 hours, even if she had an option to alternate positions every 30

minutes while remaining on task.

The Commissioner contends that the ALJ properly evaluated the medical opinion

evidence and that Dr. Menon’s opinion required no evaluation since it “appears to cover an issue

that is reserved to the Commissioner.” The Commissioner further contends that the ALJ

acknowledged Dr. Menon’s status as a treating source, that some treatment notes showed

abnormalities, and that the medication cyclosporine caused “unspecified interaction”. The

Commissioner argues that this was sufficient articulation to find Dr. Menon’s opinion, which the

ALJ called “vague commentary,” unpersuasive (Tr. 46). The Commissioner also asserts that the

ALJ properly evaluated Dr. Mericle’s opinion and that his opinion, along with the state agency

opinions, support the ALJ’s RFC assessment for light work.

However, Dr. Menon’s opinion is not, as the Commissioner argues, an “opinion on an

issue reserved to the Commissioner” under 20 C.F.R. § 404.1520b(c). The ALJ never found that

Dr. Menon’s statements did not qualify as medical opinions nor did the ALJ claim she did not

need to provide articulation about the opinion. See SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.

Ct. 454, 87 L.Ed. 626 (1943) ("The grounds upon which an administrative order must be judged

are those upon which the record discloses that its action was based."). The Commissioner’s

argument on this point is similar to one this Court recently rejected as contrary to Seventh Circuit

case law. See Benjamin H. v. Kijakazi, No. 1:21cv271, 2022 U.S. Dist. LEXIS 86841, at *10-11

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(N.D. Ind. May 13, 2022) (citing Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) and

Garcia v. Colvin, 741 F.3d 758, 760 (7th Cir. 2013) (“whether the applicant is sufficiently

disabled to qualify for social security disability benefits is a question of law that can't be answered

by a physician” and “the answer to the question depends on the applicant's physical and mental

ability to work full time, and that is something to which medical testimony is relevant and if

presented can't be ignored.")). In any event, the Commissioner has not explained how Dr.

Menon’s opinion qualifies as the kind of conclusory statement that SSA deems an opinion on an

issue “reserved to the Commissioner.”

As discussed above, Plaintiff identified medical evidence consistent with and supporting

Dr. Menon’s opinions including evidence the ALJ failed to address and/or selectively reviewed.

The Commissioner implies the ALJ did not need to address this evidence from June and July

2018 which was prior to Plaintiff’s alleged disability onset date by about six months. Yet, the

Seventh Circuit and the District Courts within the Seventh Circuit have found reversible error due

to the failure to consider medical evidence and opinions before an alleged disability onset date.

See Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (holding the ALJ's failure to mention a

treating physician's opinions rendered two and three years prior to the claimant's alleged onset

date of disability was reversible error). Recognizing the importance of evidence preceding an

alleged disability onset date, SSA has a duty to develop the record for at least a 12-month period

prior to the date an application is filed. 20 C.F.R. § 404.1512(b). In this case the evidence

preceding Plaintiff’s alleged disability onset date, including an emergency room visit and an

inpatient stay for angioedema, is consistent with Dr. Menon’s opinions. The ALJ erred in failing

to address this evidence which was consistent with and supported Dr. Menon’s opinions.

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With respect to medication side effects, the Commissioner asserts that Plaintiff has not

explained how medication side effects impacted her ability to work. As noted, one of the reasons

the ALJ discounted Dr. Menon’s opinion was an alleged lack of support concerning medication

side effects, including Cyclosporine (Tr. 46-67). However, the record is consistent with Dr.

Menon’s report about medication side effects. The record confirms that Cyclosporine, which was

prescribed to treat refractory urticaria and angioedema, was discontinued due to renal side effects;

it was also incompatible with RINVOQ, a medication Plaintiff’s rheumatologist wanted her to

start due to symptomatic rheumatoid arthritis (Tr. 770, 793-798, 867). The record also indicates

that Plaintiff suffered adverse reactions to other medications, including prednisone and that

angioedema flared when the dosage was decreased (Tr. 767, 767-770, 793).

The Commissioner does not dispute that the ALJ failed to confront the consistency of

Plaintiff’s reports that in her past job she had to leave work early due to her allergic reactions and

sometimes could not go to work due to her condition and medication side effects. The

Commissioner implies Dr. Menon’s opinion about absences was based solely on Plaintiff’s

reports and could be discounted on this basis. While Dr. Menon may have accounted for

Plaintiff’s symptom reports, his opinion was not based “solely” on her statements. Plaintiff has

identified ample medical evidence that supports that she experienced flares, even if all instances

are not documented with contemporaneous emergency room or other medical office visits. Yet,

the RFC did not take flares into account.

In this case, the medical evidence and opinions as well as the symptom reports together

indicate that Plaintiff’s impairments with episodic swelling and medication side effects, including

drowsiness from the medications, would likely cause attendance problems and work-related

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absences. The Commissioner contends that the evidence does not support that Plaintiff would

have more than two absences a month, which according to the VE would not be tolerated.

Clearly, though, how often Plaintiff would miss work or need to leave early, or how often she

would be unable to focus and attend to work activities are factual issues that must be resolved

upon remand after proper consideration of the medical opinion evidence and symptom testimony.

This may require the ALJ to obtain an updated medical expert opinion upon remand.

Additionally, remand is warranted for proper assessment of all of the medical opinions in this

case and for the ALJ to evaluate the medical opinion evidence consistent with SSA's regulations

and to properly support the weighing of those opinions and the formulation of the RFC.

Next, Plaintiff argues that the ALJ erred in the subjective symptom evaluation and also

failed to consider Plaintiff’s impairments in combination. An ALJ’s symptom evaluation is

reviewed for legal error and will be reversed if, overall, the ALJ’s factual conclusions are

“patently wrong.” Cullinan v. Berryhill, 878, F.3d 598, 604 (7th Cir. 2017); Prochaska v.

Barnhart, 454 F.3d 731, 738 (7th Cir. 2006). An ALJ’s assessment is “patently wrong” when

the findings lack adequate explanation, are not “competently” explained, are not supported by

substantial evidence from the record as a whole or are otherwise factually or logically mistaken.

Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006), Cullinan, 878 F.3d at 604 (credibility

determination lacks support when it relies on inferences that are not logically based on specific

findings and evidence).

The Agency provides a specific set of criteria to consider when evaluating symptom

testimony. First, the ALJ must determine whether a claimant has medically determinable

impairments that reasonably could be expected to produce her symptoms. SSR 16-3p; 20 C.F.R.

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§404.1529(a). Statements regarding intensity and persistence may not be disregarded simply

because they are not substantiated by objective evidence. SSR 16-3p. SSR 16-3p provides a

specific two-factor test an ALJ must use to evaluate the “intensity, persistence, and functionally

limiting effects of an individual’s symptoms to determine the extent to which the symptoms affect

the individual’s ability to do basic work activities.” In determining the ability of the claimant to

perform work-related activity, the ALJ must consider the entire case record, and the decision must

contain specific reasons for the finding. Id. The ALJ must weigh the subjective complaints, the

relevant medical evidence, and any other evidence with specific factors: 1) the individual’s daily

activities; 2) the location, duration, frequency, and intensity of pain or other symptoms; 3)

precipitating and aggravating factors; 4) the type, dosage, effectiveness, and side effects of any

medication; 5) treatment other than medication, for pain or other symptoms; 6) other measures

taken to relieve pain or other symptoms; 7) other factors concerning functional limitations due to

pain or other symptoms. SSR 16-3p; 20 C.F.R. § 404.1529(c)(3).

Here, in assessing Plaintiff’s consistency/credibility, the ALJ merely summarized

Plaintiff’s statements concerning the intensity, persistence and limiting effects before directly

comparing them to a medical summary (Tr. 45-47). The ALJ then found Plaintiff’s symptom

reports not consistent or credible because the record does not document “sufficient objective

medical evidence to substantiate the severity and degree of functional limitations alleged by

claimant” (Tr. 45). The ALJ employed a “backward reasoning” in assessing Plaintiff’s symptoms

by engaging in a cherry-picked recitation of the evidence and then finding that Plaintiff’s

impairments and symptoms would only limit her to work at the light exertional level with

postural limitations and the “option to change positions to address allergic flares, fatigue and

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pain” (Tr. 46).

Not only did the ALJ fail to follow the Agency’s rules and regulation for the evaluation

symptom testimony, the ALJ also failed to reconcile her finding regarding the lack of sufficient

“objective evidence” with the conclusions of the state agency evaluators who concluded that

Plaintiff’s symptoms included pain and weakness and that her statements about the intensity,

persistence, and functionally limiting effects of the symptoms were “substantiated by the medical

evidence alone” (Tr. 118, 129).

In considering the severity of Plaintiff’s angioedema symptoms, the ALJ found Plaintiff’s

throat swelling resulted in only two “brief overnight” stays for observation (Tr. 46, analyzing SSR

16-3p’s frequency and intensity of symptoms factor). However, the ALJ failed to reconcile this

with Plaintiff’s reports that her angioedema occurs unexpectedly and had also caused her to go to

the emergency room. (Tr. 96). Logically, an unexpected trip to the emergency room will result in

missed work. However, here, the ALJ looked only at the two overnight stays without looking at

how many times Plaintiff went to the emergency room. As noted, Plaintiff had multiple trips to

the hospital for angioedema (Tr. 20, 406, 446, 487, 504, 514, 563, 568, 694, 698, 735). Plaintiff

also stated that even if she does not have to go to the emergency room, during a normal flare she

takes medication to keep her flare from worsening; the medication Plaintiff must take to stave off

flares causes such fatigue that she cannot drive safely, and she needs to sleep (Tr. 96, 102).

Nonetheless, the ALJ did not consider the severe fatigue documented in the record relating to her

medication that supports Plaintiff’s statements (Tr. 322, 392, 397, 412, 622, 636, 645, 653, 794,

803, 873, 901). Instead, as noted above, when discussing the side effects of her medication, the

ALJ focused on Cyclosporine, a medication prescribed for only a month (Tr. 46). Even when

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focused on the “unspecified” interactions caused by this medication, the ALJ failed to engage in

an accurate credibility analysis. As noted, the medication caused potentially life-threatening

interactions with other medications, including renal failure. (Tr. 765, 770).

The ALJ acknowledged that Plaintiff’s medical record revealed that many of her

medications caused significant side effects, yet the ALJ did not consider the other medication

attempted, specifically the Hydroxyzine or Atarax four times a day that caused the fatigue

Plaintiff described (Tr. 46, 36-54, 96, 385, 397). Given this consistency analysis, the ALJ did not

“build a logical bridge between [her] statements and the record.” Frazier v. Berryhill, 2019 U.S.

Dist. LEXIS 4640, *12-13, citing Cullinan, 878 F.3d at (“A credibility determination lacks

support when it relies on inferences that are not logically based on specific findings and

evidence.”) (citing Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014)); Villano v. Astrue, 556

F.3d 558, 562-63 (7th Cir. 2009) (requiring an analysis of the SSR 96-7p, now the SSR 16-3p,

factors as part of a logical bridge for the credibility analysis). Here, the ALJ provides no logical

analysis connected to specific evidence to demonstrate that Plaintiff’s angioedema and its

treatment did not cause significant issues with her ability to work on a regular and continuing

basis.

The ALJ also found that while Plaintiff suffered from severe pain producing impairments,

they were not as limiting as she stated given that her prescribed medications caused improvement

(Tr. 46). The ALJ provided two citations noting that immunosuppressants made Plaintiff “feel

great” and Cymbalta allowed her to feel “the best she felt in a long time.” Id. However, as

discussed above, the ALJ never received input from a medical expert after Plaintiff’s diagnosis of

both rheumatoid arthritis along with her fibromyalgia.

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The ALJ also failed to address evidence contradicting her findings and supporting

Plaintiff’s symptom reports. For example, lab reports showed elevated sedimentation rate (sed

rate) at 40 in July 2019 and C-reactive protein (CRP) elevated to 1.9 mg/dl in June 2019 and 1.7

mg/dl3 in July 2019 (Tr. 796, 843). The ALJ did not discuss evidence from September 2019

indicating Plaintiff had been on Plaquenil and was having symptom of brain fog and

disorientation, severe arthralgia, unusual fatigue rated as a 10/10, sleep problems, and morning

stiffness (Tr. 652-657). In September 2019, Regina Frederick, an NP with Parkview

Rheumatology, diagnosed Plaintiff with seropositive rheumatoid arthritis involving multiple sites,

and she was started on weekly Enbrel injections (Tr. 655). An exam from February 2020 showed

tenderness and decreased range of motion in the left shoulder, tenderness/crepitus in the knees,

and tenderness in the hands (Tr. 815). An exam from June 2020 showed tenderness and decreased

range of motion of the left shoulder and tenderness/crepitus over both knees (Tr. 797).

The ALJ also failed to discuss evidence regarding testing scores on the RAPID3 testing

that supports Plaintiff’s symptom reports about the severity of her pain and functional limitations.

Plaintiff’s RAPID3 scores were mostly in the severe range with two scores in moderate range:

17.3 (severe) in November 2019 (Tr. 825); 9.5 (moderate) in February 2020 (Tr. 812); 17.3

(severe) in March 2020 (Tr. 803); 21.2 (severe) in June 2020 (Tr. 795), 21.7(severe) in July 2020

(AR 785); and 10.2 (moderate) in August 2020 (Tr. 777).

In addition to suffering from rheumatoid arthritis and fibromyalgia, Plaintiff is also

morbidly obese with a BMI exceeding 40 (Tr. 776, 781, 916, 924, 930). The ALJ acknowledged

this was a severe impairment, but it is not apparent how she factored that into her consideration of

the symptom reports. The ALJ never sought expert input about the combined impact of all of

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Plaintiff’s impairments. Rather, the ALJ relied solely on two instances of nebulous improvement

to find Plaintiff’s statements regarding her pain inconsistent and thus that she is capable of

standing and walking six hours out of an eight-hour workday.

The record, at best, indicates occasional waxing and waning of pain with persistent

fatigue. Aside from these two instances of improvement in pain, the record also reveals severe or

moderate arthralgias in the left shoulder, neck, left hip, right hip, left knee, and back (Tr. 328,

635, 644, 652-53, 666). Plaintiff often rated her pain a six or an eight out of ten (Tr. 635, 644,

652, 802). She indicated she experiences a high level of chronic fatigue, which she rated as a

10/10 (Tr. 785, 794). The record also notes Plaintiff has difficulty getting in and out of cars,

turning faucets on and off, walking on flat ground, and dressing herself. (Tr. 90, 635, 802).

Nonetheless, the ALJ does not discuss any limitations due to Plaintiff’s pain. Rather, the ALJ

conclusively states in her analysis that Plaintiff does not suffer from “marked limitation of daily

activities” due to her rheumatoid arthritis or her fibromyalgia. (Tr. 43-44). Considering the entire

record, the ALJ’s reasoning does not build a logical bridge from Plaintiff’s statements about the

frequency and intensity of her pain to the evidence found in the record. The ALJ’s symptom

assessment is “patently wrong” as the findings lacked substantial evidence from the record as a

whole. Allord, 455 F.3d at 821. Thus, remand is warranted on these issues.

Next, Plaintiff argues that the ALJ failed to include all of her limitations in the RFC and

in the hypothetical to the VE. As discussed above, the ALJ failed to properly analyze the medical

evidence and symptom testimony leading to a failed assessment of Plaintiff’s RFC. Here, the

medical review by the state agency physicians were outdated. The ALJ noted that the evaluators

relied on an incomplete record. (Tr. 47, 114, 125). The ALJ noted that both the initial review of

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the record, as well as the reconsideration, are only “partially” persuasive, and found they were

outdated. (Tr. 47). The ALJ then rejected the opinion of Plaintiff’s own physician who opined

Plaintiff could not work on a continuing basis. (Tr. 46). After rejecting Plaintiff’s testimony, the

ALJ relied solely on DDS’s exam that assessed vague findings that Plaintiff could walk “at least

two hours” in an eight-hour workday and carry “over ten pounds occasionally.” (Tr. 47, 622,

627). In this case, the ALJ did not explain how an individual with fibromyalgia in combination

with rheumatoid arthritis compounded by morbid obesity can walk/stand six hours out of an

eight-hour workday. (Tr. 776, 784, 793, 802, 824). The ALJ erred by not providing a logical path

for a reviewing court to trace her reasoning. (Tr. 46). Scott v. Barnhart, 297 F.3d 589, 595 (7th

Cir. 2002).

Additionally, the ALJ did not provide an adequate analysis of Plaintiff’s obesity. While

finding that Plaintiff suffered from a severe impairment of obesity, the ALJ did not explain how

this impairment affects either her other pain-producing impairments or her ability to work in

general. 20 C.F.R. § 416.920(5)(c)(a severe impairment limits your physical or mental ability to

do basic work activity). The RFC assessment must include a narrative that shows the presence

and degree of any specific limitations and restrictions, as well as an explanation of how the

evidence in the file was considered in the assessment. SSR 96-9p. The individual’s maximum

remaining capacity to perform sustained work on a regular and continuing basis must be stated.

Id. This was not assessed in relation to Plaintiff’s obesity in combination with her other

pain-producing impairments. Rather, the ALJ simply concluded that obesity is not a listed

impairment and, when considered in combination with other impairment(s) of the record, did not

impose severity of functional effects to medically equal a listing. (Tr. 44). Thus, the ALJ did not

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fully explain the effect of Plaintiff’s obesity in relation to the RFC. SSR 19-2. Here, the record

supports limitations to weight-bearing joints, including the knee and hips due to Plaintiff’s

rheumatoid arthritis and fibromyalgia. (Tr. 330, 325, 328, 662, 780, 788, 797, 806, 815, 828,

873).

Further, the ALJ did not fully explain why she did not provide limitations for fingering

and handling (Tr. 44). The record establishes a diagnosis of hand, wrist, and finger arthralgia as

well as stiffness and swelling (Tr. 794, 776, 784, 793, 802, 811, 824). Plaintiff reported much

difficulty dressing herself and tying her shoelaces and some difficulty grasping larger objects,

including bringing a full glass to her mouth (Tr. 784, 793). Nonetheless, despite summarizing

Plaintiff’s symptoms, the ALJ did not explain why Plaintiff had no limitations with handling and

grasping items (Tr. 45).The ALJ must support her findings with specific reasons, and those

reasons must be supported by substantial evidence and explained well enough for a reviewing

court to conduct a thorough review. Villano, 556 F.3d at 562; Pepper v. Colvin, 712 F.3d 251,

367 (7th Cir. 2013).

Also, as discussed above, the ALJ failed to provide an adequate analysis as to why

Plaintiff could work on a continuing basis after rejecting both Dr. Menon’s opinion, failing to

evaluate the supportive aspects of Dr. Mericle’s opinions, as well as Plaintiff’s subjective

statements. Due to Plaintiff’s intense fatigue and the number of expected absences, the ALJ’s

conclusion that Plaintiff could work on a continuing basis is not supported by substantial

evidence. The ALJ also failed to consider that most competitive jobs require the ability to travel

to and from work. POMS DI 24020.010. Thus, remand is required for a reformulation of what

employment, if any, Plaintiff can perform.

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Conclusion

On the basis of the foregoing, the Decision of the Commissioner is hereby REVERSED

AND REMANDED for further proceedings consistent with this Opinion.

Entered: June 22, 2022.

s/ William C. Lee

William C. Lee, Judge

United States District Court

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