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Lottie v. Berryhill

United States District Court, N.D. Indiana, South Bend Division

March 5, 2018

ERIC LOTTIE, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, [1]Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON, JUDGE

         Eric Lottie appeals the denial of disability insurance benefits and supplemental security income benefits by the Commissioner of the Social Security Administration. Lottie has been a construction laborer, a plumber and a prisoner. [AR at 263, 62.][2] He has at times been homeless, staying with friends or family, or sleeping in his car. [AR at 292-95.] When he applied for benefits in 2012, he alleged that he was disabled from working by carpal tunnel syndrome in both hands, lower back and hip pain, and a torn Achilles tendon in his right ankle, and also suffered from depression. [AR at 251, 286.]

         Lottie had a hearing before an administrative law judge on August 5, 2015, at which Lottie appeared without an attorney and gave testimony. [AR at 43-78.] The ALJ issued a written decision denying Lottie's claim for benefits on November 16, 2015. [AR 18-30.] The ALJ found that Lottie has severe impairments of degenerative disc disease, carpal tunnel syndrome, obesity and affective disorder. [AR at 21.] The ALJ concluded that Lottie‘s severe impairments do not conclusively establish disability by meeting or medically equaling the severity of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. [Id.] The ALJ found that Lottie possessed the residual functional capacity to perform light work, that he was capable of performing jobs that exist in significant numbers in the national economy, and that Lottie is not disabled. [AR at 23, 28.]

         Lottie asks me to reverse the ALJ's decision or remand the case for further proceedings by the Social Security Administration. My review of the ALJ's decision is deferential. I must affirm it if it is supported by substantial evidence, meaning “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (citation omitted). I cannot reweigh the evidence or substitute my judgment for that of the ALJ. Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015). But these standards do not mean that I “will simply rubber-stamp the Commissioner's decision without a critical review of the evidence.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). “In rendering a decision, an ALJ is not required 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), quoting Schmidt v.Barnhart, 395 F.3d 737, 744 (7th Cir. 2005). Lottie makes four arguments in support of his appeal.

         Issue One: Medical Opinion Evidence

         Lottie was sent to see consultative examiner Dr. B.T. Onamusi in January 2013, and Dr. Onamusi's report is part of the administrative record. Exh. 2F. Based upon Lottie's reports of his medical history and functional capabilities, and upon a physical examination, Dr. Onamusi briefly concluded: “Based on information obtained during this examination it is my opinion that claimant should be able to engage in sedentary level activities as defined in the Dictionary of Occupational Titles.” [AR at 358.]

         Two different sets of State agency consultants reviewed Lottie's file in February 2013 and July 2013. Exh. 2A, 5A.[3] This included their review of the report of Dr. Onamusi as a consultative examiner. In March 2013, Dr. Ruiz assessed Lottie as able to lift or carry 50 pounds occasionally and 25 pounds frequently, to stand, walk or sit for a total of about 6 hours in an 8-hour workday, and to have few postural limitations. As explanation, Dr. Ruiz noted that the record contained no treating physician records, and cited to a number of findings in the medical record that he believed supported his RFC assessment. [AR at 93-94.] He also noted that no problems with walking, standing or sitting were noted at Lottie's “face-to-face DDB interview” and he was in no apparent distress doing those things. [AR at 94.] Based on these findings in the record, Dr. Ruiz concluded that Lottie's claimed limitations were “[n]ot fully credible.” [Id.] Dr. Ruiz reconciled his conclusions with the more restrictive opinion of Dr. Onamusi this way: “The opinion relies heavily on the subjective report of symptoms and limitations provided by the individual, and the totality of the evidence does not support the opinion.” [AR at 94.] Dr. Corcoran's Disability Determination Explanation in July 2013 parrots the same RFC findings and (disappointingly) the same explanation as Dr. Ruiz's from 4 months earlier. [AR at 104-105.]

         After earlier setting forth Dr. Onamusi's findings on his physical examination of Lottie, the ALJ later noted Dr. Onamusi's conclusion that Lottie could perform sedentary level work. The ALJ gave only little weight to that opinion as “inconsistent with the medical record as a whole, which shows generally normal and unremarkable physical examination findings.” [AR at 25, 27.] No explanatory discussion is included in support of this critical determination by the ALJ. Instead, he merely cites to a list of exhibits in the administrative record, including Dr. Onamusi's own report. [AR at 27.]

         This approach does not provide an explanation of the ALJ's analysis sufficient to permit a meaningful review. Furthermore, the skeletal citation only to a list of exhibits that support the ALJ's conclusion contrary to the examining physician may constitute the sort of “cherry-picking” of supportive evidence that the Circuit has repeatedly criticized, as well as a failure to acknowledge and address significant contrary evidence. Yurt v. Colvin, 758 F.3d 850, 860 (7th Cir. 2014); Moore v. Colvin, 743 F.3d 1118, 1124 (7thCir. 2014). The scanty treatment fails to provide the required “logical bridge” between the evidence and the ALJ's conclusion that Dr. Onamusi's opinion should be given little weight, and less weight than that of Drs. Ruiz and Corcoran.

         Besides challenging the adequacy of the ALJ's analysis of Dr. Onamusi's opinion, Lottie also challenges the ALJ's acceptance of the conclusions of the non-examining doctors Diaz and Corcoran over that of Dr. Onamusi, who had the benefit of examining Lottie. The applicable regulations provide that, generally speaking, more weight is given to the opinion of a doctor who examined the claimant than to one who has not. 20 C.F.R. §404.1527(c)(1), 416.927(c)(1). Nonetheless, “[a]s a general rule, an ALJ is not required to credit the agency's examining physician in the face of a contrary opinion from a later reviewer or other compelling evidence.” Beardsley v. Colvin, 758 F.3d 834, 839 (7th Cir. 2014). But “rejecting or discounting the opinion of the agency's own examining physician...can be expected to cause a reviewing court to take notice and await a good explanation for this unusual step.” Id. See also Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003) (“An ALJ can reject an examining physician's opinion only for reasons supported by substantial evidence in the record; a contradictory opinion of a non-examining physician does not, by itself, suffice.”) These authorities highlight the inadequacy of the ALJ's treatment of the opinions of the three consulting doctors.

         “In addition to relying on substantial evidence, the ALJ must also explain his analysis of the evidence with enough detail and clarity to permit meaningful appellate review.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). The ALJ's use of boilerplate language and sweeping characterization of multiple medical records does not constitute even a “minimal articulation” of reasons for his relative weighing of Dr. Onamusi's opinion versus that of Doctors Ruiz and Corcoran. Skarbek v. Barnhart, 390 F.3d 500, 503-04 (7th Cir. 2004). The ALJ's failure to “provide a valid explanation for preferring the record reviewer's analysis over that of the agency's examining doctor” compels a remand of this case for further consideration by the Commissioner. Beardsley, 758 F.3d at 839.

         Issue Two: The ALJ's RFC Assessment

         Lottie's second challenge to the ALJ's decision is that he “failed to identify any evidence that supported the functional limitations” that he included in his assessment of Lottie's Residual Functional Capacity. RFC is the disability term for the description of what a claimant is able to do despite functional limitations from medical impairments, and represents the Commissioner's determination of the individual's “capacity to ...


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