Hardy v. Commissioner of Social Security
Filing
18
ORDER - IT IS ORDERED THAT:(1) Plaintiff Luke E. Hardy's Objection to Recommendation of U.S. Magistrate (d/e 16 ) is OVERRULED. (2) The Report and Recommendation of United States Magistrate Judge Tom Schanzle-Haskins (d/e 15 ) is ACCEPTED and ADOPTED, subject to the one factual revision discussed above. (3) Plaintiff's Motion for Summary Judgment and Memorandum of Law in Support Thereof (d/e 12 ) is DENIED. (4) Defendant's Motion for Summary Affirmance (d/e 14 ) is GRANTED. (5) Defendant's decision that Plaintiff was not disabled or entitled to Social Security Disability Insurance Benefits is AFFIRMED. (6) THIS CASE IS CLOSED. SEE WRITTEN ORDER. Entered by Judge Sue E. Myerscough on 9/28/2017. (ME, ilcd)
E-FILED
Friday, 29 September, 2017 03:49:22 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
LUKE E. HARDY,
)
)
Plaintiff,
)
)
v.
)
)
1
)
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, )
)
Defendant.
)
Case No. 16-cv-03116
ORDER
SUE E. MYERSCOUGH, U.S. District Judge:
This matter comes before the Court on the Report and
Recommendation of United States Magistrate Judge Tom SchanzleHaskins (d/e 15). Magistrate Judge Schanzle-Haskins recommends
that this Court (1) deny Plaintiff Luke E. Hardy’s Motion for
Summary Judgment and Memorandum of Law in Support Thereof
(d/e 12); (2) grant Defendant’s Motion for Summary Affirmance (d/e
14); and (3) affirm Defendant’s decision that Plaintiff was not
disabled or entitled to Social Security Disability Insurance Benefits.
On September 4, 2017, Plaintiff filed his Objection to
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill, the Acting Commissioner of Social Security, has been substituted as
the Defendant in this case.
1
Page 1 of 17
Recommendation of U.S. Magistrate (d/e 16), in which he asserts
two objections to the Report and Recommendation. For the reasons
set forth below, Plaintiff’s objections are OVERRULED. The Court
ACCEPTS and ADOPTS the Report and Recommendation, subject to
one minor factual revision.2
I. LEGAL STANDARD
When a magistrate judge proposes factual findings and
recommendations, the district court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1). The district court may
also receive further evidence or recommit the matter to the
magistrate judge with instructions. Id. The district court reviews
de novo any part of a magistrate judge’s report and
recommendation to which a specific written objection has been
made. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). “If no objection
or only partial objection is made, the district court judge reviews
Magistrate Judge Schanzle-Haskins states that Plaintiff reported in April
2013 that his back pain was usually a 6 on a 1 to 10 scale. Report and
Recommendation, p. 5. However, Plaintiff’s medical records from his April
2013 appointment indicate that Plaintiff reported his back pain was usually
between a 6 and a 9 on a 1 to 10 scale. R. 310. Plaintiff did not object to any
facts included in the Report and Recommendation, and the aforementioned
factual error is harmless, as it did not factor into the analysis conducted by
Magistrate Judge Schanzle-Haskins in the Report and Recommendation.
2
Page 2 of 17
those unobjected portions for clear error.” Johnson v. Zema Sys.
Corp., 170 F.3d 734, 739 (7th Cir. 1999). Under the clear error
standard, the district court can overrule a magistrate judge only if
the district court “is left with the definite and firm conviction that a
mistake has been made.” Weeks v. Samsung Heavy Indus. Co., 126
F.3d 926, 943 (7th Cir. 1997).
II. BACKGROUND
The Court adopts the facts as presented by Magistrate Judge
Schanzle-Haskins in the Report and Recommendation, subject to
the revision noted above. The Court sets forth below only those
facts necessary to resolve Plaintiff’s objections to the Report and
Recommendation.
On April 25, 2012, Plaintiff’s first application to receive Social
Security Disability Insurance Benefits was denied. R. 90-103.
However, Plaintiff filed another application for said benefits on July
13, 2002. R. 117.
After the filing of the second application for Social Security
Disability Insurance Benefits, Plaintiff went to several appointments
with his treating physicians. On April 3, 2013, Plaintiff attended an
appointment with his neurosurgeon, Jerry Bauer, M.D. R. 310-13.
Page 3 of 17
At this appointment, Plaintiff complained of low back pain, pain in
the left groin, and a sharp sensation down one of his legs. R. 310.
Plaintiff characterized his back pain as usually between a 6 and a 9
on a 1 to 10 scale. Id. Dr. Bauer noted that Plaintiff was negative
for back pain, bone or joint symptoms, muscle weakness, myalgia,
neck stiffness, numbness in extremities, and rheumatologic
manifestations. R. 311. Dr. Bauer found that Plaintiff’s balance,
gait, and coordination were intact and that Plaintiff showed no
signs of motor weakness. Id. He also noted that Plaintiff walked
without a limp, experienced no pain during straight leg testing, and
had slightly diminished reflexes in his left ankle only. R. 312. In
addition, Dr. Bauer noted no atrophy and that Plaintiff’s strength
was intact. Id. Dr. Bauer diagnosed Plaintiff as having back and
sciatic pain and ordered an MRI and x-ray of Plaintiff’s lumbar
spine. Id.
On July 3, 2013, Plaintiff saw Dr. Bauer for a follow-up
examination. R. 321-23. Plaintiff informed Dr. Bauer that
Plaintiff’s legs had been giving out on occasion, tending to make
Plaintiff fall. R. 321. Plaintiff also conveyed that he was walking
with the help of a cane at all times. Id. After reviewing the MRI and
Page 4 of 17
x-ray of Plaintiff’s lumbar spine, Dr. Bauer noted that there was a
solid fusion at L5-S1; no degenerative disc disease, disc herniation,
or stenosis at any other level; and mild facet arthropathy at L4-L5.
Id. Dr. Bauer again found that Plaintiff’s balance, gait, and
coordination were intact and that Plaintiff showed no signs of motor
weakness. R. 322. Dr. Bauer also noted that Plaintiff did not need
additional surgery. R. 323. However, Dr. Bauer determined that
Plaintiff was unable to return to his former employment and that, at
best, Plaintiff could perform sedentary work that came with a 10pound lifting restriction and an opportunity to change position and
avoid prolonged sitting, standing, or walking. Id. Dr. Bauer also
noted that Plaintiff was applying for Social Security Disability
Insurance Benefits. Id.
On June 9, 2014, Plaintiff again saw Dr. Bauer. R. 325-27.
Plaintiff complained of back pain and dysesthesia (an unpleasant,
abnormal sense of touch) in his left leg and foot and indicated that
he walked with a cane to prevent him from falling. R. 325.
Consistent with previous appointments, Dr. Bauer found that
Plaintiff’s balance, gait, and coordination were intact and that
Plaintiff showed no signs of motor weakness at the June 2014
Page 5 of 17
appointment. R. 327. It was Dr. Bauer’s opinion that Plaintiff was
stable. Id. However, Dr. Bauer determined that Plaintiff was
unable to work because of his continued pain and use of a cane to
walk. Id. Dr. Bauer also reiterated his assessment from April
2013—that Plaintiff was unable to return to his former employment
and that, at best, Plaintiff could perform sedentary work that came
with a 10-pound lifting restriction and an opportunity to change
position and avoid prolonged sitting, standing, or walking. Id.
On July 25, 2014, Plaintiff saw Virgil Dyocco, M.D., in order to
obtain prescription refills. See R. 333. Dr. Dyocco noted Plaintiff’s
complaints of chronic back pain and refilled Plaintiff’s prescriptions
for Valium and Tylenol #3 with codeine. Id. Dr. Dyocco also
indicated in his notes that Plaintiff was unable to work. Id.
In January 2014, Plaintiff’s application for Social Security
Disability Insurance Benefits was denied. R. 116. The
Administrative Law Judge (ALJ) found that while Plaintiff was
limited to sedentary work, he was not disabled. R. 134. Plaintiff
sought reconsideration of this decision. See R. 118. On April 24,
2013, Plaintiff’s application was denied on reconsideration. R. 127.
Page 6 of 17
The ALJ who denied Plaintiff’s application on reconsideration3
found that Plaintiff was capable of light work. R. 126. Plaintiff
sought a hearing before an ALJ on his application. R. 141. The
hearing was held on July 24, 2014. R. 57.
On October 27, 2014, the ALJ who conducted the hearing4
issued her revised decision. R. 13-20. The ALJ determined that
Plaintiff was not disabled under §§ 216(i) and 223(d) of the Social
Security Act. R. 20. Specifically, the ALJ found that Plaintiff had
the “residual functional capacity to perform light work,” but noted
that Plaintiff could not climb ladders, ropes, or scaffolds and could
only occasionally climb ramps or stairs, balance, stoop, kneel,
crouch, and crawl. R. 16. In making this determination, the ALJ
gave “very little weight” to Dr. Bauer’s opinion regarding Plaintiff’s
ability to perform only sedentary work, finding that the opinion was
inconsistent with Dr. Bauer’s treatment notes, which reflected
“essentially normal physical exams.” R. 18. Similarly, the ALJ gave
The ALJ who denied Plaintiff’s application on reconsideration was not the
same ALJ who initially denied Plaintiff’s application.
3
The ALJ who conducted the hearing was neither the ALJ who denied
Plaintiff’s application on reconsideration nor the ALJ who initially denied
Plaintiff’s application. All subsequent references to the ALJ in this Order
correspond to the ALJ who conducted the July 2014 hearing and rendered the
October 2014 revised decision.
4
Page 7 of 17
“very little weight” to Dr. Dyocco’s opinion that Plaintiff was unable
to work, as the opinion was unsupported by Dr. Dyocco’s treatment
notes, which contained “very few objective findings.” Id.
Plaintiff appealed the ALJ’s decision, but the Appeals Council
denied Plaintiff’s request for review, thereby making the ALJ’s
decision the final decision of Defendant. R. 1. Plaintiff
subsequently filed a Complaint (d/e 1) seeking judicial review of the
ALJ’s decision. Plaintiff ultimately filed a motion for summary
judgment, and Defendant filed a cross motion for summary
judgment. See d/e 12, 14.
Magistrate Judge Tom Schanzle-Haskins issued a Report and
Recommendation regarding the ALJ’s decision and the parties’
motions for summary judgment on August 21, 2017. Magistrate
Judge Schanzle-Haskins determined that the ALJ’s decision to deny
Plaintiff Social Security Disability Insurance Benefits was supported
by substantial evidence. More relevant to Defendant’s objections,
Magistrate Judge Schanzle-Haskins also determined that
inconsistencies in Dr. Bauer’s treatment notes were substantial
evidence authorizing the ALJ’s decision to give “very little weight” to
Page 8 of 17
Dr. Bauer’s opinion regarding Plaintiff’s ability to perform only
sedentary work.5
III. ANALYSIS
Plaintiff asserts only two objections to the Report and
Recommendation issued by Magistrate Judge Schanzle-Haskins.
Plaintiff first objects that he never consented to Magistrate Judge
Schanzle-Haskins disposing of this case. But Magistrate Judge
Schanzle-Haskins merely made a recommendation to this Court
regarding the ALJ’s decision and the parties’ motions for summary
judgment, as is allowed by the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 72(b). As required by 28 U.S.C. § 636(b)(1), this
Court will make the final decision regarding the ALJ’s decision and
the motions for summary judgment.
Plaintiff’s second objection is that Magistrate Judge SchanzleHaskins relied on the opinions of doctors who never examined
Plaintiff and doctors who examined Plaintiff “on a single occasion
Plaintiff, in his motion for summary judgment, did not take issue with the
fact that the ALJ gave “very little weight” to Dr. Dyocco’s opinion that Plaintiff
was unable to work. Indeed, Plaintiff took the position that Dr. Dyocco made
no determination in his treatment notes about Plaintiff’s ability to work and
that the ALJ had misread the treatment note. Nevertheless, because Plaintiff
did not limit his objections to Dr. Bauer’s opinion, the Court will consider
whether the ALJ was justified in giving very little weight to Dr. Dyocco’s opinion
that Plaintiff was unable to work.
5
Page 9 of 17
for a few minutes” to recommend an affirmance of the ALJ’s
decision, who impermissibly rejected the opinion of Plaintiff’s
treating physicians. Implicit in this objection is the argument that
Magistrate Judge Schanzle-Haskins should have determined that
the ALJ erred by not giving controlling weight to the opinions of
Plaintiff’s treating physicians.
Importantly, not implicit in Plaintiff’s second objection is that,
assuming the treating physicians’ opinions are not given controlling
weight, the ALJ’s decision is not supported by substantial evidence.
See Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (defining
substantial evidence as relevant evidence that “a reasonable mind
might accept as adequate to support a conclusion”). Indeed, one
can imagine a Social Security case in which an ALJ would have
substantial evidence to support his decision regardless of which
party prevailed but had to render a decision favorable to the
plaintiff because a treating physician’s opinion was given controlling
weight. Accordingly, Magistrate Judge Schanzle-Haskins’
conclusion that the ALJ’s decision was supported by substantial
evidence will be reviewed only for clear error. Johnson, 170 F.3d at
Page 10 of 17
739. But first, the Court will address Plaintiff’s objection regarding
his treating physicians’ opinions.
“[A] treating physician’s medical opinion is entitled to
controlling weight in the disability analysis if it is well supported by
objective medical evidence and consistent with other substantial
evidence in the record.” Ghiselli v. Colvin, 837 F.3d 771, 776 (7th
Cir. 2016) (internal quotation marks omitted). An ALJ must offer
“good reasons” for not giving controlling weight to a treating
physician’s opinions. Brown v. Colvin, 845 F.3d 247, 252 (7th Cir.
2016); see also Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir.
2003) (“An ALJ can reject an examining physician's opinion only for
reasons supported by substantial evidence in the record . . . .”).
“An ALJ must only minimally articulate his or her justification for
rejecting or accepting specific evidence of a disability. Berger v.
Astrue, 516 F.3d 539, 545 (7th Cir. 2008) (internal quotation marks
omitted).
“Internal inconsistencies may provide good cause to deny
controlling weight to a treating physician's opinion, but the
reasoning for the denial must be adequately articulated.” Minnick
v. Colvin, 775 F.3d 929, 938 (7th Cir. 2015). An ALJ can also
Page 11 of 17
refuse to give a treating physician’s opinion controlling weight if the
opinion “is based upon the claimant’s subjective complaints rather
than objective medical evidence.” Ghiselli, 837 F.3d at 776. If a
treating physician’s opinion is not given controlling weight, the ALJ
“must address the appropriate weight to give the opinion.” Stage v.
Colvin, 812 F.3d 1121, 1126 (7th Cir. 2016). Factors relevant to
the amount of weight given to a treating physician’s opinion not
given controlling weight include the amount of relevant evidence
supporting the opinion and the opinion’s consistency with the
record. See Brown, 845 F.3d at 252.
The Court finds that the ALJ gave good reasons for giving “very
little weight” to the opinions of Dr. Bauer and Dr. Dyocco regarding
Plaintiff’s ability (or inability) to work. Regarding Dr. Dyocco’s
opinion that Plaintiff was unable to work, the ALJ noted that the
opinion was not supported by Dr. Dyocco’s treatment notes and the
few objective findings made therein. R. 18. In the treatment note
for July 25, 2014, Dr. Dyocco assesses Plaintiff as suffering from
chronic low back pain with a “disc problem.” R. 333. The only
objective finding on which the assessment is based is that Plaintiff
was experiencing a sore back. Id. The only subjective findings on
Page 12 of 17
which the assessment is based are that Plaintiff complained of
chronic back pain and muscle spasms, had surgery in the past, was
still being seen by a neurosurgeon, and was requesting refills of his
pain medication, Valium and Tylenol #3 with codeine. Id. While
the assessment regarding chronic low back pain may have been
accurate, the ALJ determined that the assessment, based mainly on
the aforementioned subjective, as opposed to objective, findings, did
not support the conclusion that Plaintiff was unable to work in any
way. Indeed, just because a person has a sore back, complains of
chronic back pain, and takes Valium and Tylenol #3 with codeine
does not mean that the person cannot work. The ALJ had good
reason to give “very little weight” to Dr. Dyocco’s opinion that
Plaintiff was unable to work.
As for Dr. Bauer’s opinion that Plaintiff could perform only
sedentary work that came with a 10-pound lifting restriction and an
opportunity to change position and avoid prolonged sitting,
standing, or walking, the ALJ determined that the opinion was
inconsistent with Dr. Bauer’s treatment notes and the “essentially
normal physical exams” described therein. R. 18. Dr. Bauer’s
relevant treatment notes consistently indicate that Plaintiff’s
Page 13 of 17
balance, gait, and coordination were intact and that Plaintiff
showed no signs of motor weakness. R. 311, 321, 325. At one
appointment, Dr. Bauer also noted that Plaintiff walked without a
limp and experienced no pain during straight leg testing. R. 312.
At this same appointment, Dr. Bauer noted no atrophy and that
Plaintiff’s strength was intact and had slightly diminished reflexes
in his left ankle only. Id. At a subsequent appointment, Dr. Bauer,
after having reviewed an x-ray and an MRI of Plaintiff’s lumbar
spine, noted that there was a solid fusion at L5-S1 and no
degenerative disc disease, disc herniation, or stenosis at any other
level. R. 321. At the same appointment, Bauer also noted that
Plaintiff did not need additional surgery. R. 323. Further, Dr.
Bauer, at Plaintiff’s June 2014 appointment, was of the impression
that Plaintiff was stable. R. 327.
The ALJ determined that the aforementioned findings from Dr.
Bauer’s treatment notes were inconsistent with Dr. Bauer’s
conclusion that Plaintiff could only perform sedentary work with
significant restrictions. Indeed, one would certainly not expect Dr.
Bauer’s treatment notes on Plaintiff, who was claiming a disability
based on back pain and sciatic pain in one leg, to be unremarkable
Page 14 of 17
when it came to Plaintiff’s gait, strength, and balance and note
Plaintiff as having no pain during a straight leg test or as having a
solid fusion at L5-S1 with no degenerative disc disease, disc
herniation, or stenosis at any other level. It appears that Dr.
Bauer’s opinion on Plaintiff’s ability to work was based primarily on
Plaintiff’s subjective complaints, as opposed to objective medical
evidence. The ALJ therefore had good reason to give “very little
weight” to Dr. Bauer’s opinion regarding Plaintiff’s ability to perform
only sedentary work with significant restrictions.
Additionally, after reviewing Plaintiff’s Motion for Summary
Judgment and Memorandum of Law in Support Thereof,
Defendant’s Motion for Summary Affirmance, the Report and
Recommendation, the factual record, and the applicable law, this
Court finds no clear error in Magistrate Judge Schanzle-Haskins’
finding that Defendant’s decision that Plaintiff was not disabled and
could perform light work was supported by substantial evidence.
See Alvarado v. Colvin, 836 F.3d 744, 747 (7th Cir. 2016) (noting
that the Court, in determining whether an ALJ’s decision was
supported by substantial evidence, may not substitute its judgment
for that of the ALJ). Indeed, Magistrate Judge Schanzle-Haskins, in
Page 15 of 17
making his “substantial evidence” finding, relied on the x-ray and
MRI of Plaintiff’s lumbar spine, the treatment notes of Plaintiff’s
neurosurgeon and a state agency physician who performed a
consultative examination on Plaintiff in November 2012, and the
hearing testimony of a vocational expert. See Report and
Recommendation, p. 18. The Court finds no clear error with
respect to any other portion of the Report and Recommendation.
IV. CONCLUSION
For the reasons stated, IT IS ORDERED THAT:
(1)
Plaintiff Luke E. Hardy’s Objection to
Recommendation of U.S. Magistrate (d/e 16) is OVERRULED.
(2)
The Report and Recommendation of United States
Magistrate Judge Tom Schanzle-Haskins (d/e 15) is ACCEPTED
and ADOPTED, subject to the one factual revision discussed
above.
(3)
Plaintiff’s Motion for Summary Judgment and
Memorandum of Law in Support Thereof (d/e 12) is DENIED.
(4)
Defendant’s Motion for Summary Affirmance (d/e 14)
is GRANTED.
Page 16 of 17
(5)
Defendant’s decision that Plaintiff was not disabled
or entitled to Social Security Disability Insurance Benefits is
AFFIRMED.
(6)
THIS CASE IS CLOSED.
ENTER: September 28, 2017
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 17 of 17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?