Ublish v. Astrue
Filing
30
MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 1/7/13.(rbf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DOREEN MARIE UBLISH,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner )
of Social Security,
Defendant.
)
)
)
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No. 11 C 4359
Magistrate Michael T. Mason
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)
)
MEMORANDUM OPINION AND ORDER
Michael T. Mason, United States Magistrate Judge:
Claimant, Doreen Ublish (“Ublish” or “claimant”), has brought a motion for
summary judgment [23] seeking judicial review of the final decision of the Commissioner
of Social Security (the “Commissioner”). The Commissioner denied Ublish’s claim for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the
Social Security Act (“Act”), 42 U.S.C. §§ 416(i), 423(d), and 1382c(a)(3)(A). The
Commissioner filed a response [28] asking the court to uphold the decision of the
Administrative Law Judge (“ALJ”). The court has jurisdiction to hear this matter pursuant
to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons set forth below, Ublish’s motion
for summary judgment is denied and the decision of the ALJ is affirmed.
I.
BACKGROUND
A.
Procedural History
Ublish applied for DIB and SSI on July 18, 2008, alleging an onset of disability on
July 16, 2008. (R. 135-45.) Her applications were denied initially on October 6, 2008
and upon reconsideration on December 3, 2008. (R. 75-99.) Ublish filed a timely
request for a hearing on January 24, 2009. (R. 102-03.) On April 21, 2010, Ublish
appeared with counsel before ALJ John M. Wood. Both Ublish and Vocational Expert
(“VE”) Ronald W. Malik provided testimony at the hearing. (R. 41-70.)
On June 24, 2010, ALJ Wood issued a written decision finding that Ublish was not
disabled under the Act. (R. 10-24.) Ublish then filed a timely request for review. (R. 78.) The Appeals Council denied that request on April 28, 2011 and ALJ Wood’s decision
became the final decision of the Commissioner. (R. 1-5.) Ublish subsequently filed this
action in the district court.
B.
Medical Evidence
1.
Treating Physicians
Ublish seeks DIB and SSI for purportedly disabling limitations stemming from
diabetes, fibromyalgia, heart disease, kidney disease, status post heat stroke, and
obesity. Medical records reveal that Ublish has been under the care of various
physicians for the past ten years, including Dr. Mario Cote, cardiologist Dr. David Best,
and rehabilitative specialist Dr. Thomas Szymke. Dr. Best first saw Ublish in early 1999
when she was evaluated for chest pain. (R. 470.) On March 24, 2000, Ublish underwent
outpatient coronary angiography with Dr. Best, which revealed “mild to moderate disease
of the left coronary artery and a totally occluded right coronary artery.” (R. 465.)
On March 17, 2003, Ublish saw Dr. Cote, who commented on her history of
diabetes and coronary artery disease. (R. 320.) On March 30, 2004, Ublish returned to
see Dr. Cote and reported high blood pressure and occasional hypoglycemic reactions.
(R. 317.) The following year, on May 24, 2005, Ublish complained of fatigue, occasional
tingling in her hands, and fleeting twinges in her chest. (R. 310.) Dr. Cote described
2
these systems as nonspecific, but noted her history of coronary artery disease. (Id.) An
EKG revealed no changes, but further laboratory studies were advised. (Id.) A physical
exam on December 4, 2006 proved primarily unremarkable. (R. 304.) On July 13, 2007,
Ublish saw Dr. Cote and complained of abdominal pain, thigh discomfort, and chest
discomfort. (R. 301.) Among other things, Dr. Cote advised Ublish to follow up with her
cardiologist. (Id.)
On August 1, 2007, Ublish returned to see cardiologist Dr. Best, whom she had
not seen since 2001. (R. 460.) She complained of left upper chest discomfort, but
explained that she was still able to play softball and lift fifty pound bags of fertilizer at
work. (R. 460.) Following a physical exam, Dr. Best assessed probable angina pectoris,
insulin-dependant diabetes, obesity, hypertension, and known coronary artery disease.
(R. 461-62.) Ublish declined Dr. Best’s suggestion for possible cardiac catheterization
due to financial concerns. (R. 462.) Chest imaging from March 25, 2008 revealed a
“stable chest without evidence of acute cardiopulmonary disease.” (R. 342.)
On July 17, 2008, Ublish was treated in the Emergency Room of Illinois Valley
Community Hospital (“Illinois Valley”) for heat exhaustion. (R. 264-65.) She reported
abdominal cramps, muscle cramps, generalized weakness, malaise, and fatigue. (Id.)
Ublish further reported that she had been working outside in very hot temperatures over
the past several days. (Id.) She explained that her blood sugar had been fluctuating
erratically. (Id.) Ublish denied nausea, vomiting, chest pain, or shortness of breath, and
her EKG showed no significant abnormalities. (Id., R. 276.)
The physician on-call diagnosed a history of poorly controlled diabetes and
hyperkalemia. (R. 265.) During her hospitalization, Ublish also saw her treating
3
physician, Dr. Cote. (R. 266-67.) He instructed that she avoid outdoor work in high
temperatures because of “her underlying vascular-diabetic issues.” (R. 267.) After
receiving intravenous fluids, Ublish was discharged in stable condition and advised to
follow up with Dr. Cote as needed. (R. 265, 289.)
On July 22, 2008, Ublish returned to see Dr. Cote about her heart disease,
diabetes, lightheadedness, and malaise. (R. 295.) Dr. Cote noted that working outside
in excessive heat was “contraindicated with her underlying medical issues.” (Id.) He
reported that her diabetes appeared improved and he made no changes to her
treatment. (Id.) Dr. Cote further indicated that Ublish was scheduled for a stress test.
(Id.)
On August 1, 2008, Ublish underwent a stress test at Illinois Valley. (R. 330.)
She exercised for five minutes and thirty-seven seconds and reached eighty-one percent
of her age-predicted maximal heart rate. (R. 330, 455.) The stress test showed no
evidence of reversible ischemia. (R. 330.) An EKG administered on the same day
confirmed only mild aortic stenosis. (R. 332.) Based on these results, Dr. Best
concluded that Ublish had no new coronary problems. (R. 459.) He further opined that
fluctuations in claimant’s blood sugar could be the cause of her cramping, shortness of
breath, and fatigue. (R. 458-59.) Ublish followed up with Dr. Best on August 20, 2008
and complained of continued dyspnea and chest discomfort. (R. 455.) Among other
things, Dr. Best assessed ischemic heart disease, but commented that her chest
discomfort is more consistent with musculoskeletal discomfort. (R. 456.) Ublish again
declined Dr. Best’s suggestion for cardiac catheterization due to her mounting health
bills. (Id.)
4
Ublish met with Dr. Cote on September 10, 2008, complaining of pain in her
thighs and legs. (R. 384.) She reported experiencing a dull, achy discomfort that grew
worse with activity. (Id.) Upon examination, Dr. Cote found that claimant’s motor
function appeared normal and that her range of motion was only “mildly uncomfortable.”
(Id.) Dr. Cote suggested an EMG with nerve conduction to assess Ublish’s lower
extremity pain. (Id.) Otherwise, he continued treating her diabetes with insulin. (Id.)
On September 18, 2008, Ublish consulted with Dr. Thomas Szymke, a specialist
in rehabilitative medicine, about the pain in her thighs and legs. (R. 402-04.) Ublish
reported she had been suffering from “weak and achy legs” since her bout of heat stroke.
(R. 408.) Ublish further reported that her pain was worse with any kind of physical
activity and that she could not walk more than 100-150 feet. (Id.) According to Ublish,
prior to the heat stroke, she could easily work ten-hour days and play competitive
fast-pitch softball. (Id.)
In a written report to Dr. Cote, Dr. Szymke noted that Ublish had always been
extremely athletic and that she was blessed with “gymnastic-level flexibility.” (R. 402.)
But, by the time of the examination, Dr. Szymke opined that Ublish had lost at least half
of her lumbosacral and hamstring motions in just eight weeks. (R. 403.) Dr. Szymke
considered it probable that Ublish had significant muscular and fascial inflammation.
(Id.) While acknowledging that physical activity triggers her pain, Dr. Szymke
recommended a program of vigorous stretching, and gave Ublish a set of home
exercises. (R. 404).
On October 9, 2008, Ublish followed up with Dr. Szymke. (R. 390-91.) After
doing her home exercises, she reported that she experienced angina, persistent back
5
pain, joint stiffness, and subjective feelings of weakness, all of which significantly limited
her mobility. (R. 391.) Dr. Szymke hypothesized that there could be a neuropathic
component to her pain, which would explain its resistance to treatment. (Id.)
On October 20, 2008, Ublish saw Dr. David J. Coynik regarding widespread staph
folliculitis, which he attributed to her diabetes. (R. 414, 417.) A week later, on October
27, 2008, Ublish saw Dr. Cote regarding a post-infectious cough with generalized
achiness. (R. 423.) Dr. Cote noted that Ublish continued to complain of intense
weakness and pain in her lower extremities. (Id.) Dr. Cote further noted that Ublish
complained she was unable to stand or sit for more than a short period of time. (Id.) On
physical examination, Dr. Cote found intense tenderness to palpitation of the thigh
muscles and some weakness with resistance. (Id.) Dr. Cote concluded that Ublish was
“not able to do any work at this time” and “discouraged her from seeking such.” (Id.) He
recommended that she continue with physical therapy and physiatry. (Id.) He also
ordered a chest x-ray. (Id.)
At Dr. Cote’s order, Ublish went in for a chest x-ray on October 29, 2008 at Illinois
Valley. (R. 423-24.) The x-ray showed no evidence of acute cardiopulmonary disease.
(R. 424.) On November 5, 2008, Ublish returned to Dr. Best with complaints of chest
pain and shortness of breath. (R. 481.) Dr. Best observed that she was fatigued. (Id.)
He further commented that Ublish had been unable to work and was pursuing disability.
(Id.) Attributing her chest discomfort to angina, Dr. Best recommended cardiac
catheterization. (Id.) Ublish again declined because of cost. (Id.)
On November 24, 2008, Ublish consulted with Dr. Joseph M. Civantos, her
ophthalmologist. (R. 429.) Ublish had been receiving regular treatment for proliferative
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diabetic retinopathy from Dr. Civantos since July 2000. (R. 429-48.) At her most recent
appointment, Dr. Civantos noted that her vision was 20/25 in both eyes. (R. 429.) He
further reported that her vision was cloudy and that Ublish was seeing some floaters.
(Id.)
On December 4, 2008, Dr. Szymke examined Ublish. (R. 571.) By that time,
Ublish’s physical therapist had reported that she had made progress. (Id.) Her overall
pain had subsided and she had improved her ability to complete daily activities. (Id.) In
addition, Dr. Szymke observed that Ublish had increased her range of motion in her
lower back and hamstrings. (Id.) However, she continued to report burning pain in her
feet and explained that she could walk only a block and a half before having to stop due
to chest pain. (Id.) Nevertheless, Ublish had increased her activity and was playing
guitar at a nightclub where she performed thirty-five minute sets. (Id.) Dr. Szymke
recommended that claimant continue with physical therapy and prescribed Trileptal for
her neuropathic pain. (Id.)
On January 8, 2009, Ublish returned to Dr. Szymke for a follow-up appointment.
(R. 573.) Her treating therapist had recently reported that Ublish was benefitting from
aquatic physical therapy, demonstrating improved balance, endurance, and pain relief.
(Id.) However, Ublish told Dr. Szymke that her pain had gotten worse. (Id.) She had
discontinued Trileptal because it was too expensive, and had started Gabapentin. (Id.)
Although Ublish reported some side effects, she stated that the medication had reduced
her burning. (Id.) On physical examination, Dr. Szymke observed that her strength “is
really quite functional.” (Id.) Ublish’s melancholy demeanor led Dr. Szymke to suggest
that she seek treatment for depression. (Id.)
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Dr. Szymke saw Ublish again on February 19, 2009, at which time Ublish told Dr.
Szymke that she had decided against seeing a mental health professional. (R. 577.)
She reported that the Gabapentin had reduced her pain such that she was able to
increase her endurance and physical activity. (Id.) At the time of the appointment, her
most severe pain was in her right lower back. (Id.) Dr Szymke found no weakness in
Ublish’s lower limbs. (Id.) He suggested that she continue her therapy, increase her
dosage of Gabapentin, and undergo an EMG to diagnose possible neuropathy. (Id.)
On March 23, 2009, Dr. Szymke received a progress report from Ublish’s physical
therapist, Ashley Clark.1 (R. 582.) Clark reported that Ublish had shown very little
improvement since the start of physical therapy. (Id.) Clark indicated that Ublish
continued to complain of pain and numbness in multiple parts of her body, including her
feet, hips, shoulders, and hands, and constant cramping, numbness, and achiness with
basic household duties. (Id.)
On April 1, 2009, Ublish met with Dr. Cote regarding her generalized pain. (R.
524.) He noted that Ublish had stopped physical therapy because it was not helping.
(Id.) Dr. Cote reviewed the results of the EMG with nerve conduction, which showed
sensory neuropathy, but no evidence of myopathy or denervation. (Id.)
Dr. Szymke examined Ublish on May 14, 2009. (R. 583.) Although she had
discontinued physical therapy, Ublish reported that she had significantly increased her
activity and Dr. Szymke observed that her neuropathic pain seemed to be better
controlled. (Id.) Specifically, Ublish mentioned that she “was walking as much as four
blocks X 2, riding her motorcycle and playing ‘pepper’ with her former softball
1
This progress report appears to have been inadvertently dated March 23, 2008.
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teammates.” (Id.) Dr. Szymke noted that Ublish complained of “bizarre symptoms” such
as splotches on her forearms due to exposure to heat, hand tremors, and a bad cough.
(Id.) He informed Ublish that it was highly unlikely that her heat stroke had caused these
new symptoms. (Id.)
Ublish returned to Dr. Cote on May 20, 2009 to discuss her diabetes, shakiness,
rash, and painful paresthesias. (R. 523.) Dr. Cote opined that her tremulousness was a
side effect of Gabapentin, but noted that Ublish believed that the drug was helping and
she wished to continue using it. (Id.) Dr. Cote further opined that there was nothing else
that could be done to alleviate the pain apart from increasing the dosage of Gabapentin.
(Id.)
On July 7, 2009, Ublish met with Dr. Robert Eilers of Physical Medicine and
Rehabilitation Associates and complained of chronic nerve pain since her episode of
heat stroke. (R. 492.) Ublish explained that “she can sit 2 hours and stand 2 hours,” as
well as “walk about 2 blocks” before she has to stop. (R. 494.) She said she could lift
10-20 pounds at most. (Id.) On physical exam, Dr. Eilers found that Ublish tends to
move slowly and had difficulty getting up from the seated position. (R. 494-95.) Dr.
Eilers assessed myofascial pain secondary to probable dehydration and underlying
diabetes. (R. 495-96.) He recommended that Ublish resume physical therapy and
prescribed Elavil for her pain. (R. 496.) Dr. Eilers opined that Ublish could not return to
her previous heavy work as a commercial operator. (Id.) He further opined that “she
might be able to find something in a sedentary position,” but he doubted whether “there
are going to be those types of occupational opportunities available to her.” (Id.)
On July 20, 2009, Ublish followed up with Dr. Cote regarding her generalized
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myofascial pain and heart disease. (R. 522.) Dr. Cote found that her heart disease was
asymptomatic and he recommended that she continue the same management. (Id.)
Regarding her generalized pain, Dr. Cote directed that she continue taking Elavil as
instructed by physiatry. (Id.)
Ublish’s next treatment date occurred on September 2, 2009 with Dr. Best. (R.
509.) Ublish told Dr. Best that she continued to experience chest discomfort and fatigue.
(Id.) She also explained that she attends tai chi classes, which “seem to help.” (Id.) Dr.
Best made no changes to her medications, and suggested that Ublish follow up in a year.
(R. 510.)
Ublish saw Dr. Cote on March 12, 2010 at which time she complained of a
burning in her lower extremities and explained that she was unable to stand for long
periods. (R. 633.) Dr. Cote noted a full range of motion in all extremities. (R. 634.)
On April 1, 2010, at Dr. Cote’s recommendation, Ublish visited the office of
rheumatologist Dr. Mark A. Getz about her widespread pain. (R. 625.) She spoke to a
nurse practitioner named Kathleen Voelker. (Id.) Ublish reported that she experienced
the worst pain in her mid-back and hips, followed by her thighs, calves, and shoulders.
(Id.) On the day of the evaluation, she rated her pain at eight, and fatigue at nine, on a
ten-point scale. (Id.) However, she noted that the Gabapentin helped take the edge off.
(Id.) She also said that physical therapy and chiropractic therapy provided some relief,
though she had difficulty performing daily activities. (Id.) Voelker noted that Ublish had
no tender or swollen joints in the upper or lower extremities, and measured her grip
strength at 95 percent. (R. 623.) Among other things, Voelker assessed fibromyalgia
and advised regular exercise, stress management, and sleep. (R. 622.) Voelker stated
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that tai chi, yoga, and chi kung were appropriate activities for fibromyalgia.2 (Id.)
2.
State Agency Consultants
On September 20, 2008, at the request of the Bureau of Disability Determination
Services, Ublish underwent a consultative exam with Dr. Victoria Adeleye. (R. 369-72.)
Dr. Adeleye reported that Ublish was diagnosed with diabetes as a child. (R. 369.) Dr.
Adeleye further commented on past diagnoses for (1) neuropathy, which causes Ublish
tingling, numbness, and pain in her hands and legs; (2) diabetic retinopathy, for which
Ublish has received laser therapy and requires surgery on a regular basis; (3) diabetic
nephropathy, which is being treated with ACE inhibitors; (4) gastroparesis with
occasional symptoms of nausea and vomiting; (5) atherosclerosis with coronary heart
disease, which her cardiologist is monitoring; and (6) heat stroke, late-effects of which
include fibrosis of the muscles. (R. 369-70.) Ublish also complained of a recent onset of
occasional shortness of breath. (R. 370.)
With respect to activities of daily living, Ublish reported she could walk three
blocks, stand ten minutes before fatigue sets in, sit for two hours without difficulty, cook a
meal provided she takes breaks, and lift, pull, and push twenty-five pounds. (R. 370.)
She denied any difficulties getting in and out of the bathtub or dressing herself, but
explained that she needs assistance with shopping. (Id.)
Dr. Adeleye’s physical examination revealed primarily unremarkable results. (R.
371-72.) Dr. Adeleye reported that Ublish could walk greater than fifty-feet without
support, that her gait was non-antalgic without the use of assistive devices, and that she
2
The administrative record also includes documentation of two follow-up visits to Voelker and two visits to
neurosurgeon Dr. Andrew Tsung for carpal tunnel syndrome. (R. 649-54, 667-77.) However, because the
ALJ did not consider these records, they “cannot now be used as a basis for finding reversible error." Rice
v. Barnhart, 384 F.3d 363, 366 n.2 (7th Cir. 2004).
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was able to toe/heel walk. (R. 371.) Ublish’s ability to grasp and manipulate objects was
normal, and she had no significant limitations in her range of motion. (Id.) Following her
examination, Dr. Adeleye assessed the following problems: diabetes, diabetic
neuropathy, diabetic retinopathy, diabetic nephropathy, gastroparesis, atherosclerosis,
heat stroke, and hyperlipidemia. (R. 372.)
On October 2, 2008, Dr. Sumanta Mitra conducted a Residual Functional
Capacity (“RFC”) Assessment. (R. 374-81.) Dr. Mitra determined that Ublish could
occasionally lift and/or carry twenty pounds, frequently ten pounds, stand and/or walk for
about six hours in an eight-hour workday, and sit for six hours. (R. 375.) As for postural
limitations, Dr. Mitra concluded that Ublish could never climb ladders, ropes, or scaffolds,
but made no finding as to her ability to perform the other tasks in this category, such as
balancing, stooping, or kneeling. (R. 376.) Dr. Mitra found no other environmental,
manipulative, visual, or communicative limitations. (R. 377-78.) Ultimately, Dr. Mitra
opined that Ublish’s statements regarding her impairments were only “partially credible in
light of the overall evidence” because the limitations that she described exceeded “that
supported by the objective medical findings.” (R. 381.) Dr. Towfig Arjmand affirmed the
RFC determination on October 6, 2008. (R. 425-27.)
C.
Claimant’s Testimony
Ublish appeared at the administrative hearing and testified as follows. Ublish was
born on September 26, 1968. (R. 44.) At the time of the hearing, she was 5 feet, 7 and
1/2 inches tall and weighed 265 pounds. (R. 47.) Ublish completed high school and a
year and a half of college. (R. 44, 48.) She is not married, but lives part-time with her
long-term girlfriend. (R. 47.) She lives in a one-level home that has a basement, but
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testified that it has been more than a year since she last went downstairs. (R. 48.)
Ublish testified that she drives about once a week, and that her mother drove her to the
hearing. (Id.)
Ublish last worked in July of 2008 as a commercial operator for a lawn care
service. (R. 49.) In that position, she rode a buggy that fertilized lawns.3 (Id.) Ublish
stopped working due to constant pain in her back, arms, shoulders, and legs. (Id.) She
explained that the pain interferes with her concentration and sleep. (R. 49.) Ublish
characterized her sleep as restless and testified that she gets only three to five hours of
sleep per night. (R. 59.) She confirmed that she is receiving treatment from a
rheumatologist, but admitted that she met with his nurse on only one occasion. (R. 4950.) According to Ublish, her primary physician Dr. Cote recommended that she file for
disability. (R. 50.)
Ublish takes several medications, including Gabapentin, which causes difficulty
with concentration and memory, and Amitriptyline, which affects her balance and makes
her dizzy. (R. 60.) The Gabapentin was prescribed to treat her muscle aches and
reduce swelling in her foot and ankles. (R. 60-61.) Dr. Cote prescribed the Amitriptyline
to treat her insomnia. (R. 51.) Ublish testified that she also takes medications to
manage her diabetes and heart problems. (R. 60-61.)
When asked what she does on a typical day, Ublish testified that she does very
little because physical activity causes her pain. (R. 53.) At times, she watches television
or reads to exercise her eyes, but she can only sit for short periods of time. (R. 53-54.)
Ublish also said that she walks short distances, lets the dog out, and gets the mail. (R.
3
Ublish also worked as a dispatcher for the Sherif’s department from 1987-1994 and as a chemical stripper
at a metal refinishing company from 1996-2000. (R. 186.)
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53.) She cooks only simple meals because she cannot bend over to take food out of the
oven, nor can she retrieve pans from the pantry. (R. 53-54.) Ublish is unable to wash
dishes, do laundry, grocery shop, clean, or do yard work. (Id.)
Ublish further testified that she receives help with her personal hygiene. (R. 52.)
Though she can brush her teeth without assistance, her girlfriend helps her get in and
out of the shower to bathe. (Id.) Ublish can dress herself, but sometimes has trouble
tying her shoes and fastening buttons. (R. 52-53.)
Before the heat stroke, Ublish testified that she was a catcher in a women’s
softball league. (R. 55.) However, after the heat stroke, Ublish claimed that her doctor
told her to do no physical activity and she testified that she has not “done any physical
things.” (R. 54.) The ALJ then made reference to Dr. Szymke’s report of May 2009, in
which Dr. Szymke noted that Ublish was walking for exercise, riding a motorcycle, and
playing baseball “pepper.” (R. 55.) The ALJ commented that these activities did not
match up with “what you’ve been telling me here.” (Id.)
Ublish confirmed on the record that she had engaged in these activities. (R. 56.)
She then explained that her doctor initially recommended that she increase her activity to
improve muscle strength and flexibility. (Id.) However, she noted that exercise
exacerbates her pain such that she has trouble moving the next day. (Id.) “The more
things I do the more pain I’m in,” she claimed. (R. 57.) Ublish conceded, however, that
she still plays the guitar and, at the recommendation of her rheumatologist, practices tai
chi at home. (R. 56-57.)
D.
Vocational Expert’s Testimony
VE Ronald Malik also testified at the hearing. The ALJ first asked VE Malik to
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consider a hypothetical person with the claimant’s work experience and the following
limitations: “limited to sedentary work with no climbing of ladders, ropes or scaffolds.
Other postural functions could be performed occasionally. Only occasional overhead
reaching. Other manipulative functions could be performed frequently. Need[s] to avoid
environmental hazards such as unprotected heights and dangerous machinery. The
need to avoid concentrated exposure to all other environmental factors except noise.”
(R. 62.) The ALJ then asked if a hypothetical person with such limitations could perform
Ublish’s past job. (Id.) The VE opined that the individual would be able to return to her
past job as a dispatcher. (R. 63.)
The ALJ then asked the VE to consider whether the same hypothetical individual
could work as a dispatcher if she required an unrestricted sit/stand option. (R. 63.) The
VE testified that such an individual would be able to work as a dispatcher provided that
she does not leave the workstation. (Id.) Responding to whether the same hypothetical
individual could work as a dispatcher without unlimited near acuity, the VE explained that
dispatchers require only frequent near acuity and frequent accommodation. (Id.) The
ALJ next asked whether someone who is limited to performing simple and repetitive
tasks could hold a skilled position, such as a dispatcher. (R. 63.) The VE responded in
the negative. (Id.)
Next, the ALJ asked what unskilled positions the hypothetical individual with all of
the aforementioned limitations could perform assuming that person is of the claimant’s
age, education, and work history. (R. 63.) The VE stated that the individual could
perform work as a document preparation clerk (2,200 positions), finish assembler (2,700
positions), and screener or touch-up worker (2,700 positions). (Id.) The ALJ asked how
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many absences per month an employer would tolerate at these positions. (Id.) The VE
opined that a person who misses two or more days per month would not retain
employment in such positions. (R. 65.)
Finally, the ALJ asked whether there would be any change if the hypothetical
person could have only occasional interaction with the public, coworkers, and
supervisors. (R. 67.) The VE said it would not affect the unskilled sedentary positions,
but would eliminate the dispatcher position. (Id.)
II.
LEGAL ANALYSIS
A.
Standard of Review
This Court will affirm the ALJ’s decision if it is supported by substantial evidence
and free from legal error. 42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940 (7th
Cir. 2002). Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Diaz v. Chater, 55 F.3d 300, 305 (7th Cir.
1995) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L. Ed. 2d
842 (1971)). Our review is deferential and we will not “reweigh evidence, resolve
conflicts, decide questions of credibility, or substitute our own judgment for that of the
Commissioner.” Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (quoting Clifford v.
Apfel, 227 F.3d 863, 869 (7th Cir. 2000)).
We will “conduct a critical review of the evidence” and will not let the
Commissioner’s decision stand “if it lacks evidentiary support or an adequate discussion
of the issues.” Id. Although the ALJ “must build an accurate and logical bridge from the
evidence to his conclusion,” he need not discuss every piece of evidence in the record.
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Nonetheless, the ALJ must
16
“sufficiently articulate [his] assessment of the evidence to assure us that the ALJ
considered the important evidence . . . [and to enable] us to trace the path of the ALJ’s
reasoning.” Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (per curiam) (quoting
Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985)).
B.
Analysis under the Social Security Act
Whether the claimant qualifies for disability insurance benefits depends on
whether the claimant is “disabled” under the Act. A person is disabled under the Act if he
or 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), 1382c(a)(3)(A).
To determine whether a claimant is disabled, the ALJ must perform the following
five-step inquiry to determine: “(1) whether the claimant is currently employed, (2)
whether the claimant has a severe impairment, (3) whether the claimant’s impairment is
one that the Commissioner considers conclusively disabling, (4) if the claimant does not
have a conclusively disabling impairment, whether she can perform her past relevant
work, and (5) whether the claimant is capable of performing any work in the national
economy.” Dixon, 270 F.3d at 1176. The claimant has the burden of establishing a
disability at steps one through four. Zurawski v. Halter, 245 F.3d 881, 885-86 (7th Cir.
2001). If the claimant reaches step five, the burden shifts to the Commissioner to show
that “the claimant is capable of performing work in the national economy.” Id. at 886.
ALJ Wood applied this five-step inquiry. At step one, the ALJ found that Ublish
has not engaged in any substantial gainful activity since the alleged onset date of July
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16, 2008. (R. 15.) At step two, the ALJ found that Ublish has the following severe
impairments: “diabetes mellitus, fibromyalgia, coronary artery disease (CAD), kidney
disease, status post heat stroke episode and obesity.” (Id.) At step three, the ALJ
determined that although Ublish suffers from severe impairments, she does not have an
impairment or combination of impairments that meets or medically equals one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Next, the ALJ found that Ublish retains the RFC to perform sedentary work as
defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) with certain restrictions. (R. 17.)
Specifically, the ALJ found that Ublish required work that allows for a sit/stand option at
will; she can never climb ladders, ropes, or scaffolds; she can occasionally perform all
other postural functions and can frequently engage in manipulative functions; she must
avoid all hazards, such as machinery and unprotected heights, and avoid concentrated
exposure to extreme temperatures, wetness, humidity, pulmonary irritants, and all other
environmental factors except noise. (Id.) The ALJ also determined that Ublish cannot
perform work that requires unlimited near acuity and is limited to simple, routine, and
repetitive tasks. (Id.) Based on this RFC assessment, the ALJ concluded at step four
that Ublish is unable to perform any past relevant work. (R. 23.)
Lastly, at step five, the ALJ determined that Ublish could perform a significant
number of jobs at the sedentary level of exertion including finish assembler, document
preparation clerk, and screener/touch-up worker. (R. 24.) Based on this finding, the ALJ
found that Ublish was not disabled under the Act. (Id.)
Ublish now argues that the ALJ erred because he did not resolve inconsistencies
regarding her date last insured. She further contends that the ALJ’s credibility
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determination is patently wrong because he included boilerplate language and failed to
indicate which of Ublish’s statements were inconsistent with the RFC. Finally, Ublish
argues that the ALJ’s RFC determination is flawed because he failed to perform a
function-by-function analysis of her ability to perform work-related activities. We address
these issues in turn below.
C.
The ALJ’s Misstatement of Claimant’s DLI is Harmless Error and does
not Warrant Remand.
Ublish first argues that the ALJ’s misstatement of her date last insured (“DLI”) is
grounds for reversal. The DLI marks the last day on which a claimant is eligible for
disability insurance benefits, and the claimant must establish disability on or before that
date. See 42 U.S.C. § 423(a)(1)(A); 20 C.F.R. § 404.320(b)(2); Martinez v. Astrue, 630
F.3d 693, 699 (7th Cir. 2011) (the claimant “had social security disability coverage only
until the end of 2003; if she was not disabled by then, she cannot obtain benefits even if
she is disabled now”). Here, ALJ Wood appears to have incorrectly identified the DLI as
December 31, 2012, instead of December 31, 2013. While the Commissioner concedes
that the ALJ misstated the DLI, he argues that the error was harmless and does not
warrant remand. We agree.
In no way did ALJ Wood’s error here circumscribe his review of the medical
evidence because he considered the entire record through June 24, 2010, the date of his
decision. Under such circumstances, we are guided by the court’s reasoning in Tyler v.
Astrue, No. 10–599, 2012 WL 4497418 (D. Del. Sept. 28, 2012). There, the ALJ
misidentified the DLI as June 30, 2009, when in fact it was June 30, 2010. Id. at *10.
However, because “none of the evidence in the medical record post-dated the incorrect
DLI,” the court found that the error was harmless and remand was unnecessary. Id. at
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*10.
Similarly, in the instant case, the ALJ accounted for the entire record up through
the decision date and excluded no evidence on account of the erroneous DLI. (R. 13.)
As a result, this error does not require remand.
D.
The ALJ’s Credibility Determination was Not Patently Wrong.
The claimant also takes issue with the ALJ’s credibility assessment. It is well
settled that the court must afford the ALJ’s credibility finding special deference because
the ALJ is “in the best position to see and hear the witnesses and assess their
forthrightness.” Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). Consequently, we
will reverse a credibility determination only if it is “patently wrong.” Zurawski, 245 F.3d at
887. To be patently wrong, an ALJ’s determination must lack “any explanation or
support.” Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008).
In assessing the credibility of the claimant’s allegations of pain and limitations, the
ALJ must consider (1) the claimant’s daily activities; (2) the location, duration, frequency,
and intensity of the claimant's pain or other symptoms; (3) factors that precipitate and
aggravate those symptoms; (4) the type, dosage, effectiveness, and side effects of any
medication that the claimant takes or has taken to alleviate pain or other symptoms; (5)
treatment, other than medication, the claimant receives or has received for relief of pain
or other symptoms; (6) any measures other than treatment the claimant uses or has
used to relieve pain or other symptoms; and (7) any other factors concerning the
claimant's functional limitations and restrictions due to pain or other symptoms. Social
Security Regulation (“SSR”) 96-7p, 1996 WL 374186, at *3.
Ublish correctly points out that ALJ Wood used the boilerplate statement that has
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recently been criticized by the Seventh Circuit. See Shauger v. Astrue, 675 F.3d 690,
696 (7th Cir. 2012); Bjornson v. Astrue, 671 F.3d 640, 644–45 (7th Cir. 2012). However,
the use of this language alone does not require remand. Instead, as the Commissioner
acknowledges, we must assess whether the ALJ has accompanied that language with a
well-reasoned analysis. See Dampeer v. Astrue, 826 F. Supp. 2d 1073, 1084-85 (N.D.
Ill. 2011) (“Boilerplate language taken in isolation may not be permissible, but in this case
it is given context by a reasoned analysis.”).
Here, along with the boilerplate language, ALJ Wood offered a well-reasoned
explanation of his credibility assessment. First, the ALJ commented on the lack of
objective evidence to substantiate Ublish’s claims of pain and limitations. Among other
things, he noted the absence of MRIs, x-rays, or CT scans to establish the etiology of the
pain in Ublish’s back, shoulders, arms, and legs. (R. 20-21.) Although the absence of
objective medical evidence is by itself not enough to discredit a claimant’s testimony, a
discrepancy between the reported pain and the medical evidence can indeed be
“probative that a witness may be exaggerating her condition.” Powers, 207 F.3d at
435-36.
ALJ Wood also pointed to specific inconsistencies between Ublish’s testimony
and her previous statements to her doctors. For example, Ublish testified at the hearing
that “she is incapable of performing very basic activities of daily living, like personal
hygiene and dressing herself,” and that “she has very little energy and can barely walk or
function, barely dress herself and can only brush her teeth without help.” (R. 21-22.)
She further testified that she has done very little since suffering a heat stroke in July of
2008. This testimony is in direct contrast to what she told Dr. Szymke in May 2009. At
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that time, Ublish reported she could walk four blocks, had ridden a motorcycle, and
played “pepper” with her former softball teammates. It was proper for the ALJ to rely on
such inconsistent statements when assessing the claimant’s credibility. See Elder, 529
F.3d at 414 (“It is well within the ALJ’s authority to disregard Elder’s testimony because it
conflicted with what she told Dr. Ko.”). As for Ublish’s daily activities, ALJ Wood noted
that despite her purported need for frequent assistance, her girlfriend only lives with her
part time. Because ALJ Wood’s credibility assessment was properly articulated and
supported, it was not patently wrong.
E.
The ALJ’s RFC Assessment was Properly Articulated and Supported
by Substantial Evidence.
Ublish also takes issue with ALJ Wood’s RFC assessment, arguing that the ALJ
failed to consider the aggregate effect of her impairments, failed to consider all of the
medical evidence, and improperly “played doctor.” We disagree.
“The RFC is the maximum that a claimant can still do despite his mental and
physical limitations.” Craft v. Astrue, 539 F.3d 668, 675-76 (7th Cir. 2008); 20 C.F.R. §
404.1545(a)(1); SSR 96-8p. “It is based upon the medical evidence in the record and
other evidence, such as testimony by the claimant or his friends and family.” Craft, 539
F.3d at 676; 20 C.F.R. § 404.1545(a)(3). Pursuant to SSR 96-8p, the “RFC assessment
must include a narrative discussion describing how the evidence supports each
conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical
evidence (e.g., daily activities, observations).” As the Seventh Circuit has explained,
“[a]lthough the RFC assessment is a function-by-function assessment, the expression of
a claimant’s RFC need not be articulated function-by-function; a narrative discussion of a
claimant's symptoms and medical source opinions is sufficient.” Knox v. Astrue, 327
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Fed. Appx. 652, 657 (7th Cir. 2009) (internal quotation omitted).
As an initial matter, we disagree that the ALJ failed to consider the aggregate
effect of claimant’s impairments and note that claimant makes little more than conclusory
arguments in support of this assertion. With respect to the ALJ’s articulation of his RFC
assessment, we conclude that the ALJ properly considered the medical records, the
opinions of various physicians, and the claimant’s testimony in compliance with SSR-968p. ALJ Wood first commented, albeit briefly, that he found the opinions of the state
agency physicians that Ublish could work at the light level to be reliable. However, after
a thorough review of the medical records and the claimant’s own allegations, he
concluded that Ublish could work at the sedentary level with additional specified
restrictions. Among other things, the ALJ specifically addressed Ublish’s treatment
history, the effectiveness of various treatment, and the dearth of records regarding the
extreme limitations to which Ublish testified. In doing so, we are able to trace his
reasoning as to how the medical evidence, or rather lack thereof in some instances,
supports his RFC assessment. We also note that Ublish cites to no other treating source
opinions or medical records evidencing her purportedly disabling limitations. See 20
C.F.R. § 404.1512(c) (“You must provide medical evidence showing that you have an
impairment and how severe it is during the time you say that you were disabled.”).
Additionally, ALJ Wood sufficiently explained why he rejected Dr. Eiler’s
conclusion that Ublish would be unlikely to engage in any work. See Denton v. Astrue,
596 F. 3d 419, 424 (7th Cir. 2010) (“the ALJ is not required to give controlling weight to
the ultimate conclusion of disability—a finding specifically reserved for the
Commissioner.”). As for playing doctor, an ALJ does not do so where, as here, his
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“determinations are supported by the record evidence and testimony.” Lott v. Astrue, No.
11 CV 5632, 2012 WL 5995736, at *8 (N.D. Ill. Nov. 30, 2012). Lastly, and as discussed
above, the ALJ properly handled the assessment of Ublish’s credibility. We find no
reversible error in the ALJ’s RFC assessment.
III.
CONCLUSION
For the reasons set forth above, we conclude that the ALJ’s decision was
supported by substantial evidence and free from legal error. Claimant’s motion for
summary judgment is denied and the decision of the ALJ is affirmed. It is so ordered.
ENTERED:
_________________________
MICHAEL T. MASON
United States Magistrate Judge
Dated:
January 7, 2013
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