Eakin v. Astrue

Filing 29

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 7/15/2010. (aac, )

Eakin v. Astrue

Doc. 29

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF ILLINOIS E A S T E R N DIVISION M A R G R IT EAKIN, P la in tif f , v. M I C H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) )

C a s e No. 09 CV 2823 M a g is tr a te Judge Young B. Kim

J u ly 15, 2010

M E M O R A N D U M OPINION and ORDER B e f o re the court are the parties' cross-motions for summary judgment. Plaintiff M a r g r i t Eakin ("Eakin") seeks review of the final decision of the Commissioner of Social S e c u rity ("Commissioner") denying her application for a period of disability and Disability In s u ra n c e Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423(d)(2). Eakin asks the court to reverse the Commissioner's decision and award benefits, o r in the alternative, remand the decision for further proceedings. The Commissioner seeks a n order affirming the decision. For the following reasons, Eakin's motion for summary ju d g m e n t is denied and the Commissioner's motion for summary judgment is granted: Procedural History E a k in applied for DIB on January 19, 2006, alleging that she became disabled on A u g u s t 31, 2004, due to severe arthritis and pain in her left hip. (Administrative Record (" A .R ." ) 113-15, 131.) Her application was denied initially on April 27, 2006, and again on

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reconsideration on September 8, 2006. (Id. at 62-65, 69-73.) Thereafter, Eakin filed a timely re q u e s t for a hearing on September 29, 2006. (Id. at 74.) An administrative law judge ("ALJ") held a hearing on November 14, 2007. (A.R. 1 5 - 5 9 .) Eakin appeared and testified at the hearing. (Id. at 17-43.) James Radkey

(" R a d k e y" ), a vocational expert ("VE"), also appeared and testified at the hearing. (Id. at 435 9 .) On November 4, 2008, the ALJ issued a decision finding Eakin not disabled. (Id. at 81 4 .) Eakin then filed a request for review of the ALJ's decision but, on March 20, 2009, the A p p e a ls Council denied her request, making the ALJ's decision the final decision of the C o m m is s io n e r. (A.R. 1-3.) Pursuant to 42 U.S.C. § 405(g), Eakin initiated this civil action f o r judicial review on May 7, 2009. Facts E a k in was born on March 18, 1946, and was 61 years old at the time of the a d m in is tra tiv e hearing. (A.R. 21-22.) She went to school in Germany, where she completed t h e eighth grade and attended business college for one year.1 (Id. at 22-23.) Eakin also c o m p le te d two years of school in the United States, but she does not have a high school d ip lo m a or general equivalency degree. (Id.) Eakin was most recently employed as a w a itre ss , and stopped working on August 31, 2004. (Id. at 23-24, 131-32.)

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In Germany, college is the level of schooling that follows directly after eighth grade. (A.R. 2 2 - 2 3 .) 2

A.

M e d ic a l Evidence O n May 20, 2005, Eakin sought treatment from Dr. Joanna Sala, a family physician,

f o r high blood pressure and knee pain. (A.R. 193-94.) Eakin's blood pressure was 130/80 a n d she weighed 209.5 pounds. (Id. at 193.) Dr. Sala prescribed her Mobic and Celebrex, n o n -s te ro id a l anti-inflammatory medications, for her knee pain. (Id. at 194.) Dr. Sala again tre a te d Eakin on June 9, 2005, at which time she complained of left knee pain, and exhibited c re p ita tio n (grinding or creaking) on range of motion. (Id. at 195-96.) She was assessed w ith left knee pain and referred to an orthopedic surgeon. (Id. at 196.) E a k in saw Dr. Dennis Mess, an orthopedic surgeon, on June 15, 2005. (A.R. 213.) S h e told Dr. Mess that she had fallen on her left side one month earlier and was experiencing le f t hip and thigh pain. (Id.) Dr. Mess noted that Eakin walked with an antalgic left limp and h a d a negative 10 degree extension of her left hip, but otherwise had a full range of motion in her left hip joint. (Id.) He reported x-ray evidence of severe degenerative joint disease o f Eakin's left hip, and prescribed Voltaren, a non-steroidal anti-inflammatory medication. (Id . at 213, 215.) Eakin returned to Dr. Mess on August 1, 2005, reporting that her symptoms had im p r o v e d with Voltaren, but other medications had been more effective. (A.R. 213.) T re a tm e n t notes indicate that she was "not ready for surgery" and that she was prescribed M o b ic . (Id. at 213, 214.) About six months later, on January 19, 2006, Eakin applied for d is a b ility benefits. (Id. at 113-15.)

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Eakin attended a consultative examination on April 18, 2006, with Dr. Liana Palacci, a n osteopathic physician. (A.R. 197-200.) She complained she had left hip pain that radiated to her anterior thigh and knee for the past six years. (Id. at 197.) She explained that she had m o rn in g stiffness that lasts for about an hour and then improved with activity, and that sitting a n d walking for prolonged periods exacerbated her pain. (Id.) Eakin stated that her hip pain w a s worse with rainy weather and she had difficulty bending. (Id.) She gets left leg w e a k n e s s and trips occasionally and, as a result, uses a cane for balance. (Id.) Eakin has d if f ic u lty climbing stairs and needs to take one step at a time. (Id.) She said that surgery had n o t been offered as an option, and she took Voltaren and other medication to alleviate her p a in . (Id.) Dr. Palacci found that Eakin's range of motion in her left hip was reduced to 70/100 d e g re e s on flexion and 10/30 degrees on extension with pain, and her range of motion in her lu m b a r spine was reduced to 70/90 degrees on flexion and 10/30 degrees on extension. (A.R. 1 9 9 .) Eakin's gait was antalgic where she favored the left leg. (Id.) She was, however, able to do tandem gait, and her range of motion in her knees and ankles was normal. (Id.) She h a d difficulty with knee squats and was unable to heel/toe stand on her left leg. (Id.) Eakin's re f le x e s were decreased bilaterally at 1/4, and her left leg strength was reduced at 4/5. (Id.) D r. Palacci noted Eakin had difficulty getting on to the examination table, but had no d if f ic u lty rising from a chair. (Id.) Eakin did not need a cane to ambulate 50 feet. (Id.)

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Dr. Palacci diagnosed osteoarthritis of the left hip with decreased strength and range of m o tio n , and poorly controlled hypertension. (Id. at 200.) A week later, on April 25, 2006, Dr. Frank Jimenez, a state agency physician, re v ie w e d Dr. Palacci's findings from the consultative examination and completed a Physical R e sid u a l Functional Capacity Assessment. (A.R. 201-08.) Dr. Jimenez opined that Eakin w a s capable of performing light work with certain postural limitations, which included no c lim b in g and only occasional balancing, stooping, kneeling, crouching, and crawling. (Id. a t 202-03.) The Commissioner denied Eakin's request for benefits on April 27, 2006. (Id. a t 62-65.) On September 6, 2006, Dr. Charles Kenney, another state agency physician, re v ie w e d Eakin's medical file and affirmed Dr. Jimenez's assessment. (Id. at 221-22.) Two d a ys later, on September 8, 2006, the Commissioner denied Eakin's benefits on re c o n s id e ra tio n . (Id. at 69-73.) The following year, on September 21, 2007, Eakin complained to Dr. Mess that her le f t hip was slowly getting worse, but she wanted to continue taking medications and would c o n s id e r having hip replacement surgery in 2008. (A.R. 225.) Dr. Mess noted that Eakin w a lk e d with a slight limp. (Id.) Dr. Mess completed a Medical Report and Physical Capacities Assessment on N o v e m b e r 14, 2007. (A.R. 226-29.) In the Medical Report, Dr. Mess diagnosed Eakin as h a v in g osteoarthritis of the left hip, with findings of limited and painful motion in her left h ip . (Id. at 226.) He opined that her complaints of severe pain were credible and consistent

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with his findings. (Id. at 227.) Dr. Mess reported that Eakin's impairment would last in d e f in ite ly and that she needed a hip replacement. (Id.) Next, in assessing Eakin's ability to work in an eight-hour day on a sustained basis, Dr. Mess opined that she was able to sit f o r one hour, stand and/or walk for less than one hour, and occasionally lift up to ten pounds. (Id. at 228.) Dr. Mess opined further that Eakin was not able to use her feet for repetitive m o v e m e n ts , and required complete freedom to rest frequently without restriction. (Id. at 2 2 9 .) B. E a k in 's Testimony E a k in testified that she last worked in 2004, as a waitress in a restaurant. (A.R. 23.) S h e worked as a waitress for four years where she carried trays weighing 25 pounds and was o n her feet all of the time. (Id. at 23-24.) Eakin stopped working as a waitress because she c o u ld not move and was always in pain. (Id. at 29.) At that time, she took a lot of aspirin ju s t to get through the day, and she did not know what was wrong with her. (Id. at 29-30.) S h e explained that most of her previous jobs had been waitress jobs, but she also w o rk e d as a cashier at a currency exchange and a stocker at a retail store. (A.R. 24-25.) As a cashier, her duties included cashing checks, sending faxes, wiring money, putting away la rg e boxes of coins in a safe, balancing the books, cleaning, and washing floors. (Id. at 26.) W h ile working as a cashier, Eakin would alternate between sitting for about half of each hour a n d standing for the other half. (Id.) Even in the intervals where she sat, she was constantly g e ttin g up and down to complete various tasks. (Id. at 27.)

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Eakin stated that she could no longer work in her former position as a cashier because it takes her too long to stand up and balance on her legs. (A.R. 27.) She testified that w a lk in g to the fax machine would be difficult without holding on to anything, and standing w a itin g for a fax would take too long and she would need to sit down, but there would be n o w h e re to sit. (Id.) Eakin said that she would no longer be able to carry, bend over, and p la c e the boxes of coins, weighing 25 pounds, into the safe. (Id. at 28-29.) She testified that her pain is never gone and it radiates from her left hip into her knee a n d back. (A.R. 31.) The pain feels like there is constantly a "knife stuck in [her]." (Id. at 3 1 -3 2 .) Voltaren provides some pain relief, but it takes two hours for the medicine to work. (Id . at 32.) She indicated that the medicine would provide some relief while she was sitting, b u t when she stood the pain was always there. (Id.) Eakin explained that she can sit for maybe 15 or 20 minutes, but would then need to s ta n d up because she has pain. (A.R. 34-35.) She described her difficulty in standing up f ro m a sitting position, and her need while standing to hold onto whatever object was a v a ila b le in an effort to counteract her pain. (Id. at 34.) Eakin testified that when she first s ta n d s up, the pain feels like someone hit her in the back of the knee and she feels like c o lla p sin g . (Id.) She stated that when the pain finally subsides, she can slowly begin to w a lk , but she needs to sit down again before long. (Id. at 34-35.) Eakin has to alternate c o n s ta n tly between sitting and standing due to her pain. (Id. at 35.) She stated that she has tro u b le sleeping because of her pain and tosses and turns most of the night. (Id. at 32-33.)

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Eakin explained her need to elevate her legs because her legs and feet swell due to poor c irc u la tio n , and described her use of a heating pad, hot showers, and topical medication to h e lp alleviate her pain. (Id. at 40-41.) Furthermore, she testified that she has very few good d a ys and has more pain when the weather changes. (Id. at 37.) With regard to daily activities, Eakin testified that a task that used to only take her one h o u r to do now takes almost eight hours. (A.R. 37.) She can wash only a couple of dishes b e f o re she has to sit down because her back hurts. (Id.) Eakin is only able to clean one room e a c h day. (Id.) When performing household chores, she needs to rest for 15-minute periods e v e ry hour. (Id. at 155.) She has difficulty with personal hygiene because she cannot get out o f a bath tub and has to use a walk-in shower with safety railings. (Id. at 33.) Eakin also te s tif ie d that she needs a cane or walker to help her get around. (Id. at 36, 41-42.) Eakin related that Dr. Mess advised her that he did not think a hip replacement would b e beneficial because she has a genetic hip disease. (A.R. 38.) He offered to perform the hip re p la c e m e n t surgery, but he could not guarantee that it would work. (Id.) Dr. Mess further e x p la in e d to Eakin that there was nothing more that could be done for her condition. (Id.) O n November 26, 2007, Eakin's attorney sent a letter to the ALJ stating that Eakin had d is c u s se d hip replacement surgery with Dr. Mess and he did not know if it would work due to genetic factors. (Id. at 183.) However, Eakin's attorney pointed out that Dr. Mess's " c a u tio n is not reflected in his notes or the Medical Report." (Id.)

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C.

V o c a tio n a l Expert's Testimony R a d k e y testified that Eakin's past work as a cashier is typically performed at the

s e d e n ta ry level and is semi-skilled work. (A.R. 44.) He stated that an individual who p e rf o rm s this type of work would need to maintain a sedentary position for about 20 minutes, a n d stand for a maximum of about five minutes. (Id.) Radkey explained that if an individual n e e d e d a cane to ambulate, it would be considerably more difficult to perform the cashier job b e c a u s e much of the time that individual would be carrying things while also needing to m a in ta in good balance. (Id.) If an individual were using a cane, that individual could still p e rf o rm some of the cashier jobs, but not all of them. (Id. at 45.) Radkey testified that there a r e 19,800 semi-skilled sedentary cashier positions in northeastern Illinois. (Id.) He e s tim a te d that the number would be reduced to 8,000 if an individual needed to use a cane. ( I d .) Radkey told the ALJ that his testimony was consistent with the Dictionary of

O c c u p a tio n a l Titles ("DOT"). (Id. at 46.) W h e n questioned by Eakin's attorney, Radkey testified that he did not have the DOT n u m b e r for the sedentary cashier jobs with him at the hearing. (A.R. 46-47.) Eakin's a tto rn e y explained that the DOT number she had for cashier jobs entailed light work except f o r one check-cashier job, which was sedentary. (Id. at 47.) Radkey stated that he was re f e rrin g to this same sedentary cashier job classification and believed it was consistent with E a k in 's prior positions. (Id. at 48.) He indicated that he obtained the 19,800 figure from the Occupational Employment Quarterly, using the Chicago-Naperville-Joliet area data, and

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those figures were in turn based on data from the Bureau of Labor Statistics and the Census B u re a u . (Id. at 49.) Radkey showed Eakin's attorney where the 19,800 figure for the s e d e n ta ry cashier jobs figure was listed in that publication. (Id.) He further explained that h e calculated the 8,000 figure by reducing the original 19,800 figure by 60 percent to give E a k in the benefit of the doubt because there might be some jobs that would be too difficult f o r her to perform. (Id. at 51.) D. T h e ALJ's Decision T h e ALJ issued a decision finding that Eakin was not disabled within the meaning of th e Act. (A.R. 23.) The ALJ initially determined that Eakin had met the insured status re q u ire m e n ts under the Act through December 31, 2009. (Id. at 10.) Next, the ALJ found th a t Eakin had not engaged in substantial gainful activity since August 31, 2004, the alleged o n s e t date of her disability. (Id.) T he ALJ found that the medical evidence established that Eakin suffered from arthritis in her left hip, obesity, and hypertension. (A.R. 10.) However, the ALJ determined that E a k in did not have an impairment or combination of impairments listed in, or medically e q u a l to one listed in the regulations. See 20 C.F.R. § 404, Subpt. P, App. 1. (Id.) The ALJ th e n assessed Eakin's residual functional capacity ("RFC") to determine what work she could p e rf o rm despite her limitations. (Id. at 10-14.) The ALJ found that Eakin could perform the f u ll range of sedentary work. (Id. at 10.)

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In reaching this conclusion, the ALJ discussed Eakin's medical history and found that, a lth o u g h she alleged that she became unable to work on August 31, 2004, she did not seek m e d ic a l treatment until the following year in May 2005. (A.R. 12.) The ALJ relied on tre a tm e n t notes from June 2005, stating that Eakin fell on her left side one month earlier, w h ic h implied that her symptoms and limitations began at least eight months after her alleged o n s e t date. (Id.) Next the ALJ found that while Eakin received some treatment for her left h ip impairment, it was essentially routine and conservative in nature, consisting only of m e d ic a tio n s . (Id.) Furthermore, because Eakin reported to Dr. Mess that she was not ready f o r surgery, she could live with her hip pain, and she would consider a hip replacement the f o llo w in g year, the ALJ found that her condition was not as severe as she alleged. (Id.) The ALJ found Eakin's allegations of disabling limitations not credible because of her in f re q u e n t treatment or visits to her physicians. (A.R. 12.) For instance, she only saw a p h ys ic ia n annually since 2005, and only saw Dr. Mess a total of four times. (Id. at 12-13.) The record further showed that Eakin never attended physical therapy or had injections for h e r pain. (Id. at 13.) The ALJ also noted that an x-ray of Eakin's left hip was never s u b m itte d and there was no indication that the use of a cane or walker had been prescribed o r even suggested. (Id.) T h e ALJ gave little weight to the opinions of Drs. Mess and Jimenez because he did n o t view either opinion as credible in light of the medical evidence. (A.R. 13.) The ALJ d is c re d ite d Dr. Jimenez's opinion because he failed to explain how the medical findings

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supported a finding that Eakin is able to stand and walk six-hours in an eight-hour workday. (Id .) The ALJ found Dr. Mess's opinion that Eakin is limited to working substantially less th a n an eight-hour workday without support because it was based on Eakin's own subjective c o m p la in ts and limitations, and there was no basis for his opinion in his treatment notes. (Id.) The ALJ concluded that Eakin was capable of performing her past relevant work as a cashier. (A.R. 13-14.) In reaching this conclusion, the ALJ relied on Radkey's testimony th a t a sedentary cashier job as normally performed would allow an individual to change p o s itio n s every 20 minutes and stand for only 5 minutes at a time. (Id.) Therefore, n o tw ith s ta n d in g Eakin's limitations, the ALJ determined that a significant number of jobs e x is te d in the national economy that she could perform. (Id. at 14.) A n a ly s is E a k in seeks reversal or remand of the ALJ's decision finding that she is not disabled. Upon review of the record and applying the applicable standards, the court finds that the A L J 's decision is supported by substantial evidence. Here, the ALJ properly assessed E a k in 's RFC and credibility, she reasonably rejected Dr. Mess's opinion, and she a p p ro p ria te ly relied on the VE's testimony. Therefore, the court affirms the ALJ's decision in its entirety.

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A.

S ta n d a r d of Review T h e applicable standard of review of the Commissioner's decision is a familiar one:

th e court must affirm the decision if it is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "such relevant evidence as a reasonable mind might a c c e p t as adequate to support a conclusion." Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2 0 0 8 ) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). The court may not re e v a lu a te the facts, reweigh the evidence, or substitute its judgment for that of the Social S e c u rity Administration. Binion on Behalf of Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1 9 9 7 ). Where conflicting evidence would allow reasonable minds to differ as to whether a p la in tif f is disabled, the Commissioner has the responsibility for resolving those conflicts. Id . Conclusions of law are not entitled to such deference, however, so where the

C o m m is s io n e r commits an error of law, and the error is not harmless, the court must reverse th e decision regardless of the evidence supporting the factual findings. Id. W h ile the standard of review is deferential, the court "must do more than merely ru b b e r stamp" the Commissioner's decision. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2 0 0 2 ) (citations omitted). In order for the court to affirm a denial of benefits, the ALJ must h a v e articulated the reasons for the decision at "some minimum level." Dixon v. Massanari, 2 7 0 F.3d 1171, 1176 (7th Cir. 2001). This means that the ALJ "must build an accurate and lo g ic a l bridge from the evidence to [the] conclusion." Id. Although an ALJ need not address e v e ry piece of evidence, the ALJ cannot limit her decision to only that evidence that supports

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her ultimate conclusion. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). The ALJ's d e c is io n must allow the court to assess the validity of her findings and afford the plaintiff a m e a n in g f u l judicial review. Scott, 297 F.3d at 595. B. F iv e -S te p Inquiry T o qualify for DIB under Title II, a claimant must establish that she has a disability w ith in the meaning of the Act. 42 U.S.C. §§ 423(a)(1)(D), 1382(a). An individual is " d is a b le d " if she has an "inability to engage in any substantial gainful activity by reason of a n y medically determinable physical or mental impairment 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 1 2 months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R.§ 404.1505(a); Skinner v. Astrue, 478 F.3d 8 3 6 , 844 (7th Cir. 2007). The Social Security Regulations set forth a five-step sequential in q u iry for determining whether a claimant is disabled. The ALJ must consider whether: (1 ) the claimant is presently [un]employed; (2) the claimant has a severe im p a irm e n t or combination of impairments; (3) the claimant's impairment m e e ts or equals any impairment listed in the regulations as being so severe as to preclude substantial gainful activity; (4) the claimant's residual functional c a p a c ity leaves [her] unable to perform [her] past relevant work; and (5) the c la im a n t is unable to perform any other work existing in significant numbers in the national economy. B ris c o e ex rel. Taylor v. Barnhart, 425 F.3d 345, 351-52 (7th Cir. 2005) (citing 20 C.F.R. § 404.1520). A n affirmative answer to each step leads either to the next step or, at steps three and f iv e , to a finding that the claimant is disabled. 20 C.F.R. § 404.1520; Briscoe, 425 F.3d at

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352. A negative answer at any point, other than step three, terminates the inquiry and leads to a determination that the claimant is not disabled. 20 C.F.R. § 404.1520; Stein v. Sullivan, 8 9 2 F.2d 43, 44 (7th Cir. 1989). The claimant bears the burden of proof through step four. B r i s c o e , 425 F.3d at 352. And, if all four steps are met, the burden shifts to the

C o m m is s io n e r at step five. Id. The Commissioner must then establish that the claimant-- in light of her age, education, job experience and RFC to work--is capable of performing o th e r work and that such work exists in the national economy. 42 U.S.C. § 423(d)(2); 20 C .F .R . § 404.1520(f). C. R F C Finding E a k in first contends that the ALJ ignored relevant medical evidence and failed to d is c u s s in any meaningful way how the clinical evidence she cited supports her sedentary R F C finding. (Pl.'s Mem. at 8-9.) She further avers that the ALJ ignored Dr. Mess's x-ray e v id e n c e of her severe arthritis in her left hip and failed to explain how Dr. Palacci's findings o f a limited range of motion in her left hip and loss of strength in her left leg show that she is capable of performing sedentary work. (Id. at 8.) The Commissioner, on the other hand, c o n te n d s that the ALJ's RFC finding is supported by the opinions of Drs. Jimenez and K e n n e d y, state agency reviewing physicians, who found that Eakin was capable of p e rf o rm in g light work. ( Def.'s Resp. at 5.) The Commissioner asserts that the ALJ properly d is c u s se d the medical evidence, including the few abnormal findings, and reasonably c o n c lu d e d that Eakin could perform sedentary work. (Id. at 6.) The Commissioner further

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avers that the ALJ did not discuss Dr. Mess's reported x-ray evidence because Eakin never p ro d u c e d that evidence. (Id. at 6-7.) T h e court finds that the ALJ's RFC finding is based on substantial evidence and s u p p o rte d by the record. Social Security Ruling ("SSR") 96-8p states in relevant part: T h e RFC assessment must include a narrative discussion describing how the e v id e n c e supports each conclusion, citing specific medical facts (e.g., la b o ra to ry findings) and nonmedical evidence (e.g., daily activities, o b s e rv a tio n s ). In assessing RFC, the adjudicator must discuss the individual's a b ility to perform sustained work activities in an ordinary setting on a regular a n d continuing basis (i.e., 8 hours a day, for 5 days a week, or an equivalent w o rk schedule), and describe the maximum amount of each work-related a c tiv ity the individual can perform based on the evidence in the case record. T h e adjudicator must also explain how any material inconsistencies or a m b ig u itie s in the evidence in the case record were considered and resolved. S S R 96-8p, 1996 WL 374184, at *7; Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009) (" In determining an individual's RFC, the ALJ must evaluate all limitations that arise from m e d ic a lly determinable impairments . . . and may not dismiss a line of evidence contrary to th e ruling."). Here, the ALJ found that "the objective medical evidence does not provide a basis for f in d in g limitations greater than those determined in this decision." (A.R. 12.) In assessing E a k in ' s RFC, the ALJ considered both the normal and abnormal medical findings and re a s o n a b ly concluded that Eakin is capable of performing sedentary work. For instance, the A L J discussed Dr. Palacci's abnormal findings showing that Eakin: (1) had some decreased ra n g e of motion of the lumbar spine and left hip; (2) walked with an antalgic gait favoring h e r left leg; (3) had difficulty doing knee squats; (4) was unable to heel/toe stand on the left, 16

and (5) had some difficulty getting on the examination table. (Id.) The ALJ noted that D r. Palacci diagnosed osteoarthritis of the left hip with decreased strength and range of m o tio n . (Id.) The ALJ also considered Dr. Mess's abnormal findings, including Eakin's n e g a tiv e 10 degree extension of the left hip and her antalgic left limp. (Id. at 11.) Dr. Mess d ia g n o s e d severe degenerative joint disease of the left hip, prescribed pain medications, and re c o m m e n d e d a hip replacement.2 (Id.) Furthermore, the ALJ considered the findings of D rs. Jimenez and Kinney, the state agency reviewing physicians, who found that Eakin could p e rf o rm activities consistent with light work, but with certain stated limitations. (Id. at 13.) T h e re f o re , the ALJ's RFC finding is sufficient because she reasonably considered the re le v a n t medical findings and any functional limitations in finding that Eakin can perform s e d e n ta ry work. See SSR 96-8p ("The RFC assessment must include a discussion of why re p o rte d symptom-related functional limitations and restrictions can or cannot reasonably be a c c e p te d as consistent with the medical and other evidence.") D. C r e d ib ility Finding E a k in next contends that the ALJ failed to make a proper credibility determination and th e evidence she relies on does not support her conclusion. (Pl.'s Mem. at 9-12.) She asserts th a t the ALJ's reasons for finding her not credible, which included the onset date of her d is a b lin g condition, the conservative nature of her medical treatment, and her use of a cane

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To the extent that Eakin contends that the ALJ failed to explicitly consider Dr. Mess's re p o rte d x-ray evidence, she has not shown how that evidence establishes that she has an im p a irm e n t beyond what the ALJ found. 17

and walker do not establish that she is exaggerating her pain symptoms and physical lim ita tio n s . (Id. at 9-11.) Eakin also argues that the ALJ erroneously failed to assess her d a ily activities, the duration, frequency, and intensity of her pain, any precipitating and a g g ra v a tin g factors that cause pain, and the measures she uses to relieve her pain in assessing h e r credibility. (Id. at 11-12.) The Commissioner, on the other hand, asserts that substantial evidence supports the A L J 's credibility finding because Eakin only sought routine medical treatment, and refused to have hip replacement surgery. (Def.'s Resp. at 8-11.) The Commissioner avers that the A L J properly found that Eakin's allegations of disabling pain and severe limitations were u n d e rc u t by her admission that she can live with the pain. (Id. at 9-10.) Furthermore, the C o m m is s io n e r argues that the ALJ found Eakin's use of a cane or walker not credible b e c a u s e they were neither medically prescribed nor recommended by her physicians. (Id. at 1 0 .) The court finds that the ALJ properly assessed the credibility of Eakin's testimony at th e hearing. An ALJ's credibility finding will be afforded "considerable deference" and o v e rtu rn e d only if it is "patently wrong." Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2 0 0 6 ) (citations omitted). "A credibility assessment is afforded special deference because a n ALJ is in the best position to see and hear the witness and determine credibility." Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000) (citation omitted). However, where the c re d ib ility determination is based on objective factors rather than subjective considerations,

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an ALJ is in no better position than the court and the court has greater freedom to review it. C ra ft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008). The Social Security Ruling instructs that th e ALJ's written decision "must contain specific reasons for the finding on credibility, s u p p o rte d by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the in d iv id u a l's statements and the reasons for that weight." SSR 96-7p, 1996 WL 374186, at * 2 ; see also Brindisi v. Barnhart, 315 F.3d 783, 787 (7th Cir. 2003). E a k in contends that the ALJ's credibility determination is flawed because Dr. Mess's re p o rte d x-ray evidence establishes that her hip impairment began long before she sought m e d ic a l treatment. (Pl.'s Mem. at 10.) The ALJ found Eakin's testimony of disabling pain n o t credible in part because she did not seek medical treatment for her left hip impairment u n til June 2005, even though she alleges she was unable to work on August 31, 2004. (A.R. 1 2 .) The ALJ considered that Eakin first sought treatment from Dr. Mess a month after she h a d injured herself in a fall, which implied to the ALJ that her symptoms and limitations did n o t begin until at least eight months after her alleged onset date. (Id.) Because Eakin p ro v id e d no evidence that her left hip impairment existed prior to her fall, the ALJ c o n s i d e r e d this timing as one factor pointing to a conclusion that Eakin's claims were not f u lly credible. The ALJ also found Eakin's testimony not credible because the ALJ found that her m e d ic a l treatment has been routine and conservative in nature, consisting essentially of

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medications. (A.R. 12.) Contrary to Eakin's contention that the ALJ failed to discuss the f a c to rs delineated in SSR 96-7p, the ALJ reasonably considered the most relevant aspects of E a k in 's testimony and concluded that her pain allegations were not as limiting as she alleged b e c a u s e the medical evidence does not support her allegations and she only sought routine o r conservative medical treatment for her pain. For example, the ALJ explained: The possibility of surgery was mentioned in Dr. Mess's notes, which state [the] c la im a n t was not ready for surgery . . . or that she would consider a total hip re p la c e m e n t the next year . . . but the claimant instead chose to continue c o n s e rv a tiv e treatment with medication, an indication that her condition is not a s severe as alleged. She even stated that she `can live with' the pain . . . again in d ic a tin g it is not as severe as alleged. (Id.) The ALJ noted that Eakin has seen her physicians relatively infrequently since she only w e n t to the doctor once a year and saw Dr. Mess a total of only four times. (Id. at 12-13.) The ALJ further discussed that Eakin did not have physical therapy or injections to relieve h e r pain. (Id. at 13.) The ALJ reasonably relied on Eakin's routine or conservative medical treatment in f in d in g her testimony not credible. First, Eakin's treatment history consisted of just six office v is its over a three-year period. She had four visits in 2005, one visit in 2006, and one visit in 2007. An ALJ may reasonably find that a claimant's allegations of disabling pain are not c re d ib le where the claimant seeks little treatment. Luna v. Shalala, 22 F.3d 687, 691 (7th C ir. 1994) ("In light of Luna's . . . failure to seek further medical assistance despite his claim o f incapacitating pain, the ALJ found Luna's complaints of pain exaggerated.").

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Second, Eakin was neither prescribed physical therapy nor referred to a pain clinic to m a n a g e her pain. She also did not have any additional diagnostic tests, including

c o m p u te riz e d tomography or magnetic resonance imaging scans, and she only took aspirin p rio r to June 2005. Thus, these conservative measures that were used to evaluate and treat E a k in significantly undercut her complaints of disabling symptoms and limitations. See 20 C .F .R . § 404.1529(c)(3)(v) (noting that a claimant's medical treatment is one factor used to e v a lu a te pain symptoms); Howard v. Sullivan, 950 F.3d 343, 348 (7th Cir. 1991) (finding the c la m a n t's use of aspirin undercut his complaints of disabling pain). Furthermore, Eakin re f u s e d Dr. Mess's recommendation to undergo hip replacement surgery telling Dr. Mess that s h e only wanted to take medications and that she "can live with [the pain]." (A.R. 225.) G iv e n Eakin's reluctance to pursue aggressive treatment and her representation that she could c o p e with her pain, the ALJ's conclusion that her description of her pain at the hearing was e x a g g e ra te d is supported by the record. Eakin also contends that the ALJ erred in finding that her use of a cane and walker u n d e rm in e her credibility. (Pl.'s Mem. at 11.) Here, the ALJ found that Eakin had e x a g g e ra te d her symptoms and limitations because she used a cane and walker even though t h e s e devices had not been prescribed by her physicians. (A.R. 13.) This very conclusion w a s indeed rejected in Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009). In Terry, the ALJ " p la c e d considerable weight on the fact that no doctor had prescribed a walker for [the c la im a n t], concluding that this showed she had exaggerated her symptoms." 580 F.3d at 477-

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78. The Seventh Circuit found that, given the claimant's fibromyalgia and history of back s u rg e ry, her "use of a walker, even if a doctor did not recommend it, is not on its own enough to make her testimony regarding her pain unbelievable." Id. at 478. In this case, given the m u ltip le credibility factors that are supported by the record, the ALJ's reference to Eakin's u s e of a cane and walker is harmless. Therefore, because the ALJ's credibility finding is not " p a te n tly wrong," she is affirmed on this issue. See Prochaska, 454 F.3d at 738. E. D r . Mess's Opinion E a k in contends that the ALJ failed to explain the weight she gave to Dr. Mess's o p in io n and that her conclusions regarding his opinion are not based on substantial evidence. (P l.'s Mem. at 12-14.) Eakin avers that since the ALJ did not give controlling weight to D r. Mess's opinion, she was required to give deference to his opinion and explain what w e ig h t she accorded his opinion and the reasons for that weight. (Id. at 13.) The

C o m m is s io n e r, however, asserts that the ALJ reasonably rejected Dr. Mess's opinion because it was not well-supported by the medical evidence and there is no evidence in his e x a m in a tio n findings supporting his opinion that Eakin has difficulty sitting, which is the m a in requirement for sedentary work. (Def.'s Resp. at 11-13.) The court finds that the ALJ reasonably rejected Dr. Mess's opinion because he relied o n Eakin's subjective reports of limitations and those limitations are not supported by his tre a tm e n t notes. The regulations state that an ALJ must give a treating physician's opinion c o n tro llin g weight if two conditions are met: (1) the opinion is "well-supported by medically

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acceptable clinical and laboratory diagnostic techniques"; and (2) it "is not inconsistent with th e other substantial evidence" in the case. 20 C.F.R. § 404.1527(d)(2); Bauer v. Astrue, 532 F .3 d 606, 608 (7th Cir. 2008); SSR 96-2p, 1996 WL 374188, at *2. If a treating physician's o p in io n is not entitled to controlling weight, it is accorded deference and must be weighed u s in g the following factors: (1) the length of the treatment relationship and the frequency o f examination; (2) the nature and extent of the treatment relationship; (3) the supportability o f the opinion, including medical signs and laboratory findings; (4) the consistency of the o p in io n with the record as a whole; (5) the specialization of the treating physician; and (6) a n y other factors which tend to support or contradict an opinion. 20 C.F.R.

§ 404.1527(d)(2)-(6). An ALJ may reject a treating physician's opinion if the opinion is u n s u p p o rte d or inconsistent with the evidence in the record, but if the ALJ rejects the o p in io n , she must give a good reason. 20 C.F.R. § 404.1527(d)(2); Ketelboeter v. Astrue, 5 5 0 F.3d 620, 625 (7th Cir. 2008). Here, the ALJ adequately explained her decision to discount Dr. Mess's opinion that E a k in was unable to perform work on a sustained basis. The ALJ correctly pointed out that D r. Mess "fail[ed] to explain his rationale for stating that [the] claimant is limited to s u b s ta n tia lly less than an 8-hour workday and there is nothing to support said opinion within h is treatment notes." (A.R. 13.) As discussed above, Dr. Mess only saw Eakin four times o v e r a three-year period and his treatment notes contain few abnormal findings. (Id. 213-16, 2 2 5 .) For instance, he found Eakin walked with an antalgic left limp and had a negative 10

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degree extension of her left hip, but otherwise had a full range of motion in her left hip joint. (Id . at 213, 225.) Because Dr. Mess's conclusions regarding Eakin's limitations were not s u p p o rte d by his examination findings, the ALJ reasonably rejected Dr. Mess's opinion on th e basis that he relied on Eakin's reports of subjective complaints in assessing her lim ita tio n s . See Hofslien v. Barnhart, 439 F.3d 375, 377 (7th Cir. 2006) ("the fact that the c la im a n t is the treating physician's patient also detracts from the weight of that physician's te s tim o n y, since, as is well known, many physicians (including those most likely to attract p a tie n ts who are thinking of seeking disability benefits) will often bend over backwards to a s s is t a patient in obtaining benefits"); Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2 0 0 1 ) ("The patient's regular physician may want to do a favor for a friend and client, and s o the treating physician may too quickly find disability."). Therefore, the ALJ properly e x p la in e d the reasons for the weight she accorded Dr. Mess's opinion and rejected his o p in io n . F. S te p -F o u r Finding E a k in contends that the ALJ's step-four finding is based on unreliable VE testimony a n d is not supported by substantial evidence. (Pl.'s Mem. at 14-15.) She avers that the ALJ e rre d in relying on Radkey's testimony that her past work as a currency exchange cashier is s e d e n ta ry because he was not able to cite the DOT number or produce a copy of the DOT e n try when questioned by her attorney. (Id., Pl.'s Reply at 8.) Eakin next asserts that b e c a u s e the DOT does not provide for a sit/stand option in any of its job descriptions,

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Radkey's testimony that she could perform her sedentary cashier position with a sit/stand o p tio n was inconsistent with the DOT. (Id.) T h e Commissioner defends that the ALJ reasonably relied on Radkey's testimony in f in d in g that Eakin could perform her past relevant work as a sedentary cashier. (Def.'s Resp. a t 13-14.) The Commissioner points out that Eakin's attorney admitted that the check-cashier jo b that Radkey testified about was categorized as sedentary work. (Id. at 14.) The C o m m is s io n e r further asserts that Radkey's testimony was consistent with the DOT because th e ALJ did not find that Eakin required a sit/stand option. (Id.) T h e court finds that the ALJ's step four finding is based on reliable VE testimony. U n d e r SSR 00-4p, "an ALJ has an `affirmative responsibility' to ask whether a vocational e x p e rt's evidence `conflicts with information provided in the DOT before relying on that e v id e n c e to support a determination of nondisability.'" Overman v. Astrue, 546 F.3d 456, 4 6 2 -6 3 (7th Cir. 2008). If the VE's testimony appears to conflict with the DOT, SSR 00-4p re q u ire s an ALJ to obtain "a reasonable explanation for the apparent conflict." Id. at 463. T h e ALJ based her step-four finding on Radkey's testimony that Eakin could perform h e r past relevant work as a sedentary cashier and that there are 19,800 semi-skilled sedentary c a s h ie r jobs in northeastern Illinois. (A.R. 14, 44-45.) Radkey reduced that figure to 8,000 jo b s to accommodate Eakin's use of a cane. (Id. at 45.) While Eakin claims that Radkey was n o t able to cite the DOT number or produce a copy of the DOT entry, her attorney admitted th a t the check-cashier job that Radkey specifically referenced is categorized as sedentary

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work in the DOT.

(Id. at 46-47.)

Furthermore, Radkey stated that he obtained his

in f o rm a tio n about sedentary jobs from the Occupational Employment Quarterly and showed E a k in 's attorney where the 19,800 figure for the sedentary cashier jobs was listed in that p u b lic a tio n . (Id. at 49.) Accordingly, there was no apparent conflict between Radkey's te s tim o n y and the DOT's description of the check-cashier job for the ALJ to have resolved. N e x t, Eakin argues that Radkey's testimony conflicts with the DOT because the DOT d o e s not include a sit/stand option as part of its definition of sedentary work. (Pl.'s Mem. a t 14-15.) But the ALJ found that Eakin could perform the full range of sedentary work w ith o u t a sit/stand option. Furthermore, the ALJ found Radkey's testimony that a sedentary c a s h ie r position as normally performed would allow Eakin to change positions every 20 m in u te s and stand for only five minutes each time as consistent with the DOT. (A.R. 13-14.) T h e re f o re , because Radkey's testimony did not conflict with the DOT, the ALJ properly re lie d on Radkey's testimony in finding that Eakin could perform her past work as a s e d e n ta ry cashier.

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Conclusion F o r the foregoing reasons, Eakin's motion for summary judgment is denied and the C o m m is s io n e r's motion for summary judgment is granted. ENTER:

_________________________________ Y o u n g B. Kim U .S . Magistrate Judge

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