Lawson v. Commissioner of Social Security

Filing 20

ORDER AND OPINION entered by Magistrate Judge Jonathan E. Hawley on 2/9/2017. IT IS ORDERED: Lawson's Motion for Summary Judgment (D. 14 ) is DENIED and the Commissioner's Motion for Summary Affirmance (D. 18 ) is GRANTED. This matter is now terminated. (SL, ilcd)

E-FILED

Friday, 10 February, 2017 01:45:04 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
CARMEN LYNN LAWSON,
Plaintiff,
v.

Case No. 4:15-cv-04136-JEH

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Order and Opinion
Now before the Court are the Plaintiff, Carmen Lawson’s, Motion for
Summary Judgment (D. 14) 1 and the Commissioner’s Motion for Summary
Affirmance (D. 18). Both parties have provided supporting Memoranda thereto.
(D. 15, 19). For the reasons stated herein, the Court DENIES the Plaintiff’s Motion
for Summary Judgment and GRANTS the Defendant’s Motion for Summary
Affirmance. 2
I
On June 21, 2012, Lawson filed an application for Supplemental Security
Income (SSI) alleging disability beginning on August 29, 2001. Her claim for SSI
was denied initially on August 10, 2012, and denied upon reconsideration on
February 5, 2013. On March 12, 2013, Lawson filed a request for a hearing on her
application for Social Security benefits. Lawson appeared at the hearing before
the Honorable David W. Thompson (ALJ) by video on March 5, 2014. She was
represented by an attorney. At the hearing, Lawson amended her alleged onset
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2

Citations to the Docket in this case are abbreviated as “D. __.”
The undersigned presides over this case with the consent of all parties. (D. 11).

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date of disability to June 8, 2012. Following the hearing, the ALJ denied Lawson’s
claim on April 21, 2014. The Appeals Council denied Lawson’s request for review
on July 24, 2015, making the ALJ’s Decision the final decision of the Commissioner.
Lawson filed the instant civil action, seeking review of the ALJ’s Decision pursuant
to 42 U.S.C. §§ 405(g), 1383(c) on September 25, 2015.
II
At the time Lawson applied for SSI, she was 40 years old. She was living in
a mobile home, in Aledo, Illinois with her boyfriend, who earns income. Lawson
has a high school education but has not worked since 2001. On the various SSA
forms she submitted, Lawson indicated that she has pancreatitis which causes her
pain and limits her ability to work.
At the hearing before the ALJ, Lawson testified that her bouts with
pancreatitis have increased over the last two years to “several times a month.” (D.
7 at pg. 50). Lawson said her bouts last anywhere from three days to a week,
during which time she either seeks treatment at a hospital or lays down with a
heating pad. She believes stress and diet (either not eating enough, or eating the
wrong foods) triggers her pancreatitis attacks. Lawson has been hospitalized due
to the pain from her pancreatitis. The chief remedy is a bland diet, after which
Lawson’s condition stabilizes and she is released from the hospital. (e.g. D. 7-3 at
pg. 111).
In approximately June of 2012—Lawson was unsure of the precise date—
she had stents put in her pancreas to ease her condition.

Lawson said the

procedure lessened the pain. She also testified that, on average, she has two bouts
with pancreatitis a month. As of March 2014, however, Lawson said she had
approximately 40 attacks in the past year. Five or six of those attacks were the type
she described as excruciating.
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Lawson stated that Doctor Wurzburger has been her primary care physician
for approximately two and a half years.

Wurzburger completed residual

functional capacity (“RFC”) questionnaires on Lawson in February 2103 and
January 2014.

In both, Wurzburger estimated that Lawson would miss

approximately four days of work due to her pancreatitis attacks. Lawson testified
that she is unable to tend to her normal household chores during her pancreatitis
flare ups and her boyfriend has to take care of them instead. She is on Prilosec for
her upset stomach as well as Vicodin and ibuprofen to manage her pain, but they
do not work well.
Vocational Expert, Brian Paprocki, also testified at Lawson’s hearing. He
presented his finding that Lawson had a past relevant work history as a
waitress/cook, performed at a light level. In answering questions from the ALJ,
Paprocki opined that if an employee were to miss four or more days of work per
month, they would be precluded from competitive employment of any kind. He
also stated that if an employee were less than 80% productive on the job it would
preclude them from holding down competitive employment. In response to
questioning from Lawson’s counsel, Paprocki further explained that “two days
per month, unexcused” from work, or a productivity rate of 85%, would also
preclude Lawson from maintaining competitive employment. (D. 7 at pg. 57).
In closing, Lawson’s counsel stressed that Wurzburger’s opinions should be
given weight.

Counsel concluded by stating “We’re here because the acute

pancreatitis would unexpectedly keep [Lawson] off work and lead to absenteeism
which would not be tolerated on any full-time, competitive basis and that’s the
basis for her claim and that’s why we’re here today.” Id. at pg. 58.
Lawson has, admittedly, struggled with alcohol abuse. She was convicted
of DUI in 2001 and lost her driver’s license. Lawson testified that she has not drank
alcohol since 2005. There is a notation in her medical records, however, from
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March 2013 where medical staff documented that Lawson admitted to “binge
drinking” lately. Id. at pg. 53; D. 7-3 at pg. 74, 86. At the hearing, Lawson claimed
the note is inaccurate.
III
In his Decision, the ALJ determined that Lawson had the severe impairment
chronic pancreatitis (20 CFR 416.920(c)). (D. 7 at pg. 25). The ALJ crafted the
following Residual Functional Capacity for Lawson:
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform the
full range of medium work as defined in 20 CFR 416.967(c).
Id. at pg. 28. In reaching that finding, the ALJ recounted Lawson’s testimony at
the hearing regarding her condition. Following protocol, he determined there was
a medical impairment reasonably expected to produce Lawson’s symptoms. The
ALJ further found, however, that in evaluating the intensity, persistence, and
limiting effects of Lawson’s symptoms, he needed to make a finding on the
credibility of her statements “based on a consideration of the entire case record[]”
since her statements were not “substantiated by objective medical evidence[.]” Id.
at pg. 28.
After considering all of the evidence, the ALJ found Lawson’s statements
“not entirely credible[.]” Id. at pg. 29. He went on to explain that her claim of
complete and total disability could not be accepted. The ALJ noted that Lawson’s
claims of extreme limited functional capacity are not supported by the medical
records. He emphasized that, based on the record, Lawson’s compliance with
treatment instructions—mainly diet—was questionable. The ALJ supported this
logic by citing instances memorialized in Lawson’s medical records where she was
implicated for drinking alcohol after 2005, concluding:

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This evidence casts doubt on the claimant’s credibility and leads to a
serious question about her drinking and her denial of drinking at all
since 2005. Whether the claimant is drinking or not, the clear
indication is that what she consumes causes her pancreatitis episodes.
Given these findings, the undersigned cannot conclude that the
claimant is entirely disabled under the guidelines of Social Security
Ruling 96-7p and 20 CFR 416.929.
Id.
The ALJ specifically addressed Wurzburger’s opinions in his Decision. He
noted that Wurzburger’s RFC questionnaires from February 2013 and January
2014 supported Lawson’s claim of disability. The ALJ concluded, however, that:
[T]he claimant gave no testimony (or any other evidence) that she has
problems other than during her pancreatitis attacks. As such, she
would have no limitations when she is not having a pancreatitis
attack. If Dr. Wurzburger is saying that these are the claimant’s
limitations during a pancreatitis attack, then her bouts are not nearly
as bad as the claimant alleges. This leaves the doctor’s opinion that
the claimant will miss more than 4 days of work per month.
However, Dr. Wurzburger fails to support this opinion with any
statistics of the number of bouts the claimant experiences per month
or how long each bout lasts. Thus, the doctor’s opinion is vague,
ambiguous, and unsupported.
Id. The ALJ ultimately found that Lawson was not disabled.
IV
Lawson argues that the ALJ erred: (1) in evaluating Wurzburger’s opinions;
(2) in making a credibility assessment of Lawson; and (3) in making a Step 5
determination. The Court disagrees.
The Court's function on review is not to try the case de novo or to supplant
the ALJ's findings with the Court's own assessment of the evidence. See Schmidt v.
Apfel, 201 F.3d 970, 972 (7th Cir. 2000); Pugh v. Bowen, 870 F.2d 1271 (7th Cir. 1989).
Indeed, "[t]he findings of the Commissioner of Social Security as to any fact, if
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supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g).
Although great deference is afforded to the determination made by the ALJ, the
Court does not "merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297 F.3d
589, 593 (7th Cir. 2002). The Court's function is to determine whether the ALJ's
findings were supported by substantial evidence and whether the proper legal
standards were applied. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986).
Substantial evidence is defined as such relevant evidence as a reasonable mind
might accept as adequate to support the decision. Richardson v. Perales, 402 U.S.
389, 390 (1971); Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999).
The establishment of disability under the Act is a two-step process. First,
the plaintiff must be suffering from a medically determinable physical or mental
impairment, or combination of impairments, which can be expected to result in
death, or which has lasted or can be expected to last for a continuous period of not
less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). Second, there must be a factual
determination that the impairment renders the plaintiff unable to engage in any
substantial gainful employment. McNeil v. Califano, 614 F.2d 142, 143 (7th Cir.
1980). The factual determination is made by using a five-step test. See 20 C.F.R. §§
404.1520, 416.920. In the following order, the ALJ must evaluate whether the
claimant:
1)

currently performs or, during the relevant time period, did
perform any substantial gainful activity;

2)

suffers from an impairment that is severe or whether a
combination of her impairments is severe;

3)

suffers from an impairment which meets or equals any
impairment listed in the appendix and which meets the
duration requirement;

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4)

is unable to perform her past relevant work which includes an
assessment of the claimant’s residual functional capacity; and

5)

is unable to perform any other work existing in significant
numbers in the national economy.

Id. An affirmative answer at any step leads either to the next step of the test, or at
steps 3 and 5, to a finding that the plaintiff is disabled. A negative answer at any
point, other than at step 3, stops the inquiry and leads to a determination that the
plaintiff is not disabled. Garfield v. Schweiker, 732 F.2d 605 (7th Cir. 1984).
The plaintiff has the burdens of production and persuasion on steps 1
through 4. In the instant case, Lawson claims the ALJ erred at Step Five.
A
First, Lawson argues the ALJ erred in evaluating her treating physician’s
opinions. Specifically, Lawson argues the ALJ’s finding that she had the RFC to
perform the full range of medium work “is unsupported as he improperly
afforded Dr. Wurzburger’s opinion inadequate weight in violation of the
regulations[.]” (D. 15 at pg. 10). As Lawson sees it, this renders the ALJ’s finding
an inaccurate representation of Lawson’s maximum functional capacity. Id. at pg.
12-13. In response, the Commissioner highlights those parts of the ALJ’s Decision
which, according to the Commissioner, show that the ALJ properly considered the
record evidence in concluding that Wurzburger’s opinions were entitled to little
weight. (D. 19 at pg. 8-16).
Though an ALJ must give controlling weight to the medical opinion of a
treating physician, the ALJ must do so only if the treating physician’s opinion is
“well-supported by medically acceptable clinical and laboratory diagnostic
techniques and not inconsistent with other substantial evidence.” Bauer v. Astrue,
532 F.3d 606, 608 (7th Cir. 2008), citing Hofslien v. Barnhart, 439 F.3d 375, 376 (7th
Cir. 2006); 20 C.F.R. § 404.1527(c)(2); 20 C.F.R. §416.927(c)(3). If the ALJ does not
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give a treating physician’s opinion controlling weight, the Social Security
regulations require the ALJ to consider: 1) the length, nature, and extent of the
treatment relationship; 2) the frequency of examination; 3) the physician’s
specialty; 4) the types of tests performed; 5) and the consistency and supportability
of the physician’s opinion. 20 C.F.R. § 404.1527; 20 C.F.R. § 416.927; Moss v. Astrue,
555 F.3d 556, 561 (7th Cir. 2009). Here, the ALJ did not err in failing to give
Wurzburger’s opinions controlling weight.
At issue are Wurzburger’s findings in the form of RFC questionnaires where
she checked boxes to assert that by her estimate, Lawson would likely be absent
from work “[t]hree to four times a month” and later “[m]ore than four times a
month” due to her impairment. (D. 7-3 at pg. 45, 160). In the ALJ’s discussion of
these findings, he does point out they are unsupported by reference to any actual
number, or even an estimate, of the bouts of pancreatitis Lawson experienced in a
given month. Lawson does not point to anything in the record to contradict the
ALJ’s conclusion that there is no support for Wurzburger’s finding.
Rather, Lawson emphasizes that the onus was on the ALJ to reach out to
Wurzburger to solicit supporting evidence when he found her opinion lacking.
(D. 15 at pg. 12-13). Generally speaking, the ALJ has a duty to develop a full and
fair record, and the failure to do so is cause for remand. See Nelms v. Astrue, 553
F.3d 1093, 1098 (7th Cir. 2009); Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000). But
only a “significant omission” justifies remand, and the ALJ’s duty to develop the
record is only heightened when a claimant is proceeding without counsel. Nelms,
553 F.3d at 1098.
Here, Lawson proceeded with counsel, eliminating the Court’s need to
heighten scrutiny. Moreover, the error Lawson complains of does not qualify as a
significant omission. “[A]n omission is significant only if it is prejudicial. Mere
conjecture or speculation that additional evidence might have been obtained in the
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case is insufficient to warrant a remand. Instead a claimant must set forth specific,
relevant facts—such as medical evidence—that the ALJ did not consider.” Id.
(citations and internal quotations omitted). Lawson has failed to advance an
argument beyond speculation and bring to the Court’s attention any specific facts
the ALJ did not consider.

The only evidence in the record of how many

pancreatitis attacks Lawson experienced is her own testimony. As discussed in
more detail in the next subsection, infra, the ALJ justifiably views Lawson’s
testimony with caution and questions her credibility.
The ALJ did not err in assigning little weight to Wurzburger’s opinions.
Lawson claims the ALJ “failed to support the basis for rejecting Dr. Wurzburger’s
assessment.” (D. 15 at pg. 14). This assertion is contradicted by the record. In his
Decision, the ALJ explained that he gave little weight to Wurzburger’s opinions
because her assertions that Lawson would miss a range of workdays in a given
month were vague and unsupported. (D. 7 at pg. 29).
In this discussion, the ALJ emphasized the role Lawson’s dietary restrictions
played in her pancreatitis attacks. The record supports the conclusion that Lawson
has not followed recommended dietary restrictions.

In December 2013, for

example, she went to the emergency room due to pain from her pancreatitis.
Lawson denied drinking alcohol at that time but admitted that she had not been
following her recommended diet. Id. at pg. 117.
Lawson’s food consumption is patently interwoven with the frequency of
her pancreatitis bouts. The ALJ pointed to Lawson’s medical records, which
indicate that Lawson has not followed recommended dietary restrictions. His
observation that, according to the record, Lawson experienced stability in her
condition with changes in what she consumed does not amount to reversible error.
The ALJ cited Lawson’s evidenced stability with dietary changes to support his
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determination as to the weight he gave Wurzburger ’s opinions, doing what was
required of him under 20 CFR § 416.927.
Thus, the ALJ did not err in giving little weight to Wurzburger’s opinions.
In other words, the Court can trace the path of the ALJ’s reasoning from his
discussion of the medical opinions of record and the weight he assigned each to
the RFC he ultimately formulated. See Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir.
1993) (stating that an ALJ must “sufficiently articulate [their] assessment of the
evidence to assure us that the ALJ considered the important evidence . . . and to
enable us to trace the path of the ALJ’s reasoning”). The ALJ addressed the record
evidence as a whole in his Decision, and so the Court finds that substantial
evidence supports the weight he gave Wurzburger’s opinions.
B
Lawson further argues that the ALJ’s finding that her subjective complaints
were less than fully credible is unsupported by substantial evidence. (D. 15 at pg.
16). Specifically, she claims that the ALJ was required to evaluate the intensity and
persistence of Lawson’s symptoms in the aftermath of his finding that Lawson had
an underlying medically determinable impairment that could reasonably be
expected to produce her professed symptoms. Id. Lawson also asserts that the
ALJ failed to perform any analysis of the regulatory factors in finding Lawson
lacked credibility. Id. at pg. 15-16. The Commissioner argues the ALJ reasonably
evaluated Lawson’s subjective complaints. (D. 19 at pg. 16-19).
Determinations of credibility made by the ALJ will not be overturned unless
the findings are patently wrong. Shideler v. Astrue, 688 F.3d 306, 310-11 (7th Cir.
2012). SSR 96–7p instructs that when “determining the credibility of the
individual's statements, the adjudicator must consider the entire case record,” and
that a credibility determination “must contain specific reasons for the finding on
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credibility, supported by the evidence in the case record.” 3 An ALJ must provide
“enough detail and clarity to permit meaningful review.” Briscoe ex rel. Taylor v.
Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). In other words, a credibility finding
“must be supported by the evidence and must be specific enough to enable the
claimant and a reviewing body to understand the reasoning.” Craft v. Astrue, 539
F.3d 668, 678 (7th Cir. 2008).
Just as the Court cannot re-weigh the medical evidence of record and resolve
conflicts in the record, nor can the Court make its own credibility finding. “When
assessing an ALJ’s credibility determination, [the court does] not . . . undertake a
de novo review of the medical evidence that was presented to the ALJ. Instead, [the
court] merely examines whether the ALJ’s determination was reasoned and
supported.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). It is only when an
ALJ’s determination lacks any explanation or support that it is “patently wrong.”
Id. at 413-14. That is not the case here.
In his ruling, the ALJ provided reasons why he found Lawson’s testimony
not fully credible. (D. 7 at pg. 29). Furthermore, the record supports his conclusion
that Lawson has a credibility issue. At the ALJ hearing in March 2014, Lawson
claimed she had not drank alcohol since 2005. Medical records indicate, however,
that she likely did drink alcohol after 2005. In June 2012, during an emergency
room visit, she told medical staff that she “[d]rinks alcohol on a regular basis,
primarily beer[.]” (D. 7-2 at pg. 9). Approximately a week later at a follow up
appointment, treatment notes indicate that alcohol abuse was one of her active
problems. Id. at pg. 139. In June 2013, medical records further indicate that

SSR 96-7p was superseded by SSR 16-3p, effective March 16, 2016. The operative language the Court
quotes here from SSR 96-7p, however, appears in SSR 16-3p verbatim. By either standard, the Court’s
analysis remains the same.
3

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Lawson used alcohol occasionally. (D. 7-3 at pg. 91). Wurzburger herself noted
alcohol abuse was one of Lawson’s active problems at that time. Id. at pg. 97.
Thus, the ALJ included specific reasons for his finding on credibility,
supported by the evidence in the case record. The ALJ confronted the objective
medical evidence of Lawson’s impairments, her daily activities, and her treatment.
In so doing, the ALJ provided enough clarity and detail to permit meaningful
review. The ALJ considered the contrary evidence and explained why he rejected
it. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005) (“An ALJ may not
substitute his own judgment for a physician’s opinion without relying on other
medical evidence or authority in the record”). The ALJ did not, therefore, commit
an error in his credibility analysis that would require remand.
C
Finally, Lawson argues that the ALJ erred in making a Step 5 determination
unsupported by substantial evidence.

Lawson makes this argument first by

asserting that the ALJ’s error was in relying “on vocational testimony elicited in
response to an incomplete hypothetical question.” (D. 15 at pg. 3) Later, however,
Lawson claims the ALJ’s error on this issue was in failing to properly “account for
[her] expected absenteeism resulting from her impairments and treatment.” (D.
15 at pg. 17). Neither argument is supported by a relevant citation to the record.
Instead, Lawson cites 20 CFR 416.912 to highlight that an ALJ must support
a finding of non-disability by determining whether there is any work in the
national economy that the claimant can perform, in full consideration of the
claimant’s age, education, and residual functional capacity. (D. 15 at pg. 18)
Lawson then merely concludes that “due to the ALJ’s errors in evaluating the
opinion evidence and credibility, the ALJ’s conclusion regarding [her] residual
functional capacity is unsupported by substantial evidence.” Id.
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Given that Lawson’s argument on this point rests solely on the success of
the prior two, it cannot succeed. As discussed previously, Lawson’s first two
arguments are not meritorious. Therefore, her third argument suffers the same
fate as the first two. The Court need not address issue three further.
V
For the reasons stated herein, Lawson’s Motion for Summary Judgment (D.
14) is DENIED and the Commissioner’s Motion for Summary Affirmance (D. 18)
is GRANTED. This matter is now terminated.
It is so ordered.
Entered on February 9, 2017.
s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE

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