Dippel v. Commissioner of Social Security
Filing
22
OPINION entered by Judge Sue E. Myerscough on 3/28/2016. Plaintiff's Objection to Report and Recommendation, d/e 19 is DENIED. The Report and Recommendation, d/e 18 is ACCEPTED by the Court. Defendant's Motion for Summary Affirmance, d/e 16 is GRANTED and Plaintiff's Motion for Summary Judgment, d/e 13 is DENIED. Case CLOSED. (MAS, ilcd)
E-FILED
Tuesday, 29 March, 2016 11:11:30 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DONALD L. DIPPEL,
)
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Plaintiff,
)
)
v.
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)
CAROLYN W. COLVIN, Acting
)
Commissioner of Social Security, )
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Defendant.
)
No. 14-CV-3323
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
On February 25, 2016, Magistrate Judge Tom SchanzleHaskins filed a Report and Recommendation (d/e 18). On March
11, 2016, Plaintiff Donald Dippel filed his Objection to the Report
and Recommendation (d/e 19). Respondent Carolyn W. Colvin,
Acting Commissioner of Social Security, filed a response (d/e 20,
21).
Upon careful review of the record and the pleadings, the Court
agrees with the Magistrate Judge that the Administrative Law
Judge’s (ALJ) decision was supported by substantial evidence.
Plaintiff’s Objections to the Magistrate Judge’s Report and
Recommendation (d/e 19) are DENIED. This Court ADOPTS the
Magistrate Judge’s Report and Recommendation (d/e 18) in full.
Plaintiff’s Motion for Summary Judgment (d/e 13) is DENIED, and
Defendant’s Motion for Summary Affirmance (d/e 16) is GRANTED.
The decision of the Commissioner is AFFIRMED.
I. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 72(b)(3), this Court
determines “de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Although this Court does not
need to conduct a new hearing on the entire matter, the Court must
give “fresh consideration to those issues to which specific objections
have been made.” 12 Charles Alan Wright, Arthur R. Miller, & Mary
Kay Kane, Federal Practice and Procedure § 3070.2 (2d ed. 1997);
Wasserman v. Purdue Univ. ex rel. Jischke, 431 F. Supp. 2d 911,
914 (N.D. Ind. 2006).
If no objection is made, or if only a partial objection is made,
the Court reviews the unobjected to portions for clear error.
Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
This Court may “accept, reject, or modify the recommended
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disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).
In conducting this de novo review, the Court reviews the
decision of the ALJ to determine whether the decision is supported
by substantial evidence. See Delgado v. Bowen, 782 F.2d 79, 82
(7th Cir. 1986). If the decision has such support, the Court may
not substitute its judgment for that of the ALJ. See Id.
“Substantial evidence is only such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Nelson v. Apfel, 131 F.3d 1228, 1234 (7th Cir. 1997).
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), and “the [ALJ’s] decision cannot stand if it lacks evidentiary
support or an adequate discussion of the issues,” Lopez ex rel.
Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Additionally,
the ALJ must “build an accurate and logical bridge from the
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evidence to his conclusion.” Clifford v. Apfel, 227 F.3d 863, 872
(7th Cir. 2000).
II. BACKGROUND
The Court adopts the factual findings made by the Magistrate
Judge. To summarize, Plaintiff was born September 18, 1965. He
filed his application for Supplemental Security Income Disability
benefits (SSI) on November 16, 2011.
In December 2011, Plaintiff underwent a two-level anterior
cervical fusion at the C5-C6 and C6-C7 levels. After initially
reporting that he was “doing fairly well,” Plaintiff claims he
reinjured his neck getting out of his brother’s van in early February
2012. Thereafter, he continued to complain of pain.
In her decision, the ALJ applied the five-step analysis set forth
in the Social Security Regulations (20 C.F.R. §§ 404.1520). At Step
1, the ALJ found Plaintiff had not engaged in substantial gainful
employment since November 16, 2011, the application date. ALJ
Decision R. 13. The ALJ found that Plaintiff suffered from the
severe impairments of cervical degenerative disc disease with
residual radiculopathy into the bilateral upper extremities, and
ischemic heart disease (Step 2), but that the impairments or
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combination of impairments did not meet or medically equal one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1 (Step 3). Id. at 13-14.
At Step 4, the ALJ found that Plaintiff could perform light
work as defined in 20 C.F.R. § 416.967(b) except that Plaintiff could
lift 20 pounds occasionally and 10 pounds frequently; Plaintiff
could never climb ladders, ropes, or scaffolds; Plaintiff could
occasionally climb ramps and stairs, balance, stoop, kneel, crouch,
and crawl; Plaintiff could no more than occasionally reach overhead
bilaterally; and Petitioner could “no more than frequently handle
and finger.” Id. at 14.
The ALJ found that Plaintiff had no past relevant work. R. 20.
The ALJ concluded, however, that Plaintiff could perform a
significant number of jobs in the national economy, including bench
assembly small parts; subassembly, electrical; document preparer;
addressor; and assembly bench (Step 5). Id. at 21. The vocational
expert testified at the hearing that the bench assembly small parts
and the subassembly electrical positions were classified as “light”
positions while the document preparer, addressor, and assembly
bench positions were classified as “sedentary” position. R. 73-74.
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When the Appeals Council denied Plaintiff’s request for review,
the ALJ’s decision became the final decision of the Commissioner.
Plaintiff appealed, arguing that the ALJ committed reversible error
by cherry-picking evidence that supported the ALJ’s conclusion and
that the ALJ’s credibility determination was not supported by
substantial evidence.
On February 25, 2016, Magistrate Judge Schanzle-Haskins
issued a Report and Recommendation finding the ALJ’s decision
was supported by substantial evidence and recommending that
Defendant’s Motion for Summary Affirmance be allowed and
Plaintiff’s Motion for Summary Judgment be denied.
III. ANALYSIS
Plaintiff objects to the Magistrate Judge’s Report and
Recommendation and argues that reversal is required because the
ALJ’s decision is not supported by substantial evidence. Plaintiff
argues that the ALJ cherry-picked the evidence and used the
resulting absence of evidence to undermine Plaintiff’s credibility.
Specifically, Plaintiff argues that the ALJ misread the April
2012 MRI when she noted that it showed “no ongoing
encroachment.” Pl. Obj. at 2, citing R. 18. In fact, Plaintiff says,
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the MRI showed “marked neural foraminal encroachment.”1 Pl. Obj.
at 2, citing R. 457-58 (also stating “[n]eural foraminal
encroachment . . . seen at some cervical levels . . . all of which
remains similar to that seen on 10/27/2011.”). Plaintiff also
challenges the ALJ’s characterization of the May 2012 post-surgical
EMG/nerve conduction study. Pl. Obj. at 2, citing R. 509.
Plaintiff further challenges the ALJ’s reliance on the report of
Dr. Chapa, the State agency physician who examined Plaintiff,
when finding Plaintiff was not entirely credible. Dr. Chapa
examined Plaintiff shortly after his surgery when Plaintiff reported
he was doing well but that Plaintiff subsequently reinjured his neck
getting out of his brother’ s van. Plaintiff asserts that clinical
medical findings and objective studies performed after the van
incident support Plaintiff’s claim that his condition worsened.
Moreover, Dr. Chapa did not have the benefit of the April 2012 MRI.
“Foraminal encroachment means that degeneration of the spinal cord has
caused an obstruction of the foramina, which are the open spaces on either
side of the vertebrae through which spinal nerves pass on their way to other
parts of the body.”
https://www.laserspineinstitute.com/back_problems/foraminal_stenosis/encr
oachment/ (last visited March 28, 2016); see also Dorland’s Illustrated Medical
Dictionary at 730, 739 (32nd Ed. 2012) (defining “neural f.” as “f.
intervertebrale” and defining “foramen” as “a natural opening or passage
especially one into or through a bone”).
1
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Finally, Plaintiff disputes the ALJ’s conclusion that Plaintiff’s
condition improved after the surgery because the medical evidence
following the surgery showed “severe problems.” Pl. Obj. at 3, 7.
The Court finds that the ALJ did not cherry-pick the evidence,
that that both the ALJ’s credibility determination and decision are
supported by substantial evidence.
The ALJ found that Plaintiff suffered from the severe
impairment of cervical degenerative disc disease with residual
radiculopathy into the bilateral upper extremities. R. 13. The ALJ
also found that Plaintiff’s impairments could be reasonably
expected to cause the alleged symptoms. R. 15; R. 17 (noting that
Plaintiff “does have impairments that can be anticipated to produce
a certain amount of pain”). The ALJ nonetheless found that the
record did not demonstrate that Plaintiff had the limited range of
motion, muscle spasms, muscle atrophy, motor weakness,
sensation loss, difficulty ambulating, or reflex abnormalities
associated with disabling and intense pain. R. 17. The ALJ also
found that Plaintiff’s claims of limited functional capacity were not
demonstrated by the medical records. The medical records the ALJ
cited included medical record postdating the surgery and the van
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incident that purportedly reinjured Plaintiff’s neck. See R. 17-18,
390-94, 426, 460, 530, 539, 547, 549, 552, 558, 564, 570, 578.
The Court finds that the evidence the ALJ cited constitutes
substantial evidence supporting the ALJ’s decision.
Plaintiff is correct that the April 2012 MRI found “marked
neural foraminal encroachment” at the C3-4 level, the C5-6 level,
and the C6-7 level on the right side (mild to moderate on the left).
R. 457-58. The ALJ, citing the November 2012 CT scan (R. 535-36)
(but referring to it as an MRI), noted that the report indicated
“postoperative changes appearing in expected position and
alignment, and some degenerative changes (Exhibit 16F, 7 [R.536]),
with no ongoing encroachment noted.” R. 18. The medical record
the ALJ examined (R. 535-36) did not note whether there was any
neural foraminal encroachment and, therefore, the statement that
“no ongoing encroachment noted” was correct as to the document
the ALJ cited.
As Plaintiff notes, an ALJ does not have to mention every piece
of evidence in the record, but she cannot overlook evidence that
conflicts with her ultimate conclusion. See Herron, 19 F. 3d at 333;
Gomez v. Colvin, 73 F. Supp. 3d 921, 928 (N.D. Ill. 2014). Here, the
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ALJ considered the April 2012 MRI when she addressed the
February 2013 emergency room records, which contained the April
2012 MRI report. See R. 17, citing R. 555. The ALJ noted that the
MRI showed “neural foraminal encroachment at some cervical levels
similar to that seen in October 2011.” R. 17. The ALJ was clearly
aware of the existence of neural foraminal encroachment. However,
the existence of neural foraminal encroachment does not, standing
alone, render Plaintiff disabled. The existence of “diagnoses and
symptoms [do] not mean the ALJ was required to find that [the
plaintiff] suffered disabling impairments.” Skinner v. Astrue, 478
F.3d 836, 845 (7th Cir. 2007).
Plaintiff also argues that the ALJ failed to acknowledge that
the May 2012 EMG/nerve conduction study showed “marked”
abnormalities and that Dr. Dove, in the same report, noted that
Plaintiff had “obvious evidence of persistent and progressive
weakness of the right hand, particularly involving the thumb, index,
and middle finger.” Pl. Obj. at 2, citing R. 509. However, the ALJ
clearly considered the EMG/nerve conduction study and
acknowledged that it was abnormal and showed that Plaintiff had
cervical radiculopathy. R. 17. The ALJ also noted that the study
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did not show peripheral neuropathy or carpal tunnel syndrome,
among other impairments. R. 17. Although the ALJ did not
mention the notation about obvious evidence of weakness in the
right hand, the ALJ did adjust Plaintiff’s residual functional
capacity to account for only frequent handling and fingering, as well
as other postural limitations. R. 18.
Plaintiff also argues that the ALJ cherry-picked evidence when
concluding that the surgery was generally successful in treating
Plaintiff’s cervical condition. However, substantial evidence
supports this conclusion. The ALJ cited to Plaintiff’s report of
improvement following surgery and the EMG following surgery that
showed “some cervical radiculopathy” but no “evidence of a more
diffuse peripheral polyneuropathy or specific distal nerve
entrapment or compressive syndrome affecting the median or ulnar
nerve such as carpal tunnel or cubital tunnel syndrome.” R. 18
(citing Dr. Dove’s report at R. 510). The ALJ cited the physical
therapy records which showed improvement with range of motion
overall. R. 18, citing March 19, 2012 physical therapy note, R. 438
(but physical therapy note also states that “pain still persists”). The
ALJ cited Dr. Fulbright’s review of the April 2012 MRI scan and his
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belief that there was no significant cord compression and that
further surgery would not benefit Plaintiff. R. 18, citing R. 530.
Moreover, although the ALJ found the surgery generally successful,
the ALJ also concluded that Plaintiff nonetheless suffered from the
severe impairment of cervical degenerative disc disease with
residual radiculopathy into the bilateral upper extremities and
continued to experience pain. R. 13, 15, 18. The ALJ simply did
not find credible the extent of pain Plaintiff claimed. Again, the
ALJ’s conclusions are supported by substantial evidence.
Plaintiff also challenges the ALJ’s credibility determination.
The ALJ did not find Plaintiff entirely credible. R. 19. If the
claimant’s statements about his symptoms are not substantiated by
objective medical evidence, the “adjudicator must make a finding on
the credibility of the individual’s statements based on a
consideration of the entire case record.” Social Security Ruling
(SSR) 96-7p (Policy Interpretation Ruling Title II and XVI:
Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual’s Statements); Villano v. Astrue, 556
F.3d 558, 562 (7th Cir. 2009) (noting that “the ALJ may not
discredit a claimant’s testimony about her pain and limitations
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solely because there is no evidence supporting it”); see also
Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th Cir. 2005) (noting
that while an “ALJ may not disregard an applicant’s subjective
complaints of pain simply because they are not fully supported by
objective medical evidence . . . a discrepancy between the degree of
pain claimed by the applicant and that suggested by medical
records is probative of exaggeration”). The ALJ must consider the
individual’s daily activities; the location, duration, frequency, and
intensity of the individual’s pain or other symptoms; factors that
precipitate and aggravate the symptoms; the type, dosage,
effectiveness, and side effects of any medication the individual takes
for her pain or symptoms; treatment received for relief of the pain or
other symptoms; and other measures the individual uses to relieve
the pain or symptoms. SSR 96-7p.
In this case, the ALJ adequately explained her credibility
finding. The ALJ found that the medical records did not support
the extremely limited functional capacity Plaintiff claimed. R. 19.
The ALJ noted Plaintiff’s complaints and statements about
Plaintiff’s daily activities. R. 15. The ALJ noted Plaintiff’s
emergency room visits and that Plaintiff was given pain medication
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and discharged home with improvement to his pain. R. 19. The
ALJ found Plaintiff’s credibility was affected by Plaintiff’s allegations
that did not appear to be supported by the medical record, like his
claim that he was advised to use a cane and not lift more than 10
pounds. R. 18. Upon a review of the entire record, the Court finds
that ALJ’s credibility determination is supported by substantial
evidence.
IT IS THEREFORE ORDERED THAT:
(1) Plaintiff’s Objection to Report and Recommendation (d/e
19) is DENIED.
(2) The Report and Recommendation (d/e 18) is ACCEPTED by
this Court.
(3) Defendant’s Motion for Summary Affirmance (d/e 16) is
GRANTED and Plaintiff’s Motion for Summary Judgment (d/e 13) is
DENIED.
(4) This case is closed.
ENTER: March 28, 2016
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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