Murphy v. Astrue
Filing
21
MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 8/27/2013. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KAREN J. MURPHY,
v.
Plaintiff,
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.
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No. 12 CV 3879
Magistrate Judge Young B. Kim
August 27, 2013
MEMORANDUM OPINION and ORDER
Karen Murphy seeks Disability Insurance Benefits (“DIB”) based on her
claim that the residual effects of a stroke she suffered in 2007 rendered her disabled
before her date last insured.
After the Commissioner of the Social Security
Administration denied her application, Murphy sought judicial review of the denial
pursuant to 42 U.S.C. § 405(g). Before the court is Murphy’s motion for summary
judgment seeking reversal of the Commissioner’s decision or a remand of the case
for further proceedings. For the following reasons, the motion is denied:
Procedural History
Murphy applied for DIB on October 2, 2008, claiming that she became
disabled after suffering a stroke on April 13, 2007. (Administrative Record (“A.R.”)
107, 179.) The Commissioner denied Murphy’s claim on November 24, 2008, (id. at
Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin—who
became the Acting Commissioner of Social Security on February 14, 2013—is
automatically substituted as the named defendant.
1
101), and again upon reconsideration on February 10, 2009, (id. at 102). Murphy
requested a hearing before an administrative law judge (“ALJ”), (id. at 162), and on
July 23, 2010, the ALJ conducted a hearing, (id. at 29-100). The ALJ subsequently
concluded that Murphy is not disabled as defined by the Social Security Act and
denied her application for DIB. (Id. at 24.)
Murphy sought and obtained review
before the Appeals Council, (id. at 11-12), which ultimately agreed with and adopted
the ALJ’s decision, (id. at 4-6). Murphy then initiated this civil action for judicial
review, see 42 U.S.C. § 405(g), and the parties consented to the jurisdiction of this
court, see 28 U.S.C. § 636(c).
Facts
Murphy claims that after she experienced a stroke in April 2007 she suffered
from a number of lingering, limiting impairments, including numbness, dizziness,
headaches, neck pain, speech difficulties, and depression. According to Murphy,
these impairments are so severe that she is unable to return to her past work as a
secretary or to work in any other capacity. At her July 2010 hearing before the
ALJ, Murphy presented both documentary and testimonial evidence in support of
her claim.
A.
Medical Evidence
On April 13, 2007, Murphy suffered a stroke. (A.R. 541-42.) She presented
at the ER with slurred speech, expressive aphasia, left-sided weakness with some
facial droop, and right-sided weakness with decreased sensation. (Id. at 432.) A CT
scan of the brain showed multiple areas of low attenuation in the left hemispheric
2
area. (Id. at 434.)
Accordingly, Dr. Keith Mulki admitted her under his care,
consulted the neurology department, and ordered a full workup for Murphy.
Although an echocardiogram detected no abnormalities, (id. at 497-98), a magnetic
resonance angiogram (“MRA”) of Murphy’s neck arteries and brain revealed severe
stenosis (abnormal narrowing) in the left internal carotid artery (“ICA”) that could
result in possible areas of occlusion and limited flow enhancement in the left middle
cerebral artery (“MCA”), (id. at 434, 477-78). In other words, a specialized scan of
the arteries in the neck and brain showed significant narrowing of the blood vessels
to the brain, which may have been cutting off blood flow. (Id. at 478.) Dr. Mulki
also ordered an MRI of the major arteries of the neck, the results of which were
highly suggestive of dissection in the left ICA.
(Id. at 434.)
An ultrasound of
Murphy’s arteries of the neck showed abnormal narrowing on the left side and
possible occlusion.
(Id. at 485.)
A repeat CT scan also revealed abnormal
narrowing in the left ICA, which suggested possible dissection. (Id. at 487-88, 49596.)
Two days after her stroke, on April 15, 2007, Dr. Arius Patolot examined
Murphy and noted that she followed commands inconsistently and exhibited signs
of aphasia (difficulty communicating). (Id. at 435.) Murphy had normal movement
in her left extremities compared with 4/5 on her right side.
(Id.)
Dr. Patolot
recommended that Murphy engage in physical, occupational, and speech therapies.
(Id.) The following day, Dr. Nitin Nadkarni, a neurosurgeon, ordered a CT scan of
Murphy’s brain. (Id. at 474.) The results showed that the left side of her brain had
3
an area of abnormal accumulation of fluid or edema, which he attributed to her
stroke. (Id.)
Before leaving the hospital Murphy underwent a neurological consultation
with Dr. Joseph Mayer, who noted her past history of headaches and her
diminished fluency in speech. (Id. at 541-42.) For example, although she could read
a simple sentence, at times she substituted unintended words or phrases. (Id. at
542.) But her muscle strength showed only mild weakness on her right side when
compared to her left and her rapid alternating finger movements were fairly good
bilaterally. (Id.) Her sensation was worse in her right arm as was her loss of
proprioception. (Id.) Dr. Mayer recommended physical and occupational therapy,
specifically for her speech impairment. (Id.)
Less than two weeks after her hospital discharge, Dr. Mayer examined
Murphy again. (Id. at 346-47.) She complained that she felt light-headed, dizzy,
and tired and that she experienced occasional sharp pain in her right hand and
spots in her left eye. (Id. at 346.) He noted that Murphy’s speech was generally
fluent.
(Id.)
Her extremities moved well and her rapid alternating finger
movements seemed almost symmetric though she still felt a significant decrease in
proprioception in her right hand when compared to the left. (Id.) Murphy followed
up with Dr. Mayer on May 11, 2007, reporting that she was experiencing
headaches, but her dizziness and light-headedness had gone away. (Id. at 338.)
Dr. Mayer described Murphy as being “considerably frustrated by her condition,”
and opined that her complaints seem to stem largely from that frustration. (Id.) A
4
month later, on June 4, 2007, Dr. Robert Oliver examined Murphy. She denied
having any significant headaches but complained of insomnia, anxiety, and
depression. (Id. at 340.) Accordingly, Dr. Oliver started her on the antidepressant
Zoloft. (Id.)
In addition to her doctor visits, Murphy engaged in several weeks of physical
therapy beginning 10 days after her stroke.
At intake, the physical therapist
described Murphy’s goals as increasing her grip and pinch strength, and improving
her coordination on fine motor tasks. (Id. at 681.) The therapist recommended
additional treatment in the form of “a detailed home exercise program.” (Id.) On
May 14, 2007, a physical therapist noted that Murphy had attended two therapy
sessions in April but did not attend or call to cancel her last two appointments. (Id.
at 680.) Based on this, the therapist recommended discharging Murphy from the
program. (Id.) It is unclear when Murphy returned to physical therapy, but on
June 13, 2007, the same physical therapist wrote that Murphy had undergone seven
weeks of physical therapy focused on her right side weakness and coordination in an
attempt to address her complaints of numbness and loss of proprioception in her
right hand.
(Id. at 678.)
The therapist described Murphy as being “not very
compliant in her home exercise program,” noting that she had reported “only
occasionally performing exercises per the right upper extremity.”
(Id.)
The
therapist noted that Murphy had not scheduled any additional appointments and
recommended discharging her from the program. (Id.)
5
Murphy’s follow-up visits with Dr. Mayer continued after the physical
therapy records end. In early July 2007, two months after the stroke, Murphy
complained of left-sided headaches that keep her awake at night.
(Id. at 335.)
Dr. Mayer noted that Murphy’s speech was more fluent than it had been in May
and that her proprioception in her right hand remained poor, although her right
foot was “essentially normal.” (Id.) About two weeks later, Dr. Mayer noted that
Murphy still had occasional headaches but “they are better than they were last
time” and had “clearly improved.” (Id. at 299.) He noted that Murphy reported that
she never took the prescription for Gabapentin, which was prescribed to treat her
headaches. (Id.) Dr. Mayer also noted that by this time her speech was “quite
fluent” and that she “had essentially normal rapid alternating finger movements,
gait, and tandem gait.” (Id.)
Murphy saw Melissa Schultz, Dr. Mayer’s physician assistant, at the end of
July 2007 and reported head pain on her right side. (Id. at 308.) Murphy reported
to Schultz that she had just returned from a vacation and she had not noticed the
symptom during her trip.
(Id.)
She also reported continued numbness and
discomfort in her right forearm. (Id.) Upon examination, Schultz characterized the
decreased sensation in Murphy’s right arm and hand as “mild” and “improving.”
(Id. at 308-09.) She thought some of Murphy’s discomfort might be stress-related
and discussed with Murphy the need for her to take her Zoloft medication, which
she had not yet started taking. (Id. at 309.)
6
Two months later, in September 2007, Dr. Mayer noted that Murphy
reported that her left-sided headaches were better, but she experienced periodic
numbness along the right side of her face that sometimes would develop into
headache pain, lasting about three hours. (Id. at 306.) Murphy said this happened
about three times per week. (Id.) Dr. Mayer also noted that Murphy was showing
“significant” improvement in her speech—he described her as relatively fluent—and
that she had started taking Zoloft, but chose to take only half the prescribed dose.
(Id.) He described her as having normal strength in all four extremities and said
that her proprioception was better in her right hand, although “still significantly
impaired compared to the left.” (Id.) Murphy was examined by Dr. Yogesh Tejpal
in November 2007. (Id. at 317.) During that visit she denied any symptoms of
weakness and said she only occasionally feels tingling in her right arm. (Id.) At
another follow-up with Dr. Mayer in December 2007, he noted that she was reading,
using her right hand “fairly well,” and experiencing infrequent headaches. (Id. at
310.)
In April 2008, a year after her stroke, Murphy followed up with Dr. Mayer
who noted that her main complaint was frequent, almost nightly headaches. (Id. at
300.) He noted that she had headaches even before her stroke and he doubted that
they were stroke-related.
(Id.)
Dr. Mayer also described Murphy as having
“recovered reasonably well” from her stroke, although she had some lingering “very
mild aphasia” and “some significant loss of sensation.” (Id.) Two months later
Dr. Mayer noted that Murphy’s headaches were “clearly improved,” and that she
7
reported never taking one of the headache medicines he had prescribed for her. (Id.
at 663.) By December 2009 Dr. Mayer described Murphy as having made “a very
good recovery” from her stroke, despite her on-going frustration “with her persistent
deficits.” (Id. at 723.)
Two consulting physicians reviewed Murphy’s medical file in connection with
her disability claim. In November 2008 Dr. Francis Vincent wrote that there are
not enough objective findings to support Murphy’s claim that she was disabled prior
to December 31, 2007, her date last insured.
(Id. at 520.)
In February 2009
Dr. Richard Bilinsky agreed, concluding that the “evidence remains insufficient”
prior to Murphy’s date last insured. (Id. at 517.)
B.
The Hearing Testimony
At her hearing before the ALJ, Murphy testified that prior to her stroke in
April 2007, she worked as a representative at trade shows between eight to ten
times per year and also worked as a part-time secretary. (A.R. 38-39.) In March
2010, almost three years after her stroke, Murphy worked at Target as a part-time
cashier but she quit after three weeks because her symptoms made it difficult to
perform her job duties. (Id. at 66-67.) She testified that she often left work with
terrible headaches and neck pain and experienced numbness in her extremities
after standing for long periods of time. (Id.) She said that her symptoms caused
her to take frequent breaks and in three weeks she called in sick twice because she
had so much pain from her headaches and neck complications. (Id. at 66.)
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Murphy testified that right after her stroke she spent a lot of time in physical
therapy and exercised at home to help strengthen her foot and improve her speech.
(Id. at 45-46.) Her daily activities included sweeping, dusting, making the beds,
and preparing simple meals such as pouring cereal or heating items in the
microwave.
(Id. at 46-48.)
However, Murphy maintained that she could not
vacuum, do yard work, or shop by herself.
(Id. at 48-49.)
She had trouble
concentrating, communicating with strangers, and remembering numbers and
letters. (Id. at 51-52.) Murphy also had trouble making a fist with her right hand,
buttoning her shirts or jackets, picking up coins, writing or typing, and
distinguishing hot from cold.
(Id. at 51-52, 57-60.)
When asked about her
symptoms in April 2008, Murphy stated that she could not remember how she felt.
(Id. at 89-90.) However, she testified that she had headaches almost every day
during the fall and winter of 2007, a condition she treated mostly with over-thecounter medications. (Id. at 44, 54.) Murphy testified that the headache pain was
so severe she had to rest until it subsided. (Id. at 65.)
Murphy also testified that her other conditions included plantar fasciitis, a
painful foot condition, but she said that those symptoms were “getting better.” (Id.
at 68.) She also explained that even though she felt depressed, she stopped taking
Zoloft primarily because she did not want to gain weight, although she also said
that she did not think the medication made a difference in her mood (after saying
“it did help for awhile”). (Id. at 54-55.) Murphy could not remember having any
side effects from the depression medication. (Id. at 55.)
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Murphy’s husband also testified. His statements about his wife’s symptoms
largely tracked Murphy’s, although he claimed to remember what his wife’s
condition was like in April 2008.
(Id. at 93.)
According to Murphy’s husband,
during that time she spent 12 entire days per month in bed with the blinds closed
as a result of her headache pain. (Id. at 95-96.) He further testified that in July
2010, at the time of the hearing, the headaches limited his wife to bed
approximately seven days per month. (Id. at 97.)
The ALJ questioned both Murphy and her husband about a doctor’s report
from July 30, 2007, in which a physician’s assistant noted that Murphy told her she
had recently returned from a vacation during which one of her residual stroke
symptoms seemed improved. (Id. at 73, 308.) Murphy and her husband said that
they could not remember taking any such vacation. (Id. at 73.)
Vocational Expert (“VE”) Pamela Tucker answered the ALJ’s questions
regarding the kinds of jobs someone with certain hypothetical limitations could
perform. (Id. at 81-88.) The VE described Murphy’s past work as a secretary and
trade representative as semi-skilled and light. (Id. at 81.) In response to a series of
hypotheticals posed by the ALJ, the VE testified that there were no sedentary jobs
in the regional economy for a person who could neither work with the general public
nor use her hands more than occasionally for fine manipulation with the dominant
hand. (Id. at 81-82, 84, 88.) When the hypothetical changed to describe a person
who had the capacity to sit for six hours and communicate as needed with
coworkers, supervisors, and the general public, but who could only occasionally
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perform fine hand manipulation, the VE testified that such a person would be able
to work as a surveillance monitor, a telephone solicitor, or an information clerk—all
jobs that exist in significant numbers in the economy. (Id. at 87-89.) Finally, in
response to questions posed to her by Murphy’s attorney, the VE noted that
someone who misses more than one day of work per month, or is off-task due to pain
more than 8-10% of the time, is unemployable. (Id. at 91, 98.)
C.
The ALJ’s Decision
In evaluating Murphy’s claim, the ALJ applied the standard five-step
sequential inquiry for determining disability, which requires her to analyze:
(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.
See Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012); 20 C.F.R. § 404.1520(a)(4).
If at step three of this framework the ALJ finds that the claimant has a severe
impairment that does not meet one of the impairments listed in Appendix 1, she
must “assess and make a finding about [the claimant’s] residual functional capacity
based on all the relevant medical and other evidence.” 20 C.F.R. § 404.1520(e). A
claimant’s residual functional capacity (“RFC”) describes the most she can still do
despite her limitations. Id. § 404.1545(a)(1). The ALJ uses the RFC to determine at
steps four and five whether the claimant can return to her past work or to different
available work. Id. § 404.1520(f), (g).
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Here, at step one of the analysis, the ALJ determined that Murphy had not
engaged in substantial gainful activity during the period of her alleged onset date of
April 13, 2007, through her date last insured of December 31, 2007. (A.R. 17.) At
step two, the ALJ determined that Murphy suffered from a severe impairment in
the form of “residual effects of a cerebrovascular accident, including cognitive and
communication difficulties.” (Id.) The ALJ noted that Murphy’s headaches and
depression either did not have more than a minimal effect on Murphy’s ability to
perform work activities or did not meet the 12-month duration requirement for
severe impairments. (Id.) She found that Murphy’s depression stabilizes when
treated with medication and noted that Murphy reduced her Zoloft dosage by onehalf on her own initiative. (Id.) The ALJ also noted that the evidence supports a
near complete resolution of the headaches less than 12 months after their onset.
(Id.)
At step three, the ALJ concluded that Murphy’s impairment or combination
of impairments does not meet or equal Listing 11.00, which addresses neurological
impairments, or Listing 11.04, which addresses central nervous system vascular
accidents.
(Id. at 18.)
Likewise, the ALJ concluded that Murphy’s mental
impairments did not meet or equal the criteria for organic mental disorders as set
forth in Listing 12.02. (Id.) In evaluating her condition under the Listing 12.02
criteria, the ALJ applied the paragraph B criteria and found that although Murphy
had significant limitations in her daily activities immediately following her stroke,
within 12 months she was able to perform light housework and prepare meals. (Id.)
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Accordingly, the ALJ found that she had only a mild limitation in activities of daily
living. (Id.) The ALJ found no evidence of social dysfunction and so concluded she
is only mildly limited with respect to social functioning. (Id.) She found a mild to
moderate limitation in Murphy’s concentration, persistence, or pace, based on what
the ALJ perceived to be her gradual but persistent improvement in this area
following the stroke.
(Id.)
After noting that Murphy had not experienced any
periods of decompensation, the ALJ concluded that neither the paragraph B nor the
paragraph C criteria were satisfied. (Id. at 19.)
Moving on to the RFC analysis, the ALJ determined that Murphy could
perform the full range of light work, with a limitation to unskilled work to account
for the residual effects of Murphy’s stroke. (Id.) In reaching this conclusion, the
ALJ found that while Murphy suffered significant functional limitations right after
her stroke, she improved enough within 12 months to be able to perform basic work
activities within the parameters of her RFC. (Id. at 20.) The ALJ wrote that she
found Murphy’s testimony regarding the persistence and limiting effects of her
symptoms only partially credible. (A.R. 20-22.)
Relying on the VE’s testimony, the ALJ determined at step four that Murphy
is unable to perform any of her past relevant work through her date last insured,
but at step five the ALJ concluded that she could perform several jobs existing in
significant numbers. (Id. at 23.) Accordingly, the ALJ concluded that Murphy was
not disabled from her alleged disability onset date through her date last insured
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and denied her application for DIB. (Id. at 23-24.) The Appeals Council adopted
the ALJ’s findings. (Id. at 4-6.)
Analysis
In her motion for summary judgment, Murphy challenges the ALJ’s decision
in three respects. First, Murphy argues that the ALJ improperly discredited her
testimony as well as her husband’s statements. Second, Murphy contends that the
ALJ erred when determining her RFC because the ALJ disregarded evidence
favorable to her claim.
Finally, Murphy argues that the ALJ erred by
“mechanically” applying the vocational guidelines at step five rather than
incorporating the VE’s testimony with respect to what Murphy describes as her
“actual limitations.” (R. 11, Pl.’s Br. at 13.) The Commissioner defends the ALJ’s
decision by arguing that the ALJ adequately explained her credibility analysis and
her conclusion that Murphy’s residual symptoms had improved sufficiently within
12 months to permit her to perform light, unskilled work.
The Commissioner
argues that the ALJ properly applied the vocational guidelines to conclude that
Murphy is not disabled because her RFC analysis is fully supported.
This court confines its review to the reasons offered by the ALJ, see Steele v.
Barnhart, 290 F.3d 936, 941 (7th Cir. 2002), examining whether the ALJ supported
her decision by substantial evidence, see O-Connor-Spinner v. Astrue, 627 F.3d 614,
618 (7th Cir. 2010).
Substantial evidence is “‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007) (quoting Richardson v. Perales, 402 U.S.
14
389, 401 (1971)). This court may not “reweigh the evidence, resolve conflicts, decide
questions of credibility, or substitute [its] own judgment for that of the
Commissioner.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000). That means
this court must affirm the ALJ’s decision if reasonable minds could differ over
whether the claimant is disabled. See Schmidt v. Astrue, 496 F.3d 833, 842 (7th
Cir. 2007).
But remand is warranted if the ALJ’s decision “lacks evidentiary
support or is so poorly articulated as to prevent meaningful review,” Steele, 290
F.3d at 940, or fails to “provide an accurate and logical bridge between the evidence
and the conclusion that the claimant is not disabled,” Craft v. Astrue, 539 F.3d 668,
673 (7th Cir. 2008) (internal quotations omitted).
A.
The ALJ’s Credibility Analysis
In attacking the ALJ’s credibility analysis, Murphy argues that the ALJ
impermissibly relied on oft-criticized boilerplate language, “played doctor,” and
overemphasized Murphy’s daily activities. In response, the Commissioner argues
that the ALJ’s credibility analysis is not patently wrong or incomplete because the
ALJ thoroughly explained how Murphy’s complaints about her symptoms
contradicted both her testimony during the hearing and the objective medical
evidence. (R. 18, Govt.’s Resp. at 3-4.) As the Commissioner points out, Murphy
has a high hurdle to overcome in challenging the ALJ’s credibility assessment,
which this court will overturn only if it is “patently wrong.” See Zurawski v. Halter,
245 F.3d 881, 887 (7th Cir. 2001).
This court will not substitute its judgment
regarding the claimant’s credibility for the ALJ’s, and Murphy “must do more than
15
point to a different conclusion that the ALJ could have reached.”
See Jones v.
Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010). Put simply, this court will not disturb
the ALJ’s credibility determination unless it is “unreasonable or unsupported.” See
Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008).
The focus of Murphy’s argument that the ALJ erred in assessing her
credibility centers on her objection to the ALJ’s use of the following standard, but
oft-criticized, boilerplate language:
After careful consideration of the evidence, I find that the claimant’s
medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.
(A.R. 20).
The Seventh Circuit has criticized similar language as being
“meaningless.” See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010). That is
because such boilerplate “fails to inform us in a meaningful, reviewable way of the
specific evidence the ALJ considered in determining that claimant’s complaints
were not credible.” Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012) (citation
and quotations omitted). Additionally, the particular language the ALJ used here
comes under fire for referring to the “above residual functional capacity assessment”
when in fact the RFC assessment comes later in the opinion. Filus v. Astrue, 694
F.3d 863, 868 (7th Cir. 2012). The determination of whether a claimant is able to
work is often dependent on her credibility, and the ALJ flip-flops the analysis by
determining the ability to work before analyzing the claimant’s credibility.
16
See
Bjornson, 671 F.3d at 645. However, the Seventh Circuit also has made it clear
that an ALJ’s use of this objectionable language does not amount to reversible error
if the ALJ “points to information that justifies his credibility determination.”
Pepper v. Colvin, 712 F.3d 351, 367-68 (7th Cir. 2013). In other words, whether an
ALJ’s use of this boilerplate language amounts to reversible error turns on whether
the ALJ gives sufficient reasons, grounded in evidence, to support her ultimate
determination. See Filus, 694 F.3d at 868.
This court agrees with the Commissioner that in this case the ALJ
sufficiently articulated the reasons underlying her credibility assessment, and so
her use of the problematic boilerplate language does not amount to reversible error.
See Pepper, 712 F.3d at 367-68. The ALJ pointed to both medical and non-medical
findings in the record to support her credibility assessment, including Murphy’s
ability to perform certain daily activities, her noncompliance with prescribed
treatment, and the fact that she went on vacation less than three months after her
stroke.
It must be noted that “not all of the ALJ’s reasons for discrediting a
claimant must be valid as long as enough of them are,” see Halsell v. Astrue, 357
Fed. App’x 717, 722 (7th Cir. 2009) (emphasis in original), and here, all of them are.
For example, with respect to the ALJ’s reliance on Murphy’s ability to perform
housework and prepare meals, the Commissioner specifically directs the ALJ to
consider an individual’s daily activities when determining the claimant’s credibility.
SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996). Thus the ALJ was permitted to
weigh Murphy’s ability to perform these tasks around the house against her
17
description of her symptoms and conclude that a discrepancy between the two,
especially in the 12 months immediately following her stroke, diminishes Murphy’s
credibility. Similarly, the ALJ was entitled to view the evidence that Murphy had
traveled for vacation less than three months after her stroke and her admission
that she did so again in July 2008 as evidence that she was exaggerating the
stroke’s immediate and ongoing impact.
See, e.g., Schmidt, 496 F.3d at 844
(including vacationing in a list of “significant” daily activities); see also Noble v.
Colvin, __ F.Supp.2d __, 2013 WL 1809901, at *13 (N.D. Ill. Apr. 29, 2013) (noting
that although “a claimant’s vacation does not necessarily rule out a finding of
disability,” an ALJ can consider vacations in determining the credibility of a
claimant’s described symptoms); Reider v. Astrue, No. 07 CV 7271, 2008 WL
2745958, at *11 (N.D. Ill. July 11, 2008) (affirming the ALJ’s credibility finding
where the claimant had taken two vacations since the disability onset date). The
ALJ made clear that Murphy’s vacation—like her household work—was only one
piece of the credibility puzzle, but that it contributed to her doubt surrounding
Murphy’s description of her limitations. This court cannot say that this finding is
“patently wrong.” See Noble, 2013 WL 1809901, at *13.
Murphy also contends that the ALJ impermissibly “played doctor” by
discrediting Murphy in part for failing to comply with prescribed treatment,
specifically physical therapy. Accordingly to Murphy, by citing her limited physical
therapy attendance the ALJ “implicitly [found] that such treatment would have
cured Plaintiff when there was no evidence of that.” (R. 11, Pl.’s Br. at 9.) On the
18
contrary, the ALJ did not say or even imply that Murphy would have been cured by
attending ongoing physical therapy and complying with her home exercise regimen.
(A.R. 22.) Instead, she said that Murphy’s failure to attend scheduled physical
therapy sessions and the evidence that she did not comply with her home exercise
program in the spring of 2007 suggest that her symptoms were not as limiting as
she testified, even right after her stroke. (Id.) See SSR 96–7p, 1996 WL 374186, at
*7 (noting that a claimant’s failure to comply with a treatment plan can support an
adverse credibility finding); see also Schmidt, 496 F.3d at 844 (noting that a
claimant’s voluntary decision to discontinue physical therapy cast doubt on the
severity of the symptoms physical therapy was prescribed to relieve). Because this
and the other reasons the ALJ supplied to explain her decision that Murphy is not
fully credible are supported by the record, this court finds no reversible error in the
ALJ’s credibility finding. 2
B.
The ALJ’s RFC Determination
Murphy also argues that the ALJ committed reversible error in crafting the
RFC because, according to Murphy, the ALJ cherry-picked the evidence that
supported her decision while overlooking key evidence in her favor. Murphy argues
that the purportedly overlooked evidence supports a finding that she has limitations
that the ALJ failed to account for in evaluating her RFC. Murphy is correct that in
Murphy also summarily asserts that the ALJ improperly evaluated the credibility
of the testimony provided by her husband. (R. 11, Pl.’s Br. at 9.) Because she has
not developed any argument as to why this aspect of the ALJ’s credibility
assessment is erroneous, the court considers the issue waived. See Sanchez v. City
of Chicago, 700 F.3d 919, 934 n.4 (7th Cir. 2012).
2
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evaluating a claimant’s RFC an ALJ must consider all relevant medical and nonmedical evidence and provide a narrative discussion explaining how that evidence
supports her conclusion. See 20 C.F.R. § 404.1545(a)(3). The RFC evaluation must
account for “all limitations that arise from medically determinable impairments”
and the ALJ “may not dismiss a line of evidence contrary to the ruling.” Villano v.
Astrue, 556 F.3d 558, 563 (7th Cir. 2009).
On the other hand, the substantial
evidence standard does not require the ALJ to provide a thorough written
evaluation of every piece of evidence in the record. Pepper, 712 F.3d at 362. In
other words, this court will uphold the Commissioner’s decision if the ALJ’s RFC
findings are supported by substantial evidence and are explained to an extent that
allows for meaningful review. Jones, 623 F.3d at 1160.
The court’s task here is made difficult by the sparseness of Murphy’s RFC
argument, which consists of a long recitation of facts, punctuated by one paragraph
of argument. The argument paragraph consists of a series of assertions that the
ALJ overlooked evidence, supported by string cites to multiple record pages.
Murphy’s RFC argument appears to be premised mostly on her accusation that the
ALJ impermissibly ignored several laboratory tests and one medical report from her
treating physician that she says support her disability claim. A close reading of the
record—which is replete with duplications of medical reports, laboratory test
results, and other documents—shows that the ALJ actually did discuss many, if not
most, of the cited records, but perhaps not the copy at the page number Murphy
cites. For example, Murphy asserts that the ALJ ignored test reports from May
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2007, December 2007, and April 2008—but that claim is erroneous. The ALJ refers
to those reports several times in the RFC assessment. She considered the May 2007
MRA results in discussing the immediate impact of her stroke, but noted that her
symptoms improved consistently during the follow-up visits over the next several
months.
(A.R. 20-21.)
She pointed out that MRAs taken in March 2008 and
December 2008 showed improvement in her carotid vessels and an improved degree
of stenosis. (Id. at 21.) She specifically discussed the December 2007 examination
results which showed improvement in Murphy’s right-hand proprioception. (Id.)
The ALJ noted that during that December 2007 visit Dr. Mayer observed that she
was functioning “fairly well.” (Id.) She further noted that in April 2008 Dr. Mayer
opined that Murphy was stable and had “recovered reasonably well.” (Id.) The ALJ
rationally relied on those findings to conclude that within one year of her stroke
Murphy was capable of performing work activities at the light exertional level.
Murphy also appears to assert that the ALJ ignored the results of a
November 2008 MRI because she did not specifically discuss a particular medical
report dated December 2009, more than a year after the test took place. (R. 11, Pl.’s
Br. at 12.) In the December 2009 report Dr. Mayer briefly discussed the test, noting
that the November 2008 MRI coupled with her most recent MRA showed that
Murphy “has made a very good recovery.” (Id. at 723.) Murphy’s argument faulting
the ALJ for excluding Dr. Mayer’s December 2009 report from her RFC discussion
essentially would require this court to “nit-pick” the ALJ’s decision rather than give
it the commonsensical reading that the substantial evidence standard of review
21
requires of this court. See Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000).
Although an ALJ must review and consider all of the evidence, she is not required
to discuss in detail and in writing every single item in the evidentiary record. See
Jones, 623 F.3d at 1162. To discuss every piece of evidence in a 700-page record
would take resources that an ALJ simply does not have. More importantly, Murphy
has not explained how an explicit discussion of Dr. Mayer’s report would have
changed the RFC with respect to her condition prior to her date last insured.
Murphy also seems to fault the ALJ for failing to discuss a January 2010
EEG demonstrating a disturbance in brain function in the left frontal lobe, making
it difficult for Dr. Mayer “to completely exclude” the possibility of an underlying
seizure disorder. (R. 11, Pl.’s Br. at 12; A.R. 721.) But once again, an ALJ does not
need to discuss every piece of record evidence in detail, see McKinzey v. Astrue, 641
F.3d 884, 891 (7th Cir. 2011), especially where, as here, the ALJ’s discussion is
sufficient to assure that she took into account not only Dr. Mayer’s findings during
the year following the stroke itself but also the results of myriad different
laboratory tests assessing Murphy’s post-stroke condition.
An ALJ need only
articulate at some minimum level her analysis of the evidence to allow reviewing
courts to trace the path of her reasoning. See Diaz v. Chater, 55 F.3d 300, 307 (7th
Cir. 1995). The EEG is the only document Murphy points to in the lengthy record to
mention a possible seizure disorder. Her attorney has not developed any argument
in his briefs suggesting that she has seizures or is otherwise impaired by an
underlying seizure disorder. Murphy seems to claim that the EEG report supports
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a finding that she is limited to a more restrictive RFC than the ALJ assigned, but
she has not explained how the EEG results translate to that conclusion. Because
she has not explained how the failure to discuss this report destroys the logical
bridge the ALJ otherwise constructed between the evidence and her RFC
conclusion, Murphy has not shown reversible error here.
Next Murphy asserts that the ALJ ignored to her detriment the examination
results from her treating physician that she says suggested she had a disabling loss
of sensation and proprioception in her right hand and foot lasting “much longer
than a year after her stroke.”
(R. 11, Pl.’s Br. at 12.)
Once again, Murphy’s
characterization of the ALJ’s decision is incorrect. The ALJ did not ignore this
evidence; she pointed directly to the records describing the changes in Murphy’s
right hand proprioception, which reflected improvement over time. (A.R. 21.) She
discussed the records reflecting that Murphy’s ability to walk similarly improved
and that within eight months she was walking with a normal gait and without
support. (Id.) The ALJ acknowledged that Murphy continued to complain about
sensation loss a year after the stroke, but noted that her doctor considered her
neurologically stable at that point. (Id.) That discussion is in direct contrast to
Murphy’s argument that the ALJ ignored the evidence regarding her reduced
sensation and proprioception.
Finally, Murphy asserts—once more in an entirely summary fashion—that
the ALJ failed to discuss Murphy’s foot problems, which include a heel spur that
Murphy asserts “would naturally tend to reduce” her RFC to sedentary work.
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(R. 11, Pl.’s Resp. at 12.) She supports this one-sentence argument with a citation
to three medical records. The first is a radiology report from November 2004 that
simply reveals that she had a heel spur. (A.R. 591.) The second is a podiatrist
report from September 2008 noting that she has a heel spur that causes her pain,
especially in the morning. (Id. at 647.) The last is an October 2008 physician report
noting that her plantar fasciitis was being treated with lidocaine and orthotics. (Id.
at 689.) None of these reports provide any information as to what, if any, limiting
impact the heel spur had or has on Murphy’s ability to function. More importantly,
at the hearing Murphy herself downplayed any effect from her plantar fasciitis,
testifying that it was “getting better.” (Id. at 68.) At no point in her testimony did
she claim that her heel spur forced her to remain sedentary. Accordingly, nothing
in Murphy’s underdeveloped argument with respect to her heel spur undermines
this court’s conclusion that the RFC is supported by substantial evidence.
This court finds that the ALJ considered the relevant evidence describing
Murphy’s condition in the immediate aftermath of her stroke and the reports in the
months that followed documenting a gradual, but steady improvement in her
condition. She built the requisite logical bridge between that evidence and her
conclusion that within 12 months of the alleged onset date, Murphy was able to
perform light, unskilled work. See Pepper, 712 F.3d at 362. Accordingly, this court
agrees with the government that the RFC analysis is supported by substantial
evidence.
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C.
The ALJ’s Application of the Vocational Grid
Murphy’s final argument is that the ALJ effectively denied her a hearing on
the RFC question because, she says, the ALJ mechanically and unfairly applied the
vocational guidelines to find that she is not disabled.
She faults the ALJ for
applying the grid because it does not account for what she describes as her nonexertional limitations, including forgetfulness, dizziness, depression, anxiety, and
aphasia. (R. 11, Pl.’s Br. at 13.) She also argues that the VE was never given a
chance to opine about the job prospects of a hypothetical person with the RFC the
ALJ ultimately settled on, and that the case should be remanded for the VE to
consider that RFC.
Murphy’s argument would have traction only if she had convincingly shown
that the ALJ erred in developing her RFC. The argument hinges on her insistence
that she has non-exertional impairments that the grid does not account for. But as
explained above, the ALJ adequately discussed why she found Murphy capable of
performing the full range of unskilled light work without any additional limitations.
Murphy is correct that the hypotheticals the ALJ posed to the VE were based on an
RFC different than the one the ALJ ultimately settled on, but once the ALJ
considered all of the record and the hearing testimony and concluded that it
supports an RFC for unskilled light work, she was entitled to apply grid Rule
202.20 to find that Murphy was not disabled.
See McKinzey, 641 F.3d at 892
(noting that an ALJ is precluded from applying the grid “only when the nonexertional limitations substantially reduce a range of work an individual can
25
perform” (internal quotation omitted)). Accordingly, Murphy has not shown that a
remand is required for further testimony from the VE or for reconsideration of the
ALJ’s application of the grid.
Conclusion
For the foregoing reasons, Murphy’s motion for summary judgment is denied
and the Commissioner’s decision is affirmed.
ENTER:
_________________________________
Young B. Kim
United States Magistrate Judge
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