ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF APPEAL
TIM A. BAKER, Magistrate Judge.
The parties appeared by counsel on April 12, 2017, for an oral argument on Plaintiff Magaleen Snipes' brief in support of appeal. It is undisputed that Snipes is disabled; she was awarded partial benefits. The issue is whether the Administrative Law Judge erred in his conclusion that Snipes was not disabled before April 22, 2014. After taking the case under advisement, the Court finds the ALJ erred. Snipes' brief in support of appeal [
Snipes applied for Disability Insurance Benefits and Supplemental Security Income on March 8, 2011, alleging disability beginning on May 13, 2009. Snipes' claims were denied initially and upon reconsideration. On May 17, 2012, Snipes, represented by an attorney, appeared and testified at a hearing before an ALJ. Snipes returned for another hearing before the ALJ on November 6, 2012. On November 28, 2012, the ALJ issued his decision that Snipes is not disabled. The Appeals Council denied Snipes' request for review, and she sought judicial review.
At the District Court, the Commissioner stipulated to a joint remand. On March 24, 2015, the Appeals Council issued a remand order and Snipes appeared for another hearing before the ALJ on January 6, 2016. The ALJ issued a partially favorable decision on March 23, 2016, finding Snipes became disabled on April 22, 2014.
At step one, the ALJ found Snipes has not engaged in substantial gainful activity since the alleged onset date. At step two, the ALJ found Snipes' severe impairment is degenerative disc disease. At step three, the ALJ found Snipes' impairment does not meet or medically equal a listing. At step four, the ALJ found that prior to April 22, 2014, Snipes had the Residual Functional Capacity to perform light work, except
At step five, the ALJ relied on the testimony of a vocational expert to find that prior to April 22, 2014, Snipes was capable of performing her past work as a hairstylist, as well as the work of a cashier, mail clerk, or merchandise marker. However, beginning on April 22, 2014, Snipes' RFC prevented her from being able to perform her past work or any other jobs in the national economy. As a result, Snipes was awarded SSI beginning April 22, 2014, but was denied DIB because her date last insured was March 31, 2013. This appeal followed.
III. Legal standard
The Court must uphold the ALJ's decision if substantial evidence supports his findings. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). The ALJ is obligated to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of nondisability while ignoring evidence that points to a disability finding. Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). If evidence contradicts the ALJ's conclusions, the ALJ must confront that evidence and explain why it was rejected. Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014). The ALJ need not mention every piece of evidence so long as he builds a logical bridge from the evidence to his conclusion. Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013).
This appeal rises and falls on the ALJ's treatment of Dr. Brovender's opinion. The ALJ gave great weight to the opinion of Dr. Brovender, the medical expert who testified at the January 2016 hearing. [
A. Errors in Dr. Brovender's testimony
Dr. Brovender testified to several facts that were manifestly untrue. Dr. Brovender testified that Snipes' degenerative disc disease did not meet or equal the listing for 1.04 because "[s]he does not have—she didn't have a neuro-anatomic distribution of pain. She had no motor loss or atrophy associated with muscle weakness, and she has no sensory or reflex changes. And she has negative straight leg raising." [
Notably, Dr. Brovender did not examine Snipes—his testimony is based on his review of her medical record. However, the medical record is at odds with Dr. Brovender's testimony. To begin, the record contains evidence of a neuro-anotomic distribution of pain. An August 20, 2010, EMG documents radiculopathy in the lower extremities with numbness, tingling, and pain affecting her lower back and into her right leg. [
Other medical evidence conflicts with Dr. Brovender's testimony that she had no motor loss or atrophy associated with muscle weakness. On April 5, 2010, Dr. Kuonen ordered an MRI of Snipes' lumbar spine due to "pain with weakness on right side." [
Also, evidence of Snipes' reduced sensory reflexes conflicts with Dr. Brovender's testimony that she has no reflex changes. On November 10, 2010, an attending physician observed diminished reflexes in the lower extremities [
Finally, the many medical observations of Snipes' positive straight leg raises conflict with Dr. Brovender's testimony that she has negative straight leg raises. For example, in November 2011, Snipes' physical therapy sessions document positive straight leg raises. [
Dr. Brovender's testimony and the medical evidence cannot be reconciled. The ALJ erred by heavily relying on Dr. Brovender's testimony without recognizing these conspicuous factual errors. Procedurally, the ALJ should have confronted the medical evidence that was contrary to Dr. Brovender's testimony. The medical expert's testimony was erroneous, as was the ALJ's reliance on it. Remand is therefore appropriate for the ALJ to obtain a new expert opinion.
B. Dr. Brovender's RFC
The ALJ also relied on Dr. Brovender's opinion in his RFC determination to conclude that Snipes "could sit six hours and stand or walk six hours." [
Ultimately, it is unclear whether Dr. Brovender found she could stand four and walk two, stand three and sit three, or do a combination for less than six. Dr. Brovender's testimony is open to multiple interpretations. However, it is clear that the ALJ's RFC finding that Snipes could sit, stand, or walk for six hours is not supported by Dr. Brovender's testimony. Thus, the ALJ's RFC is not supported and is erroneous.
Furthermore, the hypothetical proposed to the VE is erroneous because it is based on the unsupported RFC. The hypothetical individual described to the VE is able to "stand and/or walk for a total of 6 of 8 hours, and sit for 6 of 8 hours, provided the individual has the option to alternate to a sitting or standing positing at her option for 1 or 2 minutes each hour." [
C. Snipes may medically equal the listing
Snipes points out that the record contains a significant amount of medical evidence that shows she may medically equal the listing for degenerative disc disease before April 22, 2014. The listing criteria are "compromise of a nerve root or the spinal cord, with evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication." Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04). Snipes' argument appears well taken.
First, the record contains evidence that Snipes' nerve roots are compromised. A 2010 MRI revealed Snipes has "[b]ilateral lateral recess stenosis with likely impinging on bilateral S1 nerve roots." [
Second, the record contains evidence that Snipes experienced lumbar spinal stenosis resulting in pseudoclaudication. On March 26, 2011, Dr. Brater observed a limited range of motion of the lumbar spine in forward flexion, extension, and lateral bend. [
The ALJ's analysis significantly ignored this evidence at step three. Rather, the ALJ heavily relied on Dr. Brovender's testimony that Snipes does not meet or medically equal the listing. On remand, when the ALJ obtains new medical expert testimony and re-reviews the medical record, he may find that Snipes meets the listing for degenerative disc disease.
Remand is appropriate because the ALJ cherry-picked Dr. Brovender's opinion despite clear factual errors, and the ALJ ignored evidence demonstrating that Snipes was disabled before April 22, 2014. The ALJ's reliance on Dr. Brovender's problematic testimony caused both the RFC and the VE's testimony to be erroneous. On remand, the ALJ should review the evidence to determine whether Snipes meets or medically equals the listing for degenerative disc disease.
For all these reasons, the Court finds that the ALJ committed reversible error. The Court grants Snipes' brief in support of appeal [