IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

TRACY L. BAUTISTA, )

)

Plaintiff, )

)

vs. ) No. 3:14-CV-647

)

CAROLYN W. COLVIN, )

Acting Commissioner of )

Social Security, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court for review of the Commissioner

of Social Security’s decision denying Disability Insurance Benefits

and Supplemental Security Income to Plaintiff, Tracy L. Bautista. For

the reasons set forth below, the Commissioner of Social Security’s

final decision is REVERSED and this case is REMANDED to the Social

Security Administration for further proceedings consistent with this

opinion pursuant to sentence four of 42 U.S.C. section 405(g). 

BACKGROUND

On April 20, 2011, Plaintiff, Tracy L. Bautista (“Bautista”),

applied for Social Security Disability Insurance Benefits (“DIB”)

under Title II of the Social Security Act, 42 U.S.C. section 401 et

seq. She also applied for Supplemental Security Income (“SSI”) under

Title XVI of the Social Security Act, 42 U.S.C. section 1381 et. seq. 
Bautista alleged her disability began on December 20, 2010. The

Social Security Administration denied her initial applications and

also denied her claims on reconsideration. On September 5, 2012,

Bautista appeared with her attorney and testified at an administrative

hearing before Administrative Law Judge (“ALJ”) Mark C. Ziercher

(“Ziercher”). In addition, Robert Barber testified as a vocational

expert (“VE”). On September 28, 2012, ALJ Ziercher denied Bautista’s

claims, finding that Bautista had not been under a disability as

defined in the Social Security Act. 

Bautista requested that the Appeals Council review the ALJ’s

decision. This request was denied. Accordingly, the ALJ’s decision

became the Commissioner’s final decision. See 20 C.F.R. §

422.210(a)(2005). Bautista has initiated the instant action for

judicial review of the Commissioner’s final decision pursuant to 42

U.S.C. section 405(g).

DISCUSSION

Bautista was born on November 21, 1971, and was 39 years old on

the alleged disability onset date. (Tr. 23). Bautista’s alleged

impairments include osteoarthritis, obesity, asthma, obstructive sleep

apnea, depression, and anxiety. (Tr. 14). She has a limited

education: she completed tenth grade. (Tr. 23). Her past relevant

work includes work as an industrial cleaner. (Tr. 23). The medical

evidence is largely undisputed and has been set forth in great detail

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in both the ALJ’s decision and Bautista’s opening brief. There is no

reason to repeat it in detail here, although pertinent details are

discussed below as needed.

Review of Commissioner’s Decision

This Court has authority to review the Commissioner’s decision

to deny social security benefits. 42 U.S.C. § 405(g). “The findings

of the Commissioner of Social Security as to any fact, if supported

by substantial evidence, shall be conclusive . . . .” Id.

Substantial evidence is defined as “such relevant evidence as a

reasonable mind might accept as adequate to support a decision.” 

Richardson v. Perales, 402 U.S. 389, 401 (1971). In determining

whether substantial evidence exists, the Court shall examine the

record in its entirety, but shall not substitute its own opinion for

the ALJ’s by reconsidering the facts or re-weighing evidence. Jens

v. Barnhart, 347, F.3d 209, 212 (7th Cir. 2003). With that in mind,

however, this Court reviews the ALJ’s findings of law de novo and if

the ALJ makes an error of law, the Court may reverse without regard

to the volume of evidence in support of the factual findings. White

v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999).

As a threshold matter, for a claimant to be eligible for DIB or

SSI under the Social Security Act, the claimant must establish that

he is disabled. To qualify as being disabled, the claimant must be

unable “to engage in any substantial gainful activity by reason of any

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medically determinable physical or mental impairment which can be

expected to result in death or has lasted or can be expected to last

for a continuous period of not less than twelve months.” 42 U.S.C.

§§ 423(d)(1)(A) and 1382(a)(1). To determine whether a claimant has

satisfied this statutory definition, the ALJ performs a five step

evaluation:

Step 1: Is the claimant performing substantial gainful activity: If

yes, the claim is disallowed; if no, the inquiry proceeds

to Step 2.

Step 2: Is the claimant’s impairment or combination of impairments

“severe” and expected to last at least twelve months? If

not, the claim is disallowed; if yes, the inquiry proceeds

to Step 3.

Step 3: Does the claimant have an impairment or combination of

impairments that meets or equals the severity of an

impairment in the SSA’s Listing of Impairments, as

described in 20 C.F.R. § 404, Subpt. P, App. 1? If yes,

then claimant is automatically disabled; if not, then the

inquiry proceeds to Step 4.

Step 4: Is the claimant able to perform his past relevant work? 

If yes, the claim is denied; if no, the inquiry proceeds to

Step 5, where the burden of proof shifts to the

Commissioner.

Step 5: Is the claimant able to perform any other work within his

residual functional capacity in the national economy: If

yes, the claim is denied; if no, the claimant is disabled.

20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v); see also

Herron v. Shalala, 19 F.3d 329, 333 n. 8 (7th Cir. 1994).

In this case the ALJ found that Bautista was not engaged in

substantial gainful activity and that she suffered from multiple

severe impairments. The ALJ further found that Bautista did not meet

or medically equal one of the listed impairments. The ALJ found that

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Bautista retained the physical residual functional capacity to perform

a reduced range of light work. More specifically, the ALJ found that:

[T]he claimant has the residual functional

capacity to perform work at the light exertional

level. She can stand and/or walk for up to 30

minutes uninterrupted for a total of 4 hours in

an 8-hour workday, and can sit for up to 1 hour

uninterrupted for up to a total of 6 hours in an

8-hour workday. She can occasionally climb ramps

and stairs, ladders, ropes, and scaffolds; and

can occasionally balance, stoop, kneel, crouch,

and crawl. She can frequently bilaterally handle

and finger. She can have frequent exposure to

wetness, moving mechanical parts, and high,

exposed places (as defined in the Selected

Characteristics of Occupations). She can have

frequent exposure to extreme heat, and humidity

(as defined in the Selected Characteristics of

Occupations). Regarding respiratory irritants

(e.g., fumes, noxious odors, dusts, mists, gases,

and poor ventilation), she can work in situations

up to but excluding concentrated exposure (e.g.,

a manufacturing floor or construction site). She

can perform productive work tasks for up to an

average of 98 to 100% of an 8-hour workday, not

including the typical morning, lunch, and

afternoon breaks. 

(Tr. 18). With this RFC, the ALJ found that Bautista could perform

a variety of jobs, including information clerk, cafeteria cashier,

usher, general office clerk, parimutuel ticket checker, and order

clerk. (Tr. 24). Thus, Bautista’s claim failed at step five of the

evaluation process. 

Bautista believes that reversal is required because the ALJ’s

decision was not supported by substantial evidence. More

specifically, Bautista believes that the ALJ erred by failing to

properly evaluate: (1) the opinion of Dr. Donley, a treating

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physician; (2) the opinion of Connie Leese, a nurse practitioner; and

(3) Bautista’s credibility. 

The ALJ’s Consideration of Evidence from Dr. Donley

Bautista claims the ALJ erred in evaluating the evidence obtained

from one of her treating physicians, Dr. Donley. An ALJ “must always

consider and address medical source opinions.” Social Security Ruling

(“SSR”) 96-8p. Furthermore, a treating physician’s medical opinion

must be given controlling weight if it is “well supported” and “not

inconsistent with other substantial evidence in the case record.” SSR

96-2p. Additionally, the ALJ’s “decision must contain specific

reasons for the weight given to the treating source’s medical opinion,

supported by the evidence in the case record, and must be sufficiently

specific to make clear to any subsequent reviewers the weight the

adjudicator gave to the treating source’s medical opinion and the

reasons for that weight.” SSR 96-2p. 

If the treating physician’s opinion is not well supported or is

inconsistent with other substantial evidence, the ALJ must apply the

following factors to determine the proper weight to give the opinion: 

(1) the length of the treatment relationship and

frequency of examination;

(2) the nature and extent of the treatment

relationship; 

(3) how much supporting evidence is provided; 

(4) the consistency between the opinion and the record

as a whole;

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(5) whether the treating physician is a specialist;

(6) any other factors brought to the attention of the

Commissioner.

20 C.F.R. §§ 404.1527(d)(2) and 416.927(a)-(d); see Moss v. Astrue, 555

F.3d 556, 561 (7th Cir. 2009); Bauer v. Astrue, 532 F.3d 606, 608 (7th

Cir. 2008). It is reversible error for an ALJ to discount the medical

opinion of a treating physician without applying this legal standard and

for further failing to support the decision with substantial evidence. 

Moss, 555 F.3d at 561; see also Punzio v. Astrue, 630 F.3d 704, 710 (7th

Cir. 2011) (finding the ALJ’s rejection of a treating physician’s mental

residual functional capacity questionnaire was not substantially

supported).

In determining Bautista’s RFC, ALJ Ziercher noted that “[t]he

medical evidence contains no medical source statements by a treating

health professional.” (Tr. 21). Bautista argues that her treating

physician, Dr. Donley, did in fact provide a medical source statement

and that the ALJ failed to acknowledge it in his decision and failed

to conduct the appropriate analysis required under SSR 96-2p.

 On January 3, 2011, roughly two weeks after Bautista’s alleged

onset date, Dr. Donley completed a form titled “Certification of

Health Care Provider for Employee’s Serious Health Condition (Family

and Medical Leave Act).” (Tr. 336-39). Dr. Donley indicated that

Bautista had been diagnosed with rheumatoid arthritis, fibromyalgia,

bilateral knee arthritis and left knee tendinitis. (Tr. 337). She

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indicated that Bautista was unable to perform repetitive upper body

motions, lifting more than ten pounds, overhead reaching, and

squatting. (Id.). She further indicated that this condition began

approximately December 24, 2010, and that the duration was indefinite. 

She indicated that Bautista needed to be off work from January 3,

2011, until February 3, 2011, pending rheumatology evaluation, and

that it should be expected that Bautista will suffer from episodic

flare-ups that will necessitate her being absent from work. She

estimated that she might suffer a flare-up every three months

necessitating a seven day absence from work, but that it would vary

based on job and disease state. (Tr. 338). In a separate note, Dr.

Donley indicated Bautista could return to work as of February 14,

2011, roughly six weeks later. (Tr. 340). In addition, she noted

that Bautista was unable to work on several dates occurring shortly

before and after her extended absence: December 15, 2010, December

18, 2010, February 24, 2011, February 25, 2011, and February 26, 2011. 

(Tr. 342). 

Dr. Donley made clinical findings regarding Bautista during this

period of time, including those recorded in notes of an office visit

on December 20, 2010. She noted PIP swelling over both thumbs and

some soft tissue swelling over both medial aspects of both wrists, but

no rheumatoid nodules or other deformities. Notes from a visit on

January 3, 2011, show bogginess and redness of the MCP’s of the 2nd

and 3rd fingers of her right hand. (Tr. 410).

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The ALJ’s decision does not address the restrictions Dr. Donley 

sets forth in the January 3, 2011, Certification of Health Provider

form. The Commissioner argues that Dr. Donley never offered an

opinion regarding Bautista’s RFC - she offered only a temporary

restriction on a work absence form. Nonetheless, even the

Commissioner concedes in her brief that “the ALJ should have

referenced them in his decision.” (DE 24 at 5). According to the

Commissioner, because Dr. Donley never stated that Bautista would be

unable to work for any continuous 12 month period, the error is

harmless. This is simply not the case. Dr. Donley opined that

Bautista had an impairment significant enough to cause her to miss

work and that the impairment was cyclical in nature such that those

absences would occur with some frequency and last for a considerable

period of time (she estimated a flare-up might occur once every three

months and last seven days). If this opinion is credited, it would

almost certainly preclude full-time work on an ongoing and continuous

basis. The Commissioner further suggests that Dr. Donley’s opinions

are not relevant because the job Bautista was working at the time she

requested that Dr. Donley complete the work absence forms were for

absences from a medium level industrial cleaner job and the ALJ found

Bautista could do only light and sedentary work. It is certainly

possible that Dr. Donley would say that Bautista could indeed perform

light or sedentary work despite her impairment, even during a flareup, but that is not a part of the record and this Court cannot

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speculate as to what opinion Dr. Donley may hold on a question that

was not asked. 

Through her presentation of the facts, the Commissioner also

suggests that Dr. Donley’s opinion should be discounted as

speculative. Similarly, the Commissioner suggests that, perhaps when

Dr. Donley authorized work absences on several dates after the fact,

she was just doing Bautista a favor. Citing Dixon v. Massanari, 270

F.3d 1171, 1177 (7th Cir. 2001). If the ALJ had evaluated the

evidence at issue, he may very well have concluded that Dr. Donley was

a little too accommodating of Bautista’s requests for authorization

for time off work. Indeed, as noted in Dixon, “[t]he patient’s

regular physician may want to do a favor for a friend and client, and

so the treating physician may too quickly find disability.” However,

the Commissioner’s after the fact musings on the evidence have no

place in this Court’s analysis. See SEC v. Chenery Corp., 318 U.S.

80, 93-95(1943); Martinez v. Astrue, Nos. 10-1957, 10-2603, 10-2080,

2011 WL 148810 at *1 (7th Cir. Jan 19, 2011)(“[I]n defiance of the

principle of SEC v. Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct 454,

87 L.Ed. 626 (1943), the Justice Department’s lawyers who defend

denials of disability benefits often rely heavily on evidence not (so

far as appears) relied on by the administrative law judge, and defend

the tactic by invoking an overbroad conception of harmless

error.”)(quoting Spiva v. Astrue, 628 F.3d 346 (7th Cir. 2010)). 

While perhaps not a blatant violation of the Chenery principle, the

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Commissioner’s pairing of certain facts with case citations and

parentheticals violates the spirit of Chenery. 

While ALJ’s are not required to address every piece of evidence,

they must build a “logical bridge” between the evidence and

conclusions such that meaningful review is possible. See Phillips v.

Astrue, 413 Fed. Appx. 878, 885 (7th Cir. 2010); Clifford v. Apfel,

227 F.3d 863, 872 (7th Cir. 2000)(An ALJ must “build an accurate and

logical bridge from the evidence to his conclusion.”). Here, the

neglect of a significant opinion from a treating physician that her

patient will suffer indefinitely from episodic flare-ups necessitating

work absences for up to seven days cannot be described as harmless. 

Dr. Donley’s opinions must be addressed on remand. If not given

controlling weight, the ALJ must explain the reasons for the weight

given to the opinion in accordance with SSR 96-2p.

Bautista’ Remaining Arguments

Having found remand necessary on the basis of the ALJ’s failure

to address the opinion of Dr. Donley, this Court finds no compelling

reason to address Bautista’ remaining arguments in detail. This Court

has considered Bautista’s request that this Court award benefits

rather than remand the case for additional proceedings but finds

remand more appropriate here. This Court makes no findings regarding

the merits of Bautista’s claims. On remand, the ALJ should consider

all of the evidence in the record and, if necessary, give the parties

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the opportunity to expand the record so that the ALJ may build a

logical bridge between the evidence and his conclusions. 

CONCLUSION

For the reasons set forth above, the Commissioner of Social

Security’s final decision is REVERSED and this case is REMANDED to the

Social Security Administration for further proceedings consistent with

this opinion pursuant to sentence four of 42 U.S.C. section 405(g). 

DATED: August 7, 2015 /s/RUDY LOZANO, Judge

United States District Court

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