Boydston v. Commissioner of Social Security

Filing 14

OPINION (See Written Opinion): WHEREFORE Defendant Commissioner of Social Security has filed a Motion for Summary Affirmance (d/e 12 ) is ALLOWED, and Plaintiff Boydston Brief in Support of Motion for Summary Judgment (d/e 10 ) is DENIED. The decision of the Commissioner is affirmed. THIS CASE IS CLOSED. Entered by Magistrate Judge Byron G. Cudmore on 1/24/2014. (VM, ilcd)

E-FILED

Friday, 24 January, 2014 11:52:41 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
RYAN M. BOYDSTON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 12-cv-3310

OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
Plaintiff Ryan M. Boydston 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). Boydston
has filed a Brief in Support of Motion for Summary Judgment (d/e 10)
(Boydston Brief), and Defendant Commissioner of Social Security has filed
a Motion for Summary Affirmance (d/e 12). The parties consented to have
this case heard before this Court. Consent to the Exercise of Jurisdiction
by a United States Magistrate Judge and Reference Order entered May 7,

Page 1 of 34

2013 (d/e 9). For the reasons set forth below, this the Decision of the
Commissioner is affirmed.
STATEMENT OF FACTS
Boydston was born on November 19, 1979. Boydston completed
high school and some additional vocational training. Boydston previously
worked as a truck driver, telemarketer, sales attendant, and
warehouse/department manager. Answer to Complaint (d/e 6), attached
Certified Transcript of Proceedings before the Social Security Commission
(R.), at 72, 10.
On July 18, 2007, Boydston was delivering 500 pounds drums of
chemicals in the course of his employment. Boydston slipped and fell, and
one of the 500 pound drums fell on him, injuring him severely. R. 453.
Boydston has not worked since that accident. Since the accident,
Boydston has suffered from myofascial pain, headaches, obesity, chronic
neck pain, and back pain. R. 58.1
On July 18, 2007, Boydston went to see Dr. Ernest Wallace, M.D.,
for evaluation after the accident. Dr. Wallace diagnosed Boydston with low
back pain without radiation, chest contusion, and right knee pain.

1

Boydston also alleged that he had a brain tumor, right knee pain, and depression. The ALJ found that
these impairments were not severe. R. 58-59. Boydston does not challenge this finding on appeal.

Page 2 of 34

Dr. Wallace found that Boydston’s injuries from the accident appeared to
be muscular and superficial. Dr. Wallace restricted Boydston to light duty
for a week. R. 656.
On July 19, 2007, Boydston underwent a CT scan of his brain; MRI
scans of his brain and cervical spine; and x-rays of his left hip, pelvis, and
chest. The MRI of the cervical spine showed a strain of the apical
ligament. The results of these tests were otherwise unremarkable. R. 538,
546-47, 648, 651,
On July 19, 2007, Boydston saw Dr. Phillip Wilson, M.D., for
evaluation. Dr. Wilson diagnosed a left hip contusion, closed head injury,
chest contusion, and right knee pain. R. 652. On July 23, 2007, Boydston
saw Dr. Wilson. Boydston reported that he was doing much better. He
was able to walk and climb stairs. He could bend his back, and could lift a
child weighing twenty-nine pounds. Boydston had normal range of motion
and straight leg testing was negative. Dr. Wilson released Boydston to
work. R. 649.
On August 9, 2007, Boydston saw Dr. Wilson. Boydston reported
getting severe headaches when he returned to work. Dr. Wilson prescribed
Ultram. Dr. Wilson restricted Boydston to sitting work and no lifting or
driving a truck. R. 646.
Page 3 of 34

On August 13, 2007, Boydston saw Dr. Wilson. Boydston reported
continued pain. Dr. Wilson noted marked tenderness in the cervical spine.
Boydston had full range of motion in his cervical spine with some
discomfort. Dr. Wilson put Boydston on no work unless sitting work is
available. R. 645.
On August 29, 2007, Boydston started a course of physical therapy.
R. 642-43.
On August 30, 2007, Boydston saw Dr. Wilson. Boydston reported
that he started physical therapy. Dr. Wilson directed Boydston to continue
with the physical therapy and return on September 17, 2007. Dr. Wilson
stated that he would recommend an independent medical evaluation if
Boydston had not improved by then. Dr. Wilson noted,
COMMENT: I think the prognosis on this gentleman is
guarded. I think there may be some type of secondary gain
because I feel the subjective symptoms are more significant
than objective findings. This is my reason for recommending
an independent medical evaluation if improvement is not
dramatic over this approximately 2 week period of time.
R. 641.
On September 6, 2007, Boydston saw Dr. Joshua Warach, M.D., for
a neurological consultation. R. 539-41. Boydston complained of back pain,
cervical pain, and dull aching pain in the occipital region of his head.

Page 4 of 34

Dr. Warach’s examination was unremarkable. Dr. Warach ordered x-rays,
MRIs, an EEG, and EMG/NCV studies. He also referred Boydston to a
neurosurgeon, Dr. Terrence Pencek, M.D., for a consultation. R. 541.
The results of the tests ordered by Dr. Warach were largely
unremarkable. X-rays of Boydston’s shoulders and spine taken on
September 6, 2007, showed no fractures and were otherwise
unremarkable. R. 400-03. An EEG taken on September 14, 2007, was
normal. R. 404. An MRI of the lumbar and cervical spine taken on
September 14, 2007, showed some degenerative disc disease at L5-S1,
but was otherwise normal. R. 405-06. The EMG/NCV studies conducted
on September 20, 2007, were largely unremarkable and showed no
cervical radiculopathy, plexopathy, or other neuropathy to explain
Boydston’s symptoms. Dr. Warach instructed Boydston to avoid heavy
lifting, strain, or other provocative activities. R. 449-50.
On September 17, 2007, Boydston saw Dr. Wilson. Boydston
reported that he still had pain. Dr. Wilson stated that Boydston would
continue seeing his neurologist Dr. Warach, and would continue also
seeing him for pain medications and physical therapy. R. 634.
On September 26, 2007, Dr. Wilson responded to a request from
Boydston’s employer for documentation of the reason why Boydston could
Page 5 of 34

not work. Dr. Wilson stated that Boydston was experiencing severe neck
pain and spasms with persistent headaches. Dr. Wilson stated that
Boydston could not work because of the pain and the need for pain
medication. R. 633.
On September 27, 2007, Boydston saw Dr. Wilson. Dr. Wilson
reported no change in Boydston’s condition. Dr. Wilson released Boydston
to light duty work. Boydston reported that his employer stated that light
duty was not available. R. 632.
On October 3, 2007, Boydston was discharged from physical therapy.
The therapist reported that Boydston reached twenty-five percent of his
goals. Boydston continued to report pain and headaches. R. 631.
On October 25, 2007, Dr. Warach conducted additional EMG/NCV
testing on Boydston. The results were again unremarkable. Dr. Warach
noted that other testing had been unremarkable as well. Boydston reported
some daytime sleepiness due to his medications. He also reported low
back pain with extended walking and heavy lifting. Dr. Warach again told
Boydston to avoid heavy lifting, straining, and other provocative activities.
He also referred Boydston to a sleep specialist and a pain clinic. R. 451.
A subsequent sleep study showed no significant sleep apnea. The sleep

Page 6 of 34

specialist stated that Boydston’s medications could be contributing to his
sleepiness. R. 484-85.
On December 7, 2007, Boydston saw Dr. Terrence Pencek, M.D.
Dr. Pencek found tenderness in the back of the neck and scalp.
Boydston’s motor strength was 5/5 and his gait was steady. Dr. Pencek
recommended against surgery. Dr. Pencek reviewed Boydston’s MRI
results. He stated that Boydston could benefit from physical therapy and
epidural steroid injections in the cervical spine. R. 409-10. Dr. Pencek
ordered x-rays of Boydston’s cervical and thoracic spine. The results were
unremarkable. R. 411.
On January 3, 2008, Boydston saw Dr. Wilson. Dr. Wilson stated,
“On casual observation of this gentleman, he appears to be in good health,
no distress. Does not appear to be in any discomfort.” R. 627. On
examination, Boydston had limited range of motion in his neck and
tenderness in the posterior of his neck. The range of motion of his lower
back was markedly limited. Straight leg testing was negative. Dr. Wilson
noted Dr. Pencek’s recommendation for injections. Dr. Wilson stated that
Boydston was on no work at this time. R. 627.
On January 23, 2008, Boydston saw Dr. Warach. Boydston reported
continuing pain in his neck, worse with flexion of the head and neck, with
Page 7 of 34

no improvement. Boydston also reported persistent headaches and back
pain. Dr. Warach recommended another MRI of Boydston’s brain, but
Boydston did not want to do this. A past MRI showed a hyperintense area
in the basal ganglia of unclear etiology. Boydston also refused to undergo
physical therapy. Boydston stated that physical therapy aggravated his
pain. Dr. Warach recommended injections. R. 447-48.
On January 30, 2008, Boydston saw a pain specialist, Dr. Babu
Prasad, M.D. Boydston underwent a series of injections on January 30,
February 12, March 4, and March 26, 2008. R. 412-36. Boydston reported
that his back was doing a little better at the end of the series, but had
numbness in his right leg. R. 415
On February 13, 2008, Boydston saw Dr. Warach. Boydston stated
that after the first injections from Dr. Prasad, he had significant
improvement for about three days, but then his neck and headache pain
worsened. Boydston reported, however, that he had only mild neck pain
which was 90% better with no headaches and only mild intermittent back
pain. His back pain in the thoracic region was also 90% better. On
examination, Boydston reported that he felt as though his neck was “lifting
off his spine” when he turned his head to the left or right. At this time,
Boydston was taking Hydrocodone, Ultram, and Nurofen for pain. R. 443.
Page 8 of 34

On March 10, 2008, Boydston saw Dr. Warach. Boydston reported
again that he had 90% improvement in neck and back pain and headaches.
Boydston reported that the pain was worse with lifting. He reported that
Dr. Prasad’s injections helped temporarily. Dr. Warach adjusted
Boydston’s medications. R. 560.
On April 1, 2008, Boydston saw a headache specialist, Dr. Mark
Greenfield, M.D. in Kansas City, Missouri, metropolitan area.2
Dr. Greenfield observed tenderness in the cervical, thoracic, and lumbar
spine. Dr. Greenfield noted positive straight leg testing with sciatic notch
tenderness on the right and left. Dr. Greenfield diagnosed cervical
radiculopathy, headache, and neuralgia/neuritis/radiculitis. R. 458-61.
On April 10, 2008, Boydston saw Dr. Warach. Boydston reported that
his pain and headaches had plateaued at 90% improvement since the
onset of the pain after the accident. Dr. Warach referred Boydston for a
functional capacity evaluation. R. 562.
On April 21, 2008, Boydston saw Dr. Wilson. According to
Dr. Wilson, Boydston had no improvement since his initial injury. On
examination, Dr. Wilson found normal range of motion in the neck and
back, both with some minimal discomfort. Straight leg testing was

2

See R. 621 (stating that the Headache and Pain Center was in Leawood, Kansas.).

Page 9 of 34

negative. Patrick’s maneuver of the lower extremities revealed a
questionable positive on the right side. Dr. Wilson noted that Boydston was
a truck driver on no work because light duty was not available. Dr. Wilson
opined that Boydston was at his maximal medical improvement. R. 622-23.
On April 30, 2008, Boydston saw Dr. David Gelber, M.D., for an
independent medical evaluation. On examination, Dr. Gelber found mild to
moderate tenderness in the cervical and lumbar paraspinous muscles
bilaterally with no significant spasm. Boydston’s muscle tone was normal
and strength was 5/5. Boydston’s gait was normal. Dr. Gelber diagnosed
myalgia and myositis. Dr. Gelber opined that Boydston’s pain was
myofascial, involving the neck and back. The myofascial pain contributed
to the headaches. Dr. Gelber recommended proceeding with the functional
capacity evaluation. R. 453-55.
On May 1, 2008, Boydston underwent a functional capacity
evaluation. R. 509-24. Boydston was found to be employable at his
current demonstrated capacity, but limited to lifting 41 pounds to waist level
and 25 pounds overhead. Boydston could occasionally carry up to 33
pounds and push and pull 35 pounds. The evaluation stated that Boydston
was deconditioned and recommended work hardening therapy. The

Page 10 of 34

evaluation was signed by physical therapist Joe Williams and occupational
therapist Tracey Maras. R. 509.
On May 22, 2008, Boydston saw Dr. Warach. Boydston again
reported that his pain and headaches had plateaued at 90% improvement
since the onset of the pain after the accident. Boydston reported some
intermittent lumbosacral pain with radiation down into his right leg.
Dr. Warach reviewed the May 2008 functional capacity evaluation, and
ordered the work conditioning/work hardening program with home exercise.
Dr. Warach recommended another physical capacity evaluation after
Boydston completed all medical management, but Boydston refused.
R. 566.
On June 6, 2008, Boydston started work hardening therapy. The
therapy sessions were scheduled for four hours a day, four to five times a
week. R. 612.
On June 23, 2008, Boydston saw Dr. Wilson. Boydston reported
some improvement, but he still had pain. On examination, Boydston had
limited range of motion in his back. Dr. Wilson stated that Boydston would
continue the physical therapy and return on July 21, 2008. In the interim,
Dr. Wilson said no work. R. 611.

Page 11 of 34

On July 2, 2008, Boydston saw Dr. Greenfield. Boydston reported
that his pain had improved. Boydston’s pain and functional impairment
were rated as mild. Boydston reported that the pain did not interfere with
his daily activities. Boydston reported that he was undergoing physical
therapy. Dr. Greenfield administered cervical facet injections. R. 456-57.
On July 17, 2008, Boydston saw Dr. Warach. He again reported that
his back pain, neck pain, and headaches were 90% better overall, but his
lumbosacral radiating pain persisted. Boydston reported that he completed
the work conditioning; he reported that the conditioning did not improve his
pain syndrome at all. Boydston reported that he was going to undergo
cervical facet injections by Dr. Greenfield in a week. Dr. Warach started
Boydston on a trial of Lyrica as an additional pain medication. R. 568.
On July 21, 2008, Boydston saw Dr. Wilson. Boydston continued to
complain about neck pain and low back pain. On examination, Boydston
had limited flexion along the neck. Straight leg testing in sitting position
was questionable at 30 degrees for reproducing pain. Boydston reported
that he was going to have surgery in Kansas City. R. 601. The records
from Dr. Greenfield in Kansas City give no indication that he recommended
surgery. R. 456-61. Furthermore, neither party cites any medical records
that reflect that any neck surgery was either recommended or performed.
Page 12 of 34

On July 23, 2008, Boydston terminated his work hardening therapy.
Boydston stated to the therapist that he was discontinuing therapy because
he was scheduled to have surgery on his neck. The therapist reported that
Boydston had met 50% when he terminated the therapy. R. 600.
On August 18, 2008, Boydston saw Dr. Warach. Boydston again
reported that he remained at a 90% improvement in his pain. Dr. Warach
changed Boydston’s Lyrica prescription. Dr. Warach also prescribed a
TENS unit for pain. R. 570.
On August 21, 2008, Boydston saw Dr. Wilson. Boydston reported
that another doctor told Boydston that he was permanently disabled.
Boydston rated his pain as a 7 on a scale of 10. Dr. Wilson opined that
Boydston was capable of performing some work and was not totally
disabled. Dr. Wilson opined that Boydston had reached his maximal
medical improvement and recommended a functional capacity evaluation
for determining his work status. R. 599.
On September 8, 2008, Boydston saw Dr. Warach. He again
reported 90% improvement. Dr. Warach changed the Lyrica prescription
again. Boydston reported that the TENS unit helped him cope with the low
back pain, but the unit did not reduce the pain. R. 571.

Page 13 of 34

On September 24, 2008, Boydston saw Dr. Wilson. Dr. Wilson stated
that Boydston could return to work with a 25 pound weight limit and no
lifting above the shoulder. R. 596.
On October 8, 2008, Boydston saw Dr. Warach. Boydston again
reported 90% improvement in his pain. He reported that the TENS unit
provided a definite benefit. He was taking Neurontin, Lyrica, and Ultram
daily, with Hydrocodone for pain occasionally as needed. Dr. Warach
stated that Boydston appeared to be at his maximum medical
improvement. R. 572.
On October 22, 2008, Boydston underwent a functional capacity
evaluation. R. 525-38. According to the evaluation recommendations,
Boydston could sit, stand, and walk eight hours a day with intermittent
change of position, and could function between the light and medium
demand level. R. 526. The recommendations indicated that Boydston
could occasionally bend at the waist with an extended reach, squat, kneel,
and half-kneel; and could occasionally to frequently climb stairs, slat climb,
reach with the upper extremities, and use a steering wheel. R. 526.
On November 25, 2008, Boydston saw Dr. Wilson. Dr. Wilson
reported no changes in Boydston’s condition. Dr. Wilson deferred to a

Page 14 of 34

Dr. Ward for limitations on returning to work. R. 593. Neither party
explains the identity of Dr. Ward.
On November 26, 2008, Boydston saw Dr. Warach. Dr. Warach
found that Boydston had reached his maximum medical improvement.
Dr. Warach stated that Boydston had a second functional capacity
evaluation in October 2008. Dr. Warach gave Boydston a slip to return to
work with the restrictions set forth in that functional capacity evaluation.
Dr. Warach also stated that Dr. Wilson had released Boydston to return to
work. R. 573.
On January 2, 2009, Boydston saw Dr. Warach. Boydston reported
that his pain and headaches had plateaued at 90% improvement.
Boydston reported lumbar back pain that radiated down his right leg.
Boydston reported some symptoms of depression, lack of motivation and
difficulty concentrating. Boydston denied any suicidal or homicidal
ideations. Dr. Warach referred Boydston to a psychiatrist. R. 574-75.
On January 6, 2009, Boydston saw Dr. Wilson. Dr. Wilson gave
Boydston a slip limiting him to light duty work with a twenty-five pound
weight limit on lifting, pushing, and pulling. R. 592.
On February 17, 2009, Boydston saw Dr. Wilson. Boydston reported
that he was having more neck and back pain, with some radicular pain
Page 15 of 34

down and to his buttocks. On examination, Boydston’s range of motion in
his neck was intact, but he had pain and discomfort on flexion and
extension. Dr. Wilson stated that Boydston could perform light duty limited
to sitting work or sedentary work in a recliner chair. R. 591.
On May 5, 2009, Boydston saw Dr. Wilson. Boydston complained of
back and neck pain. His wife came with Boydston and confirmed his
complaints of pain. Dr. Wilson changed Boydston at this time to no work
status. Dr. Wilson wrote:
PLAN:
Due to the change in his neck pain and due to the
fact it has been sometime since he has had an MRI of the neck,
I have ordered an MRI of the neck to be done at this time. In
the meantime, no work. Recheck after the MRI.
R. 589.
On May 19, 2009, Boydston underwent an MRI of his cervical spine
ordered by Dr. Wilson. The results showed mild straightening of the normal
cervical lordosis with partial disk desiccation at C4-C5. The results showed
no significant stenosis. R. 588.
On June 1, 2009, Boydston saw Dr. Wilson. Dr. Wilson stated that
the MRI showed no significant abnormalities other than a disk desiccation
at C4-C5. On examination, Boydston’s range of motion in his neck and
back was limited. Dr. Wilson continued Boydston on no work status.
R. 587.
Page 16 of 34

On July 17, 2009, Boydston applied for disability benefits. Boydston
alleged an onset date of July 18, 2007. R. 3.
On September 21, 2009, agency physician Dr. Marion Panepinto,
M.D., prepared a Physical Residual Functional Capacity Assessment.
R. 660-67. Dr. Panepinto opined that Boydston could lift twenty pounds
occasionally, and ten pounds frequently; sit, stand, and/or walk six hours in
an eight-hour day; and occasionally stoop; but had no other physical
functional limitations. R. 661-64. Dr. Panepinto opined that Boydston was
not “wholly credible—reported restrictions are not supported by objective
findings.” R. 667.
On November 5, 2009, Boydston saw Dr. Wilson. Dr. Wilson
assessed Boydston with chronic neck and back pain. He stated that
Boydston would continue off work. R. 671. Dr. Wilson filled out a work
status form in which he took Boydston off work. Dr. Wilson listed the
reason as chronic neck and back pain. R. 669.
On November 21, 2009, Boydston was given a vocational
assessment by a private vocational consultant. The vocational consultant
opined that there was not a stable labor market for suitable, gainful
employment in Boydston’s region. The consultant recommended
vocational rehabilitation to acquire new skills. R. 583.
Page 17 of 34

On December 4, 2009, Boydston saw Dr. Warach. Boydston
reported that his pain had gotten worse. Boydston reported that he was
only at a 40% improvement level overall since the accident. Boydston
reported lumbosacral pain that radiated down the right leg. He reported
right knee pain with occasional numbness in his toes. Dr. Warach’s
physical examination was unremarkable. Dr. Warach stated that Boydston
could return to work on a light duty basis. R. 680-83.
Dr. Warach ordered an MRI, x-rays, and another EMG/NCV study.
R. 682-83. The MRI and x-rays were unremarkable. R. 680. The
EMC/NCV studies showed some mild carpal tunnel syndrome, but no other
problems. On December 14, 2009, Dr. Warach recommended neutral
position wrist splints and injections. R. 677-78.
On December 21, 2009, Dr. Warach saw Boydston. Boydston
decided not to have any more injections. Dr. Warach again told Boydston
that he could perform light duty work. R. 675.
On January 20, 2010, agency physician Dr. Ruth Stoecker, M.D.
prepared a Physical Residual Functional Capacity Assessment.
R. 722-28. Dr. Stoecker opined that Boydston could lift twenty pounds
occasionally and ten pounds frequently; sit, stand and/or walk six hours in
an eight-hour day; balance occasionally; and climb, kneel, crouch, and
Page 18 of 34

crawl frequently. Dr. Stoecker opined that Boydston should avoid
concentrated exposure to vibration. R. 723-25. Dr. Stoecker opined that
Boydston would be limited “for constant flexion extension activities in his
wrists” due to carpal tunnel syndrome. R. 723-24. Dr. Stoecker opined
that Boydston otherwise had no physical functional limitations. R. 723-25.
Dr. Stoecker opined that Boydston’s statements were not credibly
supported by the medical records. R. 726.
On February 2, 2010, Boydston saw Dr. Wilson. Boydston reported
that he was having left hip pain. Boydston’s wife attended the appointment.
She reported that Boydston was experiencing memory loss and confusion.
Boydston reported having continuing neck pain. R. 757.
On March 30, 2010, Boydston saw Dr. Wilson. Boydston reported
that he can no longer read because of his neck pain. He also reported pain
between the shoulder blades, in his lower back, and in his left hip.
Boydston reported that he could not bend his neck and was using a cane to
walk because of the hip pain. R. 764.
On June 1, 2010, Boydston saw Dr. Wilson. Boydston reported that
he was at the end of his rope. Dr. Wilson stated that Boydston had multiple
myalgias. R. 785. On June 15, 2010, Boydston saw Dr. Wilson. Boydston
reported that he stopped taking a new medication because he became
Page 19 of 34

violent and had pain in the back of his head. Boydston also reported he got
a pinched nerve when he lifted or used his cane in public. Dr. Wilson
stated that Boydston was at his maximum medical improvement and was
still on no work at this time. R. 783-84.
On July 13, 2010, Boydston saw Dr. Wilson. Boydston reported that
he woke up with a headache on the right side. He also reported a burning
pain in his right leg and pain in his right shoulder. Dr. Wilson stated that
Boydston had a history of myofascial syndrome. R. 781-82.
On August 17, 2010, Boydston saw Dr. Wilson. Dr. Wilson
diagnosed myofascial syndrome. Dr. Wilson stated that Boydston had
been unable to work. Dr. Wilson stated that Boydston had to lie down
much of the day. R. 779-80.
On October 19, 2010, Boydston saw Dr. Wilson. Boydston reported
that he felt like he was “hit by a truck.” R. 777. Boydston reported he got
tired holding his head up. Dr. Wilson stated that Boydston had no alleged
improvement since the injury. R. 777-78.
On January 19, 2011, Boydston saw Dr. Wilson. Dr. Wilson stated
that Boydston had no change in his symptomatology or medicines.
Dr. Wilson assessed Boydston with myofascial syndrome. R. 775-76.

Page 20 of 34

On April 19, 2011, an evidentiary hearing was held before the
Administrative Law Judge (ALJ). R. 1-35. The ALJ presided in Chicago,
Illinois. Boydston and his counsel appeared by video conference from
Hannibal, Missouri. Vocational expert Jeff Goldfarb appeared. R. 3, 56.
Boydston testified first.
Boydston testified that about a month after the accident, he went
back to work for about a week. R. 14. He was limited to light duty. He
testified that he stopped because the pain became unmanageable. He
testified that his employer also did not have any light duty work. He
testified that his employer was not able to accommodate him with a light
duty position. R. 11. He testified that his employer tried to put him on
pulling orders. The job entailed lifting, pulling products off shelves and
packing them for shipment. He stood two to three hours a day and sat the
rest of the time. He lifted products that weighed between once ounce and
five pounds. Boydston testified that he kept getting sharp pains in his hip
and cramps in his hips. R. 13. He only worked the job for a week.
Boydston testified that Dr. Wilson told him he could no longer work
the light duty job pulling orders. He testified that Dr. Wilson told him he
was not supposed to be working. R. 15.

Page 21 of 34

Boydston testified that he has continued to have pain since the
accident. He testified that he had pain in his back, neck, and the right side
of his head. He testified that he had constant pain that never went away.
He testified that the level of pain fluctuated, but the pain never went away.
R. 17. Boydston testified that the pain became worse when he moved his
head, “Not supporting my head and moving my head, looking around a lot.”
R. 18.
Boydston testified that he used a sheet to support his head. He
wrapped the sheet around his neck. He testified that he could, “lay my
head on it to rest my muscles.” R. 18. He kept the sheet wrapped around
his neck for three hours on average. Boydston testified that he used a
sheet in this way five or six days a week. R. 18-19. Boydston also testified
that he lay down regularly to support his neck. He testified that he usually
lay down about five hours a day. R. 19-20.
Boydston testified that his pain level elevated if he could not use the
sheet or lie down to support his neck. Boydston testified that he had
constant headaches every day, but the headaches got worse, or “flared up”
if he did not support his neck. R. 20-21. He testified that the flare-ups
would last two to three hours. R. 22.

Page 22 of 34

Boydston testified that he took hydrocodone and gabapentin daily for
pain. He testified that the medication and headaches caused him to sleep
during the day. He testified that he fell asleep frequently, about once a day
in the afternoon. He testified that he usually slept for about two hours
during these episodes. R. 22-23.
Boydston testified that repeatedly looking down or looking around to
right or left aggravated his pain. Boydston testified that, due to the pain, he
could only look down for less than a minute and could only look around for
five minutes. Boydston testified that he could stand for an hour at a time
and for a total of about three hours in an eight-hour day. Boydston testified
that he could sit for an hour at a time and for a total of about three hours in
an eight-hour day. Boydston testified that for the remaining time he would
need to lie down and support his neck. R. 24-25.
Boydston testified that his back pain was different from his neck pain
and headaches. He described the back pain as a burning sensation
between the shoulder blades. He testified that he got the pain several
times a day, for a total of about five or six hours a day. He testified that he
typically experienced back pain about three times between 8:00 a.m. and
5:00 p.m. each day. He testified that he cannot carry more than twenty
pounds because of his back pain. R. 25-26.
Page 23 of 34

Boydston testified that he had pain in his right hip when he walked.
He testified that he could walk for an hour before the hip pain caused a
problem. Thereafter, he testified that he would have to use his cane. He
testified that he could walk a total of three hours in an eight-hour day either
standing or walking. R. 27-29.
Boydston testified that he could not sleep due to the pain. Boydston
stated, “I have days I stay up all the time.” R. 29. He testified that he
stayed up all the time, “Maybe two or three times a week.” R. 29.
Boydston testified that he would be “[i]ncredibly tired and weak” the next
day. R. 30.
Vocational expert Goldfarb then testified. The ALJ asked Goldfarb to
assume a person of Boydston’s age and education who could perform light
work but could only stand and walk for six hours in an eight-hour day; could
not constantly look down and from right to left; and could not lift above his
shoulders. R. 30-31. Goldfarb opined that such a person could perform
Boydston’s past work as a telemarketer, but none of his other past work.
R. 32. The ALJ noted that Boydston had some history of claustrophobia
and might have troubles working as a telemarketer if the job required
working in a booth. The ALJ asked Goldfarb the percentage of

Page 24 of 34

telemarketers that work in booths. Goldfarb opined that at least 75% of
telemarketers worked in booths. R. 32-33.
The ALJ asked Goldfarb if other jobs would be available that did not
require “too much bending over and too much turning of the head.” R. 34.
Goldfarb opined that such a person could perform a clerk job, of which
215,000 existed nationally, and 900 in the state; and a food and beverage
order clerk, of which 230,000 existed nationally, and 1,900 in the state.
R. 34.
Goldfarb opined that the person in the ALJ’s hypothetical question
could not work if he had to lie down two hours in an eight-hour day. R. 34.
Goldfarb also opined that if a person was off-task for fifteen percent of the
day, he could not perform the jobs Goldfarb identified. R. 35.
THE DECISION OF THE ALJ
The ALJ issued her decision on April 22, 2011. R. 56-74. 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).

Page 25 of 34

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). To meet this
requirement at Step 3, the claimant's condition must meet or be equal to
the criteria of one of the impairments specified in 20 C.F.R. Part 404
Subpart P, Appendix 1 (Listing). 20 C.F.R. §§ 404.1520(d), 416.920(d).
If the claimant is not so severely impaired, the ALJ proceeds to Step 4 of
the Analysis.
Step 4 requires the claimant not to be able to return to his prior work
considering his age, education, work experience, and 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).
Page 26 of 34

The ALJ found that Boydston met his burden as Steps 1 and 2 of the
Analysis. Boydston had not engaged in substantial gainful activity since
July 18, 2007, and he suffered from the severe impairments of myofascial
pain, headaches, obesity, chronic neck pain, and back pain. R. 58. At
Step 3, the ALJ found that Boydston did not have an impairment or
combination of impairments that met or equaled a Listing. R. 60.
At Step 4, the ALJ found that Boydston had the RFC to perform light
work, but with no lifting above his shoulders and without constant looking
down or looking left to right. R. 60. The ALJ relied on the functional
capacity evaluations and the opinions Dr. Warach. The ALJ also relied on
the fact that the medical tests did not show a condition that would cause
Boydston’s claimed limitations. R. 70. The ALJ also relied on the opinions
of Drs. Panepinto and Stoecker. R. 71.
The ALJ rejected Dr. Wilson’s opinions as inconsistent, conclusory,
and inconsistent with the other medical evidence. Dr. Wilson first stated
that Boydston could work in 2007 and 2008, but later took him off work in
2009. The ALJ found that Dr. Wilson failed to give an adequate
explanation for his opinion, and his opinion was inconsistent with the other
medical evidence in the record. R. 70.

Page 27 of 34

In making the RFC determination, the ALJ also found that Boydston’s
testimony about the severity of his symptoms was not credible. Boydston’s
description of his pain in the medical records was inconsistent. He told
Dr. Warach he had 90% improvement, but he told Dr. Wilson he had no
improvement. Boydston’s testimony was not consistent with the level of
treatment provided. Boydston’s testimony was also inconsistent with the
fact that both Drs. Warach and Wilson released him to work at light and
sedentary work several times. R. 71-72. The ALJ concluded,
The description of the symptoms and limitation which the
claimant has provided throughout the record has generally
been inconsistent and unpersuasive. His symptoms are
unusual and are not typical for the impairments which are
documented by medical findings in this case.
R. 72. The ALJ concluded at Step 4 that Boydston could not perform his
past relevant work. R. 72.
At Step 5, the ALJ found that Boydston could perform a significant
number of jobs that exist in the national economy. The ALJ relied on the
RFC determination; the Medical-Vocational Guidelines, 20 C.F.R. Part 404,
Subpart P, Appendix 2; and the opinions of vocational expert Goldfarb that
Boydston could perform the charge account clerk job and food and
beverage order clerk job. R. 73. The ALJ concluded that Boydston was
not disabled. R. 74.
Page 28 of 34

Boydston appealed the decision of the ALJ. On September 25, 2012,
the Appeals Council denied Boydston’s request for review. The decision of
the ALJ then became the final decision of the Defendant Commissioner.
R. 36. Boydston then filed 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).3 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).

3

Boydston makes brief reference to medical records submitted after the ALJ issued her decision.
Boydston Brief, at 9 (citing R. 805-808). These records are not relevant to the review sought in this case.

Page 29 of 34

The ALJ must “build an accurate and logical bridge from the evidence to his
conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
The decision of the ALJ is supported by substantial evidence. The
RFC finding is supported by the opinion of Boydston’s treating physician
Dr. Warach, by the two functional capacity evaluations, and the opinions of
agency physicians Drs. Panepinto and Stoecker. The ALJ’s finding at
Step 5 that Boydston could perform a substantial number of jobs in the
national economy is supported by the RFC finding and the opinions of
vocational expert Goldfarb. Thus, the ALJ’s determination that Boydston
was not disabled is supported by substantial evidence.
Boydston argues that the ALJ erred in giving little weight to
Dr. Wilson’s opinions. Boydston argues that the evidence supports
Dr. Wilson’s opinions. The issue is not whether some evidence in the
record supports a medical opinion that was rejected by the ALJ. The
question is whether the ALJ’s decision to reject the medical opinion is
supported by substantial evidence. Clearly, such substantial evidence
exists in this record. Dr. Wilson’s opinions conflicted with the opinion of
another treating physician, Dr. Warach. Dr. Wilson’s opinions conflicted
with the functional capacity evaluations in the record. Dr. Wilson’s opinions
conflicted with the opinions of agency physicians Drs. Panepinto and
Page 30 of 34

Stoecker. The ALJ’s decision to discount Dr. Wilson’s opinions is
supported by substantial evidence.
Boydston argues that the ALJ erred in failing to develop the record
sufficiently. The ALJ stated in her decision, “Dr. Wilson’s opinion is
conclusory, providing very little explanation of the evidence relied on in
forming that opinion.” R. 70. Boydston argues that the ALJ should have
sought additional information from Dr. Wilson regarding the basis for his
opinion in order to meet her obligation to fully develop the record.
Boydston Brief, at 9-10.
The Court disagrees. The ALJ has an obligation to contact a
physician or otherwise develop the record if the evidence in the record is
inadequate to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1527(c)(3). In this case the record was amply developed. Boydston
submitted years and years of detailed medical records. The ALJ reviewed
those records meticulously. See R. 61-69. She had more than sufficient
information on which to make her decision. The deficiencies in Dr. Wilson’s
opinions did not detract from the ample other evidence in the record that
allowed the ALJ to make a determination. The Court sees no error in not
developing the record further.

Page 31 of 34

Boydston argues that the ALJ erred in not complying with the
requirements of SSR 82-59 when she found that Boydston was not
compliant with medical recommendations for treatment. The ALJ stated
that Boydston “failed to follow the recommendations made by treating
doctors . . . .” R. 72. The Commission has set forth a detailed set of
findings that an ALJ must make in order to determine that a claimant was
not disabled because he did not follow recommended treatment. SSR 8259. Boydston argues that the ALJ erred because she failed to make these
findings.
The Court disagrees. SSR 82-59 applies when an ALJ determines
that a person is disabled because he failed to follow recommended
treatment. The ALJ, however, did not find in this case the Boydston was
disabled because he failed to follow medical treatment. Rather, the ALJ
found that Boydston was not disabled in his current condition even though
he failed to follow medical treatment. R. 72. The ALJ referred to
Boydston’s failures to follow suggested treatment in connection with her
credibility determination. She did not find that he was disabled because he

Page 32 of 34

failed to follow medical treatment. SSR 82-59 does not apply. There was
no error.4
Lastly, Boydston argues that the ALJ erred in her credibility
determination. Boydston argues that the ALJ used only boilerplate
language to justify her credibility determination. The Court disagrees. The
ALJ explained the basis for her credibility determination. Boydston’s
statements in the record were inconsistent and his testimony was
inconsistent with the medical record. R. 72. Ample evidence in the record
supports this conclusion. Throughout 2008, Boydston reported to
Dr. Warach that he reached 90% improvement in his pain level since the
accident (e.g., April 10, 2008, R. 562)); during the same time period he told
Dr. Wilson that he had no improvement or little improvement (e.g., April 22,
2008, R. 622-23). Boydston reported to Dr. Warach that he completed the
work hardening therapy, but the therapy records show Boydston terminated
his course of therapy early because Boydston told the therapist he was
going to have neck surgery. R. 568, R. 600. The medical records give no
indication of any such surgery. Boydston testified at the hearing that he
slept every day for two hours in the afternoon due to his medications.
4

Boydston also criticizes the ALJ for commenting on the possibility that Dr. Wilson may have been
motivated out of sympathy for his patient Boydston. See R. 70; Boydston Brief, at 10. Boydston argues
that the comment demonstrates that the ALJ was biased against him. Boydston presents no evidence to
support his speculation, and the Court sees no evidence of bias in the record. The ALJ’s decision shows
that she made a fair and impartial decision based on a careful review of the record.

Page 33 of 34

R. 22-23. Moments later he testified his pain kept him awake “all the time,”
night and day, two to three days a week. R. 29-30. These inconsistencies
in the record provide more than enough evidence to support the ALJ’s
credibility determination. This Court will not disturb the finding.
WHEREFORE Defendant Commissioner of Social Security has filed
a Motion for Summary Affirmance (d/e 12) is ALLOWED, and Plaintiff
Boydston Brief in Support of Motion for Summary Judgment (d/e 10) is
DENIED. The decision of the Commissioner is affirmed.
THIS CASE IS CLOSED.
ENTER: January 24, 2014

s/ Byron G. Cudmore
UNITED STATES MAGISTRATE JUDGE

Page 34 of 34