Flickinger v. Commissioner of Social Security

Filing 15

OPINION BY RICHARD MILLS, U.S. District Judge: The Motion of Plaintiff David C. Flickinger for Summary Judgment (d/e 6 ) is DENIED. The Amended Motion of Defendant Commissioner of Social Security for Summary Affirmance (d/e 12 ) is ALLOWED. The Clerk will enter Judgment and terminate this case. SEE WRITTEN OPINION. Entered on 9/16/2015. (MJ, ilcd)

E-FILED

Wednesday, 16 September, 2015 03:27:27 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DAVID C. FLICKINGER,

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Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

NO. 13-3225

OPINION
RICHARD MILLS, U.S. District Judge:
This is an action for social security disability insurance benefits,
wherein the Plaintiff seeks review of an adverse administrative decision
pursuant to 42 U.S.C. § 405(g).

Pending before the Court are the

Plaintiff’s Motion for Summary Judgment and the Defendant’s Motion for
Summary Affirmance.
I. INTRODUCTION
On July 27, 2010, Plaintiff David C. Flickinger applied for disability
insurance benefits, alleging he had been disabled since December 31, 2002.

The Plaintiff’s Date Last Insured is September 30, 2008.
The Plaintiff’s claim was denied initially and upon reconsideration.
He requested a hearing, which was held on February 22, 2012.

The

Administrative Law Judge (ALJ) issued a decision on March 13, 2012,
denying the Plaintiff’s benefits. The Appeals Council denied the Plaintiff’s
request for review on May 31, 2013. Having exhausted all administrative
remedies, the Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g).
II. BACKGROUND
A. Plaintiff’s history and medical impairments
The Plaintiff was born on November 21, 1956. He was 46 years old
at the time of his alleged onset date and 51 on his Date Last Insured. The
Plaintiff is a high school graduate who attended college.
According to Jeffrey Horvath, M.D., a rheumatologist, the Plaintiff’s
osteoarthritis symptoms since April of 2003 primarily affected his hands.
Although Diclofenac initially provided some relief, the Plaintiff continued
to experience discomfort in his hands. In 2004, the Plaintiff was also
prescribed Tylenol #3 for severe pain.

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The medication doses were

increased in 2005 and 2006. Dr. Horvath continued to note osteoarthritic
changes, though the Plaintiff’s pain remained fairly stable. In 2007, Dr.
Horvath switched the Plaintiff’s prescription from Diclofenac to
Ketoprofen. In 2008, the Plaintiff stated he was doing “okay.” The doctor
noted osteoarthritic changes and no changes were made to medication. In
2009, the Plaintiff was unsure whether Ketoprofen was helping so the
doctor switched the prescription to Nambumetone.
In April of 2010, Dr. Horvath noted that Plaintiff continued to suffer
from severe osteoarthritis of the hands. The Plaintiff was doing well on
Nambumetone but stated that because he is in the coin business and does
a fine manipulation of work all day, he continued to experience pain in his
fingers. He reported sometimes taking more than the allotted Tylenol #3,
which concerned the doctor. They discussed the possibility of a pain
management referral. The blood work done earlier in the year was fine.
In February of 2011, Dr. Horvath decided to treat the Plaintiff’s
osteoarthritis with an injection of the left fourth PIP joint. In May of
2011, the doctor observed that although the injections had helped, they

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had started to wear off. The Plaintiff reported trying to cut back on
medications, though he would still take an extra Tylenol #3 if needed. A
re-injection of his finger was set for August of 2011.
By November of 2011, the Plaintiff continued to have problems and
the Nambumetone did not seem to help. He was taking more pain pills
than he should. The Plaintiff stated that his left 4th finger was so painful
that he would like it cut off. The injection had helped for only two weeks.
Dr. Horvath switched the Plaintiff’s medication to Lodine and stated he
would refer him to another physician for surgical intervention.
The Plaintiff also suffers from affective mood disorder. His mental
impairment has been treated since February of 2003. The Plaintiff testified
he could not perform any of his previous jobs because his illness had
progressed and panic attacks precluded him from staying focused. When
asked by the ALJ how he was able to run his booth at an antique mall, the
Plaintiff stated, “On a good day I could, I would be in there maybe four
hours. . . . [I]f I average it out, probably an hour and a half, two hours a
day.” The Plaintiff testified he could not work full time. He generally

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worked by appointment only. The Plaintiff stated that his therapist advised
him to go to work with a plan and do what is needed and then leave.
When asked about symptoms which impaired the Plaintiff’s ability to
work, the Plaintiff’s wife testified, “There are days when he will literally
cover his head with a blanket and not come out.” She further stated, “I
have also seen panic attacks where he is flailing his arms, you know,
wiggling his hands, and stuff like that because he just doesn’t have control
and doesn’t know how to cope.”

The Plaintiff’s wife testified these

occurrences were not daily but were frequent and there was never a week
when he had seven good days. When the Plaintiff worked with his wife,
she sometimes had to talk him through stressful situations.
Fareed Tabatabai, M.D., the Plaintiff’s psychiatrist, submitted a
medical source statement noting some of the Plaintiff’s limitations. Dr.
Tabatabai found the Plaintiff to be markedly limited in “The ability to
perform activities within a schedule, maintain regular attendance and be
punctual within customary tolerances;” and “The ability to complete a
normal workday and workweek without interruptions from psychologically

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based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods.” According to the Medical
Source Statement form, a marked limitation is described as “Performance
of the designated work-related mental function is totally precluded on a
sustained basis and would result in failure after even short durations, for
example from 5 to 15 minutes.” The Plaintiff was determined to be mildly
or moderately limited in a number of other activities. Dr. Tabatabai further
found that Plaintiff’s medically determinable impairments were sufficiently
severe so as to render the Plaintiff unable to complete a workday more than
three or four times per month.
Mary Ossowski, a licensed clinical social worker, also submitted a
medical source statement. In her assessment of functional limitations, Ms.
Ossowski found the same marked limitations noted above by Dr. Tabatabai
and also found that Plaintiff was markedly limited in “The ability to set
realistic goals or to make plans independently of others.”

Like Dr.

Tabatabai, Ms. Ossowski found that Plaintiff’s medical determinable
impairments would render him unable to complete a workday more than

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three or four times per month.
B. The ALJ’s Decision
The ALJ found that although the Plaintiff performed some work after
his alleged onset date, this work did not rise to the level of substantial
gainful activity. The ALJ described the Plaintiff’s severe impairments as
affective mood disorder, osteoarthritis and obesity. However, the ALJ
determined that those impairments, either individually or in combination,
did not meet or medically equal the severity criteria of any impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ further found
that the Plaintiff had the residual functional capacity (RFC) to perform
medium work with the following limitations: (1) no tasks that would take
longer than 30 days to learn; (2) only tasks that are routine and repetitive
in nature; (3) only low stress environments, which includes only occasional
decision-making or changes in work setting so that every day the Plaintiff
would know what work is expected; (4) no fast pace production
requirements; and (5) no more than occasional contact with the general
public, coworkers or supervisors.

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The ALJ found that Plaintiff could not perform his past relevant work
as a sales clerk, cashier, producer, production technician or stock control
clerk. However, relying on the vocational expert’s testimony, the ALJ found
that Plaintiff was not disabled because he could perform a significant
number of jobs in the national economy. Examples of these jobs included
cleaner, food service worker and laundry worker.
The Parties have filed Motions for Summary Judgment. The Plaintiff
alleges the ALJ erred in evaluating his RFC based on the medical evidence
and testimony in the record.

The Commissioner asserts substantial

evidence supports the ALJ’s decision.
III. DISCUSSION
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”

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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.
A claimant is entitled to disability insurance benefits if he was “under
a disability” within the meaning of the Social Security Act by the date his
insured status expired.

See 20 C.F.R. §§ 404.131(a); 404.320(b)(2);

Perkins v. Chater, 107 F.3d 1290, 1295 (7th Cir. 1997). Because the
Plaintiff’s insured status expired on September 30, 2008, he must show that
he became disabled on or before that date. See Eichstadt v. Astrue, 534
F.3d 663, 668 (7th Cir. 2008).
B. The ALJ’s physical RFC assessment
The Plaintiff contends that the ALJ’s physical RFC evaluation does
not reflect the limitations on the Plaintiff’s use of his hands caused by his

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severe osteoarthritis symptoms. Moreover, the ALJ only cites osteoarthritis
treatment notes occurring after the date on which the Plaintiff was last
insured. The ALJ does not address Exhibit 7F, which notes the specialized
treatment the Plaintiff received for osteoarthritis during the relevant period.
The Plaintiff further asserts that based on his RFC and the limitations with
his hands, there are few jobs available to the Plaintiff. The Plaintiff’s
mental limitations further restrict available jobs. The vocational expert
testified that jobs were available that Plaintiff could perform only if the
mental limitations were relaxed.
In finding that the Plaintiff’s arthritis was a severe impairment and
that Plaintiff was restricted to medium work, the ALJ relied on the opinion
of George Andrews, M.D., the state agency physician.

Dr. Andrews

considered the Plaintiff’s arthritis as his primary diagnosis.

He cited

evidence from the record that on September 23, 2008–one week before the
Plaintiff’s Date Last Insured–that although the Plaintiff had osteoarthritic
changes in his joints, his wrists, elbows, shoulders, hips knees, feet and
ankles moved well without tenderness or synovitis (inflammation of the

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lining of the joints). Upon considering the Plaintiff’s osteoarthritis, Dr.
Andrews opined that Plaintiff could lift and/or carry 25 pounds frequently
and 50 pounds occasionally. The Plaintiff could also stand and/or walk for
about six hours and sit for about six hours in an eight-hour day. Dr.
Andrews stated that Plaintiff had no manipulative limitations.
The Plaintiff’s abilities as found by Dr. Andrews were consistent with
the ALJ’s physical RFC finding of minimum work.

See 20 C.F.R. §

404.1567(c) (“Medium work involves lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up to 25
pounds.”).
Although the Plaintiff alleges that the ALJ did not discuss records
relating to the Plaintiff’s osteoarthritis, it is apparent that Dr. Andrews
considered the Plaintiff’s osteoarthritis before the Date Last Insured. The
United States Court of Appeals for the Seventh Circuit has held that even
if an ALJ does not explicitly consider a limitation, the ALJ effectively
accounts for a condition when his or her decision is consistent with the
opinion of a physician who considered the condition. See Skarbeck v.

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Barnhart, 390 F.3d 500, 504 (7th Cir. 2004).
By making an RFC finding consistent with Dr. Andrews’s opinion,
therefore, the ALJ accounted for the Plaintiff’s osteoarthritis. Based on Dr.
Andrews’s opinion, the Court concludes that substantial evidence supported
the ALJ’s decision as to the Plaintiff’s RFC. The Court further concludes
that the ALJ finding that, even in its worst state, the Plaintiff’s arthritis was
not disabling supports the ALJ’s ultimate finding.
C. The ALJ’s mental RFC assessment
Additionally, the Plaintiff contends the ALJ’s mental RFC evaluation
does not reflect all limitations supported by the record, including the
Medical Source Statements completed by Dr. Tabatabai and Ms. Ossowski,
as well as the testimony of the Plaintiff and his wife. The opinions of the
mental health providers who have been treating the Plaintiff’s severe
impairment of affective mood disorder in addition to the testimony of the
Plaintiff and his wife suggest that the Plaintiff would miss three or four
days of work per month, which would render him incapable of engaging in
substantial gainful activity.

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It is worth noting that the ALJ did impose a number of restrictions on
the complexity, stress, speed, and social involvement of the Plaintiff’s work.
The vocational expert testified that a hypothetical individual who was the
same age as the Plaintiff and subject to the same restrictions would be
capable of performing a significant number of jobs.
Moreover, the Plaintiff’s work activities throughout the relevant
period supported the ALJ’s mental RFC finding. The Plaintiff worked 20
to 40 hours per week from 2002 to mid-2007 selling antique coins. For
several months in 2007, the Plaintiff also spent 20 to 30 hours per week
working for Theater in the Park in Petersburg, Illinois. During this time
frame, the Plaintiff reported being very busy. Although the work was not
lucrative, the Plaintiff’s activities suggest that his mental limitations were
not disabling.
The ALJ also considered the Plaintiff’s typical non-work activities,
which included golfing and playing computer games. The ALJ reasonably
concluded that Plaintiff was capable of concentrating on activities that
interested him. The Plaintiff’s social worker also found that Plaintiff could

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maintain focus on things he enjoyed. The Court finds this aspect of the
ALJ’s RFC finding is supported by substantial evidence.
The ALJ also noted that Plaintiff was not entirely compliant in taking
prescribed medications, which suggests that Plaintiff’s symptoms may not
be as disabling as he suggests. The ALJ also pointed to the Plaintiff’s
alcohol use and cocaine abuse as a factor. The Plaintiff spent $10,000 on
cocaine in 2007 and used the drug over the course of several months.
Additionally, the Plaintiff stopped taking his medications as a result. It
stands to reason that an individual’s failure to follow a physician’s
instructions with respect to prescribed medication along with his drug use
might aggravate his mental health issues.
Additionally, the ALJ pointed to the Plaintiff’s statement in 2003 that
he was not taking his medication so that he could experience manic
symptoms which gave him more energy to get everything done. The ALJ
also cited the Plaintiff’s statement that “he needs the excitement mania has
provided in the past.” The Plaintiff’s failure to take his medications and
otherwise follow his physician’s instructions suggest that he was not as

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limited as alleged. See Social Security Ruling 96-7p, 1996 WL 374186, at
*7-8.
The ALJ determined there was a basis for questioning the reliability
of the Plaintiff’s subjective complaints. The ALJ found that Plaintiff’s
credibility was negatively impacted by his daily activities, his medication
non-compliance, use of alcohol and cocaine abuse and improvement with
proper medication usage. The Court finds that the ALJ’s determination as
to the Plaintiff’s credibility was reasonable.
The ALJ also provided multiple reasons for giving little weight to Dr.
Tabatabai’s opinion. Specifically in April and June of 2011, the Plaintiff
was “feeling good” and his mood was “overall stable” and he was staying
busy with work. This was in contrast to the limitations Dr. Tabatabai had
suggested. Accordingly, the ALJ reasonably found that Dr. Tabatabai’s
opinion was entitled to little weight.
The ALJ also found that Ms. Ossowski’s opinion was entitled to little
weight. The restrictions and limitations that she noted for the Plaintiff
appear to be based primarily on the Plaintiff’s self-reporting of symptoms.

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The ALJ should rely on medical opinions which are based on objective
observations and not merely a claimant’s subjective complaints. See Rice
v. Barnhart, 384 F.3d 363, 370-71. This is particularly true in this case
when there are issues regarding the Plaintiff’s credibility and evidence that
Plaintiff did not take his medication as prescribed.
The ALJ committed no error in finding that the record did not
support Ms. Ossowski’s opinion. Accordingly, it was reasonable to afford
that opinion little weight and find that the Plaintiff had a limited but
adequate ability to perform a significant number of jobs.
For all of these reasons, substantial evidence supported the ALJ’s
mental RFC finding.
Based on the foregoing, the ALJ committed no error in finding that
the Plaintiff was not disabled.
Ergo, the Motion of Plaintiff David C. Flickinger for Summary
Judgment [d/e 6] is DENIED.
The Amended Motion of Defendant Commissioner of Social Security
for Summary Affirmance [d/e 12] is ALLOWED.

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The Clerk will enter Judgment and terminate this case.
ENTER: September 16, 2015
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge

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