Morgan v. Astrue

Filing 28

MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 6/4/2012. Mailed notice(yp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GERALDA C. MORGAN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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No. 11 C 463
Magistrate Judge
Maria Valdez

MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of Social Security denying plaintiff Geralda Morgan’s claim for
Disability Insurance and Supplemental Security Income Benefits. The parties have
consented to the jurisdiction of the United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). For the reasons that follow, Morgan’s motion for summary
judgment [Doc. No. 19] is denied, and the Commissioner’s cross-motion for
summary judgment [Doc. No. 25] is granted.
BACKGROUND
I.

PROCEDURAL HISTORY
Morgan originally applied for Supplemental Security Income Benefits on

November 30, 2006 and for Disability and Disability Insurance Benefits on
December 13, 2006, alleging in both applications a disability since January 30,
2006. (R. 11, 135-50.) The applications were denied on June 8, 2007 and upon

reconsideration on February 29, 2008. (R. 11, 73-76.) Morgan filed a timely request
for a hearing by an Administrative Law Judge (“ALJ”), which was held on
September 9, 2009. (R. 11, 24-72, 99-103.) Morgan personally appeared and testified
at the hearing and was represented by counsel. (R. 11, 24-72.) A vocational expert
also appeared at the hearing. (Id.)
On November 9, 2009, the ALJ denied Morgan’s claim for benefits and found
her not disabled under the Social Security Act. (R. 18-19.) The Social Security
Administration Appeals Council denied Morgan’s request for review on November
16, 2010, (R. 1-5), leaving the ALJ’s decision as the final decision of the
Commissioner and therefore reviewable by the District Court under 42 U.S.C. §
405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
II.

FACTUAL BACKGROUND
A.

Background

Morgan was born on May 31, 1961, and at the time of the ALJ hearing, she
was forty-eight years old. (R. 28-29.) She was five foot three inches tall and weighed
133 pounds. (R. 721.) She graduated high school and completed some coursework at
Robert Morris College for about a year and a half. (R. 29.) She is married but does
not live with her husband; her fourteen year-old daughter lives with her. (Id.) She
was previously employed as a customer service representative at AT&T and as a
collections agent (R. 31, 33-34, 162-65.) Morgan claims disability beginning January
30, 2006 due to bilateral hallux valgus, carpal tunnel syndrome, depression, and
recto-vaginal fistula.
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B.

Testimony and Medical Evidence
1.

Morgan’s Testimony

Morgan testified that she had a partial hysterectomy in 2004, after which she
continued to have pain and bleeding. (R. 35.) She nevertheless went back to work.
(Id.) Then in January 2006, while she happened to be in the hospital after taking
her daughter there, Plaintiff passed out, and emergency surgery was performed. (R.
34-35.) She suffered a ruptured blood clot in her ovary, and the ovary, appendix, a
portion of the colon, and an abscess were removed. (R. 35.) Morgan stated that
while closing her up after surgery, a doctor tore a hole between her rectum and
vagina. After returning home, she noticed feces coming through her vagina. (R. 36.)
She was later diagnosed with recto-vaginal fistula. (Id.) She has had numerous
procedures to correct the problem, and she thought it was finally resolved after a
surgery in June 2009. (Id.) However, in the two weeks prior to the hearing in
September 2009, Morgan noticed some residue and was back to wearing pads. (Id.)
While at home, Morgan often uses a hospital commode set up in her room, but she
also needed to change pads or diapers four or five times a day, which takes five to
ten minutes each time. (R. 52.) Morgan testified that she does not want to go to
work with the discharge because it is “gross” and “smelly.” (R. 41.) The fistula can
also cause infection, which in turn causes back pain and cramping. (R. 50.)
In addition to her recto-vaginal fistula, she has had problems with her feet
requiring twelve surgeries (R. 37), and bilateral carpal tunnel, also requiring

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surgery, (R. 41-42). She has had a total of thirty-nine surgeries for problems in her
hands, feet, breasts, and relating to the hysterectomy and fistula. (R. 37.)
During the day, Morgan is often alone but an older daughter occasionally
comes over. (R. 44.) She does not prepare her own food; she relies on her daughters
to bring food to her in her room. (R. 44-45.) Plaintiff testified that she is in bed
much of the time due to pain in her feet and hands. (R. 45-46.)
2.

Medical Evidence1

On May 2, 2007, Dr. Mahesh Shah performed an internal medicine
consultative examination. (R. 720.) Dr. Shah described Morgan’s laparotomy in
January 2006 for a ruptured appendix and ruptured left ovarian cyst and postoperative development of a recto-vaginal fistula. (R. 721.) Plaintiff reported to Dr.
Shah that the leakage was “slowly decreasing and the odor is also diminishing,” and
Dr. Shah noted that the fistula was being monitored. (Id.)
Dr. Herman Langner performed a psychiatric evaluation on May 2, 2007. (R.
715.) Morgan reported to him that she suffers from multiple physical problems
causing great stress and secondarily depression; she did not have depression prior
to the onset of her physical problems. (Id.) She was taking Bupropion and
Wellbutrin for depression. (R. 716.) In relation to “Daily Activities,” Dr. Langner
noted: “She does what she can to keep busy. She indicates that she is extremely
restricted because of her various physical conditions.” (Id.) During the examination,

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Plaintiff’s medical history related to physical conditions, such as carpal tunnel and
foot problems, which are not at issue in this appeal, has been omitted.

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she was tearful and presented with a flat affect. (Id.) Dr. Langner diagnosed
Morgan with depression NOS and gave her a Global Assessment of Functioning
(“GAF”) score of 40-45. (R. 717.)
Dr. Jose Cintron, a colo-rectal surgeon, noted in May 2007 that the clinic had
been following her progress “and even brought her to the operating room on
September 26, 2006 for an exam under anesthesia which was relatively
unremarkable at that time and we could not find any rectovaginal fistula at the
time.” (R. 788.) He continued that “[s]ince the patient was last seen in January 29,
2007, the character of what she states is her drainage has actually decreased in
quantity as well as in its consistency.” (Id.) At January 29, 2007 visit, Morgan
reported that her symptoms were not completely gone but had improved with less
frequency of drainage. (R. 789.)
On May 23, 2007, Dr. Tyrone Hollerauer, a DDS consultant, concluded that
Morgan’s mental impairment, i.e., depression NOS secondary to general medical
condition, was not severe. (R. 725, 728.) Under the paragraph B criteria, he found
no restrictions in her activities of daily living; mild difficulties in maintaining social
functioning; mild difficulties in maintaining concentration, persistence, or pace; and
no episodes of decompensation. (R. 735.)
An RFC assessment completed by DDS consultant Dr. Frank Jimenez on
May 25, 2007 concluded that Morgan could lift twenty pounds occasionally and ten
pounds frequently, stand and/or walk and/or sit for about six hours in an eight-hour
workday, with pushing and pulling limited to the lower extremities and other
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postural and manipulative limitations. (R. 740-42.) With regard to her fistula, Dr.
Jimenez noted that Morgan had mild symptoms, “but work-ups have been
repeat[e]dly negative. She is being monitored.” (R. 746.)
June 29, 2007 progress notes from Dr. Pratap Marri, Morgan’s Holy Cross
Hospital treating physician, stated that her understanding, memory, sustained
concentration, persistence, social interaction, and adaptation are normal; no
abnormal functional areas were described. (R. 750.)
A June 24, 2009 discharge summary from Roseland Hospital stated that the
fistula recurred following a March 11, 2009, procedure to repair it. (R. 910.) An open
laparotomy with repair of recto-vaginal fistula and lysis of adhesions was performed
on June 10, 2009, and Morgan had an improved condition on discharge. (R. 911,
915-16.) After saline dye testing on June 27, 2009, the surgeon concluded that there
was no evidence of recurrent recto-vaginal fistula. (R. 913.)
On September 30, 2009, Dr. Clara Perez performed a psychiatric evaluation
of Morgan. (R. 929-32.) Dr. Perez diagnosed Plaintiff with post-traumatic stress
disorder and gave her a GAF score of 50. (R. 931.)
3.

Vocational Expert’s Testimony

Glee Ann Kerr testified as the vocational expert (“VE”). (R. 64.) The VE
testified that a person with greater than a high school education, limited to lifting
no more than twenty pounds occasionally and ten pounds frequently; further
limited to standing or walking less than two hours in an eight-hour workday;
unable to perform work requiring repetitive and prolonged handling and
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manipulation; no exposure to pollutants, temperature extremes, or wet
environments; and no exposure to hazardous or moving machinery would be able to
perform Morgan’s past relevant work as a collections agent. (R. 66-67.) The VE
testified that in such a semi-skilled occupation, no more than two absences per
month (on average) would be allowed, and she would need to remain on-task for
85% of work time to remain employed. (R. 68-69.)
C.

ALJ Decision

The ALJ found that Morgan had not engaged in substantial gainful
employment since the alleged onset date of January 30, 2006. (R. 13.) At step 2, the
ALJ concluded that Morgan had severe impairments of hallux valgus bilateral and
carpal tunnel syndrome on right with status post-surgical repair but that her
medically determinable mental impairment of depression did not cause more than a
minimal limitation in her ability to perform basic mental work activities and was
not severe. (R. 13.) At step 3, the ALJ found that none of Morgan’s impairments,
alone or in combination, met or equaled a Listing. (R. 14.)
The ALJ next determined that Morgan had the Residual Functional Capacity
(“RFC”) to perform light work, subject to the following limitations: no standing or
walking for more than two hours in an eight-hour workday; no repetitive or
prolonged handling and manipulation; no exposure to airborne pollutants, extremes
of temperatures, or wet environments; and no exposure to hazards or moving
machinery. (R. 15.) The ALJ then concluded that Morgan could perform her past

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relevant work as a collections clerk and was thus not disabled under the Social
Security Act. (R. 18.)
DISCUSSION
I.

ALJ LEGAL STANDARD
Under the Social Security Act, a person is disabled if she has an “inability to

engage in any substantial gainful activity by reason of a 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 twelve
months.” 42. U.S.C. § 423(d)(1)(a). In order to determine whether a claimant is
disabled, the ALJ considers the following five questions in order: (1) Is the claimant
presently unemployed? (2) Does the claimant have a severe impairment? (3) Does
the impairment meet or medically equal one of a list of specific impairments
enumerated in the regulations? (4) Is the claimant unable to perform his former
occupation? and (5) Is the claimant unable to perform any other work? 20 C.F.R. §
416.920(a)(4) (2008).
An affirmative answer at either step 3 or step 5 leads to a finding that the
claimant is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389
(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a
finding of disability. Id. The claimant bears the burden of proof at steps 1-4. Id.
Once the claimant shows an inability to perform past work, the burden then shifts
to the Commissioner to show the ability to engage in other work existing in
significant numbers in the national economy. Id.
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II.

JUDICIAL REVIEW
Section 405(g) provides in relevant part that “[t]he findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is
limited to determining whether the ALJ’s findings are support by substantial
evidence or based upon legal error. Clifford v. Apfel, 227 F.3d. 863, 869 (7th Cir.
2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its
judgment for that of the Commissioner by reevaluating facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Skinner, 478
F.3d at 841.
The ALJ is not required to address “every piece of evidence or testimony in
the record, [but] the ALJ’s analysis must provide some glimpse into the reasoning
behind her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th
Cir. 2001). In cases where the ALJ denies benefits to a claimant, “he must build an
accurate and logical bridge from the evidence to his conclusion.” Clifford, 227 F.3d
at 872. The ALJ “must at least minimally articulate the analysis for the evidence
with enough detail and clarity to permit meaningful appellate review.” Boiles v.
Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Murphy v. Astrue, 498 F.3d 630, 634

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(7th Cir. 2007) (“An ALJ has a duty to fully develop the record before drawing any
conclusions, and must adequately articulate his analysis so that we can follow his
reasoning.”).
Where conflicting evidence would allow reasonable minds to differ, the
responsibility for determining whether a claimant is disabled falls upon the
Commissioner, not the court. Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990).
However, an ALJ may not “select and discuss only that evidence that favors his
ultimate conclusion,” but must instead consider all relevant evidence. Herron v.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
III.

ANALYSIS
Morgan argues that the ALJ’s decision was in error because: (1) he

improperly evaluated her credibility in relation to her complaints associated with
recto-vaginal fistula; (2) his finding that Morgan’s depression is not a severe
impairment was not supported by substantial evidence; and (3) the RFC evaluation
failed to consider the symptoms and treatment of her recto-vaginal fistula.
A.

Credibility

In evaluating her alleged symptoms of recto-vaginal fistula, the ALJ
described her surgeries in January 2006 and June 2009 as well as tests and
progress reports dated January 29, 2007, May 27, 2007, and November 19, 2007. He
concluded that the medical evidence demonstrated she suffered no limitations other
than those incorporated in the RFC and found her claims of recent symptoms not to
be credible.
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Morgan claims that the ALJ’s decision was deficient because it described only
two recto-vaginal surgeries, but she had at least four major pelvic surgeries as well
as numerous hospital admissions and doctor visits. She further argues that the ALJ
improperly failed to credit her testimony that her symptoms, including fecal
discharge, returned after her June 8, 2009 surgery.
An ALJ’s credibility determination is granted substantial deference by a
reviewing court unless it is “patently wrong” and not supported by the record.
Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Powers v. Apfel, 207 F.3d 431,
435 (7th Cir. 2000). However, an ALJ must give specific reasons for discrediting a
claimant’s testimony, and “[t]hose reasons must be supported by record evidence
and must be ‘sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s
statements and the reasons for that weight.’” Lopez ex rel. Lopez v. Barnhart, 336
F.3d 535, 539-40 (7th Cir. 2003) (quoting Zurawski, 245 F.3d at 887-88).
First, Morgan cites to no authority requiring an ALJ to describe all treatment
and surgery. See Zurawski, 245 F.3d at 889 (holding that an ALJ is not obligated to
discuss all evidence in the record). Moreover, she admits that the ALJ discussed her
most recent surgery and discharge report, which indicated improvement. Morgan
does not explain why a discussion of surgeries predating the June 2009 procedure
would support her claims of disability.
Second, the ALJ’s credibility finding was specific, it was not patently wrong,
and it will not be disturbed by this Court. While the ALJ’s credibility determination
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relied in part on the language sharply criticized by the Seventh Circuit in Bjornson
v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012), the decision went beyond the
boilerplate by noting that her allegations of recent leakage were not supported by
any medical evidence. The lack of objective evidence is not by itself reason to find
Morgan’s testimony to be incredible, see Schmidt v. Barnhart, 395 F.3d 737, 746-47
(7th Cir. 2005), but Morgan has not shown that the ALJ was unreasonable in giving
greater weight to the medical evidence, which failed to support her objective
complaints of recent leakage, than it did to her testimony.
B.

Depression

Morgan next faults the ALJ’s finding that her depression was not a severe
impairment. She points to two reports, one of which diagnosed her with major
depression, and another with post-traumatic stress disorder. Both reports assess
Morgan’s GAF score in a range indicating serious impairments in social and/or
occupational functioning. Morgan further argues that the ALJ disregarded the
problems she described at the hearing and during psychiatric consultative
examinations, such as extreme embarrassment and stress related to her fistula.
In finding that Morgan’s depression was not severe, the ALJ considered the
four functional areas set out in the regulations for evaluating mental disorders,
otherwise known as the “paragraph B” criteria. The ALJ found that Morgan had no
limitation in the first functional area (activities of daily living), mild limitations in
the second and third areas (social functioning and concentration, persistence, or
pace), and in the fourth area, he found no episodes of decompensation. See 20 C.F.R.
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§ 404.1520a(d)(1) (“If we rate the degree of your limitation in the first three
functional areas as ‘none’ or ‘mild’ and ‘none’ in the fourth area, we will generally
conclude that your impairment(s) is not severe, unless the evidence otherwise
indicates that there is more than a minimal limitation in your ability to do basic
work activities.”).
Morgan recites the ALJ’s analysis of the four areas but does not detail any
particular errors allegedly made by the ALJ. Morgan suggests that the ALJ
incorrectly found that Morgan had no limitations in the first functional area,
activities of daily living. Plaintiff testified that she stayed in bed much of the day
and that relatives cooked for her. The ALJ’s finding of no limitation was based on
her May 2007 report to a psychiatrist that she “tries to keep busy during the day.”
(R. 14.)
The Commissioner responds that Morgan’s May 2007 statement indicated
that she was “extremely restricted because of her various physical conditions,” (R.
716), not due to any mental impairments. The regulations specify that the
paragraph B criteria relate to the extent to which the claimant’s mental
impairment interferes with daily functioning; physical limitations are not part of
this assessment. (See 20 C.F.R. § 404.1520a(c)(2).) Furthermore, the ALJ’s decision
also discussed the reports of DDS reviewing physicians, who confirmed that Morgan
had no limitations on her activities of daily living. Morgan does not dispute these
evaluations or the Commissioner’s arguments.

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Morgan next complains that the ALJ improperly played doctor by
disregarding the GAF scores given by two examining psychiatrists (45 and 50). The
Commissioner acknowledges that a score of 41-50 generally indicates serious
symptoms. (Def.’s Mem. at 8.) However, the Commissioner also points out that GAF
scores measure both the severity of symptoms and functional level, and “[b]ecause
the final GAF rating always reflects the worse of the two, the score does not reflect
the clinician’s opinion of functional capacity. Accordingly, nowhere do the Social
Security regulations or case law require an ALJ to determine the extent of an
individual’s disability based entirely on his GAF score.” Denton v. Astrue, 596 F.3d
419, 425 (7th Cir. 2010) (internal quotations and citations omitted). The only
reports in the record of Plaintiff’s mental impairment as it relates to her ability to
perform work found no limitations on her activities of daily living. Morgan has
offered no contrary psychiatric assessment of her ability to perform work-related
activities. The Court therefore finds that the ALJ sufficiently articulated the
reasons supporting his conclusions that Morgan’s depression is not a severe
impairment.
B.

Incomplete RFC Analysis

Finally, Morgan takes issue with the ALJ’s finding that she had the RFC to
perform light work with certain limitations. Morgan claims that the ALJ did not
properly consider her recto-vaginal fistula, as well as its symptoms and treatment,
in determining her RFC. Specifically, Morgan describes the “countless references to
the Plaintiff’s severe and embarrassing symptoms of feces and gas entering her
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vagina and the foul odor it causes” and the effect the foul odor would have on the
workplace. (Pl.’s Mem. at 10-11.) She also criticizes the ALJ for not taking into
consideration the effect on her productivity of four or five daily diaper changes at
five to ten minutes per change. According to Morgan, if her diaper changes were
factored in, she would not be on task the 85% of the time the VE testified would be
required. Morgan also argues that if her numerous surgeries and hospitalizations
were considered, she would miss more than the maximum number of two absences a
month.
First, as discussed above, the ALJ was reasonable in concluding that
Plaintiff’s claims of unresolved fecal discharge are not supported in the record.
Therefore, he was not required to consider the effect of the foul odor on the
workplace. Moreover, the past employment he found Morgan was capable of
performing was work as a collections clerk, which would not require interacting
with the public.
Second, as the Commissioner points out, even if five diaper changes took
place during non-break time in the work day, as opposed to her waking day, and
each change took the maximum ten minutes, Morgan would be off-task for fifty
minutes, more than twenty minutes less than 15% of a 480-minute workday.
Accordingly, any error in not expressly discussing Morgan’s diaper changes was
harmless.
Finally, Morgan’s claim that she will require future absences is based solely
upon her tortured history of surgeries and treatments for her various physical
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ailments. But there is no evidence in the record that any additional surgery is
presently expected, let alone treatments that will require absences of more than two
days per month. Morgan testified that as of the date of the hearing, she had no
surgeries scheduled. (R. 38-39.) She has offered no case law or regulation
supporting her conclusion that hypothetical absences should have been included in
the RFC determination. The Court concludes that the ALJ’s RFC finding was
adequately supported in the record.
CONCLUSION
For the foregoing reasons, Plaintiff Geralda Morgan’s motion for summary
judgment [Doc. No. 19] is denied, and the Commissioner’s cross-motion for
summary judgment [Doc. No. 25] is granted.

SO ORDERED.

ENTERED:

DATE:

___________________________
HON. MARIA VALDEZ
United States Magistrate Judge

June 4, 2012

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