Scott Retzloff v. Carolyn Colvin
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Diane S. Sykes, Circuit Judge. [6807045-1]  [15-3851]
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 November 15, 2016
Decided December 23, 2016
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
SCOTT J. RETZLOFF,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Appeal from the United States District
Court for the Western District of
James D. Peterson,
O R D E R
Scott Retzloff is seeking Disability Insurance Benefits from the Social Security
Administration; his application relies primarily on a back injury and associated
complications and pain. So far, he has failed to persuade the relevant adjudicators that
he meets the criteria for these benefits. After the district court upheld the decision of the
administrative law judge (ALJ), acting for the Social Security Administration, he
brought this appeal, in which he argues that the ALJ erred by refusing to give
controlling weight to his treating physician’s opinions about his residual functional
capacity. We conclude, however, that substantial evidence supports the ALJ’s
assessment of the medical opinions, and so we affirm the denial of benefits.
Retzloff was working at a bait shop when, on August 7, 2009, he fell from a truck
and landed on his back on a log. A spinal x‐ray at the emergency room revealed a
possible small lumbar compression fracture with marginal spurring. The ER doctor
cleared him to return to work after three days and sent him home with prescription
pain medications and instructions not to lift anything until the pain went away. A few
days later, Dr. Brent Kelley ordered an MRI, which ruled out the suspected compression
fracture but showed lumbar disc desiccation in several places and some bulging in that
area. The desiccation (i.e. drying) and bulging are common signs of incipient
degenerative disc disease. The MRI also showed borderline central spinal stenosis (that
is, narrowing of the spinal canal). Importantly, although the fall led to the discovery of
these conditions, there is no medical evidence that it caused them, aside perhaps from
the fact that Retzloff had not suffered from back issues before the fall. When Dr. Kelley
saw him two weeks after the accident, he was no longer taking pain medication and he
reported that his back was 80% improved. Dr. Kelley released him to work without
From October through December 2009, Retzloff attended physical therapy
sessions, which he found helpful. He told the therapist in December that he felt “no
pain unless he does something like twisting.” His report to Dr. Kelley, however, was
not so positive. At a November 2009 appointment, he acknowledged improvement but
also said that he had greater back pain after prolonged standing or walking. Dr. Kelley
accordingly restricted him to medium work with a 20‐pound lifting restriction. After a
December visit, Dr. Kelley wrote that overall Retzloff’s back pain was not so bad and
that the physical therapy was working. The doctor also noted that Retzloff was “quite
insistent on his work ability for the future.” This may have meant the lack of any such
ability, because Dr. Kelley referred Retzloff to Dr. Andrew Floren, an occupational
medical specialist, with a note to Dr. Floren saying that Retzloff “may be interested in
getting a permanent partial disability rating if this is possible.”
Retzloff followed up with Dr. Floren in February 2010. At that time Dr. Floren
recorded that Retzloff had been fired from his job on September 1, that he had failed to
secure worker’s compensation benefits, and that he was “currently in litigation.”
Retzloff appeared angry and said that he was in a “great deal of pain.” He complained
that nothing helped his back pain, which he now described as a right‐side aching,
burning sensation, of a severity of anywhere from 2 to 8 on a 10‐point scale, radiating
from the lower to the mid‐back. For all that, Retzloff was taking only ibuprofen or
aspirin for his pain, and Dr. Floren detected only “mild to moderate tenderness” in the
lower back. A neurological exam came back as normal, but even so, Dr. Floren
concluded that Retzloff had “40% reduced motion” in his lower back. After ordering
more tests, Dr. Floren cleared Retzloff to work on a regular schedule with only the
restrictions Dr. Kelley had imposed. In early March 2010, Dr. Floren relaxed those
restrictions; a new MRI and bone scan, along with his review of a CT scan taken in
November 2009, persuaded him that Retzloff could lift up to 40 pounds. He saw only
mild tenderness in the spine and good, painless motion in the back. Retzloff, he
concluded, had longstanding degenerative changes that had been exacerbated by the
fall, but all that could be done was to continue the physical therapy.
Even with more physical therapy, Retzloff saw no improvement. In April 2010
Dr. Floren noticed a mild antalgic (pain‐avoiding) posture when Retzloff stood. The
doctor recommended that Retzloff use a TENS unit, limit lifting to a maximum of 25
pounds, and only occasionally bend, stoop, or twist. Matters were not much better in
May. Retzloff then turned to a spine specialist, Dr. Kay Krave. His complaints to her
were essentially unchanged. Dr. Krave recommended therapy. At the same time,
Retzloff turned down Dr. Floren’s suggestions of steroid injections or surgery. He
reported that he had been moving to a new house the day before and was experiencing
increased pain. Dr. Floren noted that Retzloff had only a mild antalgic posture, but he
continued to think that the 25‐pound lifting restriction and only rare bending, stooping,
twisting, and climbing were needed. Retzloff saw a physical therapist once in May 2010
and went to a chiropractor a few times.
Retzloff reported worsening pain in June. He told Dr. Floren that he had a
“significant stabbing numb sensation down his left leg into his foot” and his aching,
burning pain continued in his low back but now radiated down his leg. Dr. Floren’s
exam revealed a new weakness in Retzloff’s hips and quadriceps, which Retzloff
blamed on the chiropractor. Dr. Floren recommended another MRI, which showed (as
before) an annular tear at one level, disc degeneration at two levels, degenerative
changes of the sacroiliac joints, mild spine narrowing from disc bulging, degenerative
hypertrophic facet changes, and a congenitally small spinal canal.
In July 2010 a surgeon, Dr. Eduardo Perez, concluded that Retzloff was not a
good candidate for surgery, despite the worsening pain. Dr. Perez noted that Retzloff
had negative straight leg raising, full strength in his lower extremities, tenderness to
palpitation in his low back, symptomatic flexion and extension. He also had positive
Waddell’s signs (that is, signs that the pain may have had a psychological origin).
Retzloff was “somewhat despondent” at his visit with Dr. Floren the next day. His pain,
which he treated with two daily doses of Aleve, was worse with activity. He reported
that he could lift two gallons of milk and walk about a mile without increased pain. Dr.
Floren observed an antalgic gait and posture, mild to moderate tenderness in the low
back, 70 degrees of forward motion, 15 degrees of extension, and 15 degrees of bilateral
flexion. The doctor reviewed treatment options with Retzloff, but Retzloff rejected both
surgery and prescription pain medication. Dr. Floren then imposed several permanent
work restrictions: no lifting over 20 pounds; rare bending; occasional kneeling,
squatting, crouching, twisting, climbing, and overhead reaching; no continuous forward
reach; no continuous sitting; standing and moving around as needed; and no standing
or walking more than 20 minutes per hour. In August 2010—a critical date for the
ALJ—Dr. Floren indicated on a worker’s compensation form that Retzloff had a 12%
disability. He limited Retzloff to light work, with restrictions consistent with his earlier
order. After that August 2010 visit, Retzloff had no treatment for his back pain for the
next year and a half. He did, however, visit doctors for other purposes. Twice during
those visits he was observed to have a normal gait.
Retzloff next saw Dr. Floren in April 2012. Retzloff said that he had been looking
for work, but no one would hire him. He mentioned that he had applied for Social
Security disability benefits with a lawyer’s help. He reported that he could not sit or
stand more than 10 to 15 minutes without stretching, he had a hard time doing the
dishes or walking, and he still treated his pain with Aleve. Dr. Floren suggested steroid
injections, and Retzloff consented. Although Retzloff displayed several signs of back
problems, he had a normal neurological exam and good strength in his lower
extremities. Dr. Floren recommended another MRI and bone scan and told Retzloff he
should stay off work. The MRI revealed no significant changes. In June Retzloff
returned to Dr. Floren, who again recommended steroid injections and that Retzloff
remain off work.
Before Retzloff’s next visit to Dr. Floren, in November 2012, he apparently saw
another doctor. But at the November 2012 visit he told Dr. Floren that he was waiting
for approval for the steroid injections. Dr. Floren noted that Retzloff could not find light
work and was “fairly frustrated obviously with the situation.” His complaints were
largely unchanged: pain ranging from 2 to 7, for which he took Aleve almost daily.
After this Dr. Floren did not see Retzloff again, but in March 2013 he completed a
worker’s compensation form indicating that Retzloff could not work at all. In May 2013
he completed a medical statement that referred back to his June 2012 note.
In the meantime, Retzloff had applied for Social Security disability benefits in
June 2011. The agency found him not to be disabled and denied both his application
and his request for reconsideration. He then requested a hearing before an ALJ, which
he received in June 2013. There he testified that he had been unable to find work
because employers were not hiring or would not accommodate his disability. He said
that his back injury had progressively worsened since his injury in August 2009. When
asked about his symptoms, Retzloff said that he had sharp pain in his lower back and
weakness in his legs. He could sit for up to 1 hour, stand for 15 to 20 minutes, and walk
for around 100 yards; he struggled to do the dishes and vacuum. Still he was taking
only nonprescription medications, although he was trying to get injections too. Finally,
Retzloff testified that his previous jobs involved heavy lifting that he no longer could
do. A vocational expert testified that if Retzloff was limited to light work with only
occasional climbing of ramps and stairs and occasional balancing, stooping, crouching,
kneeling, and crawling, he no longer could perform his previous jobs, but there were
jobs in the national economy that he could do. Such jobs were not available for someone
who could lift no more than 20 pounds occasionally and just 10 pounds frequently, sit
for 5 hours maximum a day, and rarely bend, squat, or climb.
In September 2013 the ALJ denied Retzloff’s application for benefits. Applying
the required 5‐step analysis, see 20 C.F.R. §§ 404.1520(a), 416.920(a), the ALJ found that
Retzloff had not engaged in substantial gainful activity since the alleged onset (Step 1);
that his chronic mechanical low back pain with annular tear, spondylolisthesis,
moderate degenerative joint findings, and mild to moderate stenosis was a severe
impairment (Step 2); that his impairment did not meet or equal a listed condition
(Step 3); that he was unable to perform his past work (Step 4); and that he still could
work as a bench assembler, parking lot cashier, or warehouse checker (Step 5).
In determining Retzloff’s residual functional capacity, the ALJ acknowledged
Retzloff’s testimony that he could not work because of constant low back pain, which
affected most of his movements. But, the ALJ reasoned, the objective medical evidence
undercut this account. He noted that although the initial x‐ray showed a possible
compression fracture, later diagnostic tests ruled out a fracture and disclosed only mild
congenital and degenerative conditions which remained stable from August 2009 to
May 2012. Retzloff’s physical examinations were similarly unremarkable. The ALJ
inferred that Retzloff’s minimal treatment belied his assertion of disability.
The ALJ recognized that after a year and a half, Retzloff sought additional
medical treatment in January 2012. Nothing much had changed by then, however.
Overall the ALJ thought that the “significant gap in medical treatment, followed by
minimal findings on physical examinations, stable imaging findings, conservative
treatment recommendations, and lack of follow‐up with recommended treatment, is
entirely inconsistent with ongoing disabling pain, or worsening pain.” Similarly, the
ALJ concluded that Retzloff’s daily activities did not suggest disabling pain. Indeed, the
ALJ found his reports contradictory. On the one hand, Retzloff said that he was unable
to help with even the simplest chores without excruciating pain, but on the other hand,
he sought very little medical help and limited himself to over‐the‐counter medication.
The ALJ gave substantial weight to Dr. Kelley’s early opinions and Dr. Floren’s
opinions up to April 2010 because those opinions were consistent with the doctors’
objective findings and otherwise supported by the record. The ALJ was skeptical about
Dr. Floren’s decision in May 2010 to change Retzloff’s restrictions to rare bending,
stooping, twisting, or climbing, even though the only exam findings were mild antalgic
posture and low back tenderness. Dr. Floren’s decision in July 2010 to limit Retzloff
further to lifting 20 pounds; rare bending; occasional kneeling, squatting, crouching,
twisting, climbing, or reaching overhead; only 20 minutes of standing or walking every
hour; and frequent sitting was similarly hard to justify. Dr. Floren had found only
“antalgic gait and posture, mild to moderate back tenderness, and reduced motion of
the lumbar spine.” In August, Dr. Floren concluded that Retzloff was ready for light
work, but limited him to 3 to 5 hours of sitting a day with rare bending, squatting, and
climbing. The ALJ did not give these opinions substantial weight. Likewise the ALJ
gave little weight to Dr. Floren’s March and May 2013 opinions. On those occasions, Dr.
Floren had said that Retzloff could not work because of his low back pain, but he did
not conduct a physical examination and instead referred back to his June 2012 treatment
note. Yet that examination reflected findings of only “mild” conditions and the
recommended treatment was Aleve and a TENS unit.
The ALJ reviewed the opinions of the consulting physicians and found them
lacking, too. Both doctors had opined that Retzloff could perform light work without
restrictions. But the ALJ believed that Retzloff did need some postural restrictions and
adopted several of Dr. Floren’s suggestions that were supported by the record. The ALJ
also noted that Retzloff had not tried to work since his accident and had been on
unemployment compensation in 2010 and 2011. He also had a worker’s compensation
claim that apparently had settled. Retzloff had told Dr. Floren numerous times that he
could not find any light‐duty work. In the ALJ’s view, this suggested that “factors other
than the claimant’s severe physical impairments have interfered with his return to any
work.” The ALJ concluded, based on a vocational expert’s testimony, that jobs exist in
the national economy for someone with Retzloff’s limitations, and thus he was not
disabled. The Appeals Council denied review, and so the ALJ’s decision stands as the
final decision of the agency. See Ghiselli v. Colvin, 837 F.3d 771, 776 (7th Cir. 2016).
On appeal Retzloff challenges only the ALJ’s refusal to give controlling weight to
Dr. Floren’s post‐April 2010 opinions. Retzloff asserts that the ALJ failed to analyze the
appropriate factors, see 20 C.F.R. § 404.1527(c), disregarded his testimony, failed to
resolve inconsistencies between the medical opinions of the agency consultants and
Dr. Floren, and “played doctor” impermissibly by relying on his own opinion.
The opinion of a treating doctor such as Dr. Floren usually is given controlling
weight because a treating source is assumed to be familiar with a claimant’s medical
issues over time and can provide a unique perspective. See 20 C.F.R. § 404.1527(c)(2).
Still, to be given controlling weight the opinion must be “well‐supported” by objective
medical evidence and not contradicted by substantial evidence in the record. See id.;
Ghiselli, 837 F.3d at 776. An ALJ may not reject such an opinion without “good reasons.”
See 20 C.F.R. § 404.1527(c)(2); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010).
Dr. Floren’s work restrictions were conservative initially, but they progressively
grew more restrictive. Yet Retzloff’s MRIs, bone scans, and x‐rays did not change
significantly over time, and though the results of Floren’s physical examinations varied,
those results did not consistently worsen. All the while, Retzloff’s subjective complaints
grew worse—his reports changed from improvement or stability to new or worsening
pain at each visit. He also reported diminished functional abilities. He did not
frequently insist on obtaining benefits, but he did talk openly with Dr. Floren about his
problems with worker’s compensation, Social Security benefits, and finding work. It
would not be unreasonable to infer that Dr. Floren ultimately decided to placate a
demanding patient in rendering his medical opinions.
Relatedly, Retzloff contends that the ALJ did not explain his weighing of the
other doctors’ differing opinions. Again, this does not do justice to the ALJ’s opinion.
His discussion of the agency doctors’ opinions is brief but to the point. He
acknowledged their views of Retzloff’s residual functional capacity but added more
restrictions “to account for those postural restrictions opined by Dr. Floren.” Saying
more about the agency doctors’ opinions would not illuminate the ALJ’s decision, since
for him the important conflict was not between the agency’s consultants and Dr. Floren,
but between Dr. Floren’s early and later opinions.
We turn next to Retzloff’s complaint about the ALJ’s “boilerplate” representation
that he considered the factors in § 404.1527(c). This was harmless, as the ALJ did discuss
the relevant points, even if not by name. The ALJ evaluated the treatment relationship,
in his discussion of Dr. Floren’s medical opinions from February 2010 through
May 2013, all of the treatment given to Retzloff, and the relevant physical exams and
tests, see 20 C.F.R. § 404.1527(c)(2)(i)–(ii). The ALJ’s decision explains why Dr. Floren’s
later opinions cannot be reconciled with the record, covering both consistency and
supportability. See id. § 404.1527(c)(3)–(4). The ALJ acknowledged Dr. Floren’s specialty
in occupational medicine, see id. § 404.1527(c)(5), and Retzloff does not identify any
“other factor” that the ALJ neglected to consider, see id. § 404.1527(c)(6).
Retzloff also asserts that the ALJ never assessed whether Dr. Floren’s later
opinions were consistent with his testimony. But that is not accurate. The ALJ explained
why he thought Retzloff was exaggerating: he relied on the tension between Retzloff’s
testimony about his daily activities and his earlier, more positive, reports to Dr. Floren.
The ALJ also noted that Retzloff’s account of “excruciating” pain was inconsistent with
the medication he was taking. The ALJ was not required to provide any more detail.
Finally Retzloff argues that the ALJ “played doctor” in assessing his residual
functional capacity. This assertion is meritless. An ALJ has “final responsibility” for
determining a claimant’s RFC and need not adopt any one doctor’s opinion. See 20
C.F.R. § 404.1527(d)(2); Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007). More to the
point, the ALJ relied not on his own assessment but on Dr. Floren’s April 2010 opinion
in concluding that Retzloff retained the ability to perform light work with occasional
climbing, balancing, stooping, crouching, kneeling, and crawling. Retzloff obviously
disagrees with the ALJ’s choice of which of Dr. Floren’s opinions to rely upon, but it is
not for us to tell the ALJ which of two inconsistent opinions he should credit.
We are satisfied that the ALJ’s analysis is supported by substantial evidence. The
record supports the finding that Retzloff’s workplace accident led to his discovery of
apparently preexisting conditions that had not caused any pain previously. Physical
examinations during the next four years found mostly “mild” to “moderate” issues, and
diagnostic tests during that period showed no significant changes. Although Retzloff
was complaining of worsening pain over time, he relied mostly on nonprescription pain
relievers or nothing at all. And though Dr. Floren eventually opined that Retzloff no
longer could work, the doctor never explained why his outlook dimmed. See Denton v.
Astrue, 596 F.3d 419, 424 (7th Cir. 2010) (noting that medical experts must identify
objective medical evidence in explaining “worsening prognosis”). The ALJ gave a
rational explanation for why he concluded that Dr. Floren’s opinion from April 2010
best reflects Retzloff’s residual functional capacity.
We therefore AFFIRM the judgment of the district court.
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