Lianne Summers v. Carolyn Colvin

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; Joel M. Flaum, Circuit Judge and Daniel A. Manion, Circuit Judge. [6726193-1] [6726193] [15-1819]

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NONPRECEDENTIAL DISPOSITION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

Submitted December 22, 2015 *
Decided February 4, 2016
Before
DIANE P. WOOD, Chief Judge
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 15-1819
LIANNE R. SUMMERS,
Plaintiff-Appellant,

Appeal from the United States District
Court for the Western District of Wisconsin.

v.

No. 12-cv-22-wmc

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant-Appellee.

William M. Conley,
Chief Judge.

ORDER
Lianne Summers appeals from a judgment upholding the Social Security
Administration’s denial of her applications for Disability Insurance Benefits and
Supplemental Security Income. See 42 U.S.C. § 405(g). Summers, who is 44, claimed that
she is disabled by chronic pain in her back and extremities, but an administrative law
judge disbelieved her testimony about the extent of her limitations and concluded that
After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
*

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she has the residual functional capacity to perform available jobs. On appeal Summers
challenges the ALJ’s finding that she does not suffer from a listed impairment, as well his
assessments of her credibility and residual functional capacity. Because the ALJ’s
conclusions are supported by substantial evidence, we affirm the judgment.
While she was living in Las Vegas, Nevada, Summers developed severe back pain
following a car accident in June 2004. As detailed in the written decisions of the ALJ and
the district court, see Summers v. Colvin, No. 12-cv-22-wmc, 2013 WL 6564451 (W.D. Wis.
Dec. 13, 2013), Summers sought treatment from several doctors during the months
following the accident but stopped when she moved out-of-state in March 2005. In 2006
she returned to her home state of Wisconsin; she applied for benefits in September 2009.
In her applications Summers alleged that she suffers from back pain and Crohn’s
disease, though she has never been diagnosed or treated for the latter condition. Her
applications initially were denied in December 2009, but afterward she sought further
medical treatment through August 2010. In addition to complaining about lower-back
pain, she told health-care providers (and later the ALJ) that she experiences numbness,
tingling, and pain in her extremities, hips, upper back, and shoulders. Her physicians
attributed these symptoms to fibromyalgia and chronic pain syndrome, but Summers
insisted that they result from Lyme disease, despite the fact that she had tested negative
for that disorder. Summers also reported to medical providers that she suffers from
rheumatoid arthritis and told the ALJ that she has carpal tunnel syndrome, but tests also
ruled out both of these conditions.
After conducting a hearing in March 2011, the ALJ applied the required five-step
analysis, see 20 C.F.R. §§ 404.1520, 416.920. At Step 1 the ALJ found that Summers had
not engaged in substantial gainful activity since her accident, and at Step 2 he identified
her impairments as obesity, fibromyalgia, and disorders affecting her back, muscles,
ligaments, and fascia. At Step 3 the ALJ concluded that Summers does not have an
impairment or combination of impairments that meets or equals the severity of a listed
impairment for presumptive disability. And at Steps 4 and 5 he concluded that she is not
capable of performing her past work, but she does have the residual functional capacity
to perform jobs available in the national economy. Specifically, the judge found that she
can perform sedentary work, as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), and
simple, routine, and repetitive tasks requiring frequent (but not constant) fine
manipulation. He did not believe her testimony about the intensity, persistence, and
limiting effects of her symptoms and noted that both of the state-agency doctors who
were consulted also thought that Summers could perform at least sedentary work. The

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Appeals Council declined to review the ALJ’s decision, making it the final word of the
Commissioner. See Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015).
In this court Summers first challenges the ALJ’s credibility finding, which we
must accept unless it is “patently wrong.” See, e.g., Pepper v. Colvin, 712 F.3d 351, 367 (7th
Cir. 2013). She critiques the ALJ’s use of the circular boilerplate we have criticized
frequently, see, e.g., Goins v. Colvin, 764 F.3d 677, 681 (7th Cir. 2014); Bjornson v. Astrue,
671 F.3d 640, 644–46 (7th Cir. 2012), but that unhelpful language is harmless when an
ALJ’s written decision otherwise explains the adverse credibility finding, see Filus v.
Astrue, 694 F.3d 863, 868 (7th Cir. 2013). And that is the situation here: What follows the
boilerplate is a thorough analysis of Summers’s statements and the medical evidence.
Summers accuses the ALJ of making a different mistake, however: she asserts that
he found her not credible solely because the objective medical evidence does not explain
her pain. See Hall v. Colvin, 778 F.3d 688, 691 (7th Cir. 2015). If that were true, it would be
a problem, but a careful look at the record shows that it is not. The ALJ relied on more
than a lack of substantiation in the medical evidence. He addressed Summers’s history
of conservative treatment, the assessments of the consulting physicians, the lack of
objective verification of her difficulties performing daily activities, and inconsistencies
between her reported limitations and doctors’ findings on examination. The ALJ also
noted one doctor’s report of Summers’s apparent eagerness to receive benefits.
Summers responds that the ALJ should not have focused on the several-year
hiatus in treatment after she left Las Vegas or her decision to stop treatment in 2010,
since the ALJ did not first explore her reasons for suspending treatment. An ALJ must
inquire into the claimant’s reasons before relying on the absence of medical treatment to
support an adverse credibility finding. See Craft v. Astrue, 539 F.3d 668, 679 (7th Cir.
2008). But the ALJ did not draw an adverse inference about Summers’s credibility from
any lack of treatment. Rather, the ALJ’s mention of the gaps in treatment was related to
his point that the treatment Summers did receive was conservative. And even if the ALJ
had concluded that the gaps undermined Summers’s credibility, she has not explained
how she was harmed by the ALJ’s failure to explore her reasons. See Spiva v. Atrue, 628
F.3d 346, 353 (7th Cir. 2010) (noting that doctrine of harmless error applies to Social
Security cases). Summers’s explanation that she did not have insurance or reliable
transportation at the time of her hearing in 2011 does not address her circumstances
during the period from 2005 to 2010 or why she was unable to seek care at the free clinic
near her in Marshfield, where she resumed treatment in 2010.

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Summers also argues that the ALJ erred in concluding that she had exaggerated
her limitations and impairments, but there was evidence to support this assessment. As
the ALJ pointed out, Summers consistently described herself as having impairments that
doctors had not diagnosed. Summers testified at her hearing that she had been
diagnosed with Lyme disease despite the fact that she had tested negative for that
condition and an infectious-disease doctor had ruled it out as the cause of her pain. She
also testified that she had been diagnosed with carpal tunnel despite normal EMG
results. And she told doctors that she had a history of rheumatoid arthritis dating to
2005, but that claim is yet another that testing debunked. Moreover, as the ALJ noted, the
doctors’ physical examinations, which consistently revealed normal muscle strength and
a lack of neurological problems, contradicted Summers’s stated limitations.
Summers further maintains that it was error for the ALJ to note her apparent
“eagerness” to receive benefits, a point mentioned by Dr. Daniel Sa. But this argument,
too, is unconvincing. Given the lack of findings after Dr. Sa’s examination, and the
timing of the statement—after Summers initially had been denied benefits, and at the
immediate outset of the appointment—it was not patently wrong for the ALJ to view her
statement that she “needs to go on disability” as diminishing her credibility.
Summers next argues that the ALJ’s determination at Step 3 that her conditions
did not meet or equal a listed impairment under 20 C.F.R. Pt. 404, Subpt. P, App. 1, was
too cursory. This is an argument that she raised in the district court, but it was
apparently overlooked. On this point the ALJ wrote, “The claimant’s back disorders fail
to satisfy the requirements of applicable listing 1.04 because there is no medically
documented evidence of nerve root compression, spinal arachnoiditis, or spinal
stenosis.”
Had this been all the ALJ said, it would be problematic for its brevity. See Minnick
v. Colvin, 775 F.3d 929, 935–36 (7th Cir. 2015). But we read the ALJ’s decision as a whole,
see Rice v. Barnhart, 384 F.3d 363, 370 n.5 (7th Cir. 2004), and later the ALJ addressed
Summers’s evidence more thoroughly and explained why the record did not establish
the criteria required to satisfy Listing 1.04.
Finally, Summers challenges the ALJ’s conclusion that she had the residual
functional capacity to perform sedentary work. She contends that it was improper for
the ALJ to place great weight on Dr. Philip Cohen’s assessment because he did not treat
her and he was consulted before much of the treatment she received in 2010. But no
treating source gave an opinion about Summers’s functional limitations. The only other

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medical opinion on point came from Dr. Patricia Bush, the other state-agency consultant,
who concluded that Summers had even fewer limitations. None of her treating
physicians ever opined that Summers was unable to work. It was not error for the ALJ to
rely on the uncontradicted expert opinion of Dr. Cohen, despite the fact that he never
treated Summers himself. See Filus, 694 F.3d at 867; Cass v. Shalala, 8 F.3d 552, 555 (7th
Cir. 1993).
AFFIRMED.