Osing v. Commissioner of Social Security
Filing
20
OPINION: Defendant Commissioner of Social Security's Motion for Summary Affirmance 18 is ALLOWED; Plaintiff Susan Marie Osing's Motion for Summary Judgment and Memorandum of Law in Support of Remand/Vacate of Decision denying Disability 15 is DENIED; and the decision of the Commissioner is AFFIRMED. THIS CASE IS CLOSED. (SEE WRITTEN OPINION) Entered by Magistrate Judge Tom Schanzle-Haskins on 3/15/2016. (GL, ilcd)
E-FILED
Tuesday, 15 March, 2016 12:10:10 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
SUSAN MARIE OSING,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN COLVIN, Acting
)
Commissioner of Social Security, )
)
Defendant.
)
No.14-cv-3326
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:
Plaintiff Susan Marie Osing appeals from the denial of her application
for Social Security Disability Insurance Benefits (“Disability Benefits”) under
Title II of the Social Security Act. 42 U.S.C. §§ 416(i), 423. This appeal is
brought pursuant to 42 U.S.C. §§ 405(g). Osing filed a Motion for
Summary Judgment and Memorandum of Law in Support of
Remand/Vacate of Decision denying Disability (d/e 15) (Osing Motion), and
Defendant Commissioner of Social Security filed a Motion for Summary
Affirmance (d/e18). The parties consented, pursuant to 28 U.S.C. § 636(c),
to proceed before this Court. Consent to the Exercise of Jurisdiction by a
United States Magistrate and Reference Order entered April 23, 2015
Page 1 of 34
(d/e 12). For the reasons set forth below, the Decision of the
Commissioner is affirmed.
STATEMENT OF FACTS
Osing was born on November 19, 1960. She left high school during
the tenth grade. She secured a GED in 2009 or 2010. Certified Transcript
of Proceedings before the Social Security Administration (d/e 8) (R.), at 61,
178. She worked as a security guard at an Illinois State office building
known as the Harris Building, in Springfield, Illinois. Osing alleged that she
became disabled on March 3, 2011. On or about that date, her work as a
security guard was reduced to one nine-hour shift a week. R. 177-78.
Osing has been diagnosed as suffering from osteoarthritis, fibromyalgia,
lumbar degenerative disease, obesity, posttraumatic stress disorder
(PTSD), borderline personality disorder, depression, chronic fatigue
syndrome, chronic headaches, panic attacks, poor memory, and sciatica.
See R. 23, 296-97, 328-29.
On April 13, 1993, Osing was hospitalized at St. John’s Hospital,
Springfield, Illinois, for depression, helplessness, suicidal and homicidal
ideas, anxiety, apprehension, agitation, irritability, and moodiness. R. 270.
She remained hospitalized for three weeks until her discharge on May 5,
1993. Dr. Duttala O. Reddy, M.D., treated Osing during the hospitalization.
Page 2 of 34
According to Dr. Reddy, Osing significantly improved during the
hospitalization. At the time of discharge, Dr. Reddy stated that Osing was
“totally aware and capable of holding responsibility for her actions and
behavior and she reached maximum benefits from the hospitalization.”
R. 270. Dr. Reddy put no restrictions on Osing’s activities. R. 270.
Six years later, in 1999, Osing began undergoing mental health
therapy at the Mental Health Centers of Central Illinois (Center) for a
psychiatric evaluation. R. 58, 307. 1 On December 17, 2004, Osing saw
Dr. Jeffrey Bennett, M.D., for an initial psychiatric evaluation at the Center.
R. 307-08. At the time Osing was known as Susan Rose. Osing reported
to Dr. Bennett that her father sexually abused her as a child. She reported
regular dissociative episodes even while working as a security guard.2 She
reported that she had been married and divorced twice, and was currently
engaged. She reported that she and her fiancé were recovering alcoholics.
Both attended Alcoholics Anonymous (AA) meetings. R. 307. Dr. Bennett
assessed Osing with dissociative disorder and a history of incest.
1
Osing testified that she started therapy at the Center in 1999, but Dr. Jeffrey Bennett, M.D., stated in
December 2004, that Osing had been in therapy for two years at the Center. R. 307.
2
Dissociative symptoms can be “positive” such as “unbidden intrusions into awareness of behavior, with
accompanying losses of continuity in subjective experience (. . . such as fragmentation of identity,
depersonalization, and derealization)” or “negative” such as amnesia. American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5), at 291. Dr. Bennett’s notes
indicate positive dissociative symptoms.
Page 3 of 34
Dr. Bennett assigned her a Global Assessment of Functioning (GAF) score
of 70.
A GAF score was a clinician’s judgment of an individual’s overall level
of functioning. American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders (4th ed. Text Rev. 2000) (DSM-IV-TR), at 32.3
A GAF score between 61 and 70 indicated some mild symptoms, some
difficulty in functioning, “but generally functioning pretty well.” Id. at 34.
Dr. Bennett prescribed medication and ordered counselling. R. 308.
Dr. Bennett saw Osing three times, on April 13, 2007, June 8, 2007,
and December 31, 2007. Each time he assessed her with depression and
dissociative disorder and gave her a GAF score of 70 or 65-70. R. 300-03.
On October 21, 2008, Osing saw Tisha Bayless, M.A., QMHP, at the
Center.4 Bayless assessed Osing with recurrent depressive disorder,
PTSD, social phobia, borderline personality disorder, and rheumatoid
arthritis. Bayless assessed Osing with a GAF score of 40. R. 296-97. A
GAF score of 40 indicated “Some impairment in reality testing or
3
The American Psychiatric Association no longer recommends using GAF scores. American Psychiatric
Association, DSM-5, at 16 (“It was recommended that the GAF score be dropped from DSM-5 for several
reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its
descriptors) and questionable psychometrics in routine practice.”).
4
The term QMHP means Qualified Mental Health Professional. See e.g., 405 ILCS 30/6(a) (The term
“licensed professionals” in Illinois Community Services Act includes qualified mental health professionals).
Page 4 of 34
communication . . . or major impairment in several areas, such as work or
school, family relations, judgment, thinking, or mood . . . .” DSM-IV-TR,
at 34.
On May 19, 2010, Osing went to the Southern Illinois University
HealthCare Center for Family Medicine in Springfield, Illinois (SIU Family
Medicine). Osing complained of chronic neck pain, tension headaches,
epigastric pain, and anxiety. R. 328-29. X-rays of her spine showed trivial
degenerative changes at C6-7 and C5-6. R. 327. An ultrasound of Osing’s
gallbladder was negative. R. 326.
On November 2, 2010, Osing returned to SIU Family Medicine.
Osing complained of pain in her right lower extremity, fatigue, fibromyalgia,
and tension headaches. She had some swelling in her lower right
extremity, but no pitting. R. 322-25.
On April 11, 2011, Osing returned to SIU Family Medicine
complaining of stomach pain and right lower quadrant pain. R. 318. Osing
reported that she had been laid off from work one month earlier. As a
result, she was taking Ativan twice a day for anxiety. R. 319. Osing was
assessed with chronic neck pain and anxiety disorder. She was counseled
not to take Ativan on a daily basis. R. 318. She received prescriptions for
Ativan, Vicodin, and Sertraline. R. 320.
Page 5 of 34
On July 19, 2011, Osing returned to SIU Family Medicine
complaining of generalized pain. She was referred to a rheumatologist for
evaluation. Osing repeated her report that she was laid off work one month
earlier and was taking Ativan twice a day. R. 314.
On October 4, 2011, Osing saw state agency psychologist
Dr. Michael Trieger, Psy.D., for a psychological evaluation. R. 340-43.
Osing reported to Dr. Trieger that she suffered from fibromyalgia,
osteoarthritis, PTSD, borderline personality disorder, depression, chronic
fatigue and chronic headaches. R. 340. Osing reported to Dr. Trieger that
she was sexually victimized as a child by her father and her father’s friends.
R. 341. She reported dissociative episodes when she was anxious.
R. 341. On examination, Dr. Trieger observed that Osing’s “mood and
affect suggested mild anxiousness and dysphoria.” R. 341. Dr. Trieger
also noted that Osing’s “presentation during the interview revealed several
clinical markers for anxiety and depressive symptoms.” R. 342. Dr. Trieger
assessed Osing with “PTSD, recurrent, moderate to severe, by claimant
report, Depressive disorder with anxiety, by claimant report.” R. 343.
Dr. Trieger assessed Osing with a GAF score of 52. R. 343. A GSF score
of 52 indicated “Moderate symptoms . . . or moderate difficulty in social,
occupational, or school functioning . . . .” DSM-IV-TR, at 34.
Page 6 of 34
On October 10, 2011, state agency psychologist Dr. David Doss,
Ph.D., completed a Psychiatric Review Technique form. R. 344-57.
Dr. Doss stated that Osing suffered from mood disturbance, depression
with anxiety, and moderately severe PTSD by history. R. 347, 349.
Dr. Doss opined that Osing had mild restrictions on activities of daily living,
moderate difficulties in maintaining social functioning, and moderate
difficulties in maintaining concentration, persistence, or pace. R. 354.
On October 13, 2011, state agency physician Dr. Charles Kenney,
M.D., prepared an Illinois Request for Medical Advice form. R. 358-360.
Dr. Kenney opined that Osing’s physical impairments of fibromyalgia and
osteoarthritis were non-severe. R. 358.
On November 21, 2011, Osing saw a rheumatologist, Dr. Sriya K.
Ranatunga, M.D. Osing complained of fibromyalgia pain, sleep
disturbance, mood disturbance, and migraine headaches. R. 382. On
examination, Dr. Ranatunga found eleven out of 18 possible positive
fibromyalgia tender points. The pain elicited was 5-8/10. Osing had
normal range of motion generally. Dr. Ranatunga noted some swelling in
Osing’s right knee and ankle. R. 383. X-rays showed mild degenerative
changes in the knees and ankles. R. 379-81. Dr. Ranatunga prescribed
Page 7 of 34
Cymbalta for fibromyalgia, discontinued the prescription for Sertraline, and
modified the prescriptions for Ativan and Vicodin. R. 384.
On January 11, 2012, Osing saw Dr. Ranatunga for a follow-up visit.
Osing had reported that she could not afford the prescription for Cymbalta,
so Dr. Ranatunga had changed the prescription to gabapentin. Osing had
started the gabapentin, but did not think that the medication was helping
her pain. Osing reported that she felt that same as her last visit. R. 384.
On examination, Osing had positive tender points throughout. She had full
range of motion and no active synovitis.5 Dr. Ranatunga prescribed
Flexeril and discontinued her prescription for Vicodin. R. 386.
On April 16, 2012, Osing saw Dr. Ranatunga for a follow-up visit.
Osing reported that her occipital headaches were better, but otherwise she
had no change in her condition. Dr. Ranatunga continued her medications
and discussed the importance of low-impact stretching exercises.
R. 458-59.
On May 24, 2012, Osing went to SIU Family Medicine for pain and
anxiety. She was given Ativan (Lorazepam) and Citalopram Hydrobromide
for anxiety. R. 503-06.
5
Synovitis is inflammation of the synovial membranes around the joints. Dorland’s Illustrated Medical
Dictionary (32nd ed. 2012), at 1855-56
Page 8 of 34
On June 12, 2012, Osing went to SIU Family Medicine for
generalized pain and depression. She continued to report pain, anxiety,
and stress in her life. Her medications were continued. R. 500-02.
On July 3, 2012, Osing went to SIU Family Medicine for fibromyalgia
pain, anxiety, and depression. Osing saw Dr. Dae Jeong, M.D., and a
resident. Osing also complained of insomnia. Osing reported that she felt
a little worse. Osing was prescribed Trazodone for her insomnia. R. 49799. Dr. Jeong stated that he was personally involved with resident in the
care of Osing during this visit and approved of the treatment plan. R. 499.
On October 15, 2012, Osing saw Dr. Ranatunga. Osing reported that
she felt the same. Dr. Ranatunga changed her prescription for gabapentin
and recommended stretching and strengthening exercises. R. 437-38.
On October 23, 2012, Osing saw Dr. Jeong at SIU Family Medicine.
Osing was complaining of back pain, anxiety, and fibromyalgia. Osing
reported that the fibromyalgia pain was about the same. She reported low
back pain. She reported that she had suffered from low back pain for a
year and a half. She reported that the Ativan suppressed her anxiety well.
R. 466. Dr. Jeong renewed her Ativan prescription. R. 469.
On November 2, 2012, Dr. Jeong completed a Physical Residual
Functional Capacity Questionnaire. R. 506-11. Dr. Jeong reported that he
Page 9 of 34
saw Osing twice in the last three months. He assessed her with
fibromyalgia, lumbar degenerative diseases, and anxiety. He opined that
Osing was not a malingerer. Dr. Jeong opined that Osing’s pain frequently
interfered with her attention and concentration. He opined that Osing was
capable of low stress jobs. He explained that she “can tolerate usual daily
activity.” R. 507. Dr. Jeong opined that Osing could walk three blocks
without rest or severe pain; could sit for an hour at one time; could stand for
fifteen minutes; could sit for two hours in an eight-hour workday; and could
stand/walk for less than two hours in an eight-hour workday. R. 507-08.
Dr. Jeong opined that Osing needed to walk around once an hour for fifteen
minutes. R. 508. Dr. Jeong opined that Osing needed to shift positions at
will and needed unscheduled fifteen-minute breaks every hour. R. 508.
Dr. Jeong opined that Osing could occasionally lift less than ten pounds
and never lift any heavier weights. R. 508. Dr. Jeong opined that Osing
could never twist, stoop, crouch, squat, or climb ladders, and could rarely
climb stairs. R. 509. Dr. Jeong opined that Osing could use her hands to
grasp, turn and twist objects five percent of the time during an eight-hour
workday, but could not use her hands to perform fine manipulations and
could not use her arms to reach for objects. R. 509. Dr. Jeong opined that
Osing would miss more than four days of work a month due to her
Page 10 of 34
impairments. R. 509. Dr. Jeong opined that Osing should avoid noise,
extreme stress, and extreme temperatures. R. 510.
On February 27, 2013, the Administrative Law Judge (ALJ)
conducted an evidentiary hearing in Peoria, Illinois. R. 40-86. Osing
appeared in person and with her attorney via videoconference from
Springfield, Illinois. Osing’s husband Greg Osing also appeared as a
witness from Springfield. Vocational Expert George Paprocki also
appeared as a witness in Peoria. R. 41.
Osing testified first. She testified that she was fifty-two years old at
the time of the hearing. She was 5 feet 4 inches tall and weighed 190
pounds. R. 42. She lived with her husband in a mobile home. She had
three adult children who did not live with them. R. 43. Osing testified that
she received unemployment benefits for eighteen months ending in
November 2012. R. 45.
Osing testified that she left school in the tenth grade and then
secured a GED in 2009 or 2010. She testified that she worked one day a
week as a security guard for nine hours. R. 45, 61. She testified that she
earned $12.10 per hour. R. 66. She testified that during her work as a
security guard she sat at a desk and got up to move occasionally as she
needed. R. 46.
Page 11 of 34
Osing testified that could not work more than one shift a week,
“Because of my physical pain and psychological issues.” R. 46. Osing
testified that she was exhausted after her shift, “Your Honor, when – I work
on Fridays and after I get home on Friday, I am – I am—basically I am
wiped out until Sunday. I’m emotionally exhausted and physically
exhausted.” R. 46-47. Osing testified about her exhaustion after work, “I
believe some of it is the emotional exhaustion and then the stress, the
anxiety, the – physically sitting in a chair that’s uncomfortable and then I’ll
have to get up and then it’s just constant pain.” R. 67.
The ALJ asked her about applying for unemployment and disability at
the same time:
Q.
Okay, Well, I’m in a little bit of a dilemma here. You
collected unemployment all four quarters of 2003 (sic), first
three quarters of 2012. Your application date was July 2011.
So what it appears to me is that you went to the unemployment
office and said I’m ready, willing, and able to work, but I can’t
find a job and, therefore, I need your benefits and then you
continued to tell them that on a weekly basis, I ‘m ready, I just
can’t find a job. You reported in, you know, I’ve looked and
there’s nothing – not hiring.
Well, then in July 2011, you went in and said to us, our
agency, I’m unable to work. I can’t do any jobs at all, I’m in bad
shape, therefore, I want you to find me unable to work and I
want to collect benefits from your agency and you told us that
had been the case since March 3 of 2011. So but what I see is
you go to one agency saying I can’t work, I just can’t find a job,
I want your benefits, and you go to our agency, I can’t work, I
want your benefits. So you’re working both ends of the line
Page 12 of 34
telling two things with two different agencies that are
contradictory. How do you explain it?
A.
Your Honor, I was applying for work but I was applying for
work that I would not be able to do.
Q.
So you were frauding (sic) the unemployment people?
A.
No, it was a requirement and it was out of fear. I mean, I
did –
Q.
But you were – the point is is that you were still telling
them under oath that you could work. Isn’t that what you were
telling them?
A.
I was going to try even though my physical limitations –
Q.
But you told them you could work but you couldn’t find a
job, right?
A.
Even though I applied for jobs, I didn’t get hired. I did
make an effort.
Q.
Well, you just testified that you only applied for jobs you
knew wouldn’t hire you.
A.
No, Your Honor, I don’t think –
Q.
It doesn’t sound to me like you made a very genuine
effort.
A.
– I don’t think – I don’t think I did say that, Your Honor. I
applied for jobs that I wasn’t sure I would be able to do, but I
was trying to get a job despite that fact even though I know my
physical limitations.
Q.
I’m still looking at you’re telling one agency you can work
and another agency you can’t and wanting to collect money
from both for the same time period. That’s my dilemma.
Page 13 of 34
A.
Your Honor, I would not have collected from two different
agencies. That’d be dishonest.
Q.
Well, if I were to find you disabled back to March of 2011,
then what we do is we pay you for that back period from now
back then. So then you’d get – you’ve already gotten your
money for unemployment and then you’d get a check from us
so you would be collecting from both, isn’t that what it would be.
A.
Yes, Your Honor, I never thought about that.
R. 47-49.
Osing testified that she had chronic migraine headaches. She
testified that she gets up to three bad headaches a week. She also
testified that she had pain in her lower back that was not relieved by
medication. R. 49. She also testified that she had chronic pain in her
knees and feet. R. 50. The ALJ stated that people over 40 years of age
have chronic arthritic pain. R. 50.
The ALJ then asked Osing about the Physical Residual Functional
Capacity Questionnaire that Dr. Jeong completed on November 2, 2012:
Q.
[W]ere you there when the doctor filled it out?
A.
Yes, I was, Your Honor.
Q.
Did he ask you questions about each of these things?
A.
Yes, he did.
Q.
So you told him what you felt and then he wrote that
down?
Page 14 of 34
A.
He filled – well, he had filled out a portion of it on his own
and then he just asked me questions to verify some of it.
Q.
So you said he filled out a portion on his own but then he
asked you questions?
A.
Yes, I had turned the form –
Q.
You filled out the rest of it?
A.
– I turned the form in to him and he filled it out and then
he called me on the telephone like two weeks later and went
over the form with me as, you know, to make sure that I guess
that he had filled in all the blanks. And also, Your Honor –
Q.
Did he ask you specifically questions like how long can
you stand, how long can you sit, how much can you lift and
carry?
A.
Yes, he did, Your Honor.
Q.
Are the answers on the form any different from what you
told him?
A.
No, Your Honor.
R. 52-53. Osing’s attorney asked some additional questions about
Dr. Jeong’s Physical Residual Functional Capacity Questionnaire:
Q.
Okay. Now talking about Dr. Young’s (sic) RFC, how long
have you been seeing Dr. Young?
A.
I was assigned to him in 2012. They have residents at
SIU. You don’t keep the same doctor. They graduate and
move on and then you’re assigned to a new one.
Q.
Okay. So when you dropped this document off to him
and asked him to fill it out, part of it was already filled out?
Page 15 of 34
A.
He had gone over it with his supervisor.
Q.
Okay. So that was based upon the medical records that
you had talked –
A.
Yes.
Q.
– from – talked visitations?
A.
Yes.
R 61. Osing’s attorney later asked another question about Dr. Jeong’s
Physical Residual Functional Capacity Questionnaire:
Q.
Okay. Okay. Because Dr. Young talked about that – that
you had some physical restrictions on lifting some weights.
How did he determine those? Was that – I mean have you
talked to doctors previously about things you could do, you
couldn’t do? Did he ask you the kind of questions about what
you could lift and things like that?
A.
I don’t remember him asking me about an approximate
weight.
Q.
Okay.
A.
But I know that I have difficulty like, okay, with a gallon of
milk. I have a hard time with taking a gallon of milk out of the
fridge and putting it back.
Q.
And you’ve been talking to your doctors at SIU about that,
correct?
A.
Yes.
R. 67-68.
Page 16 of 34
Osing testified that she could dress herself and take care of her
personal hygiene. Osing testified that she did not do laundry. She testified
that her husband did most of the house work. Osing testified that she and
her husband made beds together. R. 55. She also sometimes helped her
husband wash dishes. R. 56.
Osing testified that she and her husband went grocery shopping
together about once a week. R. 55, 65. She testified that she did not go to
church and did not belong to any social organizations. She testified that in
a normal week, she interacted with her husband, and she spoke by
telephone to her daughter and one or two friends. R. 66.
Osing testified that she and her husband both prepared meals.
R. 55. Osing testified that she only could cook simple things that did not
require much concentration. She testified that she sometimes would start
cooking something on the stove top and “forget it’s there.” R. 64.
Osing testified about her mental condition. She testified that she was
hospitalized in a psychiatric ward in 1993. She testified that she
experienced, “a meltdown.” R. 58. She testified that she did not attempt to
commit suicide at that time, but she has been “suicidal my entire life.”
Page 17 of 34
R. 58. She testified that she started going to the Center for counseling in
1999. She said she stopped in 2008 because she did not have coverage to
pay for the counselling services. R. 58.
Osing testified that she had problems dealing with the public. She
testified that her security guard job consisted of sitting at the entrance of
the building and checking to make sure people entering the building are
wearing the required badges. She testified that she worked at an Illinois
State government office building. R. 59. She testified that she had
problems with coworkers. She testified that she was moved to work at a
different location. She testified that she had problems working with a male
coworker. She stated that working with him, “was a huge source of triggers
for me with anxiety and sensory flashbacks and we almost came to blows
over it and it’s not been – that wasn’t the first time that I had problems
dealing with those issues.” R. 60.
Osing testified that she had panic attacks. She testified that she
sometimes had two to three attacks in a week, and sometimes she would
not have any in a week. R. 61-62. She testified, “It depends on what is
going to trigger the panic attack.” R. 62.
Osing testified that in a typical day she got up at 5:00 a.m. She made
coffee. She then sat in her computer chair and used the computer to play
Page 18 of 34
games. She testified that she also read mystery novels. Osing testified
that she could not read a book all the way through without stopping due to
her headaches. R. 63.
Osing testified that she had difficulty remembering things, “Somebody
will tell me something important and I’ll write it down and then it’s gone.
Even though it’s right in front of me, I’ll completely forget about it and it’s
embarrassing.” R. 64.
Osing’s husband Greg Osing then testified. R. 68. Greg Osing
testified that he and Osing had been married for seven years at the time of
the hearing. Greg Osing testified that he went on Social Security disability
in 1999 or 2000. He testified that he suffered a traumatic brain injury at
that time. R. 69. Greg Osing testified that he did most of the housework.
He testified that Osing was not able to walk the dog. He testified that she
last walked the dog two to four years before the hearing. R. 70. He
testified that Osing sat at the computer all day playing games. R. 71.
Osing’s attorney asked Greg Osing about Osing’s ability to deal with other
people. Greg Osing testified, “She can – you mean talking to people? She
can talk to people fine.” R. 71.
Vocational expert Paprocki then testified. The ALJ asked Paprocki
the following hypothetical question:
Page 19 of 34
Q.
I’d like you to assume we have an individual that same
age, education, and experience as the claimant; this individual
is limited to light work; limited to occasional postural activities.
These are the individual’s mental impairments and symptoms I
find the individual made during times of symptom exacerbation,
have moderate limitations on concentration, persistence, and/or
pace when attempting complex working tasks; so the individual
is limited to jobs that do not require complex or detailed job
processes; little in the way of change in job processes or jobs
that can be learned in 180 days or fewer.
Do these restrictions effect (sic) the performance of the
claimant’s past work?
R. 74. Paprocki answered:
A.
I would think the past work would still be feasible. This is
activity that normally is learned within 90 days. I don’t believe
there’s any significant complexity to it, much in the way of
change and it is light activity as indicated in the DOT and as it
was actually performed prior to the job changing to one of a
sedentary nature.
R. 74.
The ALJ asked Paprocki whether his answer would change if the
person was limited to no more than occasional work-related interaction with
the public, coworkers, and supervisors. Paprocki opined that the person
could still perform the past relevant work as a security guard. R. 75.
The ALJ then asked Paprocki to assume a change in the exertional
level to sedentary work. Paprocki responded:
A.
Well, of course, she’s doing the job which is sedentary
now, but as it’s normally done and most of the time she spent at
that job was also consistent with light work activity so she would
Page 20 of 34
not be able to do that job. Let me add that there really are no
jobs in the security field that are sedentary in nature.
R. 75. Paprocki explained, “Well, this is – I think it was a special job. The
job she’s doing is sedentary. My understanding was that there was an
accommodation by the employer.” R. 76. Paprocki stated, “I believe I got
that from looking at the – looking at some of the evidence in the
employment section.” R. 76.
The ALJ, Osing, and Osing’s attorney engaged in a colloquy about
the nature of Osing’s job duties. Osing is referred to as “CLMT” in the
transcript:
ALJ:
Well, Ms. Osing, in your job now, you spend most of
it sitting down. Are you different than anybody else, any of the
other security guards? Do they sit as much as you or do then
not sit as much?
CLMT:
Your Honor, the Harris Building is different than
other posts than require patrols every hour, maybe every other
hour. It’s –
ALJ:
The reason I’m asking you about your current job
right now –
CLMT:
Yes, Your Honor.
ALJ:
– so you’re at the post, at the Harris Building, the
other security guards that work with you at that job at that post,
do they sit as much as your do or do they sit less?
CLMT:
The other day guard, he does patrols in the parking
lot and then the guard I work with in the afternoon part of my
shift I would say he probably does the same amount of sitting.
Page 21 of 34
It’s, like I said, Your Honor, it’s the only building that doesn’t
require rounds.
ALJ:
Further comments, counsel?
ATTY:
So you’re saying that in the morning the tech – the
other guard has to patrol?
CLMT:
Yes.
ATTY:
Okay. Does the afternoon job – afternoon other
security guard, does he get up and walk around the building
and stuff like that?
CLMT:
No.
ATTY:
Okay. Now you’re working for the state. Other
buildings are the required to get up, walk around, do sometimes
restraining individuals and things like that?
CLMT:
Oh, most definitely, yes.
ATTY:
Okay. All right. Now why is your employer treating
you differently if you don’t mind my asking that question?
CLMT:
It’s the building that I’m currently working at. I’ve
been there for seven years now.
ATTY:
Okay. But you’re the only individual that is kind of
given than –
CLMT:
Well, I fill in for the other guard who works Monday
through Thursday. I’m there on Friday.
ATTY:
Okay.
ALJ:
do?
So the one you fill in for, do they sit as much as you
CLMT:
Yes, that’s correct.
Page 22 of 34
ALJ:
Sounds to me like the job she’s doing right now is a
sedentary job.
R. 76-78. The ALJ concluded that Osing was performing her security
guard job as a sedentary exertional level:
ALJ:
Well, I’m going to find that her – she is performing
her present job at the sedentary level. That’s the way that
position is being handled and has been at that building for
seven years and from 2010 back show as earning SGA. So it
appears to me that the evidence indicates that her current job is
a sedentary job.
R. 79.6
Paprocki opined that the ALJ’s hypothetical person limited to
sedentary work could perform Osing’s past work as a security guard as she
actually performed the job even with a limitation of only occasional
interaction with the public, coworkers, and supervisors. Paprocki opined,
however, that all employment would be precluded if the person missed two
or more days of work per month. R. 79.
Paprocki opined that a person performing Osing’s past work could not
allow her attention to the task to wander or deviate from the task more than
ten percent of the time. R. 80. Paprocki opined that the person also could
not maintain employment if her impairments required her to take more than
the standard morning break, lunch break, and afternoon break. R. 81.
6
SGA means substantial gainful activity. See 20 C.F.R. § 404.1574.
Page 23 of 34
Paprocki opined that a person might be allowed to take any additional
fifteen minutes a day away from work, but not more than that and maintain
employment. R. 81-82.
The hearing concluded. R. 85.
THE DECISION OF THE ALJ
The ALJ issued his decision on April 19, 2013. R. 19-27. The ALJ
followed the five-step analysis set forth in Social Security Administration
Regulations (Analysis). 20 C.F.R. §§ 404.1520, 416.920. Step 1 requires
that the claimant not be currently engaged in substantial gainful activity.
20 C.F.R. §§ 404.1520(b), 416.920(b). If true, Step 2 requires the claimant
to have a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If
true, Step 3 requires a determination of whether the claimant is so severely
impaired that she is disabled regardless of her 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.
Page 24 of 34
Step 4 requires the claimant not to be able to return to her prior work
considering her age, education, work experience, and Residual Functional
Capacity (RFC). 20 C.F.R. §§ 404.1520(e) and (f), 416.920(e) and (f). The
claimant must not be able to return to her prior work as she actually
performed it or as the work is generally performed in the national economy.
See 20 C.F.R. §404.1560(b)(2) and (b)(3). If the claimant cannot return to
her prior work, then Step 5 requires a determination of whether the
claimant is disabled considering her RFC, age, education, and past work
experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c), 416.920(g),
416.960(c). 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. 20 C.F.R. §§ 404.1512, 404.1560(c);
Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011); Briscoe ex rel.
Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).
The ALJ found that Osing met her burden at Steps 1 and 2. She had
not engaged in substantial gainful activity since her alleged onset date of
March 3, 2011. The ALJ found that working one day a week did not
constitute substantial gainful activity. R. 21. The ALJ found that Osing
Page 25 of 34
suffered from the severe impairments of osteoarthritis, fibromyalgia, mild
lumbar degenerative disc disease, obesity, and PTSD. R. 21.
The ALJ found at Step 3 that Osing’s conditions did not meet or equal
any Listing. The ALJ considered Listings 1.04 for spinal disorders, Listing
12.06 for anxiety-related disorders such as PTSD, and Listing 14.09 for
inflammatory arthritis. R. 23. The ALJ considered Osing’s fibromyalgia in
the context of Listing 14.09. The ALJ also considered the impact of Osing’s
obesity. The ALJ stated, “Accordingly, the undersigned has fully
considered obesity in the context of the overall record evidence in making
this decision.” R. 23.
With respect to Listing 12.06 for PTSD, the ALJ found that Osing’s
condition did not meet the Listing because she had mild limitations on
activities of daily living, mild limitations in social functioning, and moderate
difficulties in maintaining concentration, persistence or pace. R. 24.
At Step 4, the ALJ found that Osing had the RFC to perform light
work except “she is limited to occasional postural activities; she is also
limited to jobs that do not require complex or detailed job processes, little in
the way of change in job process from day to day and jobs that can be
learned in 180 days or fewer.” R. 24. The ALJ relied on the medical
record, Osing’s daily activities, and the opinions of Drs. Doss and Kenney.
Page 26 of 34
R. 26. The ALJ did not give significant weight to Dr. Jeong’s Physical
Residual Functional Capacity Questionnaire because Osing testified that
she gave Dr. Jeong the answers to the questions, and Dr. Jeong’s answers
matched the ones she gave him. R. 25.
The ALJ also found that Osing’s statements about the severity of her
limitations due to her impairments were not fully credible. The ALJ relied
on her daily activities and the fact that she worked once a week. The ALJ
relied on the fact that she had the concentration to play computer video
games all day. The ALJ also relied on her representations that she was
able to work in her requests for unemployment benefits. The ALJ found,
“These factors indicate the claimant is less than fully credible.” R. 25.
The ALJ found that Osing could return to her prior work as she
actually performed it and as the job is generally performed. The ALJ relied
on Paprocki’s expert testimony to reach this finding. R. 26. The ALJ
further stated that even if Osing was limited to sedentary work, she could
perform her security guard job as she actually performed it. R. 26. The
ALJ relied on Osing’s testimony about how she performed her job and on
Paprocki’s opinion testimony. The ALJ concluded that Osing was not
disabled. R. 27.
Page 27 of 34
Osing appealed the decision of the ALJ. On August 21, 2014, the
Appeals Council denied her request for review. The decision of the ALJ
then became the final decision of the Defendant Commissioner. R. 1.
Osing then brought this action for judicial review.
ANALYSIS
This Court reviews the Decision of the Commissioner to determine
whether it is supported by substantial evidence. 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 his analysis of all
relevant evidence. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
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 ALJ’s decision is supported by substantial evidence. The x-rays
and other imaging showed only mild degenerative changes that did not
Page 28 of 34
meet Listings 1.04 or 14.09. The ALJ acknowledged that Dr. Ranatunga’s
trigger points testing showed fibromyalgia, but the ALJ concluded that
Osing’s condition did not meet a Listing in light of the lack of other medical
evidence of severe arthritis. R. 22, 23.
The ALJ’s finding that Osing did not meet Listing 12.06 is also
supported by substantial evidence. In Osing’s situation, the Listing requires
marked limitations in two or three areas: activities of daily living; social
functioning; and maintaining concentration, persistence or pace. Listing
12.06(B). The ALJ found only mild or moderate limitations in these areas.
This finding is supported by Dr. Bennett’s examination notes, by
Dr. Trieger’s consultative mental status examination, and by Dr. Doss’s
opinion. Dr. Bennett assessed GAF scores of 65 or 70, indicating mild
limitations; Dr. Trieger assessed a GAF score of 52, indicating moderate
limitations; and Dr. Doss opined that Osing had mild or moderate limitations
in these areas. These opinions provide substantial evidence to support the
ALJ’s conclusion that Osing did not meet this Listing.
The ALJ finding of no disability at Step 4 is also supported by
substantial evidence. Dr. Kenney opined that Osing had no severe
physical impairments. The x-ray and other imaging showed minor
degenerative changes in Osing’s joints and spine. Dr. Ranatunga
Page 29 of 34
observed some swelling, and Osing testified to some physical limitations.
The ALJ’s RFC finding limited Osing to a reduced range of light work or
alternatively, sedentary work. The limitations in the RFC adequately
addressed those physical functional limitations. Paprocki’s opinion
supported the conclusion that Osing could perform her past work as a
security guard as she actually performed the job even if she was limited to
sedentary work. The ALJ’s decision is supported by substantial evidence.
Osing argues that the ALJ erred in finding that she did not meet
Listing 12.06. Osing Motion, at 7. Osing relies on the 1993 hospitalization
and counselor Bayless’s 2008 opinion that Osing had a GAF score of 40.
The Court finds no error. Bayless is not an acceptable medical source.
20 C.F.R. § 404.1513(a). The ALJ relied on the evaluations of a
psychiatrist Dr. Bennett in 2007 and a psychologist Dr. Trieger in 2011.
See R. 21, 22. The ALJ also considered the opinion of another
psychologist Dr. Doss. R. 26. The Court sees no error in relying on the
more recent opinions of acceptable medical sources over a twenty-year old
hospitalization report and an assessment by a counselor who was not an
acceptable medical source. The Court sees no error.
Osing also argues that the ALJ failed to explain adequately his
credibility finding. Osing Motion, at 8. This Court will not review the
Page 30 of 34
credibility determinations of the ALJ unless the determinations lack any
explanation or support in the record. Elder, 529 F.3d at 413-14. The ALJ’s
credibility finding has support in the record. Osing admitted that she
repeatedly represented to state officials that she was able to work in 2011
and 2012 in order to secure unemployment benefits. Those
representations are fully set forth above on pages 12-14. The
representations directly contradicted her allegations of disability. The ALJ
relied on this contradiction to find her less than credible. The ALJ further
found her testimony and her husband’s testimony that she used the
computer all day was inconsistent with her claims that she could not
concentrate. R. 25. The record supports these findings. The Court,
therefore, will not disturb the credibility finding.
Osing does not expressly raise any other claims of error. See
generally, Osing Motion. Osing alludes to several other alleged problems
with the ALJ’s decision, including the ALJ’s treatment of Dr. Jeong’s
Physical Residual Functional Capacity Questionnaire; the ALJ’s
consideration of vocational expert Paprocki’s opinion that Osing’s work was
accommodated; the ALJ’s consideration of Osing’s obesity; and the ALJ’s
treatment of Osing’s fibromyalgia. Osing does not develop arguments
regarding these points, so all of these points are waived. See United
Page 31 of 34
States v. Adams, 625 F.3d 371, 378 (7th Cir. 2010); Melton v. Colvin, 2015
WL 1279966, at *2 n.1 (S.D. Ind. March 20, 2015). Even if the Court
considered these points, the Court still sees no reversible error.
The Court sees no error in the treatment of Dr. Jeong’s opinions. The
opinions of a treating physician are entitled to controlling weight if his
opinions are “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record.” 20 C.F.R. § 404.1527(c)(1). In this case,
the ALJ did not give weight to Dr. Jeong’s opinions because the ALJ found
that Osing gave him the answers to the questions on the form. R. 26. The
ALJ could reasonably draw that inference from her testimony quoted
above. If so, then Dr. Jeong did not express medical opinions, but merely
recited what Osing reported. Osing’s testimony provided substantial
evidence to support this conclusion by the ALJ.
The Court sees no error in the treatment of Osing’s obesity or her
fibromyalgia. The ALJ found that these conditions constituted severe
impairments. R. 21. The ALJ stated that he considered Osing’s obesity in
his determinations. R. 23. Osing also fails to cite any medical records that
indicated that her obesity was in any way debilitating. The ALJ also
Page 32 of 34
recognized that Osing had fibromyalgia and considered her condition in
making his findings. See R. 22, 24.
Lastly, Osing alludes to the fact that vocational expert Paprocki found
that her work was accommodated. Osing does not explain the significance
of this Paprocki’s observation in this case. Osing appears to be arguing
that the observation supports the conclusion that Osing met Listing 12.06
for anxiety disorders. See Osing Motion, at 2-4. Osing speculates that
Paprocki drew the conclusion that Osing’s work was accommodated from
her mental health records. See Osing Motion, at 2-3. Osing’s speculation
is just that, speculation, nothing more. Paprocki testified that he drew that
conclusion from “some evidence in the employment section” of the record.
R. 76. He later testified that he could not locate the exhibits in the record
from which he drew this conclusion. R. 82. Paprocki did not indicate that
he considered medical records in coming to the conclusion that the work
was accommodated.
The evidence further supports the conclusion that Osing performed
the regular duties of one of the security guards at the Harris Building.
Osing testified that at least one of the security guards at the Harris Building
could sit most of the day. She testified that she worked that post for seven
years. She testified that, at the time of the hearing, the person who worked
Page 33 of 34
her shift the other four days a week performed the job the same way she
performed it. She also testified that the person who worked the shift after
her shift was not required to walk around the building. R. 77-78. The ALJ
could properly conclude that Osing performed her work as a security guard
in the manner that the job was regularly performed at the Harris Building.
The ALJ’s RFC finding and Paprocki’s testimony, therefore, supported the
conclusion that Osing was not disabled at Step 4 because she could return
to that past relevant work as the job was actually performed. See 20
C.F.R. § 404.1560(b)(2). The Court sees no error.
THEREFORE, Defendant Commissioner of Social Security’s Motion
for Summary Affirmance (d/e18) is ALLOWED; Plaintiff Susan Marie
Osing’s Motion for Summary Judgment and Memorandum of Law in
Support of Remand/Vacate of Decision denying Disability (d/e 15) is
DENIED; and the decision of the Commissioner is AFFIRMED.
THIS CASE IS CLOSED.
ENTER: March 15, 2016
s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE
Page 34 of 34
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