Milburn v. Colvin

Filing 20

ORDER: The Report and Recommendation of United States Magistrate Judge Tom Schanzle-Haskins 19 is ACCEPTED and ADOPTED, subject to the two factual revisions discussed in the Order. Plaintiff's Motion for Summary Judgment 13 is DENIED. Defe ndant's Motion for Summary Affirmance 17 is GRANTED. Defendant's decision that Plaintiff was not disabled under the Social Security Act is AFFIRMED. THIS CASE IS CLOSED. SEE WRITTEN ORDER. Entered by Judge Sue E. Myerscough on 03/08/2018. (SKN, ilcd)

E-FILED

Friday, 09 March, 2018 09:38:18 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SHARON K. MILBURN,

)
)
Plaintiff,
)
)
v.
)
)
1
)
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, )
)
Defendant.
)

Case No. 16-cv-03264

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 19). Magistrate Judge Schanzle-Haskins recommends
that this Court (1) deny Plaintiff Sharon K. Milburn’s Motion for
Summary Judgment (d/e 13), (2) grant Defendant’s Motion for
Summary Affirmance (d/e 17), and (3) affirm Defendant’s decision
that Plaintiff was not disabled under the Social Security Act. For

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.
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the reasons set forth below, the Court ACCEPTS and ADOPTS the
Report and Recommendation, subject to two factual revisions.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 physical therapist Tatyana
Beyzerov found that Plaintiff “had a normal gait for her age with normal
velocity and accuracy.” Report and Recommendation, p. 11. But the records
from Plaintiff’s October 2013 appointment with Ms. Beyzerov indicate that Ms.
Beyzerov’s findings regarding velocity and accuracy concerned eye movements,
not gait. See R. 1164 (listing results of oculomotor examination). Magistrate
Judge Schanzle-Haskins also states that Dr. Michele Womontree, after
examining Plaintiff in October 2013, agreed with the opinions Dr. Howard Tin
formed after examining Plaintiff in April 2013. Report and Recommendation, p.
13. However, Dr. Tin found that Plaintiff had no difficulties in maintaining
social functioning or maintaining concentration, persistence, or pace, while Dr.
Womontree found mild difficulties in these categories. R. 118, 129. These
factual discrepancies do not change the fact that Magistrate Judge SchanzleHaskins did not commit clear error in determining that Defendant’s decision
that Plaintiff was not disabled was supported by substantial evidence.
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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
On February 9, 2018, Magistrate Judge Tom SchanzleHaskins issued a Report and Recommendation in which he
determined that Defendant’s decision that Plaintiff was not disabled
under the Social Security Act was supported by substantial
evidence. Although afforded an opportunity to file objections to the
Report and Recommendation, Plaintiff filed no objections.
The Court adopts the facts as presented by Magistrate Judge
Schanzle-Haskins in the Report and Recommendation, subject to
the two revisions noted above. Because Plaintiff has not objected to
the Report and Recommendation, the Court will forego a detailed
recitation of the facts and instead discuss in its analysis the
relevant facts on which the Court relies in accepting and adopting
the Report and Recommendation.
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III. ANALYSIS
In the Report and Recommendation, Magistrate Judge
Schanzle-Haskins determined that Defendant’s decision that
Plaintiff was not disabled was supported by substantial evidence.
Reviewing this decision for clear error, the Court is not left with a
“definite and firm conviction that a mistake has been made.”
Weeks, 126 F.3d at 943.
On review, Defendant’s decision that Plaintiff was not disabled
must be affirmed if it is “supported by substantial evidence.” 42
U.S.C. § 405(g). Substantial evidence is relevant evidence that “a
reasonable mind might accept as adequate to support a
conclusion.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
“An ALJ need not specifically address every piece of evidence, but
must provide a ‘logical bridge’ between the evidence and his
conclusions.” O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th
Cir. 2010). In determining whether the Defendant’s decision was
supported by substantial evidence, this Court is prohibited from
substituting its judgment for that of the Administrate Law Judge
(ALJ). See Alvarado v. Colvin, 836 F.3d 744, 747 (7th Cir. 2016).

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The ALJ, in finding that Plaintiff was not disabled, relied on
the fact that Plaintiff consistently scored between 65 and 75 on the
Global Assessment of Functioning (GAF) Scale. These scores
indicate that Plaintiff had, at most, mild symptoms or some
difficulty functioning. See Report and Recommendation, pp. 6-7.
As noted by Magistrate Judge Schanzle-Haskins, these GAF scores
were supported by objective medical findings. Specifically, at times,
Plaintiff was observed walking without the use of her cane. MRI
and EEG results ruled out the possibility that Plaintiff was suffering
from epilepsy or seizures, and physical therapist Tatyana Beyzerov
found that Plaintiff did not suffer from any vestibular problems.
The clinical neuropsychologist who evaluated Plaintiff in November
2013, Dr. Dongwook Lee, found it unlikely that Plaintiff’s 1986
injury was “affecting her current cognitive function.” R. 1139.
Further, Plaintiff reported having taken trips to Florida and Mexico
and having performed household chores after her alleged disability
onset date. Defendant’s decision that Plaintiff was not disabled is
supported by substantial evidence.
In support of her summary judgment motion, Plaintiff argues
that a remand is required because the ALJ did not take into
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account the opinions of Dr. Elizabeth Kuester, Dr. Donna
Hudspeth, and Dr. Stephen G. Vincent. Notably, all of these
opinions were offered in or before December 2011, which is
significant because Plaintiff amended the onset date of her alleged
disability to October 5, 2012. See R. 48-49. In fact, at the time
that Dr. Kuester, Dr. Hudspeth, and Dr. Vincent issued their
opinions, Plaintiff was working for FedEx, earning between $30,000
and $35,000 a year. See R. 58-59. Therefore, even assuming the
ALJ erred in not considering the opinions of Dr. Kuester, Dr.
Hudspeth, and Dr. Vincent, the error would be harmless. See
Parker v. Astrue, 597 F.3d 920, 924 (7th Cir. 2010), as amended on
reh’g in part (May 12, 2010) (noting that harmless error “is
applicable to judicial review of administrative decisions”). Indeed,
given the abundant, more recent medical evidence regarding
Plaintiff’s condition, the Court is convinced that the ALJ would
reach the same result if the case were remanded for consideration
of the opinions of Dr. Kuester, Dr. Hudspeth, and Dr. Vincent. See
McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (“[W]e will
not remand a case to the ALJ for further specification where we are
convinced that the ALJ will reach the same result.”).
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Plaintiff also argues that the ALJ erred in assessing Plaintiff’s
credibility, particularly because the ALJ did not consider Plaintiff’s
work history. The ALJ determined that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects” of her
symptoms “are not entirely credible.” R. 30. The ALJ explained
that Plaintiff’s claims of an extremely limited residual functional
capacity (RFC) “are not demonstrated by the medical records.” Id.
Given that the medical records reviewed and referenced by the ALJ,
records dated after Plaintiff’s alleged disability onset date, did not
support a finding that Plaintiff was suffering from a severe
impairment, the ALJ’s statements concerning the intensity,
persistence, and limiting effects of Plaintiff’s symptoms were not
patently wrong.3 See Gerstner v. Berryhill, 879 F.3d 257, 264 (7th
Cir. 2018) (noting that credibility findings will be overturned only if
“patently wrong”).
The fact that the ALJ did not consider Plaintiff’s work history
does not require a remand. An ALJ is not statutorily required to

Despite Defendant’s contention to the contrary, SSR 16-3p, in which the
Social Security Administration determined that an ALJ should not make
general credibility determinations in evaluating a claimant’s statements,
applies retroactively to judicial review of Defendant’s decision that Plaintiff was
not disabled. See Srp v. Colvin, No. 15-CV-3006, 2016 WL 4487831, at *4–5
(C.D. Ill. Aug. 25, 2016).
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consider a claimant’s work history, but “a claimant with a good
work record is entitled to substantial credibility when claiming an
inability to work because of a disability.” Stark v. Colvin, 813 F.3d
684, 689 (7th Cir. 2016) (internal quotation marks omitted).
However, “work history is just one factor among many, and it is not
dispositive.” Loveless v. Colvin, 810 F.3d 502, 508 (7th Cir. 2016).
Given the discrepancies between the objective medical findings
relied upon by the ALJ and Plaintiff’s statements regarding her
inability to work, the ALJ’s failure to reference Plaintiff’s work
history is not enough to negate the substantial evidence supporting
Defendant’s decision that Plaintiff was not disabled. See id.
Because Plaintiff has not developed her argument that the ALJ
erred by failing to consider her need to use a cane in determining
her RFC, the Court will not address this point. See Crespo v.
Colvin, 824 F.3d 667, 674 (7th Cir. 2016) (“[P]erfunctory and
undeveloped arguments, and arguments that are unsupported by
pertinent authority, are waived.”).
In conclusion, Magistrate Judge Schanzle-Haskins did not
commit clear error in holding that Defendant’s decision that
Plaintiff was not disabled was supported by substantial evidence.
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Because Defendant’s decision is supported by substantial evidence,
the decision must be affirmed by the Court. See 42 U.S.C. § 405(g).
IV. CONCLUSION
For the reasons stated, it is ORDERED that:
(1)

The Report and Recommendation of United States

Magistrate Judge Tom Schanzle-Haskins (d/e 19) is ACCEPTED
and ADOPTED, subject to the two factual revisions discussed
above.
(2)

Plaintiff’s Motion for Summary Judgment (d/e 13) is

DENIED.
(3)

Defendant’s Motion for Summary Affirmance (d/e 17)

is GRANTED.
(4)

Defendant’s decision that Plaintiff was not disabled

under the Social Security Act is AFFIRMED.
(5)

THIS CASE IS CLOSED.

ENTER: March 8, 2018
/s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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