Miocic v. Astrue (890 F. Supp. 2d 1046, 2012)

MEMORANDUM OPINION AND ORDER

MORTON DENLOW, United States Magistrate Judge.

Claimant Ana M. Miocic (“Plaintiff’ or “Claimant”) brings this action under 42 U.S.C. 405(g), seeking reversal and/or remand of the final decision by Michael J. Astrue, Commissioner of Social Security (“Defendant” or “Commissioner”), denying Claimant’s application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Claimant asks the Court to reverse the decision of the ALJ and remand to the Commissioner for an award of benefits or, in the alternative, reverse and remand for further proceedings. The Commissioner asks the Court to affirm the Commissioner’s final decision. For the following reasons, the Court grants Claimant’s summary judgment motion to reverse the decision of the Commissioner, denies the Commissioner’s summary judgment motion to affirm the same, and remands the case to the Commissioner for further proceedings consistent with this opinion.

I. BACKGROUND FACTS

A. Procedural History

Claimant first filed an application for DIB on April 2, 2008 alleging a disability onset date of December 31, 2007. R. 154-62. The Social Security Administration (“SSA”) denied her DIB application on June 12, 2008 and denied her request for reconsideration on September 5, 2008. R. 115-16. Shortly thereafter Claimant filed a timely request for a hearing and on September 11, 2009 Administrative Law Judge (“ALJ”) Jose Anglada presided over a hearing at which Claimant appeared with her attorney. R. 445-89. On September 28, 2009, the ALJ rendered a decision unfavorable to Claimant, finding that she was not under a disability at any time between January 26, 2008 (the date she last worked) and June 30, 2008 (her date last insured). R. 12-21. The Appeals Council denied Claimant’s request for review and the ALJ’s decision became the final order of the Commissioner. R. 1-3. Claimant subsequently filed this action for review pursuant to 42 U.S.C. § 405(g). The parties have consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c). Dkt. 18. An oral argument was held on August 28, 2012.

B. Hearing Testimony — September 11, 2009

1. Ana Miocic — Claimant

At the time of the hearing, Claimant was thirty-six years old. R. 450. She is divorced and has two daughters who live with her ex-husband. R.450, 461. She has earned her GED. R. 450.

In 1990, Claimant was diagnosed with Systemic Lupus Erythematous (“SLE” or “Lupus”). R. 40. Despite this diagnosis, she continued to work at a grocery store from March 1990 to October 1999. R. 182. This work involved stocking shelves, ordering merchandise, and cashiering. R. 454. Claimant was fired from that job after quarreling with a co-worker. R. 40. She next held a series of part-time and seasonal jobs from February 2005 to January 2006, working variously as a janitor, bartender, and retail worker. R. 182.

Claimant’s most recent employment was from July 2006 to January 26, 2008 during which time she worked approximately 24 hours a week as a cashier at a casino. R. 193. Because Claimant earned $2,519 at the casino in January 2008 her date last insured was modified from December 31, 2008 to June 30, 2008. R. 14.

Claimant reported that this employment ended because she often missed work or left early because of lupus-related pain and fatigue. There is some confusion in the record as to whether Claimant quit the casino job or was fired. When the ALJ asked why Claimant left her casino job, she stated that the casino “found their way you know, out” of employing her after having “issues with [her] ... calling in sick quite a bit and going home early.” R. 456. Explaining why she was calling in sick, Claimant explained that her pain had “finally caught up to [her]” and “there was just way too much pain. I couldn’t do it.” R. 457.

Claimant testified that she has not worked since leaving the casino, though she searches online for work that she could perform from her home. R. 452-53; 469-70. She did not specify whether she was searching for full-time or part-time employment, and neither the ALJ nor her attorney asked her to elaborate on that aspect of her search. From January 2008 until July 2009, Claimant received state unemployment benefits of approximately $700 per month. R. 452.

Claimant stated that she takes Imuran, Prednisone, Amitriptyline, Phenobarbital, and other drugs to manage her symptoms. R. 85. She also testified that she treats with her rheumatologist, Dr. Sarah Eve-rakes, every two months. Id. She sometimes skips appointments because her symptoms are too painful or she doesn’t wish to travel to Dr. Everakes’s office. Id.

Claimant lives alone though stays with her parents when she is not feeling well. R. 461. Regarding her daily activities, she cooks simple meals for herself, but her mother often brings her food. R. 462. She goes grocery shopping about twice a month and tries to do laundry at least once a week. Id. She cleans her house a little at a time, often over several days, but has particular difficulty with sweeping and vacuuming. (R. 87). Claimant spends most of the day watching television and uses the computer for about five hours each week. R.463, 470. Although she used to love crocheting, she can no longer do it because of hand difficulties. R. 463. She has problems opening bottles and cans because her hands stiffen and fingers swell. 470-71.

As for her physical abilities, Claimant can lift a gallon of milk, but sometimes it takes two hands. R. 464. She can walk about a block without resting, stand for five to ten minutes, and sit for about one hour before needing to stand up. R. 466. Sitting causes discomfort in her lower back. Id. Claimant takes Tylenol 3 (with codeine) and over-the-counter Tylenol to manage this back pain, though she finds neither drug effective. R. 468-69.

In response to questioning by her attorney, Claimant testified that she does not believe that she could work a part-time job for twenty hours per week, nor could she reach repetitively over the course of a day. R. 470-71. She testified that she is “physically exhausted 24/7,” and that her constant pain and stress affect her ability to concentrate and remember things. R. 474. When asked whether there are any days during which she is symptom free, Claimant replied “absolutely not,” though some days are better than others. R. 477.

2. Thomas Dunleavy — Vocational Expert

Thomas Dunleavy testified as a vocational expert (‘VE”). R. 479. Claimant’s previous relevant work experience included her work as a cashier and sales clerk. R. 480-81.

The ALJ presented the VE with a detailed hypothetical person of Claimant’s age, education, and work experience who is limited to light work but can only stand and walk for two hours in an eight-hour workday and who can not “frequently bend, climb, or do work that requires frequent and rapid handling and manipulation for prolonged periods.” R. 482. The VE testified that such a person could not perform Claimant’s past relevant work. Id.

After clarifying that jobs which require fast paced, ongoing handling or rapid manipulation would not be available, the VE testified that the hypothetical person could perform the work of an unskilled cashier, of which there are 2500 jobs in Chicago. R. 482-83. The hypothetical person would also be able to perform the work of a visual inspector, of which there are 2000. R. 483. The VE clarified that the cashier occupation he identified was more sedentary than Claimant’s previous cashier position and did not require rapid handling. R. 482-83. As examples of these unskilled cashier jobs, the VE listed parking lot and theater ticket booth cashiers. Id.

The VE testified that a person with the foregoing limitations would be unable to work if she also had any of the following limitations: (1) was unable to get out of bed at least one day a week; (2) had concentration limited to two hours; or (3) had handling and manipulation limited only to “occasionally.” R. 484-488. Finally, the ALJ asked the VE to examine the RFC assessments prepared by Dr. Eve-rakes on November 10, 2008. R. 488-89. The VE concluded that a person with such limitations described in those opinions, individually or in combination, would be unable to work. Id.

C. Medical Evidence

1. Medical Evidence Between the Day Claimant Last Worked, January 26, 2008, and Claimant’s Date Last Insured, June 30, 2008.

On March 9, 2008, forty-two days after Claimant stopped working at the casino, she went to the emergency room at Provena St. Joseph Medical Center (“the ER”) for shortness of breath and hand pain caused by a lupus flare-up. R. 263. Claimant stated that she had “just got over a URI [upper respiratory]/sinus infection.” Id. Dr. Peter Stockmal, the ER physician, diagnosed her symptoms as caused by lupus but reported an otherwise unremarkable physical examination and normal x-ray and EKG findings. R. 263-64. Claimant declined oral medication for home, stating that she already had steroidal medication and would restart Elavil for her pain. Id., Dr. Stockmal recommended that Claimant increase her Prednisone for the next three days. R. 264.

On April 2, 2008, Claimant returned to the ER for left wrist pain and pain and swelling in two fingers that began that day. R. 260. The ER physician, Dr. Claude Sadovsky, reported that Claimant had no specific trauma that might have caused the pain, though he noted her history of lupus. Id. Aside from some “slight” tenderness and swelling in her fingers, Dr. Sadovsky found an otherwise normal physical examination, with full and normal ranges of motion in her wrist, fingers, and elbow. Id. Once again, Claimant was diagnosed with lupus. Id. Dr. Sadovsky called a rheumatologist (presumably Dr. Eve-rakes) who stated that Claimant had normal blood work the past week and recommended increasing her Prednisone. Id.

On April 8, 2008, around 4 a.m., Claimant returned to the ER. R. 291. The medical record does not reveal why she sought treatment, but she was diagnosed with “myalgias” (muscle pains) and administered Prednisone and Dilaudid. Id.

On April 16, 2008, Dr. John Meyer, an osteopath at Rush University Medical Center, reviewed x-rays of Claimant’s hands. R. 270. Dr. Meyer found there was “evidence of fracture or dislocation” and that she had “mild periarticular osteopenia” (decreased bone density around the joints) that indicated “early inflammatory arthropathy.” R. 270. Dr. Meyer reported no clear bone erosion. Id. On June 1, 2008, Claimant went to the ER for an unspecified reason. R. 290. She was diagnosed with “R/A Fibromyalgia” and given hydromorphone HC1 (generic for Dilaudid). Id.

On June 11, 2008, state agency psychiatric consultant Jerrold Heinrich, Ph.D. prepared a Psychiatric Review Technique Form for Claimant. R. 271. Dr. Heinrich concluded that he could not determine disability because there was no medical evidence in Claimant’s file before December 31, 2004, the listed DLL R. 283. The same day, medical consultant Dr. Richard Bilinsky completed a request for medical advice. R. 285. As with Dr. Heinrich, Dr. Bilinsky concluded he could not assess disability because there was no relevant medical evidence before December 31, 2004. R. 287.

2. Medical Evidence After June 30, 2008, Claimant’s Date Last Insured.

On July 13, 2008, Claimant was seen at the ER for what was diagnosed as “oral thrush” (oral yeast infection) and “gen weakness.” R. 288. She was administered hydromorphone. Id. On July 25, 2008, she was seen in the emergency room at Adventist Bolingbrook Hospital for a bladder infection and bronchitis. R. 298.

Starting five days later, from July 30, 2008, to August 3, 2008, Claimant was hospitalized at Rush University Medical Center after a referral from Dr. Everakes for a possible lupus flare. R. 309. Claimant also complained that her bladder infection was still painful despite the medication. Id. Upon intake, Claimant had stable vital signs and appeared “nontoxic.” Id. She was administered her usual doses of Prednisone and given intravenous narcotics for pain. Id. A rheumatologist agreed that Claimant was likely having a lupus flare and recommended increasing her Prednisone to 60 mg each day and adding methotrexate and amitriptyline, Id. Her pain “improved somewhat,” and she was “weaned off [intravenous] narcotics” before her discharge on August 3, 2008. Id.

Claimant returned to Rush Medical Center three days later, complaining of “generalized weakness, back pain, lightheadedness, mouth sores, and bilateral lower extremity weakness.” R. 311. Upon intake, her vital signs were stable but she was in “mild distress” and given morphine. Id. As before, she was given intravenous narcotics and her standard doses of Prednisone. Id. The rheumatologist recommended starting Elavil and Lyrica (for pain from damaged nerves) and increasing Prednisone to 40 mg daily. Doppler exams (a form of ultrasound test) showed no evidence of “significant” arterial disease in Claimant’s lower extremities. Id. Other imaging was not notable. R. 311-12. Claimant’s lower extremity weakness “slowly continued to improve on IV morphine,” and she was discharged on August 11, 2008. Id.

On September 21, 2008, Claimant went to the ER for lupus-related pains. R. 386. She returned on December 7, 2008, for “multiple myalgias.” R. 370. X-rays of both knees taken on December 11, 2008 revealed “evidence of mild supra-patellar effusion” (fluid above the knee cap) in the right knee but no evidence of fractures or dislocations. R. 351-54. The left knee findings were normal. Id.

On May 7, 2009, Claimant went to the ER complaining of joint pain in her shoulders, knees, hips, and ankles lasting for over one year with “an exacerbation of pain that day after cleaning house.” R. 19. Claimant was diagnosed with “arthralgia to shoulders, hips, knees, ankles.” R. 356.

Claimant’s case was reviewed by Dr. Francis Vincent, MD on September 4, 2008. R. 315. Dr. Vincent indicated that he could not assess an RFC because there was no medical evidence on or before December 31, 2007, the listed date last insured. R. 315. On September 1, 2008, Dr. Russell Taylor, PhD, a psychologist, also reviewed Claimant’s file and reached the same conclusion. Id.

3. Dr. Sarah Everakes, M.D. — Claimant’s Treating Rheumatologist

Claimant’s testimony in 2004 indicates that she has treated with Dr. Sarah Eve-rakes, a rheumatologist, since 2000. R. 35. Dr. Everakes performs regular blood tests and prescribes medication for Claimant. Id. Claimant typically visits Dr. Everakes every two months, although she sees her more frequently when her lupus flares up. R. 36. She claims that these flare-ups cause a number of debilitating symptoms, including muscle and joint pain, swelling, fatigue, lack of appetite, anxiety, and memory loss. R. 172.

On November 10, 2008, four months after Claimant’s insured status expired on June 30, 2008, Dr. Everakes completed two Residual Functional Capacity (“RFC”) assessments. R. 316-26. Dr. Everakes diagnosed Claimant with lupus and fibromyalgia and noted she saw Claimant “every month or two.” R. 316. Dr. Everakes opined that Claimant’s prognosis was “fair” and that she had “significant limitations in doing repetitive reaching, handling, or fingering.” R. 316, 322. Dr. Everakes noted that in a typical eight-hour workday, Claimant could only sit for two hours, stand/walk for less than two hours, and occasionally carry no more than ten pounds. R. 321-22. Dr. Everakes estimated that Claimant would need to miss work more than three times each month because of her impairments and treatment. R. 323.

D. The ALJ’s Decision

Following a hearing and review of the medical evidence, the ALJ rendered a decision unfavorable to Claimant on September 28, 2009. R. 12-21. The ALJ found that Claimant was not under a disability as defined in the Social Security Act, from January 26, 2008, though the date of his decision, and upheld the denial of DIB and SSI. R. 21.

The ALJ evaluated Claimant’s application under the required five-step sequential evaluation process. The ALJ first found that Claimant’s earnings in January 2008 extended her DLI from December 31, 2007 to June 30, 2008. R. 14. The ALJ further adjusted Claimant’s alleged onset date from December 31, 2007 to January 26, 2008, her last day of work. R. 14-15. The ALJ then determined that Claimant has not engaged in substantial gainful activity since January 26, 2008. Id.

At Step 2, the ALJ determined that Claimant has the severe impairment of lupus. R. 15. The ALJ found that there is no evidence documenting a medically determinable mental impairment, fibromyalgia, or seizure disorder. Id. At Step 3, the ALJ concluded that Claimant’s lupus did not meet or medically equal any impairment listed in 20 C.F.R. § 404.1520, Appendix 1, specifically noting that she did not meet the requirements in Listing 14.02 (Systemic Lupus Erythematosus). R. 15-16.

The ALJ then determined that Claimant has the residual function capacity (“RFC”), to perform light work as defined in 20 C.F.R. § 404.1567(b), but can only stand or walk up to two hours in an eight-hour workday. R. 16. The ALJ further found that Claimant could only occasionally bend, climb, and use stairs, but not frequently. Id. Similarly, the ALJ determined that Claimant cannot perform any work requiring “frequent and rapid handling and manipulation for prolonged periods, but could do so occasionally.” Id.

In assessing Claimant’s credibility, the ALJ found that while her “medically determinable impairment could reasonably be expected to cause some of the alleged symptoms ... her statements and testimony concerning the intensity, persistence, and limiting effects of these symptoms for the period on and prior to June 30, 2008, when her insurance status expired, are not fully credible and are not fully supported by the medical evidence.” R. 17. The ALJ identified several inconsistencies between Claimant’s statements, the reasons she left her most recent job, and her receipt of unemployment benefits. Id. While the ALJ found it reasonable to “assess some limitations,” he ultimately determined that the medical evidence before June 30, 2008 did not support Claimant’s claims that she “would miss work up to one day a week, was limited to only occasional handling and manipulation, or could concentrate^] only two hours.” R. 18.

The ALJ considered Dr. Everakes’s opinions, and concluded they “were not entitled to controlling weight under SSR 92-6p and [were] of no probative value for the period in question.” Id. Specifically, the ALJ decided the “extreme limits” Dr. Everakes described were “not mentioned or indicated in any of the medical records” between January 26, 2008 and June 30, 2008. Id.

At step four, the ALJ found that Claimant could not perform her past relevant work. R. 19. At step five, the ALJ found that considering Claimant’s age, education, experience, and RFC there are a significant number of jobs in the national economy that Claimant can perform. R. 20.

II. LEGAL STANDARDS

A. Standard of Review

The “findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A decision by an ALJ becomes the Commission’s final decision if the Appeals Council denies a request for review. Sims v. Apfel, 530 U.S. 103, 106-07, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). Under such circumstances, the district court reviews the decision of the ALJ. Id. The reviewing court may enter judgment “affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). A “mere scintilla” of evidence is not enough. Id.; Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.2002). Even when the record contains adequate evidence to support the decision, the findings will not be upheld if the ALJ does not “build an accurate and logical bridge from the evidence to the conclusion.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir.2008). If the Commissioner’s decision lacks evidentiary support or an adequate discussion of the issues, it must be remanded. Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.2010).

Though the standard of review is deferential, a reviewing court must “conduct a critical review of the evidence” before affirming the Commissioner’s decision. McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir.2011). It may not, however, “displace the ALJ’s judgment by reconsidering facts or evidence, or by making independent credibility determinations.” Castile v. Astrue, 617 F.3d 923, 926 (7th Cir.2010). Thus, judicial review is limited to determining whether the ALJ applied the correct legal standards and whether substantial evidence supports the findings. Id.

B. Disability Standard

Disability insurance benefits are available to a claimant who can establish he is under a “disability” as defined by the Social Security Act. Liskowitz v. Astrue, 559 F.3d 736, 739-40 (7th Cir.2009). “Disability” means 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 not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An individual is under a disability if he is unable to perform his previous work and cannot, considering his age, education, and work experience, partake in any gainful employment that exists in the national economy. 42 U.S.C. § 423(d)(2)(A). Gainful employment is defined as “the kind of work usually done for pay or profit, whether or not a profit is realized.” 20 C.F.R. § 404.1572(b).

A five-step sequential analysis is utilized in evaluating whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(i-v). The ALJ must inquire, in the following order: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the claimant’s impairment meets or equals a listed impairment; (4) whether the claimant can perform past relevant work; and (5) whether the claimant is capable of performing other work. Id. Once the claimant has proven he cannot continue his past relevant work due to physical limitations, the ALJ must determine whether other jobs exist in the economy that the claimant can perform. Craft v. Astrue, 539 F.3d 668, 674 (7th Cir.2008).

III. DISCUSSION

Claimant raises the following issues in support of her motion: (1) whether the ALJ gave insufficient weight to Dr. Eve-rakes’ assessments and erroneously failed to recontact her for clarifying information; (2) whether the ALJ sufficiently explained how he reached Claimant’s RFC; and (3) whether the ALJ properly assessed her credibility. The Court will discuss each in turn.

A. The ALJ Erred in His Determination that the Opinions of Claimant’s Treating Rheumatologist Has No Probative Value for the Period in Question.

An ALJ makes an RFC determination by weighing all the relevant evidence of record. 20 C.F.R. § 404.1545(a)(1); SSR 96-8p, 1996 WL 374184. In doing so, he must determine the weight to give a treating physician’s opinion. § 404.1527(d)(2) (