Mendez v. Commissioner of Social Security

Filing 26

ORDER entered by Chief Judge Sara Darrow on September 23, 2019. The 23 Objection is OVERRULED and the 21 Report and Recommendation is ADOPTED. Plaintiff Silvia M.'s 13 Motion for Summary Judgment is DENIED and the Commissioner's 19 Motion for Summary Affirmance is GRANTED. Pursuant to sentence four of 42 U.S.C. 405(g), the Commissioner's decision in this matter is AFFIRMED. The Clerk is directed to enter judgment and close the case. (AK, ilcd)

E-FILED

Monday, 23 September, 2019 11:39:12 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
SILVIA M.,
Plaintiff,
v.
ANDREW SAUL, 1
Defendant.

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Case No. 4:17-cv-04246-SLD-JEH

ORDER
Plaintiff Silvia M. filed an application for disability insurance benefits and supplemental
security income. The Commissioner of the Social Security Administration (“the
Commissioner”) denied her application and Silvia seeks judicial review of this decision pursuant
to 42 U.S.C. § 405(g). See Compl., ECF No. 1. Before the Court are Silvia’s Motion for
Summary Judgment, ECF No. 13, the Commissioner’s Motion for Summary Affirmance, ECF
No. 19, and Magistrate Judge Jonathan Hawley’s Report and Recommendation (“R&R”), ECF
No. 21, which recommends denying Silvia’s motion and granting the Commissioner’s. Silvia
objects to the R&R. See Objection, ECF No. 23. The Commissioner has responded to Silvia’s
objection. See Resp. Objection, ECF No. 25. For the reasons that follow, the Objection is
OVERRULED and the R&R is ADOPTED. Silvia’s Motion for Summary Judgment is DENIED
and the Commissioner’s Motion for Summary Affirmance is GRANTED.
I.

Report and Recommendation
When a magistrate judge considers a pretrial matter dispositive of a party’s claim or

defense, he must enter a recommended disposition. Fed. R. Civ. P. 72(b)(1). Parties may object

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Pursuant to Federal Rule of Civil Procedure 25(d), Andrew Saul is substituted for his predecessor.

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within fourteen days of being served with a copy of the recommended disposition. Id. 72(b)(2).
The district judge considers de novo the portions of the recommended disposition that were
properly objected to, and may accept, reject, or modify the recommended disposition, or return it
to the magistrate judge for further proceedings. Id. 72(b)(3). If no objection, or only partial
objection, is made, the district judge reviews the unobjected portions of the recommendation for
clear error only. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). The district
judge “may reconsider sua sponte any matter determined by a magistrate judge” even if no party
objects. Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 760 (7th Cir. 2009).
The R&R sets forth the relevant procedural background, including an overview of the
administrative law judge’s (“ALJ”) decision, see R&R 1–14, so the Court will not repeat that
discussion here. The R&R also sets forth the four arguments Silvia makes in her summary
judgment motion:
1) the ALJ erred by failing to build a logical bridge between Silvia’s cane usage,
Dr. Eilers’ opinion, Dr. DePhillips’ opinion, and Dr. Shepherd’s opinion to the
conclusion Silvia is not disabled; 2) the ALJ committed harmful legal error in the
[residual functional capacity] [(“]RFC[”)] assessment; 3) the ALJ committed
harmful legal error by failing to apply the Medical Vocational Guidelines (Grid)
Rule 201.17; and 4) the A[ppeals] C[ouncil] committed harmful reversible error
because it failed to include within the administrative record new and material
evidence with a reasonable probability that the evidence would change the
outcome of the decision.
Id. at 14. Judge Hawley recommends rejecting all four arguments and affirming the
ALJ’s decision. Id. at 27. Silvia objects to Judge Hawley’s analysis of her first three
arguments. The Court reviews those issues de novo. The Court has reviewed the
remainder of the R&R for clear error and found none.

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II.

Analysis
The court reviews a decision denying benefits to determine only whether the ALJ applied

the correct legal standards and whether substantial evidence supports the ALJ’s decision.
Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). An ALJ commits an error of law if his
decision “fails to comply with the Commissioner’s regulations and rulings.” Brown v. Barnhart,
298 F. Supp. 2d 773, 779 (E.D. Wis. 2004). Substantial evidence means “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” McKinzey v. Astrue,
641 F.3d 884, 889 (7th Cir. 2011) (quotation marks omitted). The court cannot reweigh the
evidence, decide questions of credibility, or substitute its own judgment, but must “nonetheless
conduct a critical review of the evidence.” Id. “In rendering a decision, an ALJ is not required
to provide a complete and written evaluation of every piece of testimony and evidence, but must
build a logical bridge from the evidence to his conclusion.” Minnick v. Colvin, 775 F.3d 929,
935 (7th Cir. 2015) (quotation marks omitted). The court must “be able to trace the path of the
ALJ’s reasoning from evidence to conclusion.” Aranda v. Berryhill, 312 F. Supp. 3d 685, 689
(N.D. Ill. 2018).
a. Cane Usage
Silvia argues that “[t]he ALJ played doctor in concluding the medical evidence does not
support her need for a cane despite her presenting to appointments using the cane.” Objection 3.
“ALJs must not succumb to the temptation to play doctor and make their own independent
medical findings.” Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996). “Typical cases of ALJs
impermissibly playing doctor are when they either reject a doctor’s medical conclusion without
other evidence or when they draw medical conclusions themselves about a claimant without
relying on medical evidence.” Back v. Barnhart, 63 F. App’x 254, 259 (7th Cir. 2003)

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(quotation marks and citation omitted); Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001)
(“The cases in which we have reversed because an ALJ impermissibly ‘played doctor’ are ones
in which the ALJ failed to address relevant evidence.”).
The “playing doctor” principle does not apply here. No doctor prescribed a cane to Silvia
or recommended that she use one, so the ALJ did not reject a medical conclusion. Cf. Czarnecki
v. Colvin, 595 F. App’x 635, 644–45 (7th Cir. 2015) (“[O]ne of [the plaintiff’s] physicians, after
more than a year of treating her, had prescribed a cane, and the ALJ impermissibly ‘played
doctor’ by substituting her own opinion that a cane really wasn’t necessary.”). The ALJ noted
Silvia’s testimony that she needed to use a cane, R. 33, 2 and that she sometimes presented to
doctor’s appointments with a cane, R. 29. But she found that the record did not support ongoing
use of the cane. Id. This is supported by substantial evidence. Records document Silvia
presenting with a cane only for a brief period of time in 2015. See R. 474 (July 7, 2015); R. 441
(August 10, 2015). And there is medical evidence in the record that conflicts with the necessity
to use a cane to walk. See, e.g., R. 396 (Dr. Carlton observing that she could walk more than 50
feet without assistance). The ALJ was “allowed to . . . weigh the evidence and make appropriate
inferences from the record.” Seamon v. Astrue, 364 F. App’x 243, 247 (7th Cir. 2010) (citing
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004)). The Court can follow the ALJ’s
reasoning and cannot reweigh the evidence to come to a different conclusion.
b. Medical Opinion Evidence
Silvia argues that the ALJ erred in assessing the treating physicians’ opinions. Objection
3. Social Security regulations provide that an ALJ will “evaluate every medical opinion [the

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The administrative record can be found at ECF No. 8. Citations to the record take the form: R. ___.

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Social Security Administration] receive[s].” 20 C.F.R. § 404.1527(c). 3 “If [th]e [ALJ] find[s]
that a treating source’s medical opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in your case record, [sh]e
will give it controlling weight.” Id. § 404.1527(c)(2). If the ALJ does not give the treating
source’s opinion controlling weight, she must consider the following factors in determining how
much weight to give it: length and extent of the treatment relationship, id. § 404.1527(c)(2)(i)–
(ii); how much relevant evidence is presented to support the opinion, id. § 404.1527(c)(3); how
consistent the opinion is with the record as a whole, id. § 404.1527(c)(4); whether the source is a
specialist in the area of her opinion, id. § 404.1527(c)(5); and any other factor brought to the
Social Security Administration’s attention, id. § 404.1527(c)(6). “[T]he ALJ must provide some
explanation for her decision to discount a treating physician’s opinion, [but the court’s] review is
deferential: the ALJ’s decision must stand as long as she has ‘minimally articulated’ her reasons
for rejecting the treating doctor’s opinion.” Henke v. Astrue, 498 F. App’x 636, 639 (7th Cir.
2012) (quoting Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008)).
1. Dr. Shepherd
Silvia argues that “[t]he ALJ failed to adequately assess Dr. Shepherd’s unopposed
treating source opinion pursuant to the regulations and thus the decision should be reversed.”
Objection 4. Dr. Shepherd filled out a mental capacity assessment form on September 2, 2016.
R. 446. He checked boxes to indicate the degree of limitation Silvia had in four broad areas:
understanding and memory, sustained concentration and persistence, social interaction, and

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The regulation governing medical opinion evaluation for supplemental security income claims is substantially the
same. See 20 C.F.R. § 416.927(c). The Court cites only to the disability insurance benefits regulation for
efficiency.

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adaption. For example, he indicated that Silvia was markedly restricted in her ability to carry out
short and simple instructions and extremely limited in her ability to maintain attention and
concentration for extended periods of time. R. 444. The ALJ gave this opinion “little weight.”
R. 36.
Silvia argues that Dr. Shepherd’s opinion deserved controlling weight because “he is the
only qualified treating mental health practitioner that gave an opinion.” Objection 5. But, as
explained above, a treating doctor’s opinion need only be given controlling weight if it is
consistent with the record and adequately supported. That no other treating physician gave an
opinion on a matter is not relevant to the decision to give the opinion controlling weight.
Second, Silvia argues that the ALJ erred in discounting Dr. Shepherd’s opinion because it was
based on her subjective complaints. Id. at 4. While this might be erroneous on its own, see
Price v. Colvin, 794 F.3d 839, 840 (7th Cir. 2015) (“[P]sychiatric assessments normally are
based primarily on what the patient tells the psychiatrist.”), the ALJ provided other sound
reasons for discounting Dr. Shepherd’s opinion. See McKinzey, 641 F.3d at 890–91 (upholding
the ALJ’s credibility determination even where the ALJ made some mistakes because the ALJ
cited to other substantial evidence to support her conclusion).
It is clear from the ALJ’s decision that she considered the regulatory factors in
determining what weight to give Dr. Shepherd’s opinion. See R. 36. She noted that Dr.
Shepherd’s opinion was provided soon after his initial evaluation of Silvia. Id.; 20 C.F.R. §
404.1527(c)(2)(i). Elsewhere in her decision, the ALJ noted that Silvia saw Dr. Shepherd just
three times prior to his evaluation. R. 30–31. The ALJ next noted that the opinion was vague
and supported only by listing Silvia’s diagnoses. R. 36; 20 C.F.R. § 404.1527(c)(3). She also
noted that the opinion was inconsistent with Dr. Shepherd’s own treating notes—which state that

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Silvia was not in distress, that her attention span and concentration were within normal limits,
that her memory was intact, and that she had seen improvements after just a few weeks of
treatment—and with the longitudinal record. R. 36; 20 C.F.R. § 404.1527(c)(4). Silvia points to
some evidence that the opinion is consistent with—lay opinion evidence from her son and
husband—but that evidence was considered by the ALJ. See R. 33–34. The ALJ was allowed to
weigh this evidence and determine that the record was more inconsistent than consistent with the
opinion. The ALJ certainly at least minimally articulated her reasons for discounting Dr.
Shepherd’s opinion, so the Court cannot overturn her determination. 4
2. Dr. DePhillips
Silvia argues that the ALJ erred in assessing Dr. DePhillips’s opinion and that it deserved
controlling weight. Objection 7. On September 22, 2014, Dr. DePhillips, a neurosurgeon,
opined that Silvia was “currently permanently and totally disabled . . . due to the work injury of
10/11/09” and “the effects of the [2009] injury and the condition of [her] lumbar spine as it
exist[ed] . . . and the symptoms provoked by those injuries.” R. 388. The ALJ gave this opinion
“very little weight.” R. 34.
Again, it is clear that the ALJ considered the proper factors. She noted that Dr.
DePhillips was a specialist. Id.; 20 C.F.R. § 404.1527(c)(5). She found Dr. DePhillips’s opinion
broad and conclusory. R. 34; 20 C.F.R. § 404.1527(c)(3). She also noted that although Dr.
DePhillips opined that Silvia’s disability was due to her 2009 injury, Dr. DePhillips had not
treated her for years. R. 34; 20 C.F.R. § 404.1527(c)(2)(i). Moreover, the ALJ noted that Dr.

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Silvia also argues that the ALJ failed to note that Dr. Shepherd’s 2016 assessment was subsequent to the state
agency reviewers’ opinions. Objection 6. The Court fails to see how this is relevant to assessing the weight given to
Dr. Shepherd’s opinions. To the extent it might be relevant to assessing the weight to be given to the state agency
reviewers’ opinions, the Court finds the argument underdeveloped and waived. See Puffer v. Allstate Ins. Co., 675
F.3d 709, 718 (7th Cir. 2012).

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DePhillips’s opinion was inconsistent with Dr. Bernal’s opinion in 2011 that Silvia was not
disabled and with Dr. Bernal’s treatment records from 2011 and 2013. R. 34; 20 C.F.R. §
404.1527(c)(4). For instance, Silvia did not complain of back or neck pain to Dr. Bernal until
years after she began seeing him and years after her alleged date of onset. See R. 382
(complaining of neck pain, apparently due to a car accident, in September 2014); R. 421
(complaining of neck and back pain in March 2015). The ALJ also correctly noted that a
claimant’s inability to work is an opinion reserved to the Commissioner. R. 34; 20 C.F.R. §
404.1527(d)(1).
Silvia argues that there is “extensive support” in the record for Dr. DePhillips’s opinion.
Objection 7. She notes the testing and objective records that Dr. DePhillips reviewed, but the
ALJ also noted Dr. DePhillips’s course of treatment, R. 28, and that Dr. DePhillips reviewed
Silvia’s “clinical symptoms, radiographic imaging and recent lumbar discogram,” R. 34. The
ALJ was entitled to weigh the evidence and determine that Dr. DePhillips’s opinion was mostly
inconsistent with the record, particularly where he did not cite to any specific findings from his
testing or examinations or give an explanation of how the evidence supported his opinion. See
20 C.F.R. § 404.1527(c)(3). Silvia also notes that other physicians gave similar opinions, but
only points to Dr. Eilers’s opinion and Dr. Malek’s “agree[ment] that surgery should be decided
by Dr. DePhillips and S[i]lvia.” Objection 7. As discussed below, the ALJ did not commit
reversible error in giving little weight to Dr. Eilers’s opinion. See infra Section II(b)(3). And
Dr. Malek did not provide an opinion on the severity of Silvia’s impairments. R. 427. The ALJ
minimally articulated her reasons for discounting this opinion, so the Court will not remand on
this basis.

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3. Dr. Eilers
Silvia argues that the ALJ erred in giving Dr. Eilers’s opinion little weight. Objection 8.
She argues that the ALJ failed to build a logical bridge from the evidence to her conclusion
because she “did not properly weigh the opinion . . . against the other medical opinions and
evidence in the record before rejecting the opinion.” Id. She also argues that the ALJ
disregarded critical evidence. Id. Dr. Eilers opined that Silvia’s “injuries are directly related to
her fall of 10/11/2009.” R. 442. He then opined that “[s]he is not able and will never be able to
return to her competitive employment . . . and . . . she is probably permanently and totally
disabled from any competitive employment, as it would have to be sedentary work . . . and she
does not have the skills to carry that out.” Id.
Again, it is clear that the ALJ considered the regulatory factors. She found that Dr.
Eilers’s opinion was inconsistent with the evidence of record, particularly Silvia’s presentations
to Dr. Bernal. R. 35; 20 C.F.R. § 404.1527(c)(4). She noted again that Dr. Bernal did not think
that Silvia was physically disabled. R. 35. The ALJ also noted that Silvia had received only
limited and conservative treatment and that there were gaps in her treatment. Id. For instance,
the record shows that Silvia saw Dr. Bernal once in 2012, and then not again until November
2013. R. 367–68. And even after Dr. Eilers’s examination, Silvia inconsistently complained of
back pain to Dr. Bernal. Compare R. 474 (complaining of lower back pain on July 7, 2015),
with R. 479 (denying concerns other than pain in the upper abdomen in October 2015). The ALJ
cited the results of Dr. Eilers’s examination, R. 29, but found that the above described evidence
outweighed the evidence consistent with his opinion. The Court can trace the ALJ’s reasoning
from evidence to conclusion, so it will not remand on this basis either.

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c. RFC
Silvia argues that the ALJ erred by finding that she had the RFC to perform full time light
work. Objection 9. She also argues that the ALJ failed to take into consideration evidence that
she “would have difficulty concentrating because she is depressed, anxious, and has medication
side effects.” Id. Silvia argues that the ALJ’s finding that she has the functional capacity to
engage in simple, routine, and repetitive tasks does not adequately account for her moderate
limitations in concentration, persistence, and pace. Id. at 10. 5
An “ALJ must determine an individual’s RFC, or what an individual can still do despite
his or her limitations, based upon medical evidence as well as other evidence, such as testimony
by the claimant or his friends and family.” Murphy v. Colvin, 759 F.3d 811, 817 (7th Cir. 2014)
(quotation marks omitted). The ALJ here did just that. R. 26–37. Silvia does not point to any
evidence that the ALJ failed to consider. She points to Dr. Shepherd’s opinion that she would
miss four days of work or more each month, but, as discussed in Section II(b)(1), the ALJ
properly discounted that opinion. The ALJ considered Silvia’s testimony, the medical records,
testimony from Silvia’s son and husband, and the opinion evidence. She found that Silvia’s
reported limitations were not consistent with the record, R. 33, 37, and included limitations in the
RFC that were supported by the record, R. 25.
The Court also finds that the ALJ’s RFC determination adequately accounts for Silvia’s
limitations in concentration, persistence, and pace. Generally, an ALJ “may not rely merely on
catch-all terms like ‘simple, repetitive tasks’ because there is no basis to conclude that they
account for problems of concentration, persistence or pace.” Crump v. Saul, 932 F.3d 567, 570
(7th Cir. 2019) (quoting Winsted v. Berryhill, 923 F.3d 472, 477 (7th Cir. 2019)). But here, the

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Silvia also objects to the ALJ’s consideration of her cane usage, Objection 10–11, but the Court has already
addressed that argument, see supra Section II(a).

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ALJ went further by including in the RFC that Silvia “could be off task up to 15% of the work
day and have one absence per month or 10 absences per year.” R. 25; see Crump, 932 F.3d at
570–71 (faulting the ALJ for failing to include as part of the RFC that the claimant might be off
task during the day and might require two unscheduled absences per month). Moreover, the ALJ
gave great weight to the state agency reviewing physician’s opinion that Silvia “has the cognitive
capacity to understand and remember instructions for simple work of a routine and repetitive
type” and that she “retains sufficient attention and concentration to persist at and complete work
activities for the usual periods of time required in the general work force, to the extent her
physical condition allows.” R. 37. The ALJ therefore relied on a medical expert for the
determination that limiting Silvia to simple, routine, and repetitive tasks would account for her
limitations in concentration, persistence, and pace. See Burmester v. Berryhill, 920 F.3d 507,
511 (7th Cir. 2019) (“[A]n ALJ may reasonably rely upon the opinion of a medical expert who
translates . . . findings [that the claimant has difficulties with concentration, persistence, and
pace] into an RFC determination.”); Capman v. Colvin, 617 F. App’x 575, 579 (7th Cir. 2015)
(finding that the ALJ adequately addressed limitations in concentration, persistence, and pace
where the “RFC findings accurately reflected [a doctor’s] assessment by restricting [the
claimant] to simple, routine tasks and limited interactions with others”).
d. Grid Rule
Silvia’s last argument is that “[t]he ALJ committed harmful error by failing to correctly
assess the Grid rules in light of a sedentary RFC.” Objection 11. Essentially Silvia argues that,
had the ALJ considered the evidence in the manner described in the rest of her arguments, the
ALJ would have limited her to sedentary work and she would have been found disabled pursuant

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to Grid Rule 201.17, 20 C.F.R. pt. 404, subpt. P, app. 2, tbl. 1. In light of the Court’s disposition
of Silvia’s other arguments, this argument has no merit.
III.

Conclusion
Accordingly, the Objection, ECF No. 23, is OVERRULED and the Report and

Recommendation, ECF No. 21, is ADOPTED. Plaintiff Silvia M.’s Motion for Summary
Judgment, ECF No. 13, is DENIED and the Commissioner’s Motion for Summary Affirmance,
ECF No. 19, is GRANTED. Pursuant to sentence four of 42 U.S.C. § 405(g), the
Commissioner’s decision in this matter is AFFIRMED. The Clerk is directed to enter judgment
and close the case.
Entered this 23rd day of September, 2019.
s/ Sara Darrow
SARA DARROW
CHIEF UNITED STATES DISTRICT JUDGE

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