Leffler v. Commissioner of Social Security
Filing
17
ORDER & OPINION entered by Magistrate Judge Jonathan E. Hawley on 7/29/2016: IT IS ORDERED that the Plaintiff's Motion for Summary Judgment (Doc. 11 ) is DENIED and the Commissioner's Motion for Summary Affirmance (Doc. 15) is GRANTED. This matter is now terminated. SEE FULL WRITTEN ORDER.(JRK, ilcd)
E-FILED
Friday, 29 July, 2016 02:54:06 PM
Clerk, U.S. District Court, ILCD
IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
DANIEL JOSEPH LEFFLER,
Plaintiff,
v.
Case No. 1:15-cv-01254-JEH
COMMISSIONER OF SOCIAL
SECURITY
Defendant.
Order and Opinion
Now before the Court is the Plaintiff Daniel Joseph Leffler’s Motion for
Summary Judgment (Doc. 11) and the Commissioner’s Motion for Summary
Affirmance (Doc. 15).
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
On October 11, 2012, Leffler filed an application for disability insurance
benefits (DIB) alleging disability beginning on March 1, 2012. His claim was
denied initially on February 13, 2013 and was denied upon reconsideration on
November 5, 2013. On November 11, 2013, Leffler filed a request for hearing
concerning his application for DIB. A hearing was held before the Honorable
Diane Raese Flebbe (ALJ) on October 27, 2014, and at that time Leffler was
represented by an attorney and a Vocational Expert (VE) testified. Following the
References to the pages within the Administrative Record will be identified by AR [page number]. The
Administrative Record appears as (Doc. 6) on the docket.
1
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hearing, Leffler’s claim was denied on December 19, 2014. His request for review
by the Appeals Council was denied on April 20, 2015, making the ALJ’s Decision
the final decision of the Commissioner. Leffler filed the instant civil action seeking
review of the ALJ’s Decision on June 22, 2015.
II
At the time he applied for benefits, Leffler was 45 years old living in Canton,
Illinois with his wife and minor daughter. In 1983, Leffler had an accident which
necessitated the amputation of the big and second toes on his left foot. He worked
in the years following his foot injury, but had not worked since his alleged onset
date of March 1, 2012. On his Form SSA-3368, Leffler listed all the physical and
mental conditions he had that limited his ability to work as follows: burning feet,
ankles, neuropathy, diabetes, crushed foot; learning disabilities ADHD;
neuropathy legs and arms, hands; diabetes type 2; arthritis in feet and neck;
crushed left foot missing 2 toes and 1 1/2 metatarsal; numb hands and feet or
burning; carpel tunnel and left hand 2 trigger fingers; whiplash; depression; and
high cholesterol.
At the hearing, Leffler testified that he had multiple surgeries on his left foot
following his 1983 accident and he ultimately lost two toes and approximately two
inches behind the toes. He testified that his foot never returned to the condition it
was in before the 1983 accident. He explained that he received various treatments
for the foot since the accident including a “silicon shot,” wrappings, and an
orthotic. Leffler also testified to some constant numbness, tingling, and burning
in both of his feet due to neuropathy for which he took Gabapentin. He stated that
he also experienced lower back pain due to “a few chips on [his] discs in [his] lower
back.” AR 65. He rated his back pain as an 8 or 9 on a typical day and explained
that his pain medication helped, but the pain was still there. Leffler confirmed
2
that he had no studies of his back done since January 2013. He testified that he did
water therapy for his back and physical therapy, neither of which helped him.
Leffler then testified to left knee pain after he fell on it four or five years
before the hearing, and his doctor’s advice at the time was to leave it alone and it
would slowly reduce in swelling. As for his foot, knee, and other issues, Leffler
testified that his doctors did not proceed with surgeries because Leffler did not
have health insurance to cover those procedures. Leffler also testified that at the
time of the hearing, he knew he could not walk a block before he would have to
stop and when asked if he ever used a cane or walk he responded, “I should use it
because it would help me get up if I fall down. I mean, I use things to use.” AR
76. He stated that he fell once a week, he could stand no more than a half an hour
at one time while able to shift from one foot to the other, and he never sat
comfortably. Leffler elaborated that while sitting he experienced lower back pain,
leg numbness, and burning feet. He said that while his pain would still come back
no matter what, it helped him to move different ways.
Leffler testified that he was treating with pain specialist Dr. Feather and
believed Dr. Feather was in a position to know quite a lot about him. Leffler again
noted that Dr. Feather would not treat him other than to give him pills because his
insurance would not cover more than that. He further testified that a friend came
to his home three to four times per week to help him out with laundry. He grocery
shopped, did very little cooking, did yard work once in a while including mowing.
With regard to shopping, Leffler explained that he sometimes rode a cart at the
grocery store.
The ALJ then proceeded to question the VE, Ronald Malik. The ALJ first
questioned the VE based upon the following hypothetical individual:
[One with the] ability to perform sedentary and light exertion work
with only occasional climbing ramps and stairs, balancing, stooping,
3
kneeling, crouching, crawling. No climbing ladders, ropes or
scaffolding. Please also assume the need to avoid concentrated
exposure to hazards such as dangerous machinery and unprotected
heights as well as vibrations. Please also assume that there is
occasional operating foot controls with the left – or with the lower
extremities . . . would you please assume occasional fine and gross
manipulation with the left upper extremity, frequent fine and gross
manipulation with the dominant right upper extremity, and also
secondary to moderate . . . Would you please also assume there is a
need for limitation to simple routine, and repetitive work with no
more than occasional work interaction with supervisors and coworkers. With these limitations, would Mr. Leffler be able to perform
past work?
AR 102-03. The VE responded that Leffler would not be able to perform his past
work as a millwright helper. When Leffler’s age, education, and work history
were added to the hypothetical individual, the VE testified that the individual
could perform jobs at both the light and sedentary levels of exertion. The ALJ
again added to the hypothetical individual:
Mr. Malik, if there was an ability to lift 20 pounds and carry
occasionally, 10 pounds frequently, stand and walk up to 30 minutes
at a time for a total of four hours a day, sit up to 60 minutes at a time
for a total of six hours a day, occasionally twist, crouch -- or no, twist,
climb stairs, climb ladders, reach, handle, finger, feel, push, pull
without limits, but never stoop or bend, and never crouch. And avoid
moderate exposure to temperature extremes, wetness, humidity,
odors, dust, gases and other environmental irritants. Noise is
described by a numeric construct in the DOT, so noise at level 3 or
less as in the SCO, the Selected Characteristics of Occupation, and no
work with hazards, such as dangerous machinery and unprotected
heights. Are any of the jobs you identified still okay?
AR 104-05. The VE responded that the identified sedentary jobs would still be
available and there would only be one light job remaining in reduced numbers.
Further colloquy ensued between the ALJ and VE and Leffler’s attorney and the
VE, including the ALJ’s statement to the VE in which she started to ask the VE
4
about adding to the hypothetical a sit/stand option though she determined it was
somewhat incorporated already because she already included “30 minutes at a
time, 60 minutes at a time” so that she guessed the sit/stand option was already
part of the hypothetical. Leffler’s attorney did not interject. Leffler’s attorney later
stated, “Okay. All right. I think you had basically covered the sit/stand option.
Let me talk to you about the numbers that you’ve provided for these jobs . . . .”
AR 109.
III
In her Decision, the ALJ determined that Leffler had the following severe
impairments: lumbar spine degenerative disc disease with small protrusions; left
foot deformity, status post amputation and with osteoarthritis; bilateral carpal
tunnel syndrome, status post right carpal tunnel release; left trigger fingers; left
knee bursitis and mild tendinosis with degenerative changes; obstructive sleep
apnea; diabetes mellitus with neuropathy; obesity; depression; and attention
deficit hyperactivity disorder. The ALJ made the following RFC finding:
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform
sedentary and light work as defined in 20 CFR 404.1567(b) except he
is restricted to occasional climbing of ramps and/or stairs, balancing,
stooping, kneeling, crouching, crawling, and fine and gross
manipulations with the non-dominant left upper extremity; he can
perform frequent fine and gross manipulations with the dominant
right upper extremity; he can occasionally operate foot controls with
his lower extremities; he cannot climb ladders, ropes, or scaffolds; he
must avoid concentrated exposure to vibrations and hazards such as
dangerous machinery and unprotected heights; and he is limited to
simple, routine, and repetitive tasks with no more than occasional
work interactions with supervisors and coworkers.
AR 28.
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The ALJ discussed Leffler’s February 2014 left knee MRI which revealed
bursitis, mild distal quadriceps tendinosis, and degenerative changes to grades 1
to 2. She also discussed Leffler’s January 2013 MRI of his lumbar spine which
showed multiple disc degenerative changes from L2-3 through L5-S1 with some
narrowing of the spinal canal but no neural encroachment, small protrusions at
the L3-4 and L4-5 levels, circumferential epidural fat at all lumbosacral levels, and
no significant thecal sac constriction. She set forth the results of a December 2012
nerve conduction and EMG study which showed evidence of axonal sensory
neuropathy.
At different times in her Decision, the ALJ considered Leffler’s reports and
testimony of frequent falling. The ALJ noted that the record did not reflect an
inability to ambulate effectively, Leffler was often observed to ambulate with
normal gait (citing to various medical records, including those from his treating
Dr. Feather), and Leffler did not require the use of an assistive device. The ALJ
also cited to Leffler’s November 2012 and June 2013 Function Reports in which he
indicated an ability to carry out routine ambulatory activities including shopping,
yard work, and taking out the garbage. Specifically in his 2012 report, Leffler
stated that he could walk 100 feet before needing to stop for 20 to 30 minutes, was
able to mow the lawn for 45 minutes to two hours, rake leaves, and do repairs. In
his 2013 report, Leffler stated that his ability to walk decreased to only 30 feet at a
time before resting.
The ALJ recounted the medical evidence pertaining to
Leffler’s degenerative disc disease which did not establish evidence of nerve root
compression, spinal arachnoiditis, or spinal stenosis resulting in an inability to
ambulate effectively.
The ALJ further addressed Leffler’s alleged lower back pain, again citing to
the imaging results which showed no evidence of radiculopathy or
mononeuropathy.
The ALJ also noted the lack of evidence to support his
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allegations regarding the severity of his pain such as muscle atrophy, neurological
deficits, or loss of motor functioning. His straight leg raise tests performed by
Consultative Examiner Dr. Vittal Chapa (CE), a neurologist, and Dr. Feather were
all negative. While he had some abnormality in range of motion, he had no
instability and maintained normal posture and gait.
While Dr. Feather’s
examinations sometimes showed abnormal lumbar palpation, Dr. Feather on at
least one occasion noted Leffler showed Waddell’s signs of over-reaction.
Turning to Leffler’s “only documented complication from [his] diabetes,”
neuropathy, the ALJ again noted the medical evidence showing bilateral foot
numbness and tingling paresthesias as well as axonal sensory neuropathy. The
ALJ contrasted those medical findings with Leffler’s use of Gabapentin used to
treat his neuropathy only two times per day rather than the prescribed three times
per day, his maintenance of a normal gait, and the absence of recommendation by
clinicians that he use an assistive device.
The ALJ pointed out that Leffler continued to work for many years as a
laborer after his initial left foot injury in 1983, and that he reported increased left
foot pain in June 2012 when he was referred to an orthopedic clinic the following
month. Records showed that Leffler developed significant midfoot arthritis, but
his x-rays showed his ankle and joints in good condition and they had a normal
range of motion, and Leffler had intact strength in all directions. In the time
following Leffler’s receipt of an orthotic, the record does not reflect additional
appointments for his left foot pain with the orthopedic clinician. The ALJ pointed
out that nor did the record reflect that Leffler sought follow up care in the two
years that passed since he was prescribed the use of the orthotic.
The ALJ discussed Leffler’s reported knee pain, and again noted imaging
results of his left knee as well as his orthopedic specialist’s observation that Leffler
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had full range of motion and no instability and essentially normal x-ray results.
The ALJ concluded:
Overall, while the claimant has shown changes on diagnostic
imaging, his clinical examinations showing good range of motion and
strength without loss of stability, minimal treatment, and
interpretation of his findings by his treating physician do not suggest
an impairment of a severity that would preclude work consistent with
the residual functional capacity finding above.
AR 31.
The ALJ returned to Leffler’s neuropathy and lower extremity impairments,
and considered them more fully in combination. The ALJ found that Leffler did
not show substantial deficits in his ambulation that supported his allegations that
he could walk only 30 feet at a time and fell every week. In support of her finding
the ALJ pointed to doctors’ repeated observations of intact gait and coordination
at appointments, a limp favoring the left foot though the ability to still bear weight
and ambulate without aids, Leffler’s denied use of an assistive device and
prescription for such despite reporting six falls in four months, his denial of a
history of falling on other occasions, and his failure to report frequent falls to Dr.
Feather or any other clinician.
The ALJ also considered at length Leffler’s frequent reports of very high
pain levels and detailed the instances in which he rated his pain very high while
examinations and observations of him at that time failed to indicate acute distress
or extreme pain. The ALJ again noted Leffler’s reduced use of Gabapentin and the
Waddell’s signs of over-reaction during one appointment. Later, in considering
the credibility of Leffler’s subjective complaints, the factors of 20 C.F.R. §
404.1529(c), and the factors of Social Security Ruling 96-7p, the ALJ determined
that Leffler did not show consistency in his treatment seeking behavior and
complaints when seeking treatment that mirrored his allegations he made in
8
connection with his application for DIB. Of note to the ALJ was the fact that
Leffler’s physicians did not pursue a course of treatment that would be expected
if his impairments were as disabling as he alleged such that he was never referred
for aggressive treatment such as surgery or steroid injections and they prescribed
him only ibuprofen and Gabapentin.
The ALJ also addressed the third party function report provided by Leffler’s
ex-wife (then wife) and the letters submitted by Leffler’s friend Karen Sager. The
ALJ identified the differences between what the two women reported as to
Leffler’s ability to ambulate and engage in activities at home.
Considering the medical opinion evidence, the ALJ explained why she did
not accept the degree of limitation in squatting and arising without support to
which CE Dr. Chapa opined, why she restricted Leffler from concentrated
exposure to hazards such as dangerous machinery or unprotected heights due to
Dr. Patel’s (treated Leffler’s sleep apnea) opinion, and why she assigned “some
weight” to and generally accepted the findings of the State Agency medical
consultants. Particularly as to Dr. Feather, the ALJ discussed his two medical
source statements providing for Leffler’s significant functional impairment. The
ALJ assigned these only “little weight” because they were “not supported by [Dr.
Feather’s] treating records or the medical evidence from other providers.” AR 38.
The ALJ cited to Dr. Feather’s records indicating Leffler’s appearance within
normal limits, the absence in Dr. Feather’s records of observations that Leffler had
an abnormal gait or posture, and Dr. Feather’s actual progress notes which did not
indicate that he pursued a particularly aggressive course of care.
IV
Leffler argues that the ALJ erred when she failed to analyze the opinions of
Leffler’s treating physician in accordance with 20 C.F.R. § 404.1527 and prevailing
Seventh Circuit precedent which Leffler further argues led inexorably to an RFC
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finding that did not capture all of the practical effects of all of his impairments,
particularly his need to alternate between sitting and standing at will.
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).
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 (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. § 423(d)(1)(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
10
Cir. 1980). The factual determination is made by using a five-step test. See 20 C.F.R.
§ 404.1520. 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;
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, Leffler claims error on the ALJ’s part at Steps Four and
Five.
A
Leffler argues that the ALJ did not address all of the factors set forth in 20
C.F.R. § 404.1527, including the “obvious consideration” that Dr. Feather as
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Leffler’s treating physician was likely the most able to provide a detailed,
longitudinal picture of his medical impairment, the consideration that Dr. Chapa
as consultative examiner had medical expertise, and the consideration that Dr.
Feather’s and Dr. Chapa’s opinions were consistent with each other. Leffler
ultimately contends that Dr. Feather’s opinion as to Leffler’s need to shift at will
from sitting or standing/walking established greater limitations than those set
forth in the ALJ’s RFC finding. The Commissioner disputes that Dr. Feather’s
opinion was rejected, and argues instead that Dr. Feather’s opinion was
discounted given various factors and yet the ALJ still presented most of the
limitations to which Dr. Feather opined to the VE. The Commissioner contends
that the ALJ weighed Dr. Feather’s opinions using regulatory factors such as
supportability, consistency with the record, and the nature and extent of the
treatment relationship. The Commissioner also argues that the ALJ’s Decision,
read as a whole and with common sense explains why the sit/stand option was
rejected and the ALJ did not need to separately discuss the checked box included
in Dr. Feather’s Medical Opinion Re: Ability to Do Work-Related Activities
(Physical). Further, the Commissioner argues that Leffler does not actually defend
Dr. Chapa’s opinion, explain why it was entitled to significant weight, or show
that it undermined the ALJ’s Decision.
Leffler has not shown that the ALJ committed reversible error in this case.
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 “wellsupported 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). If the ALJ does not give a treating physician’s opinion
controlling weight, the Social Security regulations require the ALJ to consider: 1)
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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 C.F.R. § 404.1527;
Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009).
The ALJ in her Decision discussed at length and in great detail the instances
in the record where Leffler’s allegations as to disabling physical symptoms
conflicted with the evidence of record, both medical and non-medical. In doing
so, the ALJ also amply addressed the instances in the record where Dr. Feather’s
opinions as to the extent of Leffler’s physical limitations conflicted with the
evidence of record. In his Memorandum in support of his Motion for Summary
Judgment, Leffler specifically notes the underlying medical evidence pertaining to
his degenerative disc disease, his knee issues, and his foot pain. Notably, he does
not point to any smoking gun evidence in regard to those conditions which
exhibits that the ALJ committed reversible error with the way she considered them
to reach her conclusion that Dr. Feather’s opinions were not entitled to controlling
weight. Instead, in her Decision the ALJ identified the medical and non-medical
evidence pertaining to Leffler’s degenerative disc disease, knee issues, and foot
pain, and in doing so, she set forth “good/specific/supported reasons” for giving
Dr. Feather’s opinions only “little weight.”
For example, the ALJ discussed Leffler’s imaging records, an EMG and
nerve conduction study, clinical signs, and examination results all regarding his
lower back. Such things revealed normal gait and posture, relatively minor
diagnostic findings, no suggestion of significant nerve root involvement, no
evidence of radiculopathy or mononeuropathy, negative straight leg raise tests, no
instability, and an instance of Waddell’s signs of over-reaction. The ALJ also
addressed Leffler’s neuropathy and explained that he maintained normal gait and
no clinician ever recommended the use of an assistive device, and the ALJ
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addressed Leffler’s left foot (toes) amputation and his x-ray results showing the
ankle and joints in good condition, normal range of motion, and the lack of follow
up by Leffler upon his receipt of an orthotic.
As for Leffler’s knee issues, the ALJ first identified his knee diagnoses of
bursitis, tendinosis, and grade 1 to 2 degenerative changes and then discussed his
full range of motion, normal x-ray results, normal strength and range of motion,
and minimal treatment.
The ALJ explained that “despite the claimant’s
neuropathy and lower extremity impairments, he has not shown substantial
deficits in his ambulation that support his allegations that he can walk only 30 feet
at a time and falls every week.” AR 32. The ALJ pointed to Leffler’s primary care
clinician’s and pain management specialist’s observation of intact gait and
coordination at appointments, Leffler’s ability to bear weight and ambulate
without ambulatory aids, Leffler’s denial that he used an assistive device, and
Leffler’s denial of a history of falling and not reporting falls to his pain institute or
any other clinician though he previously reported in April 2013 and at the hearing
that he fell frequently. The ALJ also explained that Leffler’s “physicians have also
not pursued a course of treatment that would be expected if his impairments were
as disabling as he has alleged.” AR 36. The ALJ further noted that Leffler’s degree
of functional limitation was not consistent with his reported activities. Clearly, the
ALJ detailed how medically acceptable clinical and laboratory diagnostic
techniques did not support Dr. Feather’s opinions.
Moreover, it is apparent from a commonsensical and even close reading of
the ALJ’s Decision that she properly considered the factors under 20 C.F.R. §
404.1527(c) where she did not give Dr. Feather’s opinions controlling weight. The
Commissioner correctly notes that the ALJ identified Dr. Feather as Leffler’s pain
management specialist as early as October 2012 and as Leffler’s “pain management
physician” who provided medical source statements indicating significant
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functional impairment. As illustrated above, the ALJ considered the types of tests
performed and the consistency and supportability of Dr. Feather’s opinions as
well.
With regard to the consistency and supportability of Dr. Feather’s opinions,
the ALJ properly considered CE Dr. Chapa’s January 3, 2013 report. The ALJ made
clear that she considered Dr. Chapa’s report and determined that his assertion
regarding Leffler’s “severe difficulty squatting and arising without support
during his examination” was not supported by sufficient objective evidence within
the medical evidence for the ALJ to find an inability to perform occasional postural
activities as set forth in her RFC finding. AR 37. The ALJ went on:
No treating medical source has noted extreme limitation in this area
during their clinical examinations. Although the undersigned does
not accept this degree of limitation, the undersigned does note that
when a hypothetical residual functional capacity limiting an
individual to no crouching along with limitations matching those set
forth above was posed to the vocational expert there were still
available jobs.
AR 37.
The ALJ similarly identified her reasons for rejecting Dr. Feather’s
opinions:
Overall, while Dr. Feather provided medical source statements that
would suggest substantial disability, there was limited abnormality
noted in his actual progress notes from the claimant’s treatment and
he did not pursue a particularly aggressive course of care consistent
with such severe limitation. Moreover, while the undersigned does
not accept these limitations, when presenting the vocational expert
with a hypothetical individual restricted to standing/walking for
only four hours in a day for only thirty minutes at a time and no
stooping or bending, the vocational expert indicated there would still
be significant jobs available.
AR 38. Thus, the Court can trace the path of the ALJ’s reasoning in both rejecting
Dr. Feather’s opinions as controlling and in rejecting them as consistent with and
15
supported by other substantial evidence where the only “consistent” evidence (Dr.
Chapa’s report) 2 was a mere scintilla of evidence and was itself rejected for
sufficiently articulated reasons. 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”).
Also, the ALJ committed no reversible error in assigning the State Agency
nonexamining reviewers’ opinions “some weight” where, as the Commissioner
argues, the State Agency reviewers considered much the same evidence that Dr.
Feather relied upon in support of the limitations to which he opined (1983 left toes
amputation and January 2013 MRI) which did not cause them to conclude Leffler’s
exertional limitations were as extensive as Dr. Feather opined. The ALJ expressly
addressed the fact that additional evidence came in after the State Agency
reviewers provided their opinions:
The remainder of the conclusions offered by the State agency
evaluators were generally consistent with the medical evidence
available at the time of their review, to which they offered specific
references in support of their conclusions, and remain consistent with
new evidence received at the hearing level.
AR 39. In light of that explanation, the Court does not find fault with the ALJ’s
weighing of the State Agency reviewers’ conclusions where the other parts of the
Decision (as discussed herein) fully show that the ALJ built a logical bridge
between the evidence of record and her conclusions about the weight to be given
the various medical opinions and the extent of Leffler’s limitations as supported
by the record evidence. See Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013) (“an
Leffler does not articulate to what extent or in what way Dr. Chapa’s opinion was consistent with Dr.
Feather’s opinions, and in particular, Leffler does not explain how Dr. Chapa’s opinion is consistent with
Dr. Feather’s opinion that Leffler needed to alternate between sitting and standing “at will.”
2
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ALJ must build an accurate and logical bridge from the evidence to his conclusion,
but he need not provide a complete written evaluation of every piece of testimony
and evidence”).
The ALJ’s Decision read as a whole and without nitpicking it makes clear
why she did not specifically address the sit/stand component of Dr. Feather’s
opinions; her overt discussion of the other parts of Dr. Feather’s opinions made
unnecessary a pointed discussion of the “Yes” checkmark next to the question
“Does your patient need the opportunity to shift at will from sitting or
standing/walking.” AR 584. Certainly, the ALJ’s consideration of Dr. Feather’s
opinion that Leffler could stand and walk only four hours in an eight-hour day for
only thirty minutes at a time was a proper way to consider Dr. Feather’s opinions
as a whole. In other words, the ALJ’s failure to specifically reference Dr. Feather’s
opinion as to Leffler’s need to alternate between sitting and standing “at will” does
not render meaningless and insufficient the entirety of the ALJ’s analysis of the Dr.
Feather’s opinions (as summarized above).
B
Next, Leffler argues that the ALJ’s error in discounting Dr. Feather’s opinion
was not harmless where an ALJ has a general obligation to craft an RFC finding
which accounts for all of the practical effects of all of the claimant’s impairments.
Leffler contends that the ALJ’s omission of Dr. Feather’s opinion that he needed to
change positions “at will” resulted in an inaccurate RFC/concomitant
hypothetical which, in a case decided at Step 5 requires remand, given the ALJ’s
burden of proof. The Commissioner argues that a reasonable finder of fact on
remand could not credit Dr. Feather’s cursory and contradictory opinion
regarding Leffler’s need to change positions “at will” or find that it rendered
Leffler disabled, and the VE testified that a person who could sit only 60 minutes
and stand/walk 30 minutes at a time could still do a significant number of jobs.
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Leffler has somewhat conflated arguments to the extent he argues the ALJ
committed an error at Step 4 and therefore at Step 5 as well where the latter
argument is flushed out in context of Step 4. In any event, his Step 5 argument
fails because the Court finds that even assuming the ALJ erred by omitting Dr.
Feather’s opinion that Leffler would need to alternate between sitting and
standing/walking “at will,” such error was harmless. An “administrative error
may be harmless,” McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) and the
Court ought not remand a case to the ALJ where it is convinced that the ALJ will
reach the same result. Id. SSR 83-12 states that “[i]n cases of unusual limitation of
ability to sit or stand, a [vocational specialist] should be consulted to clarify the
implications of the occupational base.”
Here, the ALJ asked the VE at the hearing about the hypothetical
individual’s ability to, among other things, stand and walk up to 30 minutes at a
time for a total of four hours a day and to sit up to 60 minutes at a time for a total
of six hours a day and whether any of the previously identified jobs were still
“okay.” AR 104-05. The VE responded that the sedentary jobs would be available
and that one remaining light job of rental consultant would be available, though
the available jobs for it would be reduced in number. Later, the ALJ began to ask
the VE, “Okay. If I were to add to that last hypothetical a sit/stand option – well
I guess it’s somewhat incorporated there because I said 30 minutes at a time, 60
minutes at a time, so I guess that’s already part of that . . . .” AR 106-07. Still later
at the hearing, Leffler’s own attorney acknowledged to the VE during the hearing
that, “I think you had basically covered the sit/stand option.” AR 109.
In light of the above colloquies, the ALJ’s weighing of Dr. Feather’s opinions
(done properly as discussed above), and the relevant authority, the Court is
convinced that upon the presentation of a hypothetical to the VE that was identical
to Dr. Feather’s opinion (expressly providing for the need to alternate between
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sitting and standing/walking “at will”) that the ALJ would reach the same
disability determination. See Ketelboeter v. Astrue, 550 F.3d 620, 626 (7th Cir. 2008)
(ALJ did not commit error where the ALJ told the VE to assume that the claimant
would “have to have a sit, stand option where he could sit or stand as needed
during the day” because “as needed” would necessarily encompass frequent
sitting and standing); Buchholtz v. Barnhart, 98 F. App’x 540, 547 (7th Cir. 2004) (ALJ
properly took into account the erosion of the occupational basis where the ALJ had
the VE testify to the possible jobs for an individual restricted to alternating
between sitting and standing every twenty to twenty-five minutes).
V
For the foregoing reasons, the Plaintiff’s Motion for Summary Judgment
(Doc. 11) is DENIED and the Commissioner’s Motion for Summary Affirmance
(Doc. 15) is GRANTED. This matter is now terminated.
It is so ordered.
Entered on July 29, 2016.
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE
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