Ekster v. Commissioner of Social Security
Filing
26
ORDER and OPINION entered by Magistrate Judge Jonathan E. Hawley on 1/14/16. Ekster's Motion for Summary Judgment 18 is DENIED and the Commissioner's Motion for Summary Affirmance 22 is GRANTED. This matter is now terminated. SEE FULL WRITTEN ORDER. (FDT, ilcd)
E-FILED
Thursday, 14 January, 2016 11:08:06 AM
Clerk, U.S. District Court, ILCD
IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JASON L. EKSTER,
Plaintiff,
v.
Case No. 1:14-cv-01396-JEH
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Order and Opinion
Now before the Court is the Plaintiff’s Jason L. Ekster’s Motion for
Summary Judgment (Doc. 18) and the Commissioner’s Motion for Summary
Affirmance (Doc. 22).
For the reasons stated herein, the Court DENIES the
Plaintiff’s Motion for Summary Judgment and GRANTS the Defendant’s Motion
for Summary Affirmance. 1
I
In February 2012, Ekster filed applications for disability insurance benefits
and supplemental security income (SSI) alleging disability beginning October 16,
2004. His claim for SSI was denied initially on May 16, 2012, and was denied
upon reconsideration on August 14, 2012. 2 On August 24, 2012, Ekster filed a
request for hearing concerning his application for Social Security benefits. A
hearing was held before the Honorable Diane Raese Flebbe (ALJ) on April 16,
2013, and at that time Ekster was not represented by an attorney or an official
References to the pages within the Administrative Record will be identified by AR [page number]. The
Administrative Record appears as (Doc. 12) on the docket.
2 In the ALJ’s May 3, 2013 Decision, the ALJ determined that Ekster did not have a severe impairment or
combination of impairments prior to December 31, 2004 (his date last insured), and so he was not entitled
to disability insurance benefits. Ekster does not challenge that determination, and so the Court will limit
its consideration to the part of the ALJ’s Decision he does challenge – the denial of SSI.
1
1
representative. Following the hearing, Ekster’s claim was denied on May 3, 2013.
His request for review by the Appeals Council was denied on August 21, 2014,
making the ALJ’s Decision the final decision of the Commissioner. Ekster filed
the instant civil action seeking review of the ALJ’s Decision on September 30,
2014.
II
At the time he applied for benefits, Ekster was 36 years old living in Peoria
Heights, Illinois. At the time of the hearing before the ALJ, Ekster was living
with a friend and the friend’s family at their house. Ekster had a girlfriend with
whom he was for 11 or 12 years, and they had a 10-year-old son together. His
girlfriend lived with her son and her mother. Ekster was able to see his son
“[w]hen he want[ed] to come out,” and Ekster would take his son to the park and
try to get him to play sports. AR 55. He had previously been incarcerated and
his past work included mowing lawns, collecting bills by telephone, working at
McDonald’s, working at Wal-Mart, working at Olive Garden, and working at a
cemetery. He had attended college, but he did not finish his degree. On his
Form SSA-3368, Ekster provided that severe anxiety – panic attacks – bipolar
disorder, gout, and high blood pressure limited his ability to work.
At the hearing, Ekster testified that he was a “bit overweight” and that he
believed his weight impacted his back. He also testified that his most severe
problem keeping him from working was his thoughts of hurting people or
himself and that when he experienced anxiety, he could not control his
schizophrenic and bipolar disorders. Regarding his feeling that he would hurt
others, he explained that by being in public he felt uncomfortable, though he
could not say that he would hurt anybody. Ekster testified about hearing voices
and that the voices told him all the time to do something that was wrong. He
said that he had previously listened to the voices which caused him to burn
2
down a house which then caused him to go to jail. He explained that he had
medication for his mental health problems which helped him.
Ekster also testified that he had gout in both of his feet and that while it
was better, there were times that his feet still hurt because of it. He explained
that his gout would come and go and that it would be painful to the point that he
would have to walk with a cane or wrap his foot. He testified that he had
medication for his gout which his doctor wanted him to take every day, but he
did not do so because he was afraid it would counteract with his other
medications.
The ALJ also questioned the VE, beginning with the following
hypothetical:
Would you please assume the need to avoid concentrated exposure
to fumes, odors, dust, gases, and other environmental irritants, as
well as the need to avoid concentrated exposure to hazards such as
dangerous machinery and unprotected heights. And that would be
secondary to mental health symptoms. I would also like you to
please assume that, because of mental impairments and symptoms
combined, Mr. Ekster will have periods of symptom exacerbation
resulting in moderate limitations in concentration, persistence, or
pace when attempting complex or detailed tasks, and so he would
need to be limited to jobs that do not involve complex or detailed job
processes, with little in the way of change in job process from day to
day and only occasional work interaction with coworkers,
supervisors, and the public. With these limitations, could Mr. Ekster
perform any of this past work?
AR 69. After obtaining the VE’s negative answer, the ALJ asked whether, with
the identified limitations, the hypothetical individual of Mr. Ekster’s age,
education, and work history would have other jobs available to him. AR 69-70.
After the VE answered in the affirmative, the ALJ presented the VE with the
further limitation that instead of work interaction occasionally with the public,
the hypothetical individual would have no work interaction with the public. AR
3
71. The ALJ also questioned whether the jobs identified by the VE would change
if “even though it’s okay to have occasional work interaction with . . . coworkers
and supervisors, it’s really more appropriate for the work to be independent
rather than as a member of a team.” AR 71. The VE responded that the jobs he
cited were “pretty much independently performed.” AR 71. The ALJ also asked
the VE what the impact of the hypothetical individual likely missing two days of
work or more per month would have on the jobs. Id. The VE stated missing that
amount of work would result in lost employment. AR 72. Finally, the ALJ asked
what the impact on the jobs would be where the hypothetical individual was offtask 20 percent of the day or more so that by the end of the day was not able to
pick up pace and persistence “efficient” to make up for those lag periods. AR 72.
The VE again responded that doing so would result in lost employment. AR 72.
Lastly, the ALJ questioned Ekster’s girlfriend, Jennifer Armstrong.
III
In her Decision, the ALJ determined that Ekster had the following severe
impairments: gout, asthma, depression, anxiety, schizoaffective disorder, and
drug and alcohol abuse. The ALJ formulated Ekster’s RFC as follows:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform medium, light, and sedentary work as defined in 20 CFR
404.1567(c) and 416.967(c) except:
the claimant must avoid
concentrated exposure to fumes, odors, dust, gases, and other
environmental irritants and to hazards such as dangerous
machinery and unprotected heights; because of his mental
impairments and symptoms combined, he may during times of
symptom exacerbation have moderate limitations in concentration,
persistence, and pace when attempting complex or detailed tasks so
he is limited to jobs that do not require complex or detailed job
processes, little in the way of change in the job process from day to
day, and independent work rather than work as a member of a
team; and the claimant is limited to no more than occasional work
4
interaction with coworkers and supervisors and no interaction with
the general public.
AR 18.
The ALJ discussed the record evidence that she considered in
formulating the RFC including Ekster’s and Armstrong’s testimony. The ALJ
additionally considered Ekster’s medical records including ER records and his
treating primary care physician Dr. Chad Conklin, M.D.’s notes. The ALJ also
detailed the results of consultative psychological and physical examinations.
Throughout her Decision, the ALJ detailed Ekster’s subjective complaints
and comments pertaining to his gout and mental status made to Dr. Conklin and
the ER, his medications, his use of cigarettes and alcohol, his x-ray results, his
treatment gaps, his functional abilities upon examination, and his activities of
daily living. The ALJ also discussed why she gave Dr. Conklin’s opinion – that
Ekster “would not be a good candidate for employment – “little weight,” and
why she gave “significant weight” to the State Agency medical opinions.
IV
Ekster argues: 1) that the ALJ did not set forth a record basis for the
mental functional capacity finding and rendered an independent medical
determination; 2) that the ALJ did not properly assess the treating physician
evidence; 3) that the ALJ’s failure to consider obesity in combination with other
impairments compels reversal; 4) that the ALJ erred by not assessing the need for
a cane; 5) that the ALJ did not properly develop the record; and 6) that the ALJ
made numerous credibility errors.
The Court's function on review is not to try the case de novo or to supplant
the ALJ's findings with the Court's own assessment of the evidence. See Schmidt
v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000); Pugh v. Bowen, 870 F.2d 1271 (7th Cir.
1989). Indeed, "[t]he findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g).
5
Although great deference is afforded to the determination made by the ALJ, the
Court does not "merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297
F.3d 589, 593 (7th Cir. 2002). The Court's function is to determine whether the
ALJ's findings were supported by substantial evidence and whether the proper
legal standards were applied. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986).
Substantial evidence is defined as such relevant evidence as a reasonable mind
might accept as adequate to support the decision. Richardson v. Perales, 402 U.S.
389, 390 (1971), Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999).
In order to qualify for disability insurance benefits, an individual must
show that his inability to work is medical in nature and that he is totally
disabled. Economic conditions, personal factors, financial considerations, and
attitudes of the employer are irrelevant in determining whether a plaintiff is
eligible for disability. See 20 C.F.R. §§ 404.1566, 416.966 (1986). The establishment
of disability under the Act is a two-step process.
First, the plaintiff must be suffering from a medically determinable
physical or mental impairment, or combination of impairments, which can be
expected to result in death, or which has lasted or can be expected to last for a
continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). Second,
there must be a factual determination that the impairment renders the plaintiff
unable to engage in any substantial gainful employment. McNeil v. Califano, 614
F.2d 142, 143 (7th Cir. 1980). The factual determination is made by using a fivestep test. See 20 C.F.R. §§ 404.1520, 416.920. In the following order, the ALJ must
evaluate whether the claimant:
1)
currently performs or, during the relevant time period, did
perform any substantial gainful activity;
2)
suffers from an impairment that is severe or whether a
combination of her impairments is severe;
6
3)
suffers from an impairment which meets or equals any
impairment listed in the appendix and which meets the
duration requirement;
4)
is unable to perform her past relevant work which includes an
assessment of the claimant’s residual functional capacity; and
5)
is unable to perform any other work existing in significant
numbers in the national economy.
Id. An affirmative answer at any step leads either to the next step of the test, or at
steps 3 and 5, to a finding that the plaintiff is disabled. A negative answer at any
point, other than at step 3, stops the inquiry and leads to a determination that the
plaintiff is not disabled. Garfield v. Schweiker, 732 F.2d 605 (7th Cir. 1984).
The plaintiff has the burdens of production and persuasion on steps 1
through 4. However, once the plaintiff shows an inability to perform past work,
the burden shifts to the Commissioner to show ability to engage in some other
type of substantial gainful employment. Tom v. Heckler, 779 F.2d 1250 (7th Cir.
1985); Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984).
In the instant case, Ekster claims error on the ALJ’s part at Step Four.
A
Ekster first argues that the ALJ did not identify medical or other evidence
in support of the mental limitations set forth in her RFC finding or explain how
she came up with those mental restrictions. He argues that the ALJ did not
adopt any medical source opinion when crafting her RFC. Ekster further argues
that while the ALJ found the state agency reviewing psychologists’ opinions
entitled to “significant weight,” the ALJ did not adopt the limitations they set
forth, address the limitations they set forth, or explain the omission of such
limitations they set forth from her RFC. The Commissioner counters that Ekster
7
fails to appreciate that the ALJ rather than a medical source had the ultimate
responsibility of assessing Ekster’s RFC, and thus, it was not error for the ALJ to
make an independent assessment of Ekster’s mental limitations.
In her Decision, the ALJ expressly stated that, “The undersigned has given
significant weight to the State Agency medical opinions (7F, 8F, 9F, 11F).” AR 23.
The four cited Exhibits included a Psychiatric Review Technique form completed
by Darrell Snyder, Ph.D. for the dates of October through December 2004, a
Psychiatric Review Technique form completed by Dr. Snyder for the dates of
February 2012 through present (May 2012), a Mental Residual Functional
Capacity Assessment form (MRFCA) completed by Dr. Snyder dated May 9,
2012, and a Physical Residual Functional Capacity Assessment completed by
Henry Rohs, M.D. dated May 14, 2012. The ALJ went on to state that, “The state
agency assessment of the claimant’s mental impairments is given significant
weight but some additional restrictions have been given the claimant in
consideration of evidence at the hearing level.” AR 24.
An ALJ must “build an accurate and logical bridge from the evidence to
her conclusion” so that the reviewing court may assess the validity of the
agency’s ultimate findings and “afford a claimant meaningful judicial review.”
Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). Here, the ALJ did so when she
formulated Ekster’s mental RFC.
The ALJ gave the state agency reviewers’
opinions “significant weight” and then made a mental RFC finding that reflected
those opinions, particularly Dr. Snyder’s as set forth in the narrative section
(Section III) of the MRFCA form. In its entirety, the Section III narrative of the
MRFCA form completed by Dr. Snyder stated:
The claimant can understand, remember and follow instructions
involving content that is basic and straightforward or moderately
complex.
8
He can sustain routine and repetitive tasks but is susceptible to
occasional interrruptions [sic] from symptoms of depression,
anxiety/panic and even antisocial behaviors sometimes emerging
and affecting time on task.
Uniformly, he would not be able to handle complex tasks.
He could not tolerate average contact with the public, peers and
supervisors but would need each contact limited to brief and
superficial.
He is unable to adapt to enhanced work productivity such as fast
paced or high production quota conditions, and any frequent or
significant changes in worksite.
AR 643. When Dr. Snyder’s narrative is compared with the ALJ’s mental RFC as
set forth earlier in this Order and Opinion, the limitations that Dr. Snyder
articulated are accounted for in the ALJ’s mental RFC, albeit not stated in the
exact same way.
As the Commissioner argues, an ALJ has the ultimate responsibility of
assessing a claimant’s RFC. 20 C.F.R. § 416.945 (a)(1). Also, the Regulations
provide that an RFC is formulated after consideration of “all the relevant medical
and other evidence.” 20 C.F.R. § 416.945(a)(3) (emphasis added). Ekster does not
cite to, and the Court has not found, authority that requires an ALJ to use the
exact language in her RFC that was set forth in the narrative section of the
MRFCA form. What is required is that an ALJ’s RFC and hypothetical posed to
the VE must incorporate all of the claimant’s limitations supported by the
medical record. Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014). Thus, the
Seventh Circuit Court of Appeals has explained that it is not necessary that the
ALJ use the “precise terminology” of “concentration, persistence and pace.” Id.
at 857 (“Although it is not necessary that the ALJ use this precise terminology
(‘concentration, persistence and pace’) . . . . “); O’Connor-Spinner v. Astrue, 627
9
F.3d 614, 619 (7th Cir. 2010) (“We have not insisted . . . on a per se requirement
that this specific terminology (‘concentration, persistence and pace’) be used in
the hypothetical in all cases”).
While the ALJ may not have used the precise language Dr. Snyder used,
the ALJ fulfilled her obligation to incorporate all of Ekster’s limitations that were
supported by the medical record into the mental RFC she formulated. The ALJ
discussed Ekster’s medical evidence as well as the other evidence of record in her
assessment of Ekster’s RFC. The ALJ addressed Ekster’s and his girlfriend’s
testimony, consultative psychological and physical examination results, opinion
evidence, and Ekster’s activities of daily living. That the ALJ gave “significant
weight” to Dr. Snyder’s opinion is obvious where the mental RFC finding so
closely echoes Dr. Snyder’s narrative in Section III of the MRFCA form. Notably,
the ALJ did use the precise terminology in her RFC finding that because of
Ekster’s mental impairments and symptoms combined, he may during times of
symptom exacerbation have “moderate limitations in concentration, persistence,
and pace . . . .” AR 18. The Court can accordingly trace the path of the ALJ’s
reasoning in formulating the mental RFC. See Carlson v. Shalala, 999 F.2d 180, 181
(7th Cir. 1993) (stating that an ALJ must “sufficiently articulate [her] assessment
of the evidence to assure us that the ALJ considered the important evidence . . .
and to enable us to trace the path of the ALJ’s reasoning”). Substantial evidence
supports the ALJ’s RFC finding.
B
Ekster also takes issue with particular parts of the ALJ’s discussion of the
record evidence which she used to formulate her RFC.
Specifically, Ekster
argues that the ALJ erroneously assessed the evidence provided by Ekster’s
treating physician, Dr. Conklin, failed to consider Ekster’s obesity, failed to
assess the need for a cane, and committed numerous credibility errors.
10
1
Ekster argues that the ALJ decided not to give controlling weight to Dr.
Conklin without proffering a supportable rationale, and even if the ALJ had done
so, the ALJ still would have been required to assess the weight in accordance
with the checklist of factors outlined in the regulations.
The Commissioner
argues that the ALJ correctly considered Dr. Conklin’s notes, and that the ALJ
sufficiently considered the record evidence to conclude that Dr. Conklin’s
opinion was entitled to only “little weight.”
Though an ALJ must give controlling weight to the medical opinion of a
treating physician, the ALJ must do so only if the treating physician’s opinion is
“well-supported by medically acceptable clinical and laboratory diagnostic
techniques and not inconsistent with other substantial evidence.” Bauer v. Astrue,
532 F.3d 606, 608 (7th Cir. 2008), citing Hofslien v. Barnhart, 439 F.3d 375, 376 (7th
Cir. 2006); 20 C.F.R. § 404.1527(c)(2); 20 C.F.R. §416.927(c)(3). If the ALJ does not
give a treating physician’s opinion controlling weight, the Social Security
regulations require the ALJ to consider: 1) the length, nature, and extent of the
treatment relationship; 2) the frequency of examination; 3) the physician’s
specialty; 4) the types of tests performed; 5) and the consistency and
supportability of the physician’s opinion. 20 CFR § 404.1527; 20 CFR § 416.927;
Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009).
Had the ALJ’s discussion of the weight she gave Dr. Conklin’s opinion
been limited to her statement that, “The undersigned has given little weight to
this opinion as it is not supported by citation to any objective medical findings,”
that alone would warrant remand in this case. AR 23. It is the ALJ’s duty, and
not the treating physician’s, to determine whether objective medical evidence of
record as a whole supports a treating physician’s opinion.
See 20 C.F.R. §
416.927(c)(2) (“If we find that a treating source's opinion on the issue(s) of the
11
nature and severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques . . . .”) (emphasis added).
However, the ALJ explained further her reasons for giving Dr. Conklin’s opinion
“little weight”:
Further, it is not consistent with the claimant’s treatment history,
which reflects no psychiatric hospitalizations and very sporadic
treatment for his mental conditions, as well as noncompliance with
his treatment recommendations including following up with the
Human Service Center and taking his medications. Conclusions
made by Dr. Conklin without corresponding medical findings are
not given controlling weight under the principles set forth at 20 CFR
404.1527 and 416.927 and SSR 96-5p. More weight is given to the
objective medical findings and reasonable limitations deduced
therefrom. Therefore, the opinion of Dr. Conklin is not given
controlling weight.
AR 23.
Earlier in her Decision, the ALJ noted that Ekster presented to Dr.
Conklin in October 2010 to establish care. AR 20. The ALJ also noted that “the
record reflects only four visits with [Dr. Conklin] since his application date over
two years ago.” AR 22.
The ALJ did not commit error by giving Dr. Conklin’s opinion only “little
weight.” Throughout her Decision, the ALJ identified the times that Ekster went
to see Dr. Conklin and the information (directly from Ekster and from
examination) that was obtained at those visits, including that Ekster was not able
to get in to see a psychiatrist and what his complaints were at those visits. AR
21-23. Thus, it is clear that the ALJ considered the relevant factors under 20
C.F.R. § 416.927.
2
Next, Ekster argues that the ALJ erred by failing to consider his obesity
and need for a cane. Ekster contends that the ALJ should have considered the
additional walking and standing limitations from the combined impact of his
12
obesity with his gout and foot difficulties and that such errors are heightened
because the ALJ mistakenly thought the agency reviewers had opined that Ekster
had no severe physical impairments for the current time period.
The
Commissioner counters that the ALJ’s failure to acknowledge Ekster’s obesity in
her Decision constituted harmless error because Ekster does not explain how his
obesity limits his ability to work.
The ALJ’s failure to expressly consider Ekster’s obesity was harmless in
this case. While SSR 02-1p provides that an ALJ should consider the effects of
obesity together with underlying impairments, a failure to explicitly consider the
effects of obesity may be harmless error. Prochaska v. Barnhart, 454 F.3d 731, 736
(7th Cir. 2006); Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004). Here, the ALJ
considered numerous records which noted Ekster’s height and weight and noted
that Ekster stated that he was overweight and his back hurt. Ekster does not
point to any record evidence suggesting that his obesity exacerbated his physical
impairment of gout or foot problems. He also does not specify how his obesity
further impairs his ability to work. Skarbek, 390 F.3d at 504 (“Notably, Skarbek
does not specify how his obesity further impaired his ability to work, but
speculates merely that his weight makes it more difficult to stand and walk”).
Ekster highlights his testimony where he stated that his obesity exacerbated his
back pain. However, Ekster does not identify anywhere else in the record where
he complained of back pain, so it is curious that he places so much reliance upon
his testimony that does not even touch upon the impact of his obesity upon the
impairments he alleged were actual impairments and were actually disabling (i.e.
gout).
Ekster’s argument regarding his need for a cane is that the ALJ erred by
failing to evaluate his need for a cane, the record established that he used a cane
that his treating physician prescribed in conjunction with gout complications,
13
and that Thomas v. Colvin, 534 F. App’x 546 (7th Cir. 2013), provides that a failure
to properly address cane use is reversible error. The Commissioner argues that
the ALJ’s failure to evaluate Ekster’s cane use was harmless error because Ekster
does not show how that failure prejudiced him in any way, and there is no
evidence that Dr. Conklin or any other medical source opined that Ekster had
any limitations with regard to his ability to walk with or without an assistive
device.
In Thomas, the Seventh Circuit agreed with the claimant that the ALJ’s
failure to address her need for a cane required remand. 534 F. App’x at 550. The
Thomas court found the failure to require remand where the evidence of record
included a doctor’s note that the claimant “ambulate[d] with a cane for support
and confidence,” another doctor’s notes described repeated falls by the claimant
and the doctor’s prescription for a cane, questionnaires submitted to the state
agency explaining the claimant’s need for a cane, reports of doctors noting her
cane use, and the presence of the cane at the claimant’s hearing and her
testimony about why she needed it. Id.
Here, the “litany” of findings regarding the claimant’s cane use in Thomas
is not present. Significantly, there are no doctor’s notes indicating that Ekster
needed a cane for support or that he repeatedly fell, and there were no repeated
references to Ekster’s use of a cane. Instead, the record includes the prescription
for Ekster’s cane which stated, “walking cane [illegible] gout,” Ekster’s and
Armstrong’s reports that Ekster used a cane when his gout recurred, and Ekster’s
testimony at the hearing that his gout came and went and he at times had to
walk with a cane or wrap his foot. AR 54, 193, 194, 203. The consultative
psychological examination (cited by the ALJ) set forth that, “The claimant carried
a cane in his right hand while on leaving was noted to walk with the aid of the
cane but without discernable limp.” AR 613. The ALJ also discussed the record
14
evidence in her Decision which indicated that Ekster had no problems
ambulating without the use of an assistive device. As the Commissioner argues,
there is no evidence that any medical sources opined that Ekster had limitations
with regard to his ability to walk with or without an assistive device. Therefore,
the ALJ did not commit reversible error because she failed to address Ekster’s
use of a cane.
3
Ekster’s argument that the ALJ’s numerous credibility errors require
remand fails as well. He argues that the ALJ erred by drawing a negative
inference from his treatment course without assessing the underlying reasons, by
relying upon his daily activities to find he could perform work, and by failing to
fully analyze the record evidence to assess his symptoms as required.
The
Commissioner counters that Ekster points to no evidence to suggest that his
mental impairments or failure to afford treatment caused his noncompliance
with recommended treatment, that the ALJ did not equate daily activities with
the ability to perform full-time work, and that the ALJ was not required to
address every piece of evidence in the record.
Determinations of credibility made by the ALJ will not be overturned
unless the findings are patently wrong. Shideler v. Astrue, 688 F.3d 306, 310-11
(7th Cir. 2012). SSR 96–7p instructs that when “determining the credibility of the
individual's statements, the adjudicator must consider the entire case record,”
and that a credibility determination “must contain specific reasons for the
finding on credibility, supported by the evidence in the case record.” An ALJ
must provide “enough detail and clarity to permit meaningful review.” Briscoe ex
rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). A credibility finding
“must be supported by the evidence and must be specific enough to enable the
15
claimant and a reviewing body to understand the reasoning.” Craft v. Astrue, 539
F.3d 668, 678 (7th Cir. 2008).
First, the ALJ did consider potential underlying reasons for Ekster’s failure
to pursue recommended treatment. The ALJ stated, “[Ekster] has not presented
evidence that his mental impairments produced symptoms which caused him to
avoid treatment.” AR 23. Also, as the Commissioner argues, Ekster points to no
evidence to suggest that his mental impairments or failure to afford treatment
caused his noncompliance with recommended treatment. Particularly, Ekster
points to nowhere in the record where he made reference to financial difficulties
as the reason for failing to follow through with recommended treatment; he
merely points out that in a separate case, the court pointed out that SSI is a
disability benefit available only to persons who have no more than $2,000 in cash
or the equivalent. See Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014) (noting
that the plaintiff in the case appeared to be indigent and informing the reader to
remember that the claimant applied for SSI).
Second, the ALJ addressed Ekster’s “actual functioning” including taking
his son to the park, going shopping in stores, maintaining a relationship with his
girlfriend, his reports of attending college, spending up to half of the day playing
Xbox, and using the computer for email and Facebook. In regard to the evidence
of college attendance, playing Xbox, and using the computer, the ALJ stated,
“These clearly show an ability to maintain some form of concentration and
persistence.” AR 23. However, both before and after the ALJ addressed Ekster’s
daily activities, the ALJ discussed the other evidence of record, both medical and
opinion. The ALJ considered properly considered Ekster’s daily activities insofar
as they pertained to the question of his credibility.
Lastly, the ALJ’s Decision is replete with references to various records
bearing upon the issue of the extent of Ekster’s symptoms. Ekster isolates just
16
one alleged failure – the ALJ’s failure to properly consider Ekster’s use of strong
pain medications. However, Ekster cites to two records identifying his pain
medications of Vicodin and Norco which the ALJ cited to as well in her Decision.
She specifically discussed that Ekster “was given a short term supply of Norco . .
. .” AR 21. The ALJ provided enough clarity and detail to permit the Court’s
meaningful review of her credibility determination; the detail provided shows
that she considered the entire case record and provided specific reasons for her
credibility determination. See Briscoe ex rel. Taylor, 425 F.3d at 351; SSR 96-7p. As
a result, the Court does not find that the ALJ’s credibility determination was
patently wrong.
C
Finally, Ekster argues that the Commissioner has the burden to
demonstrate that the ALJ met the enhanced standard to fully and fairly develop
the record because the ALJ did not ensure a valid waiver of counsel. Ekster
contends that the ALJ failed in her duty by not re-contacting Dr. Conklin to fill
the evidentiary gap created by the ALJ choosing not to rely on any opinion
evidence in constructing the RFC, failed to fully question the VE, and failed to
ask the VE if his testimony conflicted with the Dictionary of Occupational Titles
(DOT).
The Commissioner disputes that it failed to obtain a valid waiver,
arguing instead that the ALJ confirmed at the hearing that Ekster received
information from the Agency regarding his right to representation.
The
Commissioner also argues that Ekster fails to identify the alleged evidentiary
gap.
At the hearing, the following colloquy between the ALJ and Ekster
occurred regarding professional representation of Ekster:
ALJ: . . . I see you come today without a professional
representative.
On a couple of occasions, sir, we sent you
17
information about the right of representation. Do you remember
getting that from us?
CLMT:
Yes.
ALJ: Are you prepared to go forward today without a
representative?
CLMT:
Yes.
AR 33-34. Elsewhere in the record, as the Commissioner points out, is a letter
and attachments, including the “Your Right To Representation” form which
Ekster testified that he had received. AR 115-22.
An ALJ has a “basic obligation to develop a full and fair record,” which is
particularly so where the claimant is unrepresented by counsel so that the ALJ
has a duty to “scrupulously and conscientiously probe into, inquire of, and
explore all relevant facts.” Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997)
(internal citations omitted). However, how much evidence to gather is typically
left to the reasoned judgment of the Commissioner, and a significant omission is
usually required before the court will find that the Commissioner failed to assist
a pro se claimant in developing the record fully and fairly. Luna v. Shalala, 22 F.3d
687, 692 (7th Cir. 1994). Where an ALJ does not obtain a valid waiver, the burden
is on the [Commissioner] to show the ALJ adequately developed the record.
Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994). In Binion, the Seventh Circuit
detailed that to ensure a valid waiver of counsel, an ALJ was required to explain
to the pro se claimant: 1) the manner in which an attorney can aid in the
proceedings; 2) the possibility of free counsel or a contingency arrangement; and
3) the limitation on attorney fees to 25 percent of past due benefits and required
court approval of the fees. Id.
Here, Ekster argues that the ALJ did not discuss any of the items the
Seventh Circuit has held an ALJ must explain to a pro se claimant (citing Binion),
and the Commissioner argues that lower courts have held that a claimant’s
18
receipt of the “Your Right To Representation” form satisfies the Seventh Circuit’s
standard set forth in Binion. Even assuming that the ALJ did not obtain a valid
waiver by failing to explain the three items included in the Seventh Circuit’s
standard for valid waiver, the Commissioner has sustained its burden to show
that the ALJ adequately developed the record. Ekster’s argument that the ALJ
failed to fully and fairly develop the record is grounded, in part, upon her
previous arguments that the ALJ had no record basis for the mental RFC. The
Court has already determined that the ALJ committed no error in formulating
Ekster’s mental RFC. The mental RFC was sufficiently supported by the record
evidence and so the ALJ did not err by failing to recontact Dr. Conklin to fill an
“evidentiary gap.”
Furthermore, because the mental RFC was sufficiently
supported and correctly included all limitations supported by the medical record
and because the hypotheticals posed to the VE included the restrictions set forth
in the ALJ’s mental RFC, the ALJ did not fail to fully question the VE at the
hearing. See Simila v. Astrue, 573 F.3d 503, 520 (7th Cir. 2009) (“Ordinarily, an
ALJ's hypothetical questions to a VE must include all limitations supported by
medical evidence in the record”) (internal citation omitted); Varga v. Colvin, 794
F.3d 809, 813 (7th Cir. 2015) (“In this circuit, both the hypothetical posed to the
VE and the ALJ's RFC assessment must incorporate all of the claimant's
limitations supported by the medical record”) (internal citation omitted).
While Ekster correctly argues that the ALJ erroneously failed to ask the VE
if his testimony conflicted with the DOT as required by SSR 00-4p, such an error
is harmless unless there actually was a conflict. Terry v. Astrue, 580 F.3d 471, 478
(7th Cir. 2009). Ekster does not argue that there was a conflict, and so the Court
will proceed no further on this issue. Additionally, Ekster did not sufficiently
develop his argument that not all of the job numbers cited in the Decision
19
correspond with the VE’s testimony. That argument, too, requires no further
discussion.
V
For the reasons stated above, Ekster’s Motion for Summary Judgment
(Doc. 18) is DENIED and the Commissioner’s Motion for Summary Affirmance
(Doc. 22) is GRANTED. This matter is now terminated.
It is so ordered.
Entered on January 14, 2016.
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?