Henderson v. Commissioner of Social Security

Filing 15

OPINION denying 10 Plaintiff's Motion for Summary Judgment; granting 13 Defendant's Motion for Summary Judgment. Clerk to enter a judgment affirming the decision of the commissioner of Social Security. Entered by Judge Richard Mills on 02/09/2017. Entered by Judge Richard Mills on 02/09/2017. (SKN, ilcd)

E-FILED

Friday, 10 February, 2017 03:38:17 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SHAWNETTA D. HENDERSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

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NO. 13-3201

OPINION
RICHARD MILLS, U.S. District Judge:
This is an action for judicial review of a final decision of the
Defendant, Commissioner of Social Security, in determining that Plaintiff
was no longer disabled as of April 1, 2010, under the Social Security Act.
Pending are Motions for Summary Judgment filed by both parties.
I. INTRODUCTION
On March 21, 2005, the Defendant found that Plaintiff Shawnetta
Henderson was disabled and had been so since August 1, 2002, due to
metastatic thyroid cancer. On July 27, 2007, it was determined that her

disability continued. In December 2009, her claim was again reviewed as
part of the continuing disability review process and, on April 23, 2010, the
Defendant determined that Plaintiff was no longer disabled due to medical
improvement. The Plaintiff’s initial appeal was denied and she requested
a hearing before an administrative law judge (ALJ), which was held by video
on January 10, 2012. The Plaintiff appeared pro se.
ALJ Diane Flebbe issued a written decision on April 2, 2012, affirming
the cessation determination. The Plaintiff obtained counsel and appealed.
The Appeals Council declined the Plaintiff’s request for review on May 29,
2013. This appeal followed.
II. ALJ’s DECISION
The ALJ noted that the most recent favorable medical decision finding
that Plaintiff was disabled is the decision dated March 21, 2005. This is
known as the “comparison point decision.” At the time of the comparison
point decision, the Social Security Administration determined that Plaintiff
was disabled due to thyroid cancer.
The ALJ found that through April 1, 2010, the Plaintiff did not

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engage in substantial gainful activity as defined by 20 C.F.R. §
404.1594(f)(1). As of April 1, 2010, the Plaintiff’s medically determinable
impairments included hypothyroid and hypoparathyroid, hypertension,
congestive heart failure, obstructive sleep apnea, asthma, obesity and
diabetes mellitus with blurred vision. Since April 1, 2010, the Plaintiff did
not have an impairment or combination of impairments which met or
medically equaled the severity of an impairment listed in 20 C.F.R. Para.
404, Subpart P, Appendix 1 (Listing of Impairments). The ALJ found that
medical improvement as defined by 20 C.F.R. § 404.1594(b)(1) occurred
as of April 1, 2010.
The ALJ noted that as of April 1, 2010, the Plaintiff’s thyroid cancer
had decreased in medical severity to the point the Plaintiff had the residual
functional capacity to perform a reduced amount of sedentary work. The
Plaintiff’s medical improvement was related to her ability to work because
it resulted in an increase in her residual functional capacity. As of April 1,
2010, the Plaintiff had severe impairments that caused more than minimal
limitations in her ability to perform basic work activities. The ALJ found

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that based on the impairments present as of April 1, 2010, the Plaintiff had
the residual functional capacity to perform sedentary work involving only
occasional climbing of ramps or stairs; only occasional postural activities;
no climbing of ladders, ropes or scaffolds; no hazards such as dangerous
machinery and unprotected heights; and no concentrated exposure to
extreme cold, fumes, odors, dust, gases or other environmental irritants.
The ALJ noted that as of April 1, 2010, the Plaintiff was unable to
perform her past relevant work. At the time, the Plaintiff was a younger
individual.

The Plaintiff has a high school education and is able to

communicate in English. As of April 1, 2010, considering the Plaintiff’s
age, education, work experience and residual functional capacities based on
the impairments present as of April 1, 2010, the Plaintiff was able to
perform a significant number of jobs in the national economy.
The ALJ found that Plaintiff’s disability ended as of April 1, 2010.

III. DISCUSSION
The Plaintiff alleges the ALJ committed error in several respects.

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First, the Plaintiff did not knowingly and intelligently waive her right to
counsel.

Second, the ALJ did not adequately develop the record in

considering the claim of an unrepresented individual. Third, the ALJ’s
residual functional capacity analysis at Step 8 is flawed.
A. Standard of review
When, as here, the Appeals Council denies review, the ALJ’s decision
stands as the final decision of the Commissioner. See Schaaf v. Astrue, 602
F.3d 869, 874 (7th Cir. 2010). The Act specifies that “the 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). “Substantial evidence”
is defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Yurt v. Colvin, 758 F.3d 850, 856 (7th
Cir. 2014) (citations omitted). Although the Court’s task is not to re-weigh
evidence or substitute its judgment for that of the ALJ, the ALJ’s decision
“must provide enough discussion for [the Court] to afford [the Plaintiff]
meaningful judicial review and assess the validity of the agency’s ultimate
conclusion.” Id. at 856-57.

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A “continuing disability review” process is one that periodically
evaluates whether a claimant’s impairments still qualify the claimant for
benefits. See 20 C.F.R. § 404.1589; Johnson v. Apfel, 191 F.3d 770, 773
(7th Cir. 1999). The eight step process in determining whether a person,
disabled by administrative determination, has medically improved to the
point of becoming no longer disabled is as follows:
(1) Is the claimant engaged in substantial gainful activity? If so the
claimant is not disabled; if not the inquiry moves to step 2;
(2) Does the claimant’s impairment meet or medically equal one of
Social Security’s listed impairments? If so, the claimant is still disabled; if
not the inquiry moves to step 3;
(3) Has there been medical improvement?

If not, the disability

continues; if so, the inquiry proceeds;
(4) Is the medical improvement related to an ability to work? If not,
the disability continues; if so, the inquiry continues;
(5) Does an exception to medical improvement apply? If so, the
disability ceases; if not, the inquiry proceeds;

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(6) Does the claimant still suffer from severe impairments? If not, the
disability has ceased; if so the inquiry continues;
(7) Do the medically determined impairments prevent performance
of past work? If not, the disability ceases; if so, the inquiry continues;
(8) Do the impairments prevent the performance of other work which
exists in significant numbers of the national economy which the claimant
can still perform, given vocational factors of age, education, past work
experience, and residual functional capacity?

If yes, the disability

continues; if not, the disability ceases. See 20 C.F.R. § 404.1594.
The Court’s inquiry concerns the Plaintiff’s condition at the time of
the disability termination date, which was April 1, 2010. See Johnson v.
Apfel, 191 F.3d 770, 774 (7th Cir. 1999) (“[T]he ALJ will consider a
claimant’s condition at the time of the cessation determination, not at the
time the appeal determination is being made.”). The analysis must end if
an adjudicator such as the ALJ finds that the cessation determination was
proper. See id.
B. Right to counsel

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A claimant has a statutory right to counsel at a disability hearing. See
42 U.S.C. § 406(a)(1). A claimant must be properly informed of the right,
though she is entitled to waive the right of counsel. See Skinner v. Astrue,
478 F.3d 836, 841 (7th Cir. 2007). “To ensure valid waivers, ALJs must
explain to pro se complaints (1) the manner in which an attorney can aid
in the proceedings, (2) the possibility of free counsel or a contingency
arrangement, and (3) the limitation on attorney fees to 25 percent of past
due benefits and required court approval of the fees.”

Id. (internal

quotation marks and citation omitted); see also Thompson v. Sullivan, 933
F.2d 581, 585-86 (7th Cir. 1991). An ALJ’s failure to obtain a valid waiver
of counsel heightens her duty to develop the record. See id.
ALJ Flebbe’s inquiry regarding representation and waiver is as follows:
ALJ: You come today without a representative. At least a
couple of times in the past we sent you information about the
right of representation. Most recently that would have been
along with your notice of hearing. Do you remember getting
that from us?
CLMT: Yes. No one wanted to represent me.
ALJ: I’m sorry?
CLMT: I had a hard time finding people to represent me.
ALJ: Yeah, so you have tried to find representation?
CLMT: Yes.
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ALJ: And you did not acquire any?
CLMT: No, I - - no one wanted to help me. I was denied.
ALJ: Okay.
CLMT: I did - ALJ: So are you prepared to go forward today without a
representative?
CLMT: Yeah, I believe so.
R. 37-38. Subsequently, the following exchange took place:
ALJ: We went over the - - about the right of representation and
that you haven’t had any success in obtaining counsel, and
you’re prepared to go forward today without. Is that correct?
CLMT: Yes. I’m having a hard time. No one wants to help me.
No one.
ALJ: Well, then your choice is you can say that you don’t want
to hold the hearing at all and just rely on the previous decision
or we can forward with the hearing. I mean - CLMT: No, I’m not going to allow - ALJ: - - I have no power to, I have no power to order attorneys
to take the case.
CLMT: I can’t just go off - ALJ: If you look - CLMT: - - the decision when it’s - ALJ: - - for one and there isn’t one who wants to help you, I, I
don’t, I’m - CLMT: I’m not going to go - ALJ: So you want to go forward then?
CLMT: Yes. Because I’m not going to go that I’m not disabled
because it’s untrue. It’s not like - ALJ: Okay.
R. 46. The Plaintiff alleges that the notice regarding representation and

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this cursory inquiry were insufficient to establish a valid waiver. The
Plaintiff claims she also should have been given an explanation of the right
to counsel. The ALJ should have ensured the Plaintiff understood the right
and had done what could be done to obtain either free counsel or to explain
fee payment possibilities and perhaps give her more time to secure counsel
armed with appropriate information.
The Plaintiff stated that she wanted counsel but had not been able to
obtain counsel. The ALJ did not inquire which, if any, of the numerous
legal aid agencies on the list given to her she may have tried to contact or
the methods she used to try to obtain counsel. The Plaintiff alleges that the
ALJ forced her into either accepting the denial of her claim or proceeding
without an attorney. Because the ALJ did not adequately cover these
matters, the Plaintiff contends she did not knowingly or intelligently waiver
her right to counsel.
The record shows that, consistent with statutory requirements, the
Social Security Administration advised the Plaintiff on numerous occasions
that she could obtain an attorney to help with her claim for disability

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insurance benefits. The Plaintiff was provided information which included
a list of legal aid agencies who provided legal services to qualified claimants.
The Defendant acknowledges that the ALJ did not explicitly discuss
attorney fee payment structures with the Plaintiff during the hearing.
The Seventh Circuit has said that the ALJ is required to explain
certain procedures regarding the right to counsel in order for a pro se
claimant’s waiver to be valid. See Skinner, 478 F.3d at 841; Binion v.
Shalala, 13 F.3d 243, 244 (7th Cir. 1994). Here, the Plaintiff received
paperwork from the Social Security Administration about the right to
counsel and her potential options. The ALJ confirmed that she received
these materials. However, the ALJ did not make any further inquiry. The
Plaintiff clearly stated that she would like to have counsel but could not
obtain counsel–implying that a lack of funds was the reason.

At a

minimum the ALJ should then have discussed with the Plaintiff “the
possibility of free counsel or a contingency arrangement.” See Skinner, 478
F.3d at 841. Because the ALJ made no such inquiry, the Court concludes
she did not obtain a valid waiver of counsel.

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“The ALJ’s failure to obtain a valid waiver of counsel heightens [her]
duty to develop the record.” Id. Accordingly, the Defendant has the
burden to show that the ALJ adequately developed the record. See id. at
842.
B. Development of record
The ALJ must “probe[] the claimant for possible disabilities and
uncover[] all of the relevant evidence.” See Binion, 13 F.3d at 245. The
ALJ is required to “scrupulously and conscientiously probe into, inquire of,
and explore for all of the relevant facts” when a claimant is unrepresented.
See id. The difficulty is knowing when a record is complete because a
claimant could always obtain another medical examination, seek the views
of another consultant or wait a few months to see if the claimant’s
condition changes. See Kendrick v. Shalala, 998 F.2d 455, 456-57 (7th
Cir. 1993). “How much is enough is a subject on which reasonable persons
can differ.” Id. at 457. The Plaintiff alleges that although the ALJ’s
medical staff gathered much medical evidence, ALJ Flebbe did not do
enough here to adequately develop the record.

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At the hearing, the Plaintiff mentioned a conversation she had with
a lawyer who had not taken her case. The lawyer advised the Plaintiff of
the criteria for disability to discuss with her doctors and, when she did, the
Plaintiff’s doctor indicated she was disabled. The Plaintiff alleges that,
while the ALJ obtained medical records, there is nothing to suggest that any
of the physicians of record were asked about any specific restrictions or
limitations or disabilities, even though the context in which the Plaintiff
told the ALJ about her conversation with the doctor concerned ALJ Flebbe’s
remarks that no doctors had placed any specific limitations on her activity.
The Plaintiff also told the ALJ that she had advised her claims adjudicator
of this (at the lower level of the administrative process) and she thought
they had requested the appropriate records. Although the ALJ is authorized
to send requests to treating physicians for such reports, no statements were
requested. At the hearing, the Plaintiff expressed surprise that no such
statements were in the record.
The Defendant notes that the hearing transcript shows that the ALJ
discussed the proceedings with the Plaintiff so that she understood what

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was happening and the type of medical evidence that was relevant. The ALJ
asked questions of the Plaintiff to ensure that the Agency had obtained all
of the relevant medical evidence. When the Plaintiff suggested there were
gaps in the medical records, the ALJ discussed the medical evidence with
the Plaintiff and asked specific questions to ensure that the Agency could
request any missing documentation. The ALJ summarized the requests that
the Agency sent to the Plaintiff’s various medical providers and the
responses received thereto. The Plaintiff claimed that some of medical
records were missing from the file.

The ALJ noted that some of the

documents she believed to be missing were relevant to her 2005 application
for disability benefits, which was granted and no longer relevant to her
current cessation of disability hearing. The ALJ explained that the focus
was on how the Plaintiff was doing as of April 2010. The ALJ inquired as
to whether any documents were missing dated 2009 through the present.
The Plaintiff claimed that several records from Memorial Medical Center
and St. John’s Hospital were missing. The ALJ discussed the medical
records in the file with the Plaintiff and determined that almost all of the

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records had been obtained by the Agency.
The Plaintiff maintained that records were missing from three sources:
Loyola Hospital, the SIU Clinic and Capital Community Health Center.
The ALJ noted that SIU indicated they had not treated the Plaintiff since
2010, though she told the Plaintiff the Agency would submit an additional
request for any records dated 2009 through the present. The ALJ also told
the Plaintiff that the Agency would submit a request for documents from
Loyola, which were not in the record. When the Plaintiff also stated that
she had last visited Capital Community Health Center in December 2011.
the ALJ told her that the Agency would request any records from Capitol
since 2011. The Plaintiff stated she understood that the Agency could only
request records from medical providers identified by the Plaintiff. The ALJ
also explained that the Agency would request the allegedly missing medical
records, though there was nothing it could do if the medical providers
responded that no such records existed. The Plaintiff stated that she
understood.
The Agency did request the additional records identified by the

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Plaintiff. The day after the Plaintiff’s administrative hearing, the Agency
sent requests for medical records to SIU Healthcare and Capitol
Community Health Center, both of which sent medical records in response
to the requests. Moreover, Loyola University Medical Center sent both
inpatient and outpatient records from 2011.
The Plaintiff claims that, following the hearing, the ALJ’s staff only
requested office treatment notes, not requests for a statement from any
treating physician. The Plaintiff contends that this violated the ALJ’s duty
to develop the record, particularly given that the ALJ relied on the lack of
a medical source statement supporting the claim as a reason to deny it:
There is an absence of medical opinions specifically addressing
the impact of the claimant’s obesity on her other impairments
and any attendant functional abilities. Although, it is clear that
the claimant’s medical providers are concerned about the
claimant’s weight as she has been advised to lose weight.
Absent such medical opinion, the undersigned finds the
claimant’s obesity clearly has an impact on her functionality,
but does not impact this functionality beyond the residual
functional capacity assessment set forth above. . . The
undersigned notes there are no treatment provider opinions or
medical source statements limiting the claimant’s functioning
. . . It is noted however that the claimant has at times when
seen for medical treatment or follow up reported attending
school and even engaging in work. Nothing in the medical
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record reflects that any medical provider found such activities
contraindicated.
R. 27. Because the ALJ relied on the absence of medical source statements
and records in deciding that Plaintiff’s disability had ended, the Plaintiff
contends that the ALJ failed to fully develop the record when she did not
request that the medical providers complete simple forms or provide a
narrative statement of the information she found lacking.
The Plaintiff alleges the ALJ failed to sufficiently inquire about her
edema or the fact that she has been hyperthyroid and hyperparathyroid
since her cancer surgery (removal of both glands).

Additionally, the

Plaintiff is morbidly obese. The Plaintiff notes that all of these conditions
can be expected to affect edema or relate to edema and lower extremity
pain. Although many medical authorities recommend elevation of the legs
above the level of the heart as an appropriate method to relieve edema, this
was not included in either the assessed functional capacity or in the
hypothetical questions posed to the vocational expert at the hearing.
To the extent the Plaintiff claims that one of her doctors at Capital
Community Health Center told her she was disabled, the Defendant notes
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that the ALJ requested all documents from Capital Community Health
Center from 2009 through the present and none of the documents support
the kind of functional limitations suggested by the Plaintiff. Although the
Plaintiff suggests that the ALJ had a duty to specifically request a medical
opinion from a provider specifying the Plaintiff’s functional limitations, the
Plaintiff did not disclose the physician by name or provide details of the
treating relationship. The ALJ cited records from Capitol Community
Health Center multiple times in her written decision, but noted that these
records indicated mostly normal physical exams, mostly normal imaging
and diagnostic testing and noncompliance with medication and inhalers.
The record shows that the ALJ requested all medical records from the time
period noted by the Plaintiff in the administrative hearing and considered
those records in coming to her decision.
The Plaintiff has pointed to no authority suggesting that the ALJ was
required to do more than was done in this case. There was evidence of the
Plaintiff’s functional limitations and the ALJ tried to obtain any missing
information. “Mere conjecture or speculation that additional evidence

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might have been obtained in the case” is not enough. See Binion, 13 F.3d
at 246. The ALJ considered a record of over 1,300 pages, nearly 1,000
pages of which consisted of medical records. These included treatment
notes, records of physical examinations, diagnostic and laboratory testing,
records of a consultative examination by Vittal Chapa, M.D., and two
medical source opinions by consultative physicians Virgilio Pilapil, M.D.,
and Charles Kenney, M.D.
Based on the volume of the record and given that the ALJ appears to
have made efforts to obtain all of the records that existed, the ALJ had no
obligation to continue to obtain another medical source opinion. See
Kendrick, 998 F.2d at 458. The Court concludes that the ALJ acted
reasonably to obtain more records.

The Plaintiff has not shown that

records exist that would warrant a remand. After obtaining the evidence
that she discussed with the Plaintiff at the hearing, the ALJ proffered the
evidence to the Plaintiff before adding it to the record. The ALJ expressly
advised the Plaintiff that she could review the records, submit written
comments and a written statement, submit any additional records, submit

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written questions–including questions to the authors of the records–and/or
request a supplemental hearing to address the additional evidence. This
procedure was also explained to the Plaintiff at the hearing. The letter
specifically advised the Plaintiff that she could submit records from the
treating physician. However, the Plaintiff did not avail herself of any of
these remedies.
Based on the foregoing, the Court concludes that the ALJ adequately
developed the record. Because the ALJ fully and fairly developed the record
and the Plaintiff was not prejudiced by her lack of counsel, the Court
concludes that a remand on that basis is not warranted.
C. Residual functional capacity analysis
The ALJ found that Plaintiff “has the residual functional capacity to
perform sedentary work as defined in 20 C.F.R. § 404.1567(a) but is
limited to work involving only occasional climbing of ramps or stairs and
only occasional balancing, stooping, kneeling, crouching, or crawling. The
claimant is limited to work involving no climbing of ladders, ropes or
scaffolds. The claimant is limited to work involving no hazards such as

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dangerous machinery and unprotected heights. The claimant is limited to
work involving no concentrated exposure to extreme cold, fumes, odors,
dust, gases or other environmental irritants.” R. 22. The Plaintiff contends
that the ALJ’s residual functional capacity analysis is flawed because it did
not account for all of the evidence of record as it must under 20 C.F.R. §
404.1545(a)(1). Specifically, the Plaintiff asserts the ALJ did not include
any restriction related specifically to the Plaintiff’s edema. Because the ALJ
used the above residual functional capacity in a hypothetical question to
the vocational expert, the Plaintiff alleges that the hypothetical question to
the vocational expert did not include all of the necessary information. The
vocational expert must know the full extent of an applicant’s limitations in
order to declare what type of work she can perform.

See Young v.

Barnhart, 362 F.3d 995, 1003 (7th Cir. 2004).
The Plaintiff alleges she provided the ALJ with enough information
about her edema at the hearing that it should have triggered a basic inquiry
about the nature and limiting effects of an impairment that ALJ Flebbe
notes is referenced in the medical evidence by Social Security’s own

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consulting physician, Dr. Chapa, who saw the Plaintiff and declared she
had 2+ edema at the very point when her disability allegedly ceased. The
Plaintiff testified that it was severe enough that she could not get up at
times. In August 2009, the Plaintiff had severe 3+ edema, which required
diuresis in the hospital with significant fluid removal.
The Plaintiff also noted that swelling was a significant component of
her continuing disability in written submissions. Swelling was the major
complaint in her “function report” forms.
To the extent more information was needed, the Plaintiff contends
the ALJ should have developed the record and requested additional medical
evaluations.

The Plaintiff contends that the failure to include a leg

elevation requirement in either the assessed residual functional capacity or
in the hypothetical question to the vocational expert is reversible error.
As the Defendant notes, the ALJ did consider a June 11, 2010 medical
source opinion from state agency consultative physician Dr. Kenney, who
found that Plaintiff had a 2+ edema in the legs, but opined that Plaintiff
could perform a limited range of sedentary work. The ALJ also considered

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an April 22, 2011 medical source opinion of state agency consultant Dr.
Pilapil, who reviewed the record and concluded that Plaintiff’s consultative
examination “was completely within normal limits with the exception of
obesity, 2+ edema and blood pressure of 150/94.” R. 25, 958-65. Dr.
Pilapil opined that Plaintiff could perform a limited range of light exertional
work. The ALJ rejected Dr. Pilapil’s opinion, in giving the Plaintiff “the full
benefit of the doubt in limiting her to sedentary exertional work as set forth
above.” R. 25.
The Defendant notes that there were two opinions from medical
sources in the record, both of whom agreed that Plaintiff had 2+ edema in
her legs at the time the opinions were rendered.

The ALJ’s residual

functional capacity finding was more restrictive than one of the opinions
and essentially equal to the other.
The ALJ specifically noted that Plaintiff testified she has edema in her
legs and could only walk half a block. The ALJ considered the April 2010
consultative examination with Dr. Chapa, who found that Plaintiff had 2+
edema in her legs. The ALJ considered treatment notes post-dating the two

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state agency medical consultant opinions, stating that Plaintiff was treated
with medication following complaints of edema in the legs at medical
appointments in April and May 2011. The ALJ observed that, in May
2011, the Plaintiff’s edema improved after her medication was increased.
From August 2011 through December 2011, treating medical sources
noted that either the Plaintiff had no edema in her legs or that Plaintiff’s
edema had been resolved with medication. In one October 2011 treatment
note, Dr. Hashim noted that Plaintiff was positive for edema but also was
very confused and had been noncompliant with her medications. The ALJ
noted that, by December 2011, the Plaintiff’s edema had resolved. She was
taken off her medication but told she could resume if the swelling returned.
Although the Plaintiff alleges her residual functional capacity should
have included a need to elevate her legs because that is a common
treatment for serious edema, the Court finds that the ALJ reasonably relied
on Dr. Kenney’s opinion that Plaintiff’s edema left her with the ability to
perform sedentary work without any requirement to elevate her legs. The
Plaintiff never testified she needed to elevate her legs.

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The medical

evidence of record does not support the Plaintiff’s assertion regarding the
need to elevate her legs. The record shows that, in assessing the Plaintiff’s
residual functional capacity, the ALJ considered the treatment notes related
to the Plaintiff’s edema, the medical source opinions by the state agency
consultants and the April 2010 consultative examination with Dr. Chapa.
Based on all of this information, the ALJ concluded that the Plaintiff “is
limited by . . . occasional edema.” As the Defendant notes, no doctor
recommended that Plaintiff elevate her legs for edema and, in fact, the
Plaintiff’s treating doctors report that the edema had resolved by December
2011, the month before the administrative hearing took place.
For all of these reasons, the Court finds that Plaintiff’s allegations
regarding the need to elevate her legs due to edema are without support in
the record. The ALJ considered all of the relevant evidence related to the
Plaintiff’s edema. The Court concludes that the ALJ’s residual functional
capacity finding is supported by substantial evidence.
IV. CONCLUSION
Based on the foregoing, the Court finds that although ALJ Flebbe did

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not obtain a valid waiver of counsel, the ALJ adequately developed the
record. The Court further concludes that the ALJ’s decision is supported
by substantial evidence and, for that reason, the decision will be affirmed.
Ergo, the Plaintiff’s Motion for Summary Judgment [d/e 10] is
DENIED.
The Defendant’s Motion for Summary Affirmance [d/e 13] is
ALLOWED.
Pursuant to 42 U.S.C. § 405(g), the Clerk will enter a judgment
affirming the decision of the Commissioner of Social Security.
ENTER: February 9, 2016
FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge

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