MEMORANDUM OPINION AND ORDER
Milton I. Shadur, Senior United States District Judge.
Venetta A. Outley (`Outley') seeks judicial review pursuant to the Social Security Act (the `Act`), more specifically 42 U.S.C. §§ 405(g) and 1383(c)(3),
For the reasons given in this memorandum opinion and order, Outley's motion is denied in part and granted in part, while Commissioner's motion is denied, and the case is remanded for further proceedings consistent with this opinion.
Outley applied for social security disability insurance benefits (`SSDI`) under Title II of the Act on June 21, 2011, alleging a disability onset date of December 31, 2010 (R. 186, 203). That application was denied on October 14, 2011 and again denied on reconsideration on March 9, 2012 (R. 14, 101, 102). On May 14, 2012 Outley requested a hearing (R. 262), and on September 26, 2012 she augmented her application for SSDI with one seeking supplemental security income (`SSI`) under Title XVI of the Act (R. 268-69). Administrative Law Judge B. Carlton Bailey, Jr. (`ALJ Bailey` or simply `the ALJ`) held the requested hearing
Several sources provided medical records to the Social Security Administration (`SSA'), of which only the ones relevant to the portions of the ALJ's opinion that Outley is contesting will be recited. Outley's primary care physician, Dr. Percy Conrad May, submitted his treatment notes in three waves on July 23, 2011, February 7, 2012 and June 17, 2013 covering the period from November 9, 2009 through June 30, 2012, plus one letter and a prescription dated July 10, 2013.
Relevant to her present review action, Outley saw Dr. May on January 1, 2010 complaining of a chronic cough and back pain that had not gotten better with medication (R. 308). He attributed the back pain to degenerative disc disease and lumbago and recommended that she stay home from work for the next two weeks (R. 311-12).
After three to four days of acute back pain that made it difficult to walk, Outley went to West Suburban's emergency room on March 8, 2010 (R. 367). She was given pain medication and discharged (R. 363).
On June 15, 2010 she again saw Dr. May in `[r]espiratory distress,` having been short of breath for the previous two weeks (R. 312). His only relevant diagnosis was benign hypertension, but he nonetheless provided an out-of-work note for June 12-16 (R. 316-17).
Outley went to the emergency room at West Suburban again on September 26, 2010 complaining of slurred speech, swelling in her cheek and pain in her neck and back (R. 358-59). Computerized tomography of the brain revealed no acute intracranial process (R. 361). Outley was diagnosed with angioedema and hypertension before being discharged (R. 358). Next day she returned, saying that she had not gotten better, with pain in the center of her chest and unable to catch her breath, especially with exertion (R. 350). Diagnostic imaging of her chest revealed no acute cardiopulmonary process, and so she was discharged (R. 346, 353).
Outley went to the West Suburban emergency room again on October 7, 2010 because she felt heavy across her anterior chest and had been short of breath intermittently since her September 26 visit (R. 377). But the emergency room staff was unable to diagnose her with anything more specific than chest pain, saying that inpatient care would be needed for further evaluation (R. 376). So Outley returned the following day, complaining of chest pain that had been bothering her on and off for the last ten days and was accompanied by shortness of breath (R. 369). At that time she reported that she was independent in performing her activities of daily living (R. 369). Among her medications was Albuterol,
Outley followed up three days later with Dr. May, who diagnosed her with chronic obstructive pulmonary disease (`COPD`) and added Qvar to her medications (R. 25). On November 10, 2010 Dr. May ordered a spirometry test — the results of which are not indicated (R. 322) — and continued her medication for COPD (R. 325-26). During a June 15, 2011 visit for stomach pain she told Dr. May that she had not experienced shortness of breath or wheezing, but she did note increasing back pain, which was again attributed to her degenerative joint disease (R. 334, 338). Dr. May also added Advair to Outley's prescriptions (R. 338).
Outley went to West Suburban's emergency room again on August 18, 2011 for shortness of breath (R. 419). After radiologists found no acute pulmonary process (R. 427-29), she was diagnosed with an acute upper respiratory infection and acute costochondritis before being discharged (R. 421).
She saw Dr. May again on October 21, 2011 complaining of back pain that, she said, made it difficult to get out of bed or stand for more than 5 minutes (R. 403). He prescribed a Flovent inhaler and Savella for her pain (R. 407).
On February 1, 2012 she again visited Dr. May complaining of back pain and shortness of breath among other things (R. 394). He prescribed ProAir, Savella and Symbicort (R. 396-97).
Outley followed up with Dr. May on May 12, 2012 after she had gone to the emergency room for chest pains (R. 511).
At a June 29, 2012 office visit with Dr. May Outley complained, among other things, of fatigue, blurred vision, chest pain, lightheadedness, shortness of breath, difficulty breathing even while lying down, wheezing, back pain and tingling (R. 522). Her pulse was 113 beats per minute with a tardus rhythm (R. 524). She rated her back pain as greater than 6/10 (R. 521). Dr. May diagnosed her with hypertension, depression, supraventricular tachycardia and lumbar radiculopathy (R. 525).
Then on July 10, 2012 Outley was involved in a motor vehicle accident that exacerbated her degenerative disc disease (R. 19, 84, 441). She went to West Suburban the following day,
Those reports of pain contrast with Integrity's final evaluation of Outley's back and neck trauma prepared by Dr. Claudia Johnson on September 28, 2012 (R. 441-44). On that day Outley reported very little pain — 1 out of 10 — in part due to epidural injections she had received (R. 441). Dr. Johnson measured her ability to move at the spine but did not draw any conclusions about what those measurements indicated as to Outley's physical capabilities (R. 443). Those measurements for Outley's cervicothoracic spine were 40 degrees forward flexion, extension of 28 degrees with mild stiffness and discomfort at end range, and 68 degrees left and right rotation with pain at end range (R. 443). For her lumbosacral spine, Outley's lumbar flexion was 8 inches fingertips to floor with pain, extension was 26 degrees with slight pain at end range and both left and right rotation were 20 degrees (R. 443). Dr. Johnson also noted a Grade I myospasm in the lumbar paraspinal musculature (R. 443). Stating that Outley had reached maximum medical improvement, Dr. Johnson discharged her from treatment (R. 441).
In the course of reciting Outley's medical history, Dr. Johnson stated that Outley had suffered a previous cervical and lumbar injury, but that it had resolved completely before the accident and that she had been pain-free (R. 442). Among Outley's medications was Albuterol (R. 442).
Outley went to the emergency room at West Suburban on February 19, 2013 with chest pain, but left without being seen (R. 553-54). Chest pain sent her to the hospital again on July 7, 2013, where she was given acetaminophen and discharged to follow up with Dr. May (R. 539, 541-42). She returned to West Suburban the following day again complaining of chest pain, but again left before being seen (R. 536).
On July 10, 2013, Dr. May wrote a brief letter addressed `To Whom It May Concern` (R. 531). It said simply that Outley was under his care and that `[h]er condition has not improved, and in fact has deteriorated` (
Outley's Stated Symptoms 6
As part of her initial SSDI application Outley completed a Function Report and a Physical Impairments Questionnaire (collectively the `2011 Function Report`). There she relayed that the issues with her spine made it difficult to move (R. 215), noting that the pain sometimes (but not always) interfered with her ability to care for herself (R. 216). Though she did not drive (R. 218), she went to church 2 to 3 times per month (R. 219). She said she could lift 5 to 10 pounds and walk about half a block before resting (R. 220). Aside from frequently being short of breath, her physical complaints almost exclusively involved those related to walking, bending, squatting and other activities related to the spine (see R. 220-21, 225). She also stated that her arthritis often made it difficult to use a can opener, open jars or pick up a coin (R. 224) and that her fingers sometimes cramped holding a pencil or pen (
When Outley requested reconsideration in December 2011, she communicated that her condition had worsened and that as a result she had difficulty using her arms and hands (R. 232). Outley also had her daughter complete a new Function Report and Physical Impairments Questionnaire for her on February 7, 2012 (collectively the `2012 Function Report`), which again noted that her pain caused her difficulty with dressing, getting out of the bath tub, caring for her hair and using the lavatory (R. 239). She reported that she no longer prepared her own meals nor did any household chores (R. 240). She no longer went grocery shopping (R. 241). She had stopped going to church and no longer spent time with others (R. 242).
At the ALJ hearing on July 17, 2013 Outley testified concerning her symptoms and impairments. She said that work had become very difficult before she lost her job in customer service because she would often run out of breath before finishing a sentence, she had trouble sitting and her hands and feet would become swollen (R. 50). She claimed that pain kept her home almost every week, although not always with the same kind of pain (R. 51). She often had trouble sleeping, she claimed, but she did not have the money to visit the doctor regularly or to afford the medication that was prescribed (R. 54).
On the day of the hearing Outley claimed that her pain was primarily in her neck, chest, spine and down her left leg and that her feet and hands were swollen (R. 54). She stated that her pain was usually at a high level but would ebb after a time (R. 54). At other times her lumbar spine rather than her cervical spine would hurt (R. 55). Her pain could be like pins and needles, sharp or a dull ache, but in her feet it was almost always pins and needles (R. 55). She also denied that her current pain medication was helping (R. 61-62, 63-64).
As to her daily activities Outley testified that her daughter needed to come by every day to help her take a bath and that Outley herself could not do any housework other than wash an occasional dish (R. 55, 56). In response to the question whether she did light cooking, she responded that she could use the microwave (R. 55-56). She would shop for groceries with her daughter's assistance, but her daughter had suggested just doing it herself (R. 56). Outley said she went to church a few times a month, but she could not walk more than a block and a half before she started to run out of breath and have pain in her legs (R. 56). Talking for long periods of time would also leave her winded (R. 68). She always had one of her daughters by her side to help her (R. 57).
Outley was given a consultative examination by Dr. Liana Palacci on August 30, 2011 (R. 380-83). Dr. Palacci spent a total of 42 minutes with Outley while reviewing the records from Dr. May and preparing her report (R. 380). She noted that Outley used her Albuterol inhaler twice a day but had not needed a course of Prednisone (R. 380). Outley was not in acute distress on the day of the examination and was able to speak in full sentences (R. 381). Dr. Palacci heard nothing irregular in her heart rhythm or her lungs (R. 382). She noted that Outley could walk without seeming to compensate for pain, her grip strength was normal and she could make fists and oppose her fingers (R. 382). There was no diminished range of motion in Outley's hips, knees, ankles or cervical spine, and a straight-leg raise test was negative (R.
Dr. Towfig Arjmand reviewed Dr. Palacci's consultative examination report, Dr. May's treatment notes and the hospital records from West Suburban but did not examine Outley himself, and he then completed a Physical Residual Functional Capacity Assessment (the `Arjmand Assessment`) on October 13, 2011 (R. 101, 104, 385-92). As to Outley's symptoms, Dr. Arjmand said her statements were only `partially credible` on the basis of the fact that Dr. Palacci had noted a normal grip strength and the ability to both make a fist and oppose her fingers, thus undermining what Outley had said about her hands, which Dr. Arjmand's paraphrase presented as a persistent rather than occasional problem (
But Dr. Arjmand did conclude that Outley's medically determinable impairments could be expected to produce some limitations that restricted her to light work (R. 387, 390). Specifically, the Arjmand Assessment stated that Outley could occasionally lift and carry 20 pounds, frequently lift and carry 10 pounds, stand or walk for 6 hours a day, sit for 6 hours a day and push or pull without limitation (R. 386). No postural or manipulative limitations were indicated (R. 387-88), but Outley's asthma and cardiovascular conditions meant that she should avoid concentrated exposure to extreme cold, extreme heat, humidity, fumes, odors, gases and poor ventilation (R. 389). In support Dr. Arjmand cited Dr. Palacci's clinical impressions, her range of motion findings, the negative result of the straight-leg raise test and the grip strength test result (R. 386-87). Also recited were (1) West Suburban's treatment notes stemming from Outley's October 8, 2010 hospitalization, which had found that her chest pain and shortness of breath were attributable to bronchitis and costochondritis rather than to any acute cardiopulmonary process, and (2) Dr. May's treatment notes concerning her blood pressure and medications (R. 386-87).
Dr. May completed a Physical Residual Functional Capacity Questionnaire of his own on February 3, 2012 (R. 438-40, the `May Assessment`). In it he stated that he had been treating Outley for the last 15 years (R. 438). He diagnosed her with COPD, lumbago and radiculopathy, indicating expiratory wheezing and a positive straight-leg raise test (R. 438). He said that Outley's pain medications made her too sleepy to work (R. 438). In opining as to the effect her impairments would likely have, he said that she could sit for no more than 2 hours at a time and stand for no more than 20 minutes, and so she would need a job that permitted her to shift positions at will from sitting, standing or walking (R. 438-39). She would need daily unscheduled breaks of 10 to 20 minutes and would miss on average three days per month (R. 439-40).
Once Outley sought reconsideration of the initial denial of her claims, her materials were reviewed by Dr. Charles Wabner on March 8, 2012 (R. 433). In a single-paragraph explanation (the `Wabner Assessment`) he remarked that the accounts of Outley's daily activities were not significantly different from those in her initial applications, although he did not describe those accounts in any detail, and so he discounted the idea that her symptoms had worsened (R. 433). Without explanation he said that the new medical evidence did not alter the credibility finding Dr. Arjmand had made (R. 433). It is not clear when Dr. May submitted his assessment (which bears only its date of authorship), but in
Dr. Hilda Klein Martin provided testimony (the `Martin Assessment`) as to Outley's medical records and RFC at the July 17, 2013 ALJ hearing (R. 36). Dr. Martin testified that Outley had degenerative disc disease, but she opined that Outley's asthma was not severe (R. 71, 79). As to asthma Dr. Martin noted that no doctor had heard wheezing (although Outley had reported it to them), that her attacks had never sent her to the hospital and that she was being treated with Qvar and Advair rather than Prednisone (R. 79). She said that Outley's 2012 automobile accident had made her lower back pain worse, noting a history of continuing lower back pain both before and after that accident (R. 83-85). Although Outley complained of radiculitis, Dr. Martin said that radiculopathy was not supported by a positive straight-leg raising test (R. 84-85). She explained that the positive straight-leg raising with lower back pain that Dr. Johnson had reported differed from a positive straight-leg raising positive for radiculopathy, and so it was negative in that sense (R. 74).
On the basis of the record Dr. Martin opined that Outley could lift and carry 20 pounds occasionally, do the same with 10 pounds frequently, stand and walk for six hours, sit for six hours and occasionally push or pull with her upper extremities (R. 82). Dr. Martin further excluded the use of ropes, ladders and scaffolds, said that Outley could occasionally stoop and crouch but not crawl, and she limited Outley to reaching overhead frequently rather than constantly (R. 82). She recommended that Outley not work in an environment with concentrated cold, concentrated vibrations, slippery or uneven surfaces, concentrated respiratory irritants, rapid unguarded moving machinery and unprotected heights (R. 82-83). Dr. Martin also recommended excluding commercial driving from Outley's RFC (R. 83).
ALJ Bailey found that Outley met the insured status requirements of the Act through December 31, 2015 and had not engaged in substantial gainful activity since December 31, 2010, her alleged onset date (R. 16). He found that before the July 10, 2012 auto accident Outley's only severe impairment was asthma, but that the accident had exacerbated her degenerative disc disease to the point that it too was a severe impairment (R. 16).
In assessing Outley's RFC the ALJ made an adverse credibility determination and afforded little weight to the May Assessment. Although finding that Outley's conditions could reasonably be expected to cause the symptoms of which she complained, the ALJ discounted her statements concerning the intensity, persistence and limiting effects of those symptoms (R. 19). And he justified his discounting of the May Assessment on the grounds that it was based on Outley's
Thus ALJ Bailey found that Outley's RFC was exactly as described in the Martin Assessment, except with the additional limitation that she work in a low-stress job with relaxed or flexible production rate requirements (see R. 18). Because the vocational expert had testified that Outley's RFC qualified her to work as an office helper or mail clerk, the ALJ found that she was not disabled (R. 29).
Standard of Review and Applicable Law
This Court reviews ALJ Bailey's opinion as Commissioner's final decision, considering its legal conclusions de novo (
Credibility determinations receive even more deferential review. Courts can reverse or vacate an ALJ's credibility findings only when the findings are `patently wrong` (
As such cases as
Nonetheless an ALJ `cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a disability finding` (
Hence `[i]f the Commissioner's decision lacks adequate discussion of the issues, it will be remanded` (
To qualify for benefits a claimant must be `disabled` within the meaning of the Act (
To determine whether a claimant satisfies that definition, the ALJ must conduct the sequential five-step inquiry set forth in Reg. § 1520(a)(4) (
To receive disability benefits, an applicant for SSDI must also meet the insured-status requirements outlined in Section 416(i)(3). That means, for her SSDI claim only, that Outley must show she was under a disability after her alleged disability onset date of December 31, 2010 but before her insured status expired on December 31, 2015 (Reg. 131(a);
Evaluation of Outley's Symptoms
Reg. § 1529 calls for a two-step procedure in evaluating the impact of Outley's pain on her ability to work. First, the ALJ must determine that Outley actually does have a medical impairment that could reasonably be expected to produce her symptoms (Reg. § 1529(b)). If she does, the second step requires the ALJ to see if her statements about her pain are consistent with the rest of the record (Reg. § 1529(c)(4)). In so doing ALJs are instructed by Reg. § 1529(c)(2) to consider objective medical evidence, but not to discount a claimant's allegations solely because they are not substantiated by that evidence. As Reg. § 1529(c)(3) explains, `symptoms sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone.` In addition,
Thus the ALJ must explain which symptoms were found to be consistent or inconsistent with the evidence and how evaluation of those symptoms led to the ALJ's conclusions (Social Security Ruling (`SSR`) 16-3p, 81 Fed. Reg. 14166, 14170, 2016 WL 1119029 at *8 (Mar. 16, 2016)). Moreover, as
That two-step procedure used to be called a credibility determination and was afforded special deference (see
Somewhat surprisingly, Commissioner now contends that this Court should not defer
That continuity would be fatal if this Court were to follow Outley's reliance (see O. Supp. Mem. 4) on
But SSRs do not have the force of law at all (see
Almost as an afterthought, Commissioner concedes that SSR 16-3p might prohibit the sort of credibility determinations that have been upheld in the past, such as finding a claimant not to have been credible based on a felony conviction or on a general observation of her demeanor (C. Supp. Mem. 3 and n.1, citing
On that score SSR 16-3p makes it plain that ALJs are to apply to the evidentiary record a set of factors enumerated in SSA regulations. So long as substantial evidence supports what the ALJ determines after having done so, that determination cannot be second-guessed (see
At first glance ALJ Bailey appears to have hewed to SSA regulations without relying on the seeming permission of SSR 96-7p to draw a general credibility determination, so there is no error of law in that respect. Nor does his analysis suggest that he drew any conclusions at all from his own observations that might call for the level of deference reserved for credibility determinations. While cast in the language of credibility (see R. 19), his justification plainly goes through Outley's symptoms one by one and contrasts them with record evidence to call into doubt her statements about the effect her impairments have on her.
But as the ensuing discussion demonstrates, closer examination indicates that at several key points the ALJ was in fact arguing against the evidence on the basis of his own lay medical opinions or was simply misstating the record, rather than weighing or recounting it. And he did not adequately deal with Outley's statements about her day-to-day activities.
Thus ALJ Bailey contrasts Outley's allegation of intermittent back pain since 2004 with the fact that she has a normal spinal range of motion, that she told Dr. Johnson that she had been pain-free prior to her accident and that Dr. Palacci's consultative examination revealed only problems that had been resolved or that were well-controlled (R. 19-20). But while the ALJ provided citations in purported support of those contrasts, those citations do violence to the record.
For starters, Outley did not have a normal lumbar range of motion (R. 382, 443), a point the ALJ later conceded (R. 20, 22). In light of Outley's quite obvious diminished range of motion, it is incomprehensible that the ALJ cited Dr. Palacci's finding of diminished range to assert that Outley had a normal range of motion (see R. 382). And because portions of Dr. May's treatment notes are manifestly the result of a computer-prompted checklist, they cannot reasonably be read as reporting that he conducted a full test of Outley's range of motion and found no abnormality, when she actually came in for ailments unrelated to her back, such as influenza-induced diarrhea, chest pains, cold-like symptoms or stomach pains (compare R. 303, 318, 322,
It is also difficult to imagine, given that Outley had been to the hospital for back pain repeatedly, why a solitary statement to Dr. Johnson in the context of whether a previous injury was still causing trouble is more indicative than every complaint of back pain to the contrary presented by the record. At any rate, the ALJ provides no explanation. Later in the decision ALJ Bailey suggests Outley's back pain had largely resolved before the accident by noting that Outley denied back pain to Dr. May in May 2012 (R. 20; see R. 511), but he omits the fact that Outley sought treatment from Dr. May for back pain both before and after that denial on both February 1 (R. 12) and June 29 (R. 522). Here again the ALJ did not so much weigh the evidence as cherry-pick from it.
And in opposing Dr. Palacci's consultative examination to Outley's assertions as to whether her problems were well-controlled, ALJ Bailey has implicitly ignored the statement of Dr. May — a treating physician — on the matter in favor of a non-treating source. And in so doing ALJ Bailey did not subject Dr. Palacci's opinion to the analysis demanded by Reg. § 1527(c).
Similarly, ALJ Bailey discounted Outley's repeated claims of radiculopathy by noting that the record revealed only one positive straight-leg raise test (R. 20). Later he remarked in a different discussion that Dr. Martin had distinguished that positive result from a positive straight-leg raise test for radiculopathy (R. 21), but that still leaves the fact that Outley's allegations were discounted solely because they were not substantiated by objective medical evidence — a treatment contrary to the explicit imperative of Reg. § 1529(c)(2). After all, the ALJ's decision noted that treating physicians repeatedly diagnosed her with radiculopathy (R. 21, 22).
Neck and Back Pain 11
So too with Outley's allegations of neck and back pain: In that area ALJ Bailey contended that those were not severe conditions before the accident by drawing his own conclusions about what (1) a failure to order particular treatments, (2) the presence of some tests but not others and (3) specific measurements assertedly indicate about the severity of her condition (R. 20-21). Only on a different issue — the limitation that might be expected from someone with Outley's 2011 measurement of 70 degrees of lumbar flexion — did ALJ Bailey refer to a doctor's interpretation of the data in determining the effect that Outley's pain had on her ability to work before the accident (R. 20) — but reliance on only that measurement again ran afoul of Reg. § 1529(c)(2).
And ALJ Bailey's determination that Outley's spinal issues did not leave her disabled even after the accident seems to rest primarily on her asserted improvement
But it is difficult to understand the basis on which the ALJ considered Outley's statement to Dr. Johnson on September 28, 2012 that her pain was 1 out of 10 to be indicative of a full recovery rather than a good day, which is what the record actually conveys. By way of a sharp contrast, Dr. Iavarone had reported that Outley rated her pain at 5/10 both the day before and two days before her meeting with Dr. Johnson (R. 445-46). While chiropractors are not acceptable medical sources and cannot offer medical opinions (
When the ALJ reached the question whether Outley's asthma has resulted in disabling limitations, he once again proceeded to play doctor. Exceeding what Dr. Martin had testified concerning the severity of Outley's asthma, ALJ Bailey speculated (R. 24-25 (citations omitted)):
Two points suffice for a response. First, as a matter of law the ALJ has engaged in precisely the sort of lay doctoring forbidden by
Activities of Daily Living
ALJ Bailey's opinion is further flawed in characterizing the effect of Outley's impairments on her daily activities — a factor that Reg. 1529(c)(3)(i) and
But the degree to which Outley says she is prevented from performing daily maintenance tasks cannot support a finding that she was only mildly limited in that regard, and the ALJ pointed to no evidence suggesting that her daily activities were actually greater.
Especially instructive on that subject is the holding in
Moreover, ALJ Bailey's statement that Outley is independent in her daily living cited an emergency room report from October 8, 2010 and the rest of his summary about what she can assertedly do was drawn exclusively from the 2011 Function Report (R. 17). But in doing so the ALJ does not appear even to have considered the significantly deteriorated condition described in Outley's 2012 Function Report or her testimony at the hearing. Also noticeably lacking is any explanation — let alone a sufficient one — of why an isolated statement made
To be clear, the problems identified in this section are not mere disagreements with how ALJ Bailey weighed the evidence. On the contrary, the ALJ's failure to consider the record as a whole equate to a failure to weigh the evidence at all, and where he did weigh it he did so largely on the basis of his own lay medical opinions. Those errors are only compounded by the ALJ'S failure to consider all the factors required by SSA regulations or by his sole reliance on factors that SSA regulations deem insufficient.
Weight Afforded to the May Assessment
Reg. 1527(c)(2) establishes what is known as the `treating physician rule,` which as reiterated by
Such objective medical evidence must constitute more than a mere recitation of the claimant's subjective complaints (
As for the weight to be accorded to a treating physician's opinion,
In terms of that standard, what follows next sets out substantial evidence to support the ALJ's determination not to give the May Assessment fully controlling weight.
While the May Assessment indicates a positive straight-leg raise test and expiratory wheezing, Dr. Martin noted — and this Court's search confirms — that neither such test appears in Dr. May's treatment notes (R. 79, 84-85). Dr. Martin further clarified that the only straight-leg raise test of note — Dr. Johnson's July 16, 2012 result — was not positive for radiculopathy and that the only notations as to wheezing reported Outley's complaints rather than anything that Dr. May detected himself (R. 74, 79). There is no doubt that Outley has severe impairments, but ALJ Bailey reasonably concluded that Dr. May's opinion as to their severity was based on Outley's own description of her symptoms rather than on any objective medical evidence.
That however should not necessarily control the outcome of the remand that the many defects in ALJ Bailey's handling requires. Whatever ALJ is assigned to preside over that remand would do well to reconsider, or at least provide more explanation as to, the question whether the May Assessment should be afforded little weight. Nowhere does ALJ Bailey discuss — as Reg. § 1527(c)(2)(i) requires him to consider — the fact that Dr. May had been treating Outley for 15 years when he rendered his opinion (see R. 438). Commissioner attempts to pass that oversight off as harmless error, citing
Moreover, the inability to which
Similarly, Dr. Wabner was a non-examining source whose conclusions were supported tersely if at all. In addition, he plainly misstated the record in concluding that the 2012 Function Report did not show significant deterioration in Outley's ability to function on a day-to-day basis over the 2011 Function Report. Nonetheless ALJ Bailey afforded the Wabner Assessment great weight (R. 25-26).
Given all of those lapses, this Court cannot say that ALJ Bailey applied the correct legal standard in evaluating the May Assessment. It is a major understatement to say that the ALJ's opinion failed to build the required logical bridge between the record and his conclusions on that score.
This opinion need not address the parties' respective arguments as to whether the occupational demands of a mail clerk or office helper were beyond what the ALJ determined Outley's RFC to be. Because a new RFC assessment will have to be conducted for the reasons set out in length here, there is little point in speculating about the sort of work Outley may be able to perform.
Social Security cases form too small a component of this Court's docket to permit it even to consider the possibility of extrapolating all of the ALJ's major mishandlings of this case to a more generalized concern as to the handling of such cases at the administrative level. And as to ALJ Bailey in particular, it cannot be told whether this was simply a bad day on his part or whether there is cause for concern in more general terms. That however is a subject for the administrative branch rather than the judicial branch to determine.
In the same way, the selection of an ALJ to handle Outley's case on remand is for the Commissioner to decide. All the same, any regular reader of opinions from our Court of Appeals will recognize its continuing sharp criticism of the administrative handling of these cases, most often authored by (but not at all limited to) Judge Richard Posner. Although that court (and this Court as well) recognizes and respects the allocation of that responsibility to the Commissioner rather than to Article III judges, that court has frequently urged (and this Court has occasionally echoed its urging) that a substantial level of error the first time around calls for reassignment to a different ALJ on remand. This case is a prime candidate for such a reassignment.
Accordingly, for the reasons stated in this opinion both parties' motions for summary judgment — Outley's (bearing no Dkt. No.) and the Commissioner's (Dkt. No. 21) — are denied. Instead the Commissioner's final decision is reversed and remanded for rehearing pursuant to Sentence Four of 42 U.S.C. § 405(g).