Luckett v. Astrue

Filing 18

OPINION by Magistrate Judge Byron G. Cudmore: Plaintiff Leslie W. Luckett's Motion for Summary Judgment (d/e 14 ), is DENIED, and Defendant Commissioner of Social Security's Motion for Summary Affirmance (d/e 16) is ALLOWED. The decision of the Commissioner is AFFIRMED. THIS CASE IS CLOSED. Entered on 08/15/2012. (DM, ilcd)

E-FILED

Wednesday, 15 August, 2012 11:39:55 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
LESLIE W. LUCKETT,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Defendant.

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No. 11-cv-3342

OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
Plaintiff Leslie W. Luckett appeals from the denial of his application
for Social Security Disability Insurance Benefits and Supplemental Security
Income (collectively “Disability Benefits”) under Titles II and XVI of the
Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c. This
appeal is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c). Luckett
has filed his Motion for Summary Judgment (d/e 14), and Defendant
Commissioner of Social Security has filed a Motion for Summary
Affirmance (d/e 16). The parties consented, pursuant to 28 U.S.C.
§ 636(c), to have this matter proceed before this Court. Consent to
Proceed Before a United States Magistrate Judge, and Order of Reference
entered February 28, 2012 (d/e 13). For the reasons set forth below, the
decision of the Commissioner is affirmed.
Page 1 of 28

STATEMENT OF FACTS
Plaintiff Luckett was born April 14, 1982. He completed the eighth
grade. Luckett suffers from type I diabetes, hypothyroidism, depression,
and injuries to his dominant right hand. He worked as a laborer on a paint
line. Answer to Complaint (d/e 10), attached Certified Transcript of
Proceedings Before the Social Security Administration (R.), 64-65, 188,
190. Luckett stopped working in January 1, 2007, when his employer
closed and he re-injured his right hand when he hit someone with a closed
fist. R. 74, 190.
On January 2, 2007, Luckett went to the emergency room at Blessing
Hospital in Quincy, Illinois (ER). R. 342-44. Luckett went there to have his
right hand examined. An x-ray showed that he broke his right fifth
metacarpal in his little finger when he hit the person the day before. He
was given a splint and discharged. Luckett returned to the ER on January
9, 2007, complaining of back and hand pain. R. 355-57. The back x-rays
were normal. The hand x-rays showed the prior fracture of the fifth
metacarpal. R. 355. Luckett was prescribed pain medication and
released. R. 357.
On April 14, 2007, Luckett went to the ER due to a sore on his calf.
R. 344. On examination, the doctor found multiple sores on Luckett’s legs,
buttocks, face, and chin. Blood tests showed very high blood sugar levels
Page 2 of 28

and an elevated white blood cell count. R. 346-47. The doctor found
normal range of motion, normal sensation, and normal motor function.
R. 347. Luckett was given insulin and left against medical advice. R. 347.
On July 11, 2007, Luckett went to the Northeast Missouri Health
Council medical offices (Clinic). He saw Elizabeth Schrage, a Registered
Nurse Practitioner. R. 243, 411. Luckett told Sage that he was diagnosed
with diabetes when he was eight or nine years’ old. He stated that he did
not follow the proper diet for his condition. He also told her that he needed
thyroid medicine. On examination, Schrage found that Luckett had limited
use of his right hand due to an old injury, but had good sensation in the
hand and no neurological deficits. R. 243, 411. Schrage ordered blood
tests and prescribed thyroid medicine. R. 243, 411.
Luckett returned to the Clinic on August 10, 2007, for a scheduled
follow-up visit. R. 239, 409. Schrage reviewed the results of the blood
test. She noted a sore on Luckett’s lower left leg and multiple scars on his
legs from previous sores. R. 239, 409. Luckett reported that he had
diarrhea when his blood sugar was too high. Luckett requested a hearing
evaluation. He also reported that he needed glasses, but could not afford
them. R. 239, 409. Schrage prescribed medication and insulin syringes.
Luckett returned on August 13, 2007, for a recheck of the sore on his leg.
R. 327, 408.
Page 3 of 28

On November 30, 3007, Luckett went to the ER due to excessive
vomiting. He reported that he drank whiskey the night before. R. 299-301,
323. Luckett reported that he had diabetes, but did not check his blood
sugar levels because he could not afford it. He reported that he smoked
two packs of cigarettes a day, “got drunk about once a month,” and used
marijuana. R. 299, 323. He reported that he had surgery on his right
forearm after he punched through a window. He reported that he had
numbness in his right hand since that incident. R. 299, 323. On
examination, the doctor found wounds on his legs, scaly patches of skin,
and multiple scars. R. 299, 323. Luckett’s blood glucose level and his
white blood cell count were high, but his potassium and sodium levels were
low. R. 285, 327-28. Luckett was diagnosed with diabetic ketoacidosis,
hypothyroidism, and leukocytosis. R. 301, 325.1 He was given insulin. He
refused to stay because he felt depressed there. Luckett left against
medical advice. R. 301, 325.
On January 23, 2008, Luckett returned to the Clinic to see Schrage
because of sores on his hands, arms, and legs. R. 234, 404. He stated
that he had picked at the scabs and made them worse. Schrage
prescribed thyroid medicine and antibiotics. R. 234, 404. Luckett returned
1

The ER doctor’s notes state on R.301 that Luckett had diabetic ketoacidosis due
to non compliance versus possible infection, but the doctor’s notes also state on R.299
that Luckett had diabetic ketoacidosis due to possible infection versus non compliance.
Page 4 of 28

to the Clinic on March 20, 2008. He stated that the sores were not healing.
He also stated that he was not good about taking his insulin, did not watch
his diet, and occasionally smoked pot. R. 248, 402. Schrage found
multiple wounds on his hands and legs from sores. She found sensation
present in both feet. R. 248, 402. Schrage ordered blood tests and
prescribed medication. R. 248, 402.
Luckett returned to see Schrage on April 11, 2008. Luckett still had
sores and also was not sleeping well. R. 247, 401. Luckett reported that
he drank alcohol, did not follow his diet, did not test his blood sugar levels,
and did not take his insulin properly. Sometimes he did not take the
insulin, and sometimes he took too much at one time. R. 247-401. Luckett
said he could not afford test strips to test his blood sugar. R. 247, 401.
Schrage found multiple sores on Luckett’s hands and legs and a fungal
infection on his feet. Schrage prescribed an antifungal medication, an
antidepressant, and blood glucose testing strips. R. 247, 401.
On April 25, 2008, Luckett returned to the Clinic. On examination,
Schrage found that Luckett had flaking skin on his legs and hands and
multiple sores on his hands. R. 245, 398. Schrage prescribed medication.
R. 245, 398.
On May 3, 2008, Luckett went to the ER. He reported that he had
been vomiting and had diarrhea for five to seven days. He also said he
Page 5 of 28

had a rash on his feet. R. 270. He reported that his right hand was
previously reattached surgically. R. 270. He reported that he had eight
beers and five to six shots the night before. R. 270. His blood glucose
level was elevated. R. 271, 274. He was diagnosed with vomiting and
hyperglycemia. R. 269. He was given anti nausea medication. He felt
better and was released. R. 269, 271.
On July 14, 2008, Luckett saw Schrage at the Clinic. Luckett had
sores on his body and also blisters on his feet. R. 396. Luckett also
complained of back pain. Luckett stated that he hurt his back when he was
working; he hurt it lifting an automotive transmission. R. 396. Schrage
found sores and decreased protective sensation in his extremities. R. 396.
Schrage prescribed thyroid medicine and antibiotics. R. 396.
On July 14, 2008, Schrage completed a form that Luckett had
provided to her entitled, “Medical Source Statement of Ability to do WorkRelated Activities (Physical).” R. 250-53, 390-93, 426-29. Schrage opined
that Luckett could occasionally lift 50 pounds and frequently lift 20 pounds.
Schrage opined that Luckett had limited ability to reach, handle, finger, and
feel with his right hand. Schrage stated that Luckett had partial numbness
in his right hand due to injury. Schrage opined that Luckett could stand
and/or walk less than two hours in an eight-hour workday, and needed to
alternate between standing and sitting. R. 250-51, 390-91, 426-27.
Page 6 of 28

Schrage opined that Luckett was limited in his ability to push or pull with
both his upper and lower extremities. She opined that his ability to push or
pull with his upper extremities was limited by his decreased grip strength in
his right hand. His ability to push and pull with his lower extremities was
limited by weakness and loss of feeling in his legs and feet due to his
diabetes. R. 251.
Schrage opined that Luckett had unlimited ability to hear and speak,
but had blurry vision when his blood sugar was too high. R. 252, 392, 428.
Schrage opined that Luckett had limited ability to tolerate noise, humidity,
wetness, extreme temperatures, and work hazards such as machinery or
heights. R. 253, 393, 429.
Luckett next went to see Schrage on September 29, 2008. Luckett
still had sores on his body and blisters on his feet. Luckett reported that he
was not compliant with his insulin. Luckett stated that he did not have
money to buy test strips. Luckett also complained of back pain. R. 388.
Luckett also reported feeling depressed and upset because he had been to
St. Louis. His sister had been murdered in St. Louis. Schrage
recommended counseling. Schrage noted that Luckett’s sores and blisters
were somewhat improved. R. 388. Schrage prescribed thyroid medication,
antibiotics and an antidepressant. R. 388. Schrage noted that Luckett
needed ophthalmology and endocrinology consults. R. 388.
Page 7 of 28

On November 10, 2008, Luckett went to the ER with a laceration of
his right thumb. R. 263-64. Luckett had decreased sensation and limited
range of motion in his right hand due to previous injury. R. 264. Luckett
was given antibiotics and pain medication, and was released. R. 265, 268.
On December 23, 2008, Luckett went to see Schrage because of a
burnt left wrist. Luckett reported that he stopped taking the antidepressant
because it made him feel “hot-headed.” R. 382. On examination, Schrage
found an inflamed abrasion on Luckett’s left forearm. R. 382. Schrage
prescribed medication and ordered blood tests. R. 382.
On January 21, 2009, Luckett went to the ER for nausea, vomiting,
and diarrhea. R. 255. He was diagnosed with gastroenteritis and was
released. R. 255-57.
On March 9, 2009, Luckett saw Schrage again at the Clinic. Luckett
reported that his blood sugar levels were improving. R. 381. Luckett
complained about a knot behind his nipple. He also stated that he had
diarrhea multiple times a day. R. 381. On examination, Schrage found
multiple sores on Luckett’s hands and feet and a lump behind the right
nipple. R. 381. Schrage prescribed Bentyl to be taken before each meal.
Schrage also scheduled appointments with a gastroenterologist, an
ophthalmologist, and a dermatologist. R. 381.

Page 8 of 28

On May 7, 2009, Luckett saw Schrage again. R. 380. Luckett had
glasses at this time. Luckett reported that he could not keep his blood
sugar under control. He also reported having angry outbursts when his
blood sugar went too high. R. 380. On examination, Schrage found
folliculitis on his arms and legs. Schrage prescribed antibiotics and another
antidepressant. R. 380.
On May 9, 2009, Luckett saw Dr. Raymond Leung, M.D., for a
consultative physical examination. R. 304-13. Luckett said that he cut his
right forearm in 2000. He said he had no sensation in the first three fingers
on his right hand and decreased sensation in the other two. R. 304. On
examination, Dr. Leung found no sensation to light touch or pinprick in the
first three fingers of his right hand, and limited sensation in the other two.
Sensation in the left hand was normal. R. 306. During the examination,
Luckett had difficulty gripping and picking up pennies with his right hand.
R. 305. He had 4+/5 pinch strength in his right hand and 5/5 strength in his
left. He otherwise had a normal reflexes and range of motion. He had a
normal gait and was able to tandem walk, heel/toe walk, squat and hop.
R. 306.
Dr. Leung opined that Luckett could occasionally lift and carry 21 to
50 pounds and frequently lift and carry 20 pounds or less; sit, stand, and
walk for eight hours each without interruption. R. 312-13. He opined that
Page 9 of 28

Luckett could reach, handle, finger, feel, push and pull with his left hand,
and could use his right hand to reach, but only occasionally use his right
hand to handle, finger, feel, push and pull. R. 311. He opined that Luckett
could operate foot controls continuously with his right foot and frequently
with his left. Dr. Leung opined that Luckett could never climb, but could
continuously balance, stoop, kneel, crouch and crawl. R. 310. He opined
that Luckett was not subject to any environmental limitations. R. 309.
On May 13, 2009, Luckett saw a clinical psychologist Dr. Frank
Froman, Ed.D. for a consultative psychological examination. Dr. Froman
diagnosed a major depressive disorder of chronic mild severity, with
episodes of impulse control disorder and low normal intellectual
functioning. R. 318. Dr. Froman opined that Luckett could perform simple
one and two-step tasks, relate adequately to co-workers and supervisors,
and understand oral instructions, but would have difficulty understanding
written instructions. R. 318. Dr. Froman opined that Luckett had marked
limitations in the ability to understand, remember and carry out complex
instructions, and an extreme limitation of ability to make complex workrelated decisions. R. 318. Dr. Froman concluded,
That said, an employer who may take on the responsibility of
having an uncontrolled and brittle diabetic, somebody with
aggressive and impulsive acting out behaviors episodically, a
very mixed and spotty minimal work record, incomplete
education, low intellectual functional abilities, and a right hand
Page 10 of 28

which is impaired, may indeed find it difficult to provide the
necessary accommodations to assist him in being able to
function in their business.
R. 318.
Luckett saw Schrage again on June 10, 2009. Luckett reported
getting sick every morning and that his morning blood sugar levels were
too high. R. 378. Schrage prescribed Seroquel for his depression. R. 378.
Luckett saw Schrage again on June 29, 2009. He said that he stopped
taking the Seroquel. He said that the Seroquel helped with his dry mouth
and sleep, but he could not get up in the morning. R. 376. He said that his
anger problems were better, but he still could not sleep. R. 376. Schrage
lowered the Seroquel dosage and prescribed other medication. R. 376.
Luckett saw Schrage several times in July 2009, to try to adjust his
medication to try to control his blood sugar and stomach problems.
R. 364-69. On July 23, 2009, Schrage wrote a letter for Luckett addressed
to, “Dear Judge.” R. 363. The letter stated, in part:
Please understand that Mr. Luckett’s condition is very fragile.
His blood sugar control is very unpredictable and difficult to
treat. When his blood sugar is high he feels agitated,
nauseated, very fatigued and weak. He must check his blood
sugar at least 4 to 6 times daily and administer rapid acting
insulin as needed. Because of these problems he requires
frequent medical appointments and close monitoring. He is
unable to maintain part-time and full-time employment at this
time.
R. 363. On the same day, Thursday, July 23, 2009, Schrage issued a
Page 11 of 28

Return to Work Certificate for Luckett. Schrage stated that Luckett could
return to work on Tuesday July 28, 2009. R. 364.
On September 17, 2009, Schrage placed her initials on each page of
her July 14, 2008, form and noted no changes on each page. R. 426-29.
The Administrative Law Judge (ALJ) held an evidentiary hearing on
September 23, 2009. R. 69-99. The ALJ conducted the hearing by video
conference. The ALJ was in Chicago, Illinois. Luckett and his counsel
were in Hannibal, Missouri. Vocational Expert Michelle M. Peters
appeared by telephone.
Luckett testified first at the hearing. He testified that he lived in a
house with his mother and her boyfriend. He testified that he completed
the eighth grade and did not secure a GED. He has not received any other
vocational training. R. 73. At the time of the hearing, he was taking
Levemir, an insulin product; Synthroid, a thyroid medicine; Seroquel;
Lexapro; and Sudafed. R. 80. He testified that he tested his blood sugar
level six to eight times a day. R. 81.
Luckett testified that he last worked for Kooster Tool and Dye on the
paint line. He lifted objects onto the line. The objects weigh 20 to 40
pounds. He worked at Kooster Tool and Dye six to eight months. Luckett’s
attorney interrupted to state that the work records indicate that he worked
from January 2006 to January 2007 at this job. Luckett testified that the
Page 12 of 28

work strained his hand. R. 74. Luckett testified that he had problems when
his blood sugar was too high. He could not concentrate and became tired.
R. 80. He quit the job because the company closed and he “re-broke” his
“bad hand.” R. 74.
Luckett testified that he had a driver’s license and could drive. He
said that he had problems driving at night because of his eyesight. He
testified that his eyes were “getting bad in the last few years.” R. 75. He
said that he had difficulty buckling his belt and buttoning shirts because of
the injuries to his right hand. He testified that he did a few dishes, did
laundry, and took out the trash. R. 75. He said that he used to like
woodworking before he hurt his hand. Luckett testified that he hurt his
hand in 2003 or 2004 when he fell through a window. R. 75. He testified
that he could feel a little with his pinky and ring finger, but he had no feeling
in the rest of the hand. The lack of feeling extended along a scar into the
wrist area. R. 84.
Luckett testified that he watched an occasional movie on television,
but did not read books, magazines, or newspapers. He did not go out to
the movies, to social gatherings, or to church. He said that people
occasionally came over to his house to visit. R. 76. He testified that he did
not have any problems getting along with his family and friends. R. 79.

Page 13 of 28

Luckett testified that he could pick up a case of canned soda with his
left hand, but not his right. He could hold a gallon of milk down by his side
with his right hand, but could not lift it straight up. R. 76. He said that
sitting in a chair at the hearing was uncomfortable. He felt trapped and
sweaty. He needed to move around. He said that he had no pain sitting.
He testified that his feet were a little numb at the hearing. Luckett testified
that he could not sit through an entire movie. He had to get up to go to the
bathroom frequently. R. 76-77.
Luckett testified that he took the Seroquel and Lexapro for
depression. He testified that he was depressed about his health. He also
testified that he has difficulty controlling his anger. R. 93. Luckett testified
that he also got irritated if he had to stand in line too long. R. 77.
He testified that he did not like to walk too far because of pain in his
back and calves and the bottom of his feet. R. 77. He testified that his
doctor told him that the pain he experienced when walking was the result of
his diabetes. R. 77. He said that walking up and down stairs caused
burning in his calves. R. 78.
Luckett testified that his back hurt when he bent over. He said that
he could pick up objects more easily with his left hand. He testified that he
could only write for a little while because he would lose feeling in the
fingers in his right hand. Luckett testified that he could not bend his right
Page 14 of 28

wrist because of his injury. R. 78-79. Luckett said that the heat bothered
him. He became light headed and would start sweating. R. 79.
He testified that his diabetes caused blurry vision when his blood
sugar level was high. He experienced blurry vision a couple of times a
month. The blurry vision lasted thirty to forty minutes or longer. He also
got headaches a couple of times a month from his blood sugar levels. He
would lay down for an hour or more when he got one of these headaches.
R. 82-83. He said the diabetes caused numbness in his hands and feet
two to three times a month. He said that the numbness usually lasted 40
minutes to one hour. R. 85.
Luckett testified that he had recently been diagnosed with diabetic
gastropathy. He testified that his digestive system takes two days to digest
food that a normal person digests in 90 minutes. This causes him to throw
up in the morning and also have diarrhea. R. 85. Luckett testified that he
threw up regularly in the morning. R. 80. Luckett said that he has been put
on medication for this condition. He said that the medication has slowed
down the vomiting and diarrhea. R. 85-86. He stated that he now
experienced vomiting and diarrhea two times a week with the medication.
R. 86. He said that the vomiting lasted 20 to 30 minutes and the diarrhea
lasted 30 minutes to two hours. He said that his energy was gone
thereafter. R. 87. He testified that the lack of food in his system after the
Page 15 of 28

vomiting and diarrhea caused his body to “shut down.” R. 86. Luckett said
that he starts shaking and sweating. He testified that he sometimes forgets
what he is doing. R. 86.
Luckett testified that his diabetes also caused sores all over his body.
R. 90. He testified that he had approximately twenty sores on his legs at
the time of the hearing. Luckett testified that the sores lasted for a month
or more. R. 89-90. He testified that he got blisters on the bottom of his
feet from his diabetes. R. 90. He uses antibiotic cream on the sores and
blisters. R. 90-91.
The vocational expert Peters then testified. The ALJ asked Peters:
I want you to assume a person of the claimant’s age, education
and work experience and skills said (sic). And if they were
limited to light work that did not require fine precision work with
the right dominant hand, only occasional feeling with that right
dominant hand, no complex written or oral instructions and
communications and no unprotected heights or no climbing of
ladders. Would that person be able to do any of the claimant’s
past work?
R. 94. Peters opined that such a person could not perform Luckett’s past
relevant work. R. 95. Peters opined that such a person could perform
janitorial jobs and packaging and inspection jobs. Peters opined that
14,000 janitorial jobs, 5,000 packaging and 4,000 inspection jobs existed in
Missouri. R. 95. The ALJ asked about the impact of adding a sit/stand
option to the limitations in the hypothetical question. Peters responded,

Page 16 of 28

“The janitorial position would be limited Your Honor, with a sit/stand option.
Again, packaging, any inspection type of work would be reduced down by
approximately 50 percent.” R. 95.
Luckett’s attorney then questioned Peters. Luckett’s attorney asked
Peters to assume a person with Luckett’s age, education and experience
limited to sedentary work with limited use of his upper extremities. Peters
opined that such a person would be limited by his education to
manufacturing and would not be able to work in that area because of the
limitations in the use of his upper extremities. R. 98. Peters also opined
that a person would be unemployable if he needed unscheduled breaks of
at least 30 minutes in duration. R. 98. The hearing then concluded.
THE DECISION OF THE ALJ
The ALJ issued her decision on May 21, 2010. R. 56-65. The ALJ
followed the five-step analysis set forth in Social Security Administration
Regulations (Analysis). 20 C.F.R. §§ 404.1520, 416.920. Step 1 requires
that the claimant not be currently engaged in substantial gainful activity. 20
C.F.R. §§ 404.1520(b), 416.920(b). If true, Step 2 requires the claimant to
have a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If true,
Step 3 requires a determination of whether the claimant is so severely
impaired that he is disabled regardless of his age, education and work
experience. 20 C.F.R. §§ 404.1520(d), 416.920(d). The claimant's
Page 17 of 28

condition must meet the criteria in a Listing or be equal to the criteria in a
Listing. 20 C.F.R. §§ 404.1520(d), 416.920(d).
If the claimant is not so severely impaired, then Step 4 requires the
claimant not to be able to return to his prior work considering his Residual
Functional Capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e). If the
claimant cannot return to his prior work, then Step 5 requires a
determination of whether the claimant is disabled considering his RFC,
age, education, and past work experience. 20 C.F.R. §§ 404.1520(f),
416.920(f). The claimant has the burden of presenting evidence and
proving the issues on the first four steps. The Commissioner has the
burden on the last step; the Commissioner must show that, considering the
listed factors, the claimant can perform some type of gainful employment
that exists in the national economy. Briscoe ex rel. Taylor v. Barnhart,
425 F.3d 345, 352 (7th Cir. 2005); Knight v. Chater, 55 F.3d 309, 313
(7th Cir. 1995).
The ALJ found that Luckett met his burden at Steps 1 and 2 of the
Analysis. He was not engaged in substantial gainful activity, and he
suffered from diabetes mellitus, right finger fracture and history of
laceration of right upper extremity, major depressive disorder, and learning
disability. R. 58. The ALJ determined at Step 3 that none of Luckett’s

Page 18 of 28

impairments or combination of impairments met or equaled any Listing.
R. 58.
At Step 4, the ALJ determined that Luckett had the RFC, “to perform
light work . . . except the claimant cannot perform fine precision work with
his right upper extremity, cannot be required to follow complex written or
oral instructions or communication, and cannot work around unprotected
heights.” R. 61 (internal citation omitted). The ALJ relied on Schrage’s
July 14, 2008, opinions about Luckett’s ability to lift and carry, Dr. Leung’s
opinions about Luckett’s functional capacity, and Dr. Froman’s opinions
about his psychological condition. R. 62-64. The ALJ specifically
explained that she limited the claimant to work that did not involve following
complex written or oral instructions to accommodate Dr. Froman’s opinions
about Luckett’s mental limitations. R. 64.
The ALJ gave less weight to Schrage’s opinions and observations
because she was a nurse and not a doctor. R. 62. The ALJ also stated
that Schrage’s opinions were sometimes inconsistent,
Beth Schrage’s opinions are not given great weight as she is
sometimes inconsistent. On July 23, 2009, she stated that his
diabetes is unstable and he is unable to maintain part or full
time work, but then that same day completes a return to work
certificate stating that he can return to work on July 28, 2009
and does not mark any limitations.
R. 64. The ALJ discounted Schrage’s notes indicating that Luckett had

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vision problems because there were no optical testing records in the file.
The ALJ noted that Dr. Leung found his vision was 20/30 in the right eye
and 20/25 in the left. R. 62, 305. The ALJ gave no weight to Schrage’s
notes and Luckett’s claims about his vision. R. 63.
The ALJ found that Luckett’s claims about the severity of his
symptoms were not credible. R. 61. The ALJ noted that Luckett reported
to the ER staff that his arm was cut off and reattached, but the medical
records did not reflect this event. The ALJ noted that Luckett was able to
use his right fist to hit someone. Luckett was also able to lift an automotive
transmission, indicating he could use his hands to grasp objects. R. 61-62.
The ALJ noted that the record of the November 2007 visit to the ER
showed full strength in the right hand with some numbness. The ALJ relied
on Dr. Froman’s evaluation to discount Luckett’s claims about the severity
of his symptoms of depression. R. 63-64.
After determining Luckett’s RFC, the ALJ determined that Luckett
could not perform his past work on the paint line. The ALJ relied on Peters’
testimony for this finding. R. 64. At Step 5, the ALJ determined that
Luckett could perform a significant number of jobs in the national economy.
The ALJ relied on the Medical-Vocational Guidelines, 20 C.F.R. Part 404,
Subpart P, Appendix 2, and Peter’s opinions about the janitorial, packaging
and inspection jobs to reach this conclusion.
Page 20 of 28

Luckett then appealed to the Commissioner’s Appeals Council.
See R. 9.
EVIDENCE SUBMITTED TO THE APPEALS COUNCIL
On July 14, 2010, Luckett submitted additional evidence to the
Appeals Council. R. 25. Much of the evidence consisted of duplicate
records from Schrage. R. 30-48, 432-53. In addition, Luckett submitted a
report of a psychiatric evaluation performed by Dr. Alicia Gonzalez, M.D.,
on April 28, 2010. R. 28-29, 430-31. Luckett told Dr. Gonzalez that he was
depressed because his sister was murdered four years earlier. He also
reported that his diabetes was sometimes out of control. He reported being
depressed and having difficulty sleeping. Dr. Gonzalez diagnosed Luckett
with major depressive disorder, recurrent, moderate. She gave Luckett a
Global Assessment of Functioning rating of 45. She recommended two
medications for Luckett, Welbrutin and Trazodone. R. 431.
Luckett also submitted to the Appeals Council ophthalmology
examination reports from Dr. Dean P. Hainsworth, M.D., for examinations
conducted on April 30, 2009, and October 29, 2009. Dr. Hainsworth
diagnosed Luckett with proliferative diabetic retinopathy. R. 49-52, 454-57.
Dr. Hainsworth advised Luckett that he needed to control his blood sugar
levels and he may need laser treatments in the future. R. 454.

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On July 12, 2011, the Appeals Council denied Luckett’s request for
review. R. 1. Luckett then brought this action for judicial review.
ANALYSIS
This Court reviews the Decision of the Commissioner to determine
whether it is supported by substantial evidence. In making this review, the
Court considers the evidence that was before the ALJ. Wolfe v. Shalala,
997 F.2d 321, 322 n.3 (7th Cir. 1993). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate” to
support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971).
This Court must accept the findings if they are supported by substantial
evidence, and may not substitute its judgment. Delgado v. Bowen, 782
F.2d 79, 82 (7th Cir. 1986). This Court will not review the credibility
determinations of the ALJ unless the determinations lack any explanation
or support in the record. Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir.
2008). The ALJ must articulate at least minimally her analysis of all
relevant evidence. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
The Court must be able to “track” the analysis to determine whether the
ALJ considered all the important evidence. Diaz v. Chater, 55 F.3d 300,
308 (7th Cir. 1995).
The ALJ’s decision is supported by substantial evidence. The RFC
finding is supported by Dr. Leung’s opinions, Dr. Froman’s opinions, and
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Schrage’s opinions regarding Luckett’s ability to lift and carry. The ALJ
discounted Schrage’s other opinions and gave specific support for those
conclusions. The ALJ noted inconsistencies in Schrage’s statements and
the lack of diagnostic testing. The ALJ noted that Schrage’s statements
about Luckett’s vision were inconsistent with Dr. Leung’s testing.
The ALJ’s findings at Step 5 that Luckett could perform a significant
number of jobs in the national economy are supported by Peters’ opinions.
Peters opined that a person with Luckett’s age, education, experience, and
RFC could perform 14,000 janitorial jobs, 5,000 packaging jobs, and 4,000
inspection jobs that existed in Missouri. Even if the sit/stand option was
added to the RFC, Peters still opined that the packaging and inspections
jobs would only be reduced by 50 percent. This opinion supports a finding
that Luckett could have performed 4,500 jobs that existed in Missouri. This
number of jobs constitutes a significant number of jobs in the national
economy for purposes of the Analysis. See Liskowitz v. Astrue, 559 F.3d
736, 743 (7th Cir. 2009) (1,000 is considered a significant number of jobs).
The ALJ’s decision is supported by substantial evidence.
Luckett argues that the ALJ should have given Schrage’s opinions
controlling weight as a treating acceptable medical source. An opinion
from an acceptable medical source who treated the claimant is entitled to
controlling weight when the opinion is well supported by medically
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acceptable clinical and diagnostic techniques and is reasonably
consistent with the other substantial evidence in the record. 20 C.F.R.
§ 404.1527(c)(2); SSR 96-2p. Schrage is not an acceptable medical
source. An acceptable medical source is a licensed physician, a licensed
or certified psychologist, a licensed optometrist, a licensed podiatrist, or a
qualified speech pathologist. 20 C.F.R. § 404.1513(a). A nurse
practitioner is not an acceptable medical source, but rather, is another
source that the ALJ may consider. 20 C.F.R. § 404.1513(d). The ALJ
therefore was not required to give Schrage’s opinions controlling weight.2
Luckett argues that the ALJ should have given greater weight to
Schrage’s opinions even if they were not entitled to controlling weight. The
Court will not question the ALJ’s consideration of Schrage’s opinions. The
ALJ should have, and did, consider Schrage’s opinions as a source of
proper evidence regarding Luckett’s medical condition. R. 62-63. The ALJ
relied on Schrage’s opinions regarding Luckett’s exertional capacity, such
as his ability to lift and carry. R. 62. The ALJ gave less weight or no
weight to some of Schrage’s other opinions and explained the bases for

2

Luckett complains that the Social Security regulations conflict with Missouri law
regulating medical professionals, particularly nurse practitioners. This may or may not
be; however, the law of the United States is the supreme law of the land. U.S. Const.
art. VI cl. 2. The ALJ, thus, properly followed the federal Social Security regulations
rather than state law.
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those decisions. As explained above, the medical evidence provides
substantial evidence for those decisions.
Luckett also argues that the ALJ erred in her treatment of
Dr. Froman’s opinion. The Court disagrees. The ALJ explained how he
incorporated Dr. Froman’s opinions into his RFC assessment. Luckett
complains that the ALJ did not adequately address Dr. Froman’s opinion
that Luckett would have difficulty with written instructions because the ALJ
only excluded complex written instructions from the formulation of the RFC.
The ALJ finding is not clearly erroneous on this point. Dr. Froman said that
Luckett would have difficulty with written instructions; Dr. Froman did not
opine that Luckett could not follow written instructions. Dr. Froman’s
opinion, thus, could support the conclusion that Luckett could follow some
written instructions. The ALJ’s RFC limitation to exclude complex written
instructions is supported by Dr. Froman’s opinion.
Luckett complains that the ALJ did not address Dr. Froman’s
comment, quoted above, about the difficulties that Luckett would pose to
an employer. The Court agrees that the ALJ probably should have
addressed this comment in Dr. Froman’s report. The Court finds that the
error in the omission was harmless. The ALJ’s decision is consistent with

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Dr. Froman’s diagnosis and assessment of Luckett’s mental limitations.3
The Court will not reverse on these grounds.
Luckett next argues that the ALJ erred in her determination that
Luckett was noncompliant with his medication. Luckett relies on a Social
Security policy statement regarding circumstances in which a person with a
disabling impairment would not be disabled if he followed prescribed
treatment. SSR 82-59. This policy statement does not apply here. The
ALJ found that Luckett did not have a disabling condition regardless of his
compliance or noncompliance with his medication. The ALJ found that
Luckett suffered from severe impairments at Step 2, but was not disabled
at Step 5. The ALJ noted that Luckett’s medical evidence stated that he
was not compliant with his diabetes medicine at various times, but the ALJ
found that Luckett’s condition was not disabling even with his
noncompliance. The policy statement, therefore, is not relevant.
Luckett next argues that the ALJ’s credibility determinations were
not supported by substantial evidence. This Court will not review the
credibility determinations of the ALJ unless the determinations lack any
explanation or support in the record. Elder v. Astrue, 529 F.3d 408, 413-14
3

Dr. Froman's quoted comment also discussed Luckett's education and lack of
work experience. R. 318. Those factors are not included in formulating a person’s
RFC. See 20 C.F.R. § 404.1545. Luckett's education and lack of work experience
were considered independently by Peters in formulating her opinions and by the ALJ in
applying the Medical-Vocational Guidelines. See R. 65, 94.
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(7th Cir. 2008). The ALJ explained her credibility findings and cited
evidence in the record to support those findings. The ALJ noted that
Luckett told the ER staff that his arm was cut off and reattached, but the
medical records do not reflect this event. The ALJ noted that Luckett was
able to use his right fist to hit someone and was able to lift an automotive
transmission. R. 61-62. The ALJ noted that the record of the November
2007 visit to the ER showed full strength in the right hand with some
numbness. R. 62. The Court will not disturb such properly supported
credibility findings. Elder, 529 F.3d at 413-14.
In the alternative, Luckett asks for a remand to consider
Dr. Gonzalez’s April 28, 2010, psychiatric evaluation that Luckett submitted
to the Appeals Council. This Court may remand a case under sentence six
of § 405(g) if the claimant presents new and material evidence and
demonstrates good cause for failing to incorporate the evidence into the
record before the ALJ. 42 U.S.C. § 405(g); Sample v. Shalala, 999 F.2d
1138, 1144 (7th Cir. 1993). New evidence is evidence that was “not in
existence or available to the claimant at the time of the administrative
proceeding.” Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990). The
Commissioner correctly notes that the April 28, 2010, evaluation was
available to Luckett during the administrative proceeding because the ALJ
had not yet made her decision at that time. The ALJ did not issue her
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decision until three weeks later on May 21, 2010. The ophthalmology
reports submitted to the Appeals Council were from 2009, and so, also
were not new evidence. See R. 454-56. Because Luckett did not submit
new evidence, a remand under sentence six is not appropriate.
WHEREFORE, Plaintiff Leslie W. Luckett’s Motion for Summary
Judgment (d/e 14), is DENIED, and Defendant Commissioner of Social
Security’s Motion for Summary Affirmance (d/e 16) is ALLOWED. The
decision of the Commissioner is AFFIRMED. THIS CASE IS CLOSED.

ENTER: August 15, 2012

s/ Byron G. Cudmore
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE

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