United States District Court, E.D. Wisconsin
DECISION AND ORDER
ADELMAN DISTRICT JUDGE.
Lora Cieszynski filed this action for judicial review of the
decision denying her application for social security
disability benefits. The Commissioner concedes that the
Administrative Law Judge (“ALJ”) made some (but
not all) of the mistakes plaintiff alleges, and that the
matter must be remanded for further proceedings. However, she
resists plaintiff's argument that the court should order
reassignment to a different ALJ on remand.
the parties agree remand is warranted, it is unnecessary to
review the history of the case in detail. Plaintiff applied
for benefits in June 2013, alleging that she became disabled
as of December 6, 2012 (Tr. at 183), later amended to October
24, 2013 (Tr. at 21, 58, 286), based on degenerative disc
disease of the lumbar and cervical spine, depression,
anxiety, and residual effects of a wrist fracture (Tr. at 21,
197, 295). The ALJ denied her claim, finding that she
retained the residual functional capacity (“RFC”)
to perform a range of light work involving simple, routine,
and repetitive tasks, limited contact with others, and, in
addition to regular breaks, being off task 10% of the time.
(Tr. at 23.) In making this finding, the ALJ discounted the
opinions of plaintiff's treating physicians (Tr at
27-28), gave great weight to the opinions of the
non-examining agency consultants that plaintiff could perform
light, unskilled work (Tr. at 27), and found plaintiff's
statements regarding the severity of her symptoms and
limitations inconsistent with the other evidence of record
(Tr. at 24).
erred in his evaluation of the report from treating source
Dr. Boyd. The ALJ stated that Dr. Boyd's “extreme
limitations” were inconsistent with the “mild to
moderate” degenerative changes to plaintiff's spine
(Tr. at 28), yet a cervical MRI scan showed “moderate
to severe” and “severe” abnormalities (Tr.
at 516) and a lumbar MRI “moderate” degenerative
changes (Tr. at 514). See Roddy v. Astrue, 705 F.3d
631, 637 (7th Cir. 2013) (reversing where ALJ in
discounting medical opinion“misunderstood or
mischaracterized the results of the MRI”). The ALJ also
relied on plaintiff's “conservative
treatment” (Tr. at 28), despite her receipt of a
variety of treatment measures which appear to “belie
the ALJ's conclusion that [plaintiff] was treated
conservatively.” Schomas v. Colvin, 732 F.3d
702, 709 (7th Cir. 2013). The Commissioner agrees
that the ALJ erred in evaluating Dr. Boyd's opinion, as
alleged. (Def.'s Br. at 2, citing Pl.'s Br. at
erred in his evaluation of the opinions of the agency
consultants. The ALJ gave great weight to the opinions of the
non-examining consultants, Drs. Zuniga and Chan, without
discussing their specialities (if any) (Tr. at 27), while at
the same time noting that the treating sources, Drs. Tanty
and Boyd, were not specialists in psychiatry or orthopedics,
respectively (Tr at 27-28). See Bjornson v. Astrue,
671 F.3d 640, 647-48 (7th Cir. 2012) (reversing
where ALJ inconsistently applied regulatory factors for
evaluating medical opinions); see also 20 C.F.R.
§ 404.1527(c)(5) (listing physician specialty as a
factor). The ALJ also gave great weight to these opinions,
despite the fact that these physicians lacked access to
important evidence, including the 2014 MRI scans. See
Goins v. Colvin, 764 F.3d 677, 680 (7th Cir.
2014) (remanding where ALJ failed to submit MRI, which
undermined reasoning of consulting physician, to medical
scrutiny). The Commissioner agrees that the ALJ failed to
properly evaluate these opinions. (Def.'s Br. at 2,
citing Pl.'s Br. at 15-17.)
also erred in failing to weigh the opinion of the
agency's examining consultant, Dr. Linford, who opined
that plaintiff “would not tolerate prolonged sitting,
standing, [or] lifting heavy loads repetitively.” (Tr.
at 412.) While the ALJ discussed some of Dr. Linford's
examination findings (Tr. at 25), he did not formally weigh
the doctor's opinion regarding plaintiff's functional
capacity. See Roddy, 705 F.3d at 636 (“An ALJ
must consider all medical opinions in the record.”).
The Commissioner agrees that on remand the ALJ should assign
a weight to this opinion after considering the regulatory
factors. (Def.'s Br. at 3.)
failed to incorporate into the RFC (Tr. at 23)
plaintiff's “moderate” limitations in
concentration, persistence, and pace (Tr. at 22), nor did he
explain the basis for his conclusion that plaintiff would be
off task 10% of the day (but not more). See Lanigan v.
Berryhill, 865 F.3d 558, 563-64 (7th Cir.
2017); O'Connor-Spinner v. Colvin, 832 F.3d 690,
698- 99 (7th Cir. 2016; O'Connor-Spinner
v. Astrue, 627 F.3d 614, 619-20 (7th Cir.
2010). The Commissioner agrees that, on remand, the ALJ
should reevaluate plaintiff's mental ability to work,
considering her “moderate” difficulties in
concentration, persistence, and pace and providing an
adequate evidentiary foundation for the RFC finding.
(Def.'s Br. at 3, citing Pl.'s Br. 21-23).
the ALJ's adverse credibility determination rests in part
on evidence cherry-picked from the record. See Engstrand
v. Colvin, 788 F.3d 655, 662 (7th Cir. 2015)
(indicating that ALJ cannot recite only the evidence
supportive of his ultimate conclusion without acknowledging
and addressing significant contrary evidence). For instance,
the ALJ relied on plaintiff's attempted return to work as
a server as evidence that she was more active and socially
engaged than alleged (Tr. at 26), without acknowledging
plaintiff's testimony that she worked a single,
three-hour shift per week and even then could not handle the
work, physically or mentally, leaving after less than two
months (Tr. at 61-62, 76-77). See Czarnecki v.
Colvin, 595 Fed.Appx. 635, 644 (7th Cir.
2015) (reversing where ALJ found claimant's waitressing
activities inconsistent with her claimed limitations, without
mentioning that “she had to stop waitressing because of
her pain and inability to meet the physical demands of the
job”); see also Stark v. Colvin, 813 F.3d 684,
689 (7th Cir. 2016) (noting that a claimant's
effort to continue working, despite limitations, should
enhance her credibility). The ALJ also relied on evidence
suggesting improvement in plaintiff's condition with
treatment (Tr. at 25, 28), without acknowledging the
treatment notes indicating the pain relief was temporary (Tr.
at 669, 672). See Bates v. Colvin, 736 F.3d 1093,
1099 (7th Cir. 2013) (“[T]hese statements
were cherry-picked from the record, selected without
consideration of the context in which they appear.”).
Commissioner, refusing to concede error in this regard,
argues that the ALJ's consideration of plaintiff's
part-time work and improvement with treatment was appropriate
under the regulations. (Def.'s 4.) Plaintiff does not
contend that the ALJ relied on irrelevant factors but rather
that he failed to fully consider the evidence pertinent to
those factors. The Commissioner further notes that the ALJ
will on remand reevaluate the medical opinion evidence, which
will necessitate reevaluation of plaintiff's part-time
work activity and improvement with treatment, as those were
reasons provided by the ALJ in evaluating those opinions; the
Commissioner contends that the court need not provide
specific instructions regarding the ALJ's ...