Patrick Mulligan v. Michael Astrue

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 10, 2009
Decided July 13, 2009
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 09-1135
PATRICK S. MULLIGAN, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin.
v.
No. 08-cv-364-bbc
MICHAEL J. ASTRUE,
Commissioner of Social Security, Barbara B. Crabb,
Defendant-Appellee. Chief Judge.
ORDER
A terrible life-style choice caught up with Patrick Mulligan. In 2005, at the age of 41,
he was diagnosed with lung cancer. This should come as no big surprise because Mulligan
smoked two packs of cigarettes a day for the last 25 years. At one time, think post-World
War II, smoking was glorified. Recall the appalling ad: “According to a recent National
survey, more doctors smoke Camels than any other cigarette!” But in 1980, when Mulligan,
at the age of 16, started lighting up, the warning signs were everywhere. Yet for whatever
reason, he ignored them.
No. 09-1135 Page 2
In 2005 Mulligan underwent surgery to remove malignant tissue. The surgery was
difficult as one of his ribs was broken in the process. He subsequently contracted
pneumonia. His post-operative chemotherapy exacted a toll as well, leaving Mulligan with
short-term memory loss, peripheral neuropathy, leg pain, and drug-induced fatigue. That
same year he applied for Social Security disability benefits and supplemental security
income. He was partially successful. Following a hearing, an administrative law judge
(ALJ) determined that Mulligan was disabled from February 5, 2005, to August 11, 2006,
but not any longer. Mulligan’s health had improved considerably since his surgery and
chemotherapy, the ALJ reasoned, and his testimony regarding the severity of his
impairments was not credible. The Appeals Council denied Mulligan’s petition for review
so the ALJ’s decision became the final decision of the Commissioner of Social Security.
Mulligan’s petition for judicial review was denied by the district court and he is here today
on an appeal filed in January of this year.
Mulligan, who was 42 years old at the time of the ALJ’s decision, drove a truck for a
living before he was diagnosed with lung cancer in February 2005. Two weeks after his
diagnosis, Dr. Daniel Cavanaugh performed a lobectomy, surgically removing a cancerous
lobe of Mulligan’s right lung. But Mulligan developed pneumonia following surgery, and
his doctors intubated him for approximately a week to stave off the illness. He was
eventually discharged, in late February, with prescriptions for anti-bacterial medication
and pain killers. Mulligan began chemotherapy treatment around this time, although that
too came with complications; he was hospitalized, for example, two days into treatment
because of severe nausea, heartburn, and vomiting. Mulligan’s chemotherapy also caused
peripheral neuropathy, manifest as numbness and pain in his feet and legs. Still, as Dr.
Cavanaugh noted in March 2005, Mulligan was “doing very well” in light of his problems
earlier that month, and his oxygen saturation rate--a measure of the amount of oxygen in
the bloodstream--was 98%.
In April 2005 Mulligan saw his treating physician, Dr. Thomas Lundquist, and
complained of chest tightness, wheezing, shortness of breath, and severe pain in his lower
extremities (“which [Mulligan] rates at 8/10"). Significantly, Mulligan reported that his
prescribed morphine and Percocet were “not touching the pain.” So Dr. Lundquist
responded with a new treatment regimen, including new drugs for the pain. That same
month, Dr. Bilal Naqvi, who was overseeing the chemotherapy treatment, noted Mulligan’s
multiple sources of pain medication--Dr. Cavanaugh and Dr. Lundquist--and informed
Mulligan that he “should get his narcotics prescribed by only one physician and he decided
to get these from Dr. Lundquist.” Dr. Naqvi also noted that Mulligan would be completely
disabled and unable to work during the course of his chemotherapy treatment but that he
should regain his strength within four to six weeks of the final treatment.
No. 09-1135 Page 3
By July 2005 Mulligan completed his chemotherapy treatment. Dr. Cavanaugh
reported that he was “doing fairly well now” and that “[h]e is interested in going back to
work, if he can.” But before Dr. Cavanaugh would authorize a return to work, he wanted
to monitor Mulligan’s pulmonary functions a little longer. For the time being, Dr.
Cavanaugh provided Mulligan with a tentative back-to-work slip with half-time
restrictions for the month of August 2005 and then full-time authorization beginning
September 1, 2005. Further testing in late July, though, showed that Mulligan had greater
restrictions than first anticipated. Dr. Cavanaugh noted that Mulligan’s forced vital
capacity--a measure of how much air one can exhale--was merely “2.13 liters, which is only
42% of predicted.” Nor did that measure improve with bronchodilators. Dr. Cavanaugh
expanded on Mulligan’s limitations:
The patient becomes very short of breath just walking up the stairs and
walking outside. The patient is asking questions about going back to work.
He is a truck driver, and I do not think he is qualified to drive a truck. He
also has some problems with his memory since he had his chemotherapy.
....
In my surgical opinion, I think the patient is disabled. I do not think he is
going to be able to do the heavy type of work that he has done in the past.
The patient is also working through Social Security. We have him now
involved in the occupational health side of things. As stated, in my opinion, I
do not think the patient is going to be able to do the type of employment that
he has in the past with his lung function and with his extreme shortness of
breath.
After Dr. Cavanaugh learned that Mulligan was seeking disability benefits, he
referred him to Dr. Eric Carlsen, who specializes in physical medicine and rehabilitation,
for an evaluation of Mulligan’s residual functional capacity (RFC). Following a July 2005
examination, Dr. Carlsen echoed many of the same observations as had Dr. Cavanaugh,
explaining that Mulligan “gets short of breath easily, even household distance ambulation
and up or down stairs. He is also complaining of some numbness in his feet and hands and
some short term memory problems.” “Of course it is not Social Security's issue whether or
not he could be gainfully employed at his former employer,” Dr. Carlsen remarked,
but whether he could be reasonably employed in his area in other types of
capacity. I certainly think that would be fairly unlikely, given his current
No. 09-1135 Page 4
presentation, including chronic narcotic usage, severe dyspnea [shortness of
breath] with exertion and some peripheral neuropathy. Functional capacity
is most likely in the sedentary to l[i]ght range with allowances for change of
position.
That opinion jibes somewhat with a brief letter dated September 26, 2005, from Dr.
Lundquist--Mulligan’s treating physician--in which he remarked that Mulligan “remains
unable to work at this time.”
A year later, in August 2006, Dr. Cavanaugh still had reservations about Mulligan’s
return to work. He wrote, in response to a request from Mulligan’s counsel for a medical
status report:
Mr. Mulligan at the present time appears to slowly be recovering from his
surgery. He complains of some pain in his feet secondary to his
chemotherapy and that is being followed by his primary physician, Dr.
Lundquist in Rice Lake. This is a chemotherapy-induced peripheral
neuropathy. The patient is also being followed by his primary physician
because of a chronic depression.
....
In my opinion I think Mr. Mulligan has been disabled since his original
thoracotomy in February 2005. His pulmonary status continues to improve.
However, with exercise he becomes short-winded and his oxygen saturations
do fall. It would be my opinion that as of this time, Mr. Mulligan is not able
to maintain a full work load as he had prior to his surgery, and that if he was
considered for some type of employment this would certainly have to be the
type of work that would be modified to meet his needs from the residual
pulmonary status secondary to his lobectomy.
Mulligan’s counsel made the same request of Dr. Lundquist, who responded in
September 2006. “Mr. Mulligan continues to have significant fatigue,” wrote Dr.
Lundquist. “He is unable to work for any long periods of time during the day without
having to lie down.” Dr. Lundquist mentioned that Mulligan was still taking narcotic pain
medication for the “painful neuropathy” in his legs. And, although he gets short of breath
with exertion, Mulligan was “not extremely hypoxemic”; that is, adequate oxygen was
getting into his bloodstream.
No. 09-1135 Page 5
After his initial application for Social Security benefits was denied, Mulligan
requested a hearing before an ALJ. At the hearing in November 2005, the ALJ heard
testimony from Mulligan, a medical expert, and a vocational expert. The ALJ concluded
that Mulligan was not disabled. Mulligan appealed that determination, and in April 2006
the Appeals Council remanded the case to the ALJ because “[t]he hearing decision does not
contain a specific finding regarding the credibility of the claimant’s subjective complaints.
In addition, the decision does not address whether the claimant has an underlying
medically determinable physical or mental impairment that could reasonably be expected
to produce the symptoms alleged.” “In particular,” the Appeals Council continued “the
decision does not address the claimant’s allegation that he needs to lie down for one to
three hours each day due to fatigue, which the vocational expert at the hearing indicated
would preclude all work activity.”
The same ALJ convened a second hearing in August 2006, again hearing testimony
from Mulligan, a non-examining, state-agency physician (Dr. Katherine Hiduchenko), and
a vocational expert (Paul Maulucci). Unfortunately, there is no transcript of the second
hearing in the record. The parties acknowledge this deficiency but do not attempt to
explain it. The district court, in its written decision, noted the problem as well but chose to
draw on the ALJ’s written summary of the hearing because neither party objected to that
portion of the decision.
Following the hearing the ALJ concluded that Mulligan was disabled from February
5, 2005, to August 12, 2006. The ALJ began, at step one, by finding that Mulligan had not
engaged in any substantial gainful activity since February 5, 2005. The ALJ concluded at
step two that Mulligan suffered from the following severe impairments: “a history of
undifferentiated adenocarcinoma [a type of cancer] of the right lung, status post right
upper lobectomy, and chemotherapy, with residual moderate obstructive pulmonary
disease, and chemotherapy-related sensory peripheral neuropathy in the lower
extremities.” Mulligan had also complained of a right-foot fracture, a history of
gastroesophageal reflux disease, and left-shoulder inflammation, but the ALJ found that
those conditions were not severe physical impairments. Similarly, the ALJ rejected
Mulligan’s claim that his depression rose to the level of a severe medically determinable
mental impairment. There were few references to depression in the record, the
ALJ remarked, and even those references--e.g., Dr. Cavanaugh noting that Dr. Lundquist
was monitoring Mulligan’s depression--did not provide any significant detail. The ALJ
observed, moreover, that “the medical record documents no evaluation or treatment by any
mental health provider.” Perhaps most significant was Mulligan’s tacit acknowledgment at
the hearing that, although he was taking Prozac, he did not experience any symptoms of
depression that might interfere with working.
No. 09-1135 Page 6
Next, at step three, the ALJ concluded that from February 5, 2005, to August 11,
2006, Mulligan did not have an impairment or combination of impairments that met or
medically equaled a listed impairment. Still, during that period, as the ALJ noted at steps
four and five, Mulligan lacked the residual functional capacity to perform even sedentary-
level work. The ALJ synthesized the reports of Dr. Lundquist and Dr. Cavanaugh and
concluded that they were consistent with the testimony of Dr. Hiduchenko, the non-
examining, state-agency physician--who testified that during the 18-month period
Mulligan “would have been unable to perform any work due to his required surgery, post-
surgical and chemotherapy related complications, and prolonged recovery period.”
The ALJ’s written decision is incomplete, however. Under the bolded heading “12.
Medical improvement occurred as of August 12, 2006, the date the claimant’s disability
ended (20 CFR 404.1594(b)(1) and 416.994(b)(1)(i))” * the ALJ wrote only “**[EXPLAIN HOW
SEVERITY OF IMPAIRMENTS DECREASED IN TERMS OF SIGNS, SYMPTOMS,
AND/OR LABORATORY FINDINGS]**.” This is obviously an oversight by the ALJ.
Elsewhere in his decision, however, the ALJ touches on this notion of medical
improvement. For example, the ALJ writes that beginning in September 2006 “the claimant
has had the residual functional capacity to perform sedentary to light level work” with
certain environmental restrictions. In support of his RFC analysis, the ALJ also observes
that “Dr. Cavanaugh, the claimant’s treating surgeon, indicated on August 11, 2006, that
the claimant’s pulmonary status continued to improve, and that he would be able to
perform work modified to meet his pulmonary status needs.”
Also key to this notion of medical improvement is the ALJ’s adverse credibility
determination. The ALJ found that “the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely credible beginning on
September 1, 2006.” For instance, Mulligan testified about constant pain in his lower
extremities and pressure in his lungs that prevented him from sitting or standing for more
than an hour at a time or walking more than three blocks at a time. But the medical record,
the ALJ reasoned, “documents only a moderate obstructive pulmonary defect, with
*
Medical improvement, as defined in 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i), is
“any decrease in the medical severity of your impairment(s) which was present at the time of
the most recent favorable medical decision that you were disabled or continued to be disabled.
A determination that there has been a decrease in medical severity must be based on changes
(improvement) in the symptoms, signs and/or laboratory findings associated with your
impairment(s).”
No. 09-1135 Page 7
significant response to bronchodilator treatment.” Compounding the ALJ’s doubts was the
fact that, despite medical expectations of improvement as early as 2005, Mulligan had
reported no improvement, instead demonstrating “considerable narcotic seeking
behavior . . . with the claimant specifically requesting Percocet from multiple providers for
multiple sites of pain.”
Mulligan again sought review before the Appeals Council, but this time his appeal
was denied. As we have noted, the district court likewise upheld the decision of the ALJ
on Mulligan’s petition for judicial review.
If, as is the case here, the Appeals Council declines to review the ALJ’s decision, that
decision becomes the final decision of the Commissioner of Social Security. Getch v. Astrue,
539 F.3d 473, 480 (7th Cir. 2008). Without deference to the district court, we probe the ALJ’s
decision to determine whether it is supported by substantial evidence. See 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971) (Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”);Moss v.
Astrue, 555 F.3d 556, 560 (7th Cir. 2009).
Mulligan first proposes that the ALJ relied improperly on the testimony of Dr.
Hiduchenko--a non-examining, state-agency physician--and erred by not giving controlling
weight to the medical opinions of Dr. Lundquist--his treating physician. In doing so,
Mulligan writes, the ALJ yielded to the temptation to play doctor. Mulligan knows well
and repeats throughout his brief, a treating physician’s opinion is entitled to controlling
weight so long as it is supported by objective medical evidence and is consistent with other
substantial evidence in the record. See 20 C.F.R. § 404.1527(d)(2); Bauer v. Astrue, 532 F.3d
606, 608 (7th Cir. 2008). An ALJ who discounts the opinion of the treating physician must
articulate good reason for doing so. 20 C.F.R § 404.1527(d)(2); see Schmidt v. Astrue, 496 F.3d
833, 842 (7th Cir. 2007).
Mulligan’s argument has traction. The ALJ insists throughout his decision that he
has given all of the medical reports “great weight,” but that statement is misleading. So,
too, is the ALJ’s assertion that the medical record unequivocally supports Dr.
Hiduchenko’s opinion--that Mulligan was unable to work only after surgery, during
chemotherapy, and during a “prolonged recovery period” ending in August 2006. Dr.
Hiduchenko’s opinion cannot be squared, for example, with Dr. Lundquist’s continuing
observations, first communicated in a January 2006 letter, that Mulligan has “excessive
daytime fatigue” as a result of his chronic pain medication and “frequently has to lie down
during the day.” Dr. Lundquist reiterated these concerns in his September 2006 letter,
explaining that “Mulligan continues to have significant fatigue. He is unable to work for
No. 09-1135 Page 8
any long periods of time during the day without having to lie down.” The ALJ chose not to
countenance those restrictions because, as to the first letter, “Dr. Lundquist did not indicate
that the claimant was required to lie down on a medical basis” and, as to the second letter,
“Dr. Lundquist did not indicate any medical need to lie down for a specific period each
day.” The ALJ surmised further that Dr. Lundquist was merely parroting Mulligan’s self-
reporting. He wrote: “Although Dr. Lundquist has reported that the claimant lies down
frequently throughout the day, these reports merely reiterate the claimant's subjective
complaints, and are not consistent with specific medical limitations resulting from any
severe impairment or treatment for any severe impairment.” The medical need is
crystalline, though: Mulligan’s pain-management medication leaves him exhausted, as his
treating physician noted as early as January 2006. The ALJ’s faulty explanation for
discounting a portion of Dr. Lundquist’s opinion falls short of a “good reason,” and that
alone warrants a remand. See 20 C.F.R. § 404.1527(d)(2); Moss v. Astrue, 555 F.3d 556, 561
(7th Cir. 2009).
But Mulligan’s strongest argument concerns the ALJ’s failure to explain the medical
improvement, in August 2006, that purportedly eliminated Mulligan’s disability. The ALJ
obviously intended to include more under heading 12; the Commissioner concedes that
point. Nevertheless, the Commissioner asks us to affirm because, on the whole, the ALJ’s
decision adequately addresses the medical improvement--or so goes the argument. We
disagree. Medical improvement, as defined in 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i),
is “any decrease in the medical severity of your impairment(s) which was present at the
time of the most recent favorable medical decision that you were disabled or continued to
be disabled. A determination that there has been a decrease in medical severity must be
based on changes (improvement) in the symptoms, signs and/or laboratory findings
associated with your impairment(s).” We require, moreover, that an ALJ substantiate his
assessment of a claimant’s residual functional capacity, see Stewart v. Astrue, 561 F.3d 679,
684 (7th Cir. 2009), a process often referred to as “build[ing] an accurate and logical bridge
from the evidence to the conclusion,” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The only real discussion of improvement (in the relevant time frame) is a single line
in the decision stating that “Dr. Cavanaugh, the claimant’s treating surgeon, indicated on
August 11, 2006, that the claimant’s pulmonary status continued to improve, and that he
would be able to perform work modified to meet his pulmonary status needs.” The August
2006 letter the ALJ cites is not so rosy, however; Dr. Cavanaugh also talks about the “slow[]
recover[y]” from surgery and Mulligan’s tendency to become short-winded with exercise
(“and his oxygen saturations do fall”). Furthermore, Dr. Cavanaugh’s ultimate conclusion
is more equivocal than the ALJ suggests. He writes, “as of this time, Mr. Mulligan is not
able to maintain a full work load as he had prior to his surgery, and . . . if he was
No. 09-1135 Page 9
considered for some time of employment, this would certainly have to be the type of work
that would be modified to meet his needs from his residual pulmonary status secondary to
his lobectomy.” What is more, Dr. Lundquist’s September 2006 letter--which, again, the
ALJ chose to discount for lack of medical basis--suggests continuity of Mulligan’s earlier
symptoms, not improvement. It says, “The information contained in the letter dated
January 25, 2006 is still pertinent. Mr Mulligan continues to have significant fatigue. He is
unable to work for any long periods of time during the day without having to lie down.”
Here, the ALJ fell short of what was required. The absence of any actual analysis
under header 12 is alarming--and the notation “**[EXPLAIN HOW SEVERITY OF
IMPAIRMENTS DECREASED IN TERMS OF SIGNS, SYMPTOMS, AND/OR
LABORATORY FINDINGS]**” is not nearly enough. Nor are the selective references to
passages from medical professionals who believe only that Mulligan has improved since
his worst days and someday may be able to work, albeit in a limited fashion.
Finally, we note Mulligan’s contention that the ALJ failed to properly investigate
and analyze his complaints of depression. On the contrary, the ALJ devoted a sizable
paragraph to the possibility that a mental impairment contributed to Mulligan’s disability.
But the ALJ observed that the only medical evidence of depression in the record was Dr.
Cavanaugh’s note that Dr. Lundquist (a physician, not a mental-health practitioner) was
monitoring Mulligan’s depression. Dr. Lundquist never mentioned it in his reports. Other
than that, Mulligan mentioned at the hearing that he was taking Prozac, “but reported no
symptoms of depression that would interfere with his ability to work.” Mulligan concedes
that there was scant evidence of his depression in the record but counters that, once on
notice, the ALJ was somehow obligated to order additional tests, see 20 C.F.R. § 404.1517,
and develop a fuller record as to his mental health. For that conclusion, he depends largely
on cases that discuss the heightened duty an ALJ has to unrepresented claimants. See
generally Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009). Certainly a Social Security
claimant is entitled to a full and fair record, see id., but a claimant represented by counsel,
as Mulligan was, is presumed to have made his best case before the ALJ, see Skinner v.
Astrue, 478 F.3d 836, 842 (7th Cir. 2007).
Because we conclude, among other things, that the finding of a medical
improvement was not based on substantial evidence, the ALJ’s decision is VACATED and
the matter is REMANDED to the agency for further proceedings.