Clemente A. v. Saul

CLEMENTE A.¹ Plaintiff, v. ANDREW MARSHALL SAUL,Commissioner of Social Security, Defendant.

No. 18 CV 6345

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

August 22, 2019

Magistrate Judge Young B. Kim

MEMORANDUM OPINION AND ORDER

Clemente A. seeks disability insurance benefits ("DIB"), claiming that he suffers from back, neck, and shoulder pain that prevents him from engaging in full-time work. In this lawsuit Clemente seeks judicial review of the Commissioner of Social Security's decision denying his DIB application. See 42 U.S.C. § 405(g). Before the court are the parties' cross-motions for summary judgment. For the following reasons, Clemente's motion is denied, and the government's is granted:

Procedural History

Clemente applied for DIB in October 2014, alleging that he became disabled on March 3, 2012, when he was 48 years old. (Administrative Record ("A.R.") 218.) After his application was denied initially and upon reconsideration, (id. at 96, 113), Clemente sought and was granted a hearing before an administrative law judge("ALJ"). Clemente appeared and testified at the hearing, after which the ALJ issued a decision finding him not disabled. (Id. at 22-30.) The Appeals Council denied Clemente's request for review, (id. at 1-3), making the ALJ's decision the final decision of the Commissioner, see Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). Clemente then filed this lawsuit, and the parties consented to this court's jurisdiction. See 28 U.S.C. § 636(c); (R. 6).

Facts

In November 2011 Clemente was struck by a bus that was moving between five to seven miles per hour. (A.R. 360.) He fell and landed on his side, injuring his left shoulder. (Id. at 359.) A few months after the accident, Clemente stopped working as a construction worker, and he claims that his on-going shoulder, neck, and back pain has rendered him disabled.

A. Medical Evidence

The medical records Clemente submitted to the ALJ show that in the year following his accident he underwent two separate surgeries to repair his injured left shoulder. In March 2012 he had a rotator cuff repair surgery, (A.R. 412), followed by seven months of physical therapy, (id. at 436-610). After Clemente continued to suffer pain despite physical therapy and cortisone injections, he underwent a left shoulder arthroscopy procedure in October 2012. (Id. at 619.)

In the years following his second surgery Clemente sought treatment with an orthopedic specialist and pain specialists, who prescribed Vicodin and Norco for his pain. (See, e.g., id. at 623, 628, 633, 706-07.) Clemente also received steroidinjections. Throughout this time Clemente reported his pain levels in his neck and left shoulder as being between 5 and 8 on a scale of 1 to 10. (Id. at 709, 712, 718, 724, 745.) His doctors' examination notes show that he often had positive Yergason and Speed's tests (tests that measure for shoulder damage), and he exhibited a limited range of motion in his neck and tenderness in his left shoulder on palpation. (See, e.g., id. at 702, 704, 710, 713.) At the same time, his doctors recorded him as having normal muscle strength, normal sensory exams, and a normal gait. (Id. at 612, 655, 701-02, 710.) One pain specialist opined in November 2013 that Clemente had no specific structural issues with his shoulder but was experiencing chronic pain. (Id. at 655.)

In November 2014 Clemente underwent a residual functional capacity ("RFC") evaluation with a rehabilitation specialist, Joseph Santillo. Santillo reported that Clemente exhibited low levels of physical effort during the test and he found minor inconsistencies in Clemente's reports of pain and disability. (Id. at 855.) After putting Clemente through a series of tests, Santillo opined that Clemente's shoulder pain limits his lifting, pulling, pushing, and carrying abilities, but concluded that he would be able to perform sedentary work. (Id. at 856, 859.)

In February 2014 Clemente's doctor described him as stable taking two Norco a day, which helped with 60% to 70% of his pain, with no side effects and with no new complaints despite on-going back, neck, and shoulder pain. (Id. at 727.) A series of spine and shoulder MRIs taken in January 2015 showed mild tendinopathy in his left shoulder but no evidence of a labral tear. (Id. at 793.) Although thelumbar spine MRI revealed moderate degenerative disc disease, there was no evidence of a compression fracture or other "destructive process." (Id. at 796.) In March 2015 an examining physician described Clemente as having normal muscle development without atrophy, no decreased range of motion in his spine, a negative straight leg test, 4/5 strength in his left upper extremity, and a slow but steady gait. (Id. at 833.)

The following month in April 2015, consulting physician Dr. Leonore Gonzalez reviewed Clemente's records and opined that his pain complaints were disproportionate to the objective evidence, given his minimal limitations on examination. (Id. at 94.) Based on her review of the evidence Dr. Gonzalez concluded that Clemente can perform light work with some lifting and carrying limitations. (Id. at 92-93.) A month later consulting physician Dr. Yacob Gawo also reviewed the records and concurred that Clemente is capable of light work with limitations in lifting and carrying, but he added limitations in pushing and pulling. (Id. at 108-10.)

B. Hearing Testimony

Clemente testified that his pain has gotten worse over time despite his two surgeries. (A.R. 55-56.) He said that his neck pain runs down his arm to his wrist, causing a stabbing sensation and numbness in his hand. (Id. at 57.) Steroid injections typically provide only a week of relief. (Id.) Clemente testified that bending makes his pain worse and he is unable to sit or stand for extended periods. (Id. at 60.) He also testified that performing chores, tying his shoes, and bathingcauses pain. (Id. at 61-62.) He said that he can reach his left arm overhead but lifting anything is painful. (Id. at 62.)

A vocational expert ("VE") also testified at the hearing, describing the kinds of work that would be available to a hypothetical individual with various limitations described by the ALJ. The VE testified that a person with the RFC the ALJ eventually assigned to Clemente could not work as a construction worker but could perform other jobs, such as cafeteria attendant, laundry worker, and sales attendant. (Id. at 77-78.) The VE also testified that if the hypothetical individual would be off-task for more than 15% of the work day or if he needs to have a sit/stand option to accommodate his pain, those limitations would be work-preclusive. (Id. at 80-81.)

C. The ALJ's Decision

The ALJ followed the standard five-step sequence in evaluating Clemente's DIB claim. See 20 C.F.R. § 404.1520(a). At steps one and two, the ALJ determined that Clemente has not engaged in substantial gainful activity since his alleged onset date and that he has severe impairments in the form of degenerative disc disease, osteoarthritis, and allied disorder. (A.R. 24.) At step three he concluded that none of those impairments meets any listed impairment, either singly or in combination. (Id.) Before turning to step four, the ALJ determined that Clemente has the RFC to perform light work with certain additional limitations, including that he can reach, push, or pull with his upper left extremity only occasionally. (Id. at 25.) Given that RFC the ALJ determined at step four that Clemente could notreturn to his past relevant work, but based on the VE's testimony he found at step five that there are other jobs available that Clemente can perform. (Id. at 28-29.)

Analysis

Clemente argues that the ALJ committed reversible errors by applying an incorrect standard in assessing Clemente's alleged symptoms, playing doctor in evaluating the treatment record, giving insufficient weight to the rehabilitation specialist's RFC opinion, and failing to account for the VE testimony regarding the impact of a sit/stand option or a 15% off-task rate on his ability to work. In reviewing the ALJ's decision, this court asks only whether the ALJ applied the correct legal standards and whether the decision has the support of substantial evidence. See Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). Substantial evidence means only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation and citations omitted). In conducting its "extremely limited" review this court must not "displace the ALJ's judgment" and is required to affirm an adequately supported decision even if reasonable minds could disagree as to the correct decision on disability. See Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015) (internal quotations and citation omitted).

A. Symptom Assessment

Clemente first argues that the ALJ's decision must be reversed because, according to him, the ALJ applied the wrong standard in evaluating his statementsabout the extent of his pain. He points to boilerplate language, often included as a matter of course in ALJ decisions, which reads:

After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.

(A.R. 26 (emphasis added).) It is the "not entirely consistent" phrase that provokes Clemente's objection. Clemente argues that under SSR 16-3p, 2017 WL 5180304, at *2 (Oct. 25, 2017), the ALJ only needs to consider the extent to which the claimant's statements "can reasonably be accepted as consistent" with the other evidence, and asserts that the ALJ's statement that Clemente's symptom...