Arnett v. Astrue

• Decision Date: 02 April 2012
• Docket Number: No. 11–2424.,11–2424.
• Citation: 676 F.3d 586,178 Soc.Sec.Rep.Serv. 27
• Parties: Laenise ARNETT, Plaintiff–Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

178 Soc.Sec.Rep.Serv. 27

676 F.3d 586

Laenise ARNETT, Plaintiff–Appellant,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant–Appellee.

No. 11–2424.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 14, 2011.Decided April 2, 2012.

Joseph Stephen Sellers (argued), Deborah Spector, Attorneys, Spector & Lenz, Chicago, IL, for Plaintiff–Appellant.

James B. Geren (argued), Attorney, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant–Appellee.

Before POSNER, MANION, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Laenise Arnett suffers from a number of medical problems, including peripheral vascular disease, chronic obstructive pulmonary disease, osteoarthritis, obesity, vascular dementia, depression, panic disorder, and anxiety. As a result, she sought Disability Insurance Benefits (“DIB”) from the Social Security Administration (“SSA”), but she was unsuccessful before the agency. After the Appeals Council denied review of the Administrative Law Judge's adverse decision, she sought review in the district court pursuant to 42 U.S.C. § 405(g). Once again, she did not prevail. She now appeals to this court, seeking to persuade us that the Administrative Law Judge (“ALJ”) failed properly to assess her residual functional capacity. We agree with her, and so we remand her case to the agency for further proceedings.

I

Arnett applied for DIB in June 2004, claiming an onset date of June 14, 2002. After the SSA denied her application, she requested a hearing before an ALJ. Arnett, who was 45 at the time, asserted that the array of medical ailments we described earlier made it impossible for her to work. Her application described her past work as a sorter and inspector at a factory from 1991 to 1992, as a newspaper sorter from 1994 to 1996 or 1997, as a home healthcare aide from 1998 to 1999, and as a certified nursing assistant from 2001 to 2002. After surgery in June 2002 and through most of 2003, she worked eight hours per week as a certified nursing assistant. Sometime around the end of 2003, she found that she was unable to continue.

In December 2004 Arnett updated her application with information about the recent removal of a vein from one of her legs, a procedure that left her with pain and swelling. She added that after experiencing a “mini stroke” she also was having more difficulty with balance and expressing her thoughts. Arnett and her husband (who submitted a written statement describing how Arnett's medical condition impeded her daily activities) both asserted that Arnett could care for herself and do light housework at a slow pace, but that she sometimes was unable to do laundry or shop for groceries. An SSA employee interviewed her around this time and reported that Arnett did not appear to be experiencing any debilitating problem.

Arnett had submitted most of her medical records from 2002 through 2004 by the time she requested a hearing before an ALJ in May 2005. These records show that she visited Dr. Fred Rasp, a pulmonologist, several times in late 2001 complaining of wheezing, coughing, and chest tightness, and that she was diagnosed with an obstructive lung defect and early emphysema. About a month later, Arnett went to Parkview Hospital twice; the first time she was seen in the emergency room for complaints of chest pain and nausea and was diagnosed with early emphysema and chronic obstructive pulmonary disease (“COPD”), and during the second visit for a cardiology consultation she complained of chest pain and shortness of breath and was diagnosed with peripheral vascular disease (“PVD”) and obesity. Several months later her PVD was described as “severe.” To address her PVD, Arnett underwent aortobifemoral bypass surgery in June 2002. She began complaining of swelling and cramping in her legs later that year.

In the spring of 2003 Arnett had an MRI, which revealed degenerative disc disease in two thoracic vertebral discs and mild degenerative facet arthritis in her lumbar vertebra. While checking up on Arnett in late 2003, Dr. Rasp confirmed the cardiologist's opinion that she suffers from PVD. About six months later a thoracic surgeon noted increased stenosis in some arteries. Shortly thereafter, in July 2004, Arnett underwent a balloon angioplasty. A few months later she was again dealing with stenosis and still complaining of leg pain, which her doctors addressed with several procedures including a second angioplasty. Arnett continued to complain of leg cramping and weakness afterward.

Several other physicians also had submitted consultation reports by the time Arnett requested a hearing. Dr. Galen Yordy, a consulting psychologist who met with Arnett, diagnosed her with anxiety disorder, panic disorder, and depressive disorder. Dr. Jaya Karnani, a consulting physician who practices family medicine and met with Arnett, opined that Arnett's anxiety is controlled effectively with medication and had not caused her trouble concentrating or with social interactions. On the negative side, he found that Arnett has emphysema and PVD that prevent her from standing or walking for more than two hours per day. Dr. Kenneth Bundza, a consulting psychologist who met with Arnett, found that she was alert but was experiencing difficulty retrieving information from memory; he diagnosed her with vascular dementia with depressed mood. Dr. Yaroslev Pagorelov, a consulting family-practice physician who had met with Arnett, opined that Arnett suffers from emphysema, PVD, anxiety, and right-ankle swelling and inability to walk more than five minutes or stand more than 10 minutes at a time. Two sets of state-agency physicians also evaluated Arnett's records. The first two opined that Arnett suffers from depressive, panic, and anxiety disorders, though none of them severe. The second two opined that Arnett has emphysema and PVD, and that she occasionally can lift or carry 20 pounds, can frequently lift or carry 10 pounds, can stand or walk for at least two hours per day, and can sit for about six hours per day.

Arnett submitted more medical records to the ALJ in April and May 2007, mostly for treatment received in and after 2005. One set related to her second angioplasty in late 2004 and its failure to resolve her problems. These records document that Arnett continued to complain of pain in her legs and began experiencing pain in her right arm, and that her vascular surgeon did not believe the pain was of vascular origin and was unsure of the cause. In late 2005, Arnett's arteries were again blocking up due to stenosis, and so she underwent a third angioplasty.

Because Arnett continued to complain of pain in 2005 and 2006, her vascular surgeon referred her to a neurologist, who diagnosed her with lumbosacral neuritis but did not find a neurological explanation for Arnett's leg and arm pain. She also saw a rheumatologist, who thought that her leg pain was not a result of a rheumatological impairment and that her arm pain was probably from tennis elbow. Dr. Anantha Reddy, who specializes in physical medicine and rehabilitation, suggested that Arnett's leg pain could be a result of a spinal problem.

Late in 2006, Arnett complained of pain in her lower back, hips, and right arm and hand. X-rays showed narrowing of Arnett's left and right knee joint spaces, and Arnett's rheumatologist diagnosed her with osteoarthritis and stenosing tenosynovitis (a typically painful condition that involves a finger becoming stuck in a bent position, and later snapping back into a straight position). Arnett was experiencing blockage in some of her arteries again in spring 2007, and underwent a fourth angioplasty.

Several of Arnett's treating physicians submitted reports of her residual functional capacity (“RFC”). Arnett's primary physician (until 2006) opined that Arnett cannot lift or carry even 10 pounds, cannot stand or walk for even two hours in an eight-hour workday, and must periodically alternate between sitting and standing. Dr. Don Stallman, her current primary physician, concluded that Arnett can sit for up to 20 minutes at a stretch and for two hours total during the day, stand continuously for 15 minutes but no more than one hour total during a day, walk 30 feet before stopping, and carry up to five pounds frequently but not more than 10 pounds even occasionally. Dr. Rasp, Arnett's treating pulmonologist, concluded that she can sit for up to eight hours at a time, can stand continuously for two hours and a total of four hours per day, and walk for 15 minutes at a time and two hours total in a workday.

At the hearing before the ALJ on May 31, 2007, Arnett and a vocational expert testified. Arnett said that her legs cramped and she experienced difficulty breathing when she had tried to work as a health aide after her 2002 aortobifemoral bypass surgery. She reported that she still has cramping and weakness in her legs as a result of her PVD, and this makes it difficult to stand for more than 20 minutes at a time. The osteoarthritis in her hips, arms, and back makes it difficult for her to sit for very long, and she believed that her osteoarthritis had been getting worse. Her COPD at times causes chest pains and typically leaves her tired, light-headed, dizzy, and short of breath. She also testified that her hands cramp and that sometimes she has trouble concentrating. The vocational expert (“VE”) opined that no job would be available for Arnett if the ALJ fully credited her testimony. But, the VE continued, if Arnett can perform sedentary work, with the limitation that the job must permit alternating between sitting and standing throughout the workday, then she can work as a food service order clerk, a bench worker (there are several types in the Dictionary of Occupational Titles, but the expert did not specify which one he had in mind), or a surveillance monitor.

The ALJ found Arnett not disabled after analyzing the five steps in 20 C.F.R. §...