Pogatetz v. Astrue
Filing
33
MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 12/17/2013. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT J. POGATETZ,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.
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No. 12 CV 4060
Magistrate Judge Young B. Kim
December 17, 2013
MEMORANDUM OPINION and ORDER
Robert John Pogatetz seeks social security income (“SSI”) and disability
insurance benefits (“DIB”), see 42 U.S.C. §§ 416(i), 423, based on his claim that
chronic joint pain has rendered him unable to work. After the Commissioner of the
Social Security Administration denied his application, Pogatetz filed this suit
seeking judicial review.
See 42 U.S.C. § 405(g). Before the court is Pogatetz’s
request seeking reversal of the Commissioner’s decision. For the following reasons,
the request is denied:
Procedural History
Pogatetz applied concurrently for SSI and DIB on July 9, 2009, claiming that
he became unable to work on December 31, 2008. (Administrative Record (“A.R.”)
12.) After his claims were denied initially and upon reconsideration, (id. at 108-12,
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
115-16), Pogatetz sought and was granted a hearing before an administrative law
judge (“ALJ”), (id. at 123-24). The ALJ held a hearing on August 4, 2010, at which
Pogatetz, a medical expert, and a vocational expert all provided testimony. (Id. at
37-100.) On November 24, 2010, the ALJ issued a decision finding that Pogatetz is
not disabled within the meaning of the Social Security Act and denying his claim.
(Id. at 12-26.) When the Appeals Council denied Pogatetz’s request for review, (id.
at 2-4), the ALJ’s denial of benefits became the final decision of the Commissioner,
see O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010). On May 24,
2012, Pogatetz filed the current suit seeking judicial review of the Commissioner’s
decision. See 42 U.S.C. § 405(g). The parties have consented to the jurisdiction of
this court. See 28 U.S.C. § 636(c).
Facts
Pogatetz, who currently is 41 years-old, suffers from chronic pain in his right
shoulder and many other joints (hips, knees, ankles, elbows, and left shoulder), as
well as from visual disturbances including blurriness and floaters.
He also
struggles with emotional problems, including anxiety, depression, panic attacks,
anger, and insomnia. He attributes the vast majority of his physical ailments to an
adverse reaction to taking fluoroquinolone antibiotics in 2002.2 A college graduate,
Pogatetz worked as an administrative receptionist between 2004 and 2010 and was
responsible for filing, typing, and general office work. His earnings in 2009 and
Fluoroquinolones are a class of antibiotics commonly used to treat respiratory and
urinary tract infections and include ciprofloxacin (Cipro), levofloxacin (Levaquin),
and norfloxacin (Noroxin).
2
2
2010 were insufficient to amount to substantial gainful activity, thus the ALJ found
that his date of last gainful employment is December 31, 2008.
Pogatetz is
currently unemployed and lives with a roommate who helps him with activities of
daily living. At his hearing before an ALJ, Pogatetz presented both documentary
and testimonial evidence in support of his claim.
A.
Medical Evidence—Physical Health
The relevant medical record begins in 2003, when Pogatetz sought care from
Fantus Health Center (part of the Cook County Hospital system) for a host of
problems he linked to his 2002 antibiotic use, including vision problems and joint
pain. (A.R. 378-83.) Despite his complaints, his eye examinations in April and
August 2003 revealed 20/20 vision in both eyes and a neurology exam in April 2003
was unremarkable. (Id. at 379, 382-83.)
In 2006 Pogatetz fell from his bicycle and injured his right shoulder. (Id. at
325.) To address this injury, Pogatetz visited Dr. Steve Clar, a physician with the
musculoskeletal clinic at Stroger Hospital, who examined him in October 2007 and
ordered an x-ray and MRI to rule out a rotator cuff tear. (Id. at 340.) The MRI
revealed a “suboptimal evaluation of the labrum, but no definite evidence of [a]
labral tear.” (Id. at 325.) The MRI also revealed some very mild acromioclavicular
joint (“AC joint”) osteoarthritis, as well as supraspinatus tendinopathy and some
very small subchondral cysts, but no evidence of a tear. (Id. at 325-26.)
Pogatetz began occupational therapy in January 2008 to strengthen his
rotator cuff and stabilize his scapula. (Id. at 363.) His stated goal was to return to
3
biking and weightlifting and to improve the quality of his life. (Id.) In a report
dated January 11, 2008, the occupational therapist noted that Pogatetz tolerated
the session well, although he suffered “slight” pain of four on a pain scale of ten.
(Id. at 364-65.) Pogatetz apparently continued with occupational therapy for some
time, but the ALJ found no other medical notations in the record reflecting
additional sessions.
In January and February 2008, Pogatetz relayed to Dr. Clar that he had also
been experiencing knee pain for four years.
(Id. at 341-42.)
Dr. Clar urged a
continuation of occupational therapy and suggested strengthening exercises. (Id. at
342.) In May 2008 Dr. Clar injected Pogatetz’s right shoulder with a corticosteroid
medication, (id. at 343), but Pogatetz complained at a follow-up appointment of
worsening pain following the shot, (id. at 345). A second MRI in September 2008
showed “[u]nchanged supraspinatus and subscapular tendonopathy [sic] from prior
study” and “[n]o definite MRI evidence of [a] tear.” (Id. at 327-28.) In October 2008
he told Dr. Clar that he was using a TENS unit twice a day and taking Tramadol
for pain. He also complained of experiencing shoulder pain of six or seven on a pain
scale of ten that radiated down his arm. (Id. at 347.) Dr. Clar’s notes from this
time period indicate that he examined Pogatetz’s shoulder and observed a full active
range of motion, no AC joint tenderness, a negative drop arm test, a negative Neer’s
Test, but a mildly positive Hawkins Test. (Id. at 347, 371.) Dr. Clar ordered a third
MRI several months later in April 2009, this time using a contrasting dye, and the
findings revealed a possible “small partial anterior-superior labral tear.” (Id. at
4
330.) The MRI also identified a few subchondral cysts, unchanged from prior MRIs,
but no other abnormalities. (Id.)
The following month, Pogatetz visited Dr. Jacob Manuel at Stroger Hospital’s
outpatient clinic, complaining of right shoulder pain despite physical therapy. (Id.
at 362.)
An examination revealed some “posterior capsular tightness” and
“tenderness with provocative maneuvers of his biceps” but good strength in his right
shoulder and good overhead flexion. (Id.) Dr. Manuel discussed arthroscopy with
Pogatetz but indicated that the hospital was unable to perform the procedure and
for him to continue with physical therapy. (Id.)
In July 2009 Pogatetz applied for SSI and DIB benefits. The following month
Nurse Practitioner (“NP”) Dan Ceballos of West Town Neighborhood Health Clinic
examined Pogatetz. He noted Pogatetz’s medical history and subjective complaints,
and recorded objective findings that Pogatetz was able to ambulate with a steady
gate but had knee and shoulder pain, tenderness, and diminished strength (two on
a scale of five). (Id. at 424-25.) On August 21, 2009, NP Ceballos completed a
Chronic Pain Residual Functional Capacity Questionnaire on Pogatetz’s behalf. (Id.
at 411-18.) He provided diagnoses of chronic pain, tendinopathy, and neuropathy;
cited clinical findings of numbness, poor strength, and an inability to raise the right
arm past the shoulder; and listed Pogatetz’s prognosis as “poor.” (Id. at 411.) NP
Ceballos also noted mental health vegetative symptoms of depression and anxiety.
(Id. at 412-13.) As to Pogatetz’s ability to work, NP Ceballos found that he: (1)
would be absent from work more than three times a month; (2) would be completely
5
unable to use his right extremity to manipulate, twist, grab, or reach objects; (3)
would be able to use his left extremity only about 20 percent of the time in the
performance of those same activities; (4) could never lift anything; (5) was severely
limited in his ability to deal with stress; and (6) would need to take a 15-minute
break every hour. (Id. at 414-18.)
On September 1, 2009, Dr. Liana Palacci conducted an Internal Medicine
Consultative Examination at the request of the Illinois Bureau of Disability
Determination Services (“DDS”). (Id. at 390-93.) During the 45-minute physical
examination, Dr. Palacci noted that Pogatetz was in no acute distress but was
wearing his right arm in a sling and had a TENS unit on his right shoulder. (Id. at
391.) His vision was 20/20 in both eyes. (Id.) Pogatetz exhibited severe pain during
range of motion testing of his right shoulder. (Id. at 392.) Otherwise, his exam was
normal:
all other joints exhibited normal range of motion, plus he could squat
down, bear weight, heel-and-toe walk, had normal grip strength, and negative
straight leg testing. (Id.) He was well-dressed, alert, pleasant, and demonstrated
no apparent cognitive difficulties. (Id.) Dr. Palacci also noted that Pogatetz had
mild difficulty twisting a door knob with his right hand but otherwise was able to
complete all other fine and gross motor tasks, including tying his shoelaces and
buttoning. (Id. at 394.)
State examining physician Dr. Richard Bilinsky completed a Physical
Residual Functional Capacity Assessment later that same month on September 22,
2009. (Id. at 395-402.) Dr. Bilinsky opined that Pogatetz is able to lift 20 pounds
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occasionally and 10 pounds frequently, stand or walk for about six hours in an
eight-hour workday, and sit for about six hours in an eight-hour workday. (Id. at
396.) However, on account of his right shoulder tendinopathy and decreased range
of motion, Dr. Bilinsky recommended restrictions with respect to Pogatetz’s right
extremity, including overhead reaching, crawling, and climbing. (Id. at 396-98.)
Dr. Bilinsky believed that Pogatetz’s claims of pain and physical limitation were
only partially credible as “[t]he medical evidence in [the] file shows some problems
but not to the extent indicated.” (Id. at 402.)
In October 2009, Pogatetz sought care from Dr. Sami Takieddine, a physician
with Stroger Hospital’s pain clinic, who noted that Pogatetz was “comfortable [and]
smiling” while reporting a pain level of eight out of ten.
(Id. at 556.)
Upon
examination, Dr. Takieddine noted a completely normal gait, a normal range of
motion in his joints, a normal soft tissue examination, and normal muscle strength.
(Id. at 557.) The doctor also observed him getting up from his chair and walking
around the clinic with no difficulties, and further that he “plac[ed] his heavy bag on
the same shoulder that he reports severe pain in.” (Id.) Finally, Dr. Takieddine
noted that Pogatetz’s complaints of “[m]ultiple joint[ ] pain . . . is out of proportion
to the findings on physical exam,” and further that he is not a candidate for any
injections as “he reports long lasting adverse reactions” to steroid injections and
past medications. (Id.)
The next month, in November 2009, Dr. Clar completed a Chronic Pain
Residual Functional Capacity Questionnaire.
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(Id. at 299-304.)
He provided
diagnoses of right shoulder chronic supraspinatus, subscapular tendinosis, and a
possible labral and capsular tear. (Id. at 299.) He identified only the right shoulder
as a source of pain, and rated Pogatetz’s pain as a six to seven on a pain scale of ten.
(Id. at 300.) He opined that Pogatetz would be absent from work more than three
times a month, that he had severely limited use of his right extremity in performing
repetitive activities, and that he would need to take a five-minute break every
thirty minutes during an eight-hour workday. (Id. at 302-04.)
In January 2010, Pogatetz met with Dr. Nishitkumar Patel of Mount Sinai
Hospital Medical Center for an orthopedic consultation.
(Id. at 518-20.)
An
examination of the right shoulder revealed tenderness upon palpation but no
swelling, abnormality, or subacromial tenderness. (Id.) Active and passive range of
motion exercises revealed full motion, although cross-body adduction produced some
AC joint pain.
(Id.)
Dr. Patel reviewed Pogatetz’s three MRIs and noted the
presence of tendinopathy and a “questionable labral abnormality” but also informed
Pogatetz that tendinopathy is not unusual for someone in early middle age. (Id.)
He then referred Pogatetz to Dr. David Garelick, a shoulder specialist. (Id. at 520.)
In March and April 2010, Dr. Clar ordered an MRI of Pogatetz’s left shoulder,
as well as x-rays of his left shoulder and hand. (Id. at 549-54.) All of the tests came
back unremarkable with no evidence of any abnormalities. (Id.) Also in March
2010, Dr. David Edelberg of WholeHealth Chicago examined Pogatetz, following his
first examination back in October 2009.
(Id. at 505-07.)
In October 2009
Dr. Edelberg noted Pogatetz’s condition as “quinolone induced polytendonitis and
8
polyneuropathy; cortisone/quinolone induced severe tendonitis right shoulder,” and
prescribed Vicodin and Xanax. (Id. at 507-08.) In March 2010, Dr. Edelberg reexamined Pogatetz and noted “excruciating pain throughout his entire body,
aggravated by falls during the past year; now living literally a bed chair existence
and unable to type, hold a cup of coffee.” (Id. at 505.) He switched Pogatetz to
Methadone and Restoril. (Id.)
Dr. David Garelick of Mount Sinai Hospital, the shoulder specialist,
examined Pogatetz in May 2010 and noted a lack of AC joint tenderness or atrophy
with respect to the right shoulder. (Id. at 521.) He noted some limitations with
range of motion but found the shoulder MRIs from Dr. Clar’s office to be
unremarkable.
(Id.)
His assessment of right shoulder pain also included the
following statement: “I think that the patient has a problem which I cannot fix. I
told him that I think he is addicted to pain medicine.” (Id.) Dr. Garelick offered
Pogatetz a diagnostic arthroscopy but also warned him that such an intervention
could make his current condition worse. (Id.)
B.
Medical Evidence—Mental Health
In September 2009, two months after filing for benefits, Pogatetz sought help
with his anxiety and depression from the Community Counseling Centers of
Chicago.
(A.R. 438.)
Pogatetz told mental health professional Maribel Ruiz
Eggleston, MSW, that he felt overwhelmed by his physical pain, the loss of
functionality of his body, financial pressures, and the future. (Id.) Ruiz Eggleston
provided a provisional diagnosis of Adjustment Disorder with Depressed Mood/Brief
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Depressive Reaction and a GAF score of 45.3
(Id. at 437.)
During the initial
evaluation Ruiz Eggleston noted Pogatetz to be well-groomed, calm, and
cooperative. (Id. at 441.) The record contains visit summaries through May 2010.
Collectively the treatment notes speak to Pogatetz’s social withdrawal, depression,
hopelessness, low self-esteem, and obsessive thoughts, among other symptoms. (Id.
at 525-34.) One treatment note indicates that Pogatetz “is engaging in services but
has poor follow through with treatment recommendations.” (Id. at 534.)
In addition to weekly therapy sessions, Pogatetz met with Dr. Shahid Ahmad
for medication management and also initially for completion of a Psychiatric
Evaluation Form on October 15, 2009.
(Id. at 451-57.)
Dr. Ahmad recorded
Pogatetz’s fluoroquinolone allergy and his full-body pain, but then noted that “all
blood work, MRIs were normal.” (Id. at 451.) Dr. Ahmad noted Pogatetz to be
restless, anxious, and depressed and prescribed Xanax for anxiety. (Id. at 452-53,
456.) In November 2009, Dr. Ahmad noted that Pogatetz was compliant with his
medications and reported doing a little better since starting the Xanax: “[h]e feels
relaxed, some improvement [with] pain.” (Id. at 450.) Dr. Ahmad noted repeatedly
that Pogatetz felt he was “not ready” for an antidepressant.
(Id. at 450, 455.)
The GAF scale ranges from 0 to 100 and is a measure of an individual’s
“psychological, social and occupational functioning on a hypothetical continuum of
mental health-illness.”
American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed., Text Rev. 2000) (“DSM-IV-TR”).
GAF scores of 41-50 indicate “[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” Id.
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However, by April 2010, the record indicates that Pogatetz added Cymbalta to his
treatment regime, which is used to treat depression and anxiety. (Id. at 544.)
In December 2009 Dr. Jerrold Heinrich reviewed Pogatetz’s file on behalf of
DDS.
(Id. at 461-77.)
Dr. Heinrich completed a Mental Residual Functional
Capacity Assessment and a Psychiatric Review Technique and noted a diagnosis of
affective disorder (depression) and generalized anxiety disorder. (Id. at 468, 470.)
He found that Pogatetz has the cognitive functioning to understand, remember, and
execute simple instructions consistently; can concentrate and persist on tasks
within an organized setting where speed of performance is not essential; can adjust
to routine changes provided they are not too frequent; but lacks the emotional
temperament to interact frequently with others. (Id. at 463.) He found Pogatetz to
have mild limitations with respect to activities of daily living, moderate difficulties
in maintaining social functioning and in maintaining concentration, persistence, or
pace, and no evidence of decompensation. (Id. at 475.) He did not find Pogatetz
fully credible, noting that the clinical evidence “does not fully substantiate the
claimant’s allegations and symptoms”—including allegations that he has trouble
with his memory and only changes his clothes every 10 days. (Id. at 477.)
In March 2010, Ruiz Eggleston completed a Residual Functional Capacity
Questionnaire on Pogatetz’s behalf. (Id. at 576-79.) She listed “[m]ajor [d]epression
due to medical condition” and “generalized anxiety disorder” as the main diagnoses,
(id. at 576), with “significant financial stress,” “peripheral neuropathy [and] chronic
tendinopathy—quinolone-induced arthralgias,” and “CNS [central nervous system]
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disturbance [and] agitation” as secondary diagnoses. (Id.) In filling out a chart
entitled “mental abilities and aptitude needed to do unskilled work,” Ruiz Eggleston
indicated that she completed the chart “as reported by patient.”
(Id. at 578.)
Accordingly, Pogatetz rated himself as anywhere from “very good” to “fair” in
numerous categories reflecting various work-related tasks, such as the ability to
“remember work-like procedures” and to “complete a normal workday and work
week without interruptions from psychologically based symptoms.” (Id.) He did not
characterize himself as “poor” in any category.
(Id.)
Finally, Ruiz Eggleston
assessed the following functional limitations: Pogatetz has moderate restriction as
to activities of daily living, moderate difficulties in maintaining social functioning,
frequent deficiencies of concentration, and one or two episodes of decompensation.
(Id. at 579.) Dr. Ahmad signed the report Ruiz Eggleston completed. (Id.)
Ruiz Eggleston again completed an identical questionnaire nine months later
in December 2010 for Dr. Ahmad’s signature.
(Id. at 607-09.)
Ruiz Eggleston
reiterated the earlier diagnoses in the questionnaire, except that this time Pogatetz
reported his ability to complete the various mental abilities and aptitudes needed to
perform unskilled work as “fair” and “poor/none.” (Id. at 608.) Ruiz Eggleston also
noted greater functional limitations than before: Pogatetz has extreme restrictions
as to activities of daily living, marked difficulties in maintaining social functioning,
constant deficiencies of concentration, and continual episodes of decompensation.
(Id. at 609). She also anticipated that Pogatetz’s impairments would cause him to
miss work more than three times a month. (Id.)
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C.
Third-Party Evidence
Pogatetz’s friend, roommate, brother, and mother all submitted letters on his
behalf. (A.R. 172-73, 324, 387-88, 403-04.) Each of these letters details Pogatetz’s
physical and mental deterioration over the years and his daily struggles. Also in
the file are a number of medical articles authored by Dr. Jay Cohen about
fluoroquinolone antibiotics and their side effects, (id. at 589-601), as well as a letter
from Dr. Todd Plumb who states he has been in contact with Pogatetz and that
Pogatetz suffers from Noroxin-induced tendinopathy, (id. at 389).
D.
Pogatetz’s Testimony
During the hearing before the ALJ Pogatetz described himself as a single
male with a bachelor’s degree in English. (A.R. 52.) He is currently unemployed,
lives with a roommate, pays his bills by “maxing out on credit cards,” and receives
government assistance through a Link Card and medical card. (Id. at 53.) He
previously worked as a waiter while in college and then as an administrative
receptionist three days a week until his physical pain made work impossible. (Id. at
53-54.) As a receptionist he was responsible for general office work. (Id. at 69-70.)
But because of his shoulder pain, he was unable to write long-hand and was able to
type only by using one finger. (Id. at 70.) Sometimes he took unscheduled breaks in
the bathroom because of pain. (Id.)
Pogatetz explained that although he received care from West Town Clinic in
Chicago, he preferred Stroger Hospital as the latter had more resources and
abilities to run tests and prescribe medications. (Id. at 45-47, 50-51.) While at
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Stroger, Pogatetz received a cortisone shot in his right shoulder that he described as
crippling, as well as a prescription for a narcotic called Tramadol and a TENS unit.
(Id. at 48, 57-58.) He testified that Dr. Edelberg is his “main” doctor who knows
about his antibiotic-induced condition. (Id. at 52.) He has seen Dr. Edelberg only
twice but is able to get morphine refills by calling or emailing his office. (Id. at 7879.)
Pogatetz testified that he is in constant pain and takes a time-release dose of
morphine three times a day, despite side-effects including fatigue, lethargy, and
spaciness. (Id. at 68.) Over the years, he has also taken Vicodin and Tramadol.
(Id. at 63-64.) He used to jog five miles several times a week but now struggles to
even stand and walk.
(Id. at 72.)
He experiences pain in both shoulders that
radiates to his fingers, as well as pain in his hips, knees, ankles, and Achilles
tendons. (Id. at 59.) His right shoulder is the most painful part of his body and
hurts “24/7” at a pain level of 10 out of 10. (Id. at 60-61.) To relieve the pain, he lies
down, sits down, goes to bed, or takes pain killers. (Id. at 61, 63.) After his right
shoulder, his ankles are the most painful body parts, followed by his knees, then his
left shoulder, and then both hips. (Id.) Some days he stays in bed all day. (Id. at
73.) He often sleeps poorly and has a decreased appetite. (Id. at 74.)
Pogatetz testified that he is in too much pain to even drive. (Id. at 58.) He no
longer cooks because he cannot lift pots, stir things, or clean up afterwards. (Id. at
59.) He testified that he sometimes needs help taking care of personal grooming.
(Id. at 59-60.) He no longer exercises on account of his pain, but enjoys meditating
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and being outside.
(Id. at 60.)
He has friends but does not engage in social
activities on a regular basis. (Id.) He grocery shops as long as someone comes with
him to carry the bags. (Id.) He can walk a block or two but sometimes has to sit
and rest. (Id. at 66.) He can comfortably stand for five or ten minutes and can
comfortably sit for twenty to thirty minutes. (Id.) He cannot lift anything heavier
than his house keys or maybe a cell phone with his right extremity. (Id. at 67.) He
believes the most he can lift with his left hand is a cup of coffee. (Id. at 68.)
Pogatetz also testified that he is depressed about what has happened to his
body, the magnitude of his pain, and his severely reduced quality of life. (Id. at 71.)
He often cries, is irritable, and isolates himself from others. (Id. at 71-74.) He feels
anxious when he goes out and is worried he will be jostled or his pain will get worse.
(Id. at 73.) Most of his friends have abandoned him because they do not want to
deal with his complaints. (Id. at 72.)
E.
Medical Expert’s Testimony
Medical expert Dr. Ellen Rozenfeld, a psychologist, testified as to whether
and to what extent Pogatetz could engage in some form of employment given his
anxiety and depression. Dr. Rozenfeld noted that Pogatetz’s primary condition is
pain, with depression and anxiety being the secondary conditions. (A.R. 85-86.)
She did not find Pogatetz’s mental condition sufficient to meet or equal a listing.
(Id. at 87.) She opined that despite his intelligence he should be limited to simple,
routine tasks and to a position where he would not have sustained contact with the
general public or have to engage in joint projects with co-workers because of his
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anxiety and depression. (Id. at 87-88.) But even with these limitations, she felt
that from a mental health perspective, Pogatetz is capable of engaging in sustained
work. (Id. at 88.)
F.
Vocational Expert’s Testimony
Vocational Expert (“VE”) Cheryl Hoiseth answered the ALJ’s questions
concerning the kinds of jobs someone with certain hypothetical limitations could
perform. (A.R. 90-92.) After the VE found Pogatetz unable to perform his past
work of receptionist or waiter, the ALJ presented a hypothetical individual with a
light
residual
functional
capacity
(“RFC”)
and
the
following
limitations:
standing/walking/sitting for six hours out of an eight-hour workday; unlimited
pushing and pulling; occasional posturals; limited overhead manipulation with both
arms; no limit on communication, vision, or environment; only simple, routine types
of work; limited social interaction, meaning no sustained contact with the general
public or need to engage in joint projects with co-workers; and a predictable, routine
environment. (Id. at 90.) The VE answered that such an individual would be able
to work as an office helper, cleaner/housekeeper, or cafeteria attendant. (Id. at 9091.)
Changing the RFC to a sedentary level, the following limitations were
posited: standing/walking two hours out of an eight-hour workday; sitting six hours
out of eight; unlimited pushing and pulling; occasional posturals; limited overhead
manipulation with both arms; no limit on communication, vision, or environment;
only simple, routine types of work; limited social interaction (same as for the light
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work RFC); and a predictable, routine environment. (Id.) The VE testified that a
person with these limitations would be able to work as a table worker/hand
packager of light items, or as a production worker (taper) of electronics. (Id. at 91.)
An employee performing the sedentary work would need to be on-task 90% of the
time, while an employee performing the light work would need to be on-task 80% of
the time. (Id. at 92.) Both the light and sedentary jobs would permit an absence of
once a month, but being absent more than once a month or needing to take a 15minute break every hour or so would preclude employment. (Id.) A worker who
could not use his right extremity for reaching, handling, or fingering would not be
employable in unskilled, sedentary work. (Id. at 93.)
G.
Post-Hearing Medical Evidence
Following the August 2010 hearing before the ALJ, Pogatetz received
additional medical treatment from Rush University Medical Center.
Most
significantly, an MRI of his right shoulder in November 2010 revealed a partial
articular surface tear of the anterior supraspinatus tendon, mild to moderate
tendinopathy in other portions of the shoulder, mild acromioclavicular degenerative
arthrosis, and a chronic anterior/superior labral tear. (A.R. 622-23.) The medical
record also contains a letter from Dr. Edelberg dated August 10, 2010, in which he
characterized himself as Pogatetz’s “attending physician” and confirmed that he has
been treating Pogatetz with MS-Contin (morphine).
(Id. at 588.)
He described
Pogatetz’s condition as widespread tendon damage that is “an uncommon but well
documented side effect of the quinolones (Cipro, Levaquin, Avelox) and is currently
17
the basis of a well-deserved class action lawsuit against the manufacturing
company.”4 (Id. at 588.)
H.
The ALJ’s Decision
The ALJ concluded that Pogatetz is not disabled under sections 216(i), 223(d),
and 1614(a)(3)(A) of the Social Security Act. (A.R. 12-26.) In so finding, the ALJ
applied the standard five-step sequence, see 20 C.F.R. § 404.1520(a)(4), 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 he can perform his past relevant work; and (5)
whether the claimant is capable of performing any work in the
national economy.
In re Levaquin Products Liability Litigation is a multidistrict litigation (“MDL”)
involving the fluoroquinolone antibiotic Levaquin. The MDL plaintiffs all were
prescribed Levaquin, and all allege that it causes tendons to rupture. See, e.g., In re
Levaquin Prods. Liab. Litig., MDL No. 08-1043 JRT, 2008 WL 4534229, at *1 (D.
Minn. Sept. 29, 2008). Several plaintiffs within this MDL have gone to trial, with
differing results. Plaintiff John Schedin recovered compensatory damages based on
a failure to warn claim against Ortho-McNeil-Janssen Pharmaceutical, Inc. In re
Levaquin Prods. Liab. Litig., Schedin v. Ortho-McNeil-Janssen Pharm., Inc., 808 F.
Supp. 2d 1125 (D. Minn. 2011), aff’d in part, rev’d in part, 700 F.3d 1161 (8th Cir.
2012). Plaintiff Clifford Straka was not successful. In his case, In re Levaquin
Prods. Liab. Litig., Straka v. Johnson & Johnson, and Janssen Pharm., Inc., MDL
No. 08-1943 JRT, 2012 WL 4481223 (D. Minn. Sept. 28, 2012), the jury concluded
that although the defendants had failed to warn plaintiff’s prescribing physicians of
the risks associated with Levaquin, that failure was not the direct cause of
plaintiff’s injuries. See also Rhodes v. Bayer Healthcare Pharm., Inc., No. 10-1695,
2013 WL 1282450 (W.D. La. March 28, 2013) (products liability and failure to warn
case brought by sufferer of peripheral neuropathy against manufacturer of the
fluoroquinolone antibiotic Avelox was dismissed for failure to proffer an expert to
establish causation).
4
18
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012).
If at step three of this
framework the ALJ finds that the claimant has a severe impairment that does not
meet or equal one of the listings set forth by the Commissioner, 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). The ALJ then
uses the residual functional capacity (“RFC”) to determine at steps four and five
whether the claimant can return to his past work or to different available work. Id.
at § 404.1520(f), (g).
Here, at steps one and two of the analysis, the ALJ determined that Pogatetz
has not engaged in substantial gainful activity since the date of his last employment
and that he suffers from the following severe impairments: right shoulder injury
and tendinopathy/tendonitis, generalized anxiety disorder, and major depressive
disorder secondary to pain. (A.R. 14.) At step three, the ALJ declined to find that
Pogatetz has an impairment or combination of impairments that meets or equals
one of the listed impairments in 20 C.F.R. § 404, Subpart P., Appendix 1. (Id. at
15.) At step four, the ALJ concluded that Pogatetz:
has the [RFC] to perform light work . . . including lifting and carrying
up to 20 pounds occasionally and 10 pounds frequently, sitting and
standing/walking each for 6 hours in an 8-hour workday, and
unlimited pushing and pulling—except that [he]
— Can only occasionally perform the postural positionings—
climbing, balancing, stooping, kneeling, crouching and crawling);
— Can perform only limited reaching overhead bilaterally;
— Has no communicative, visual or environmental limitations;
— Is limited to performing simple, routine work;
— With limited social interaction with others and not be required to
have sustained contact or interaction with the general public;
19
— Can work around coworkers in a collegial environment, but
should not work in cooperation with other employees or on a team;
and
— Can work under limited supervision in a routine, predictable
environment.
(Id. at 17.) At step five, the ALJ found that Pogatetz’s RFC allows him to work as
an office helper, cleaner/housekeeper, or cafeteria attendant.
(Id. at 25.)
Accordingly, the ALJ found that Pogatetz is not under a disability as defined by the
Social Security Act and denied his claim for benefits. (Id.)
I.
Post-Decision Information
The Administrative Record contains medical records generated after the ALJ
issued her decision on November 24, 2010. In January 2011, Dr. Edelberg wrote a
medical note for inclusion in the record in which he stated that Pogatetz has
developed “18 out of 18 tender points consistent with [a] diagnosis of fibromyalgia.”
(Id. at 606.) A month later, in February 2011, Dr. Edelberg wrote another letter
elaborating upon both fibromyalgia and diffuse quinolone tendon damage and their
modes of diagnosis and treatment. (Id. at 320-21.) He also disagreed with the
ALJ’s decision, particularly as to her conclusion that his opinions were entitled to
“very little weight.” (Id. at 320.) NP Ceballos submitted another Chronic Pain RFC
Questionnaire in January of 2011, providing diagnoses of chronic pain syndrome,
quinolone toxicity syndrome, fibromyalgia, peripheral neuropathy, bilateral
shoulder injuries, depression, and anxiety. (Id. at 611-13.) Someone named “M.
Senguria” noted in February 2011 that he/she had contact with Pogatetz for six
months and provided a diagnosis of fibromyalgia. (Id. at 614-16.) Ruiz Eggleston
20
and Dr. Ahmad also wrote a letter in March 2011 expressing their view that
Pogatetz’s “mood disorder due to medical condition and generalized anxiety disorder
cause[ ] significant impairment” and “limit his ability to function in social and work
settings.” (Id. at 322.) Finally, the record contains a letter from a chiropractor
dated September 20, 2011, regarding treatment provided to Pogatetz between 2004
and 2005 for complaints of joint and nerve pain. (Id. at 323.)
Analysis
Pogatetz argues that this court should reverse the ALJ’s decision because of
errors allegedly made relative to the weight the ALJ afforded the opinions of
various medical and non-medical sources, as well as with respect to her credibility
and RFC determinations. Pogatetz also claims that the Appeals Council erred in
declining to review the ALJ’s decision despite the existence of new and material
evidence. This court’s role in disability cases is limited to reviewing whether the
ALJ’s decision is supported by substantial evidence and is free of legal error. See
Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009). Substantial evidence is that
which “a reasonable mind might accept as adequate to support a conclusion.”
McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). The substantial evidence standard requires the
ALJ to build a logical bridge between the evidence and her conclusion, but not
necessarily to provide a thorough written evaluation of every piece of evidence in
the record. See Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013). In asking
whether the ALJ’s decision has adequate support, this court will not reweigh the
21
evidence or substitute its own judgment for the ALJ’s. See Shideler v. Astrue, 688
F.3d 306, 310 (7th Cir. 2012). Only with respect to the Appeals Council’s refusal to
review the ALJ’s decision will the court engage in a de novo review. See Farrell v.
Astrue, 692 F.3d 767, 771 (7th Cir. 2012).
A.
Treating Physicians
Pogatetz first argues that the ALJ’s decision to afford little weight to the
opinions of Dr. Edelberg, Dr. Clar, and NP Ceballos was improper. The court will
address each in turn.
1.
Dr. David Edelberg
Dr. Edelberg, an internal medicine physician with WholeHealth Chicago,
examined Pogatetz twice over the course of seven months and provided a diagnosis
of fluoroquinolone induced polytendonitis and polyneuropathy. (A.R 505-08.) He
found that Pogatetz suffers “excruciating pain throughout his entire body,” has
joints that are “extremely painful to palpation,” and has markedly diminished range
of motion in his right shoulder.
(Id. at 505.)
The ALJ deemed Dr. Edelberg’s
findings largely based on Pogatetz’s subjective complaints and unsupported by the
objective medical evidence—for instance, the numerous MRIs of Pogatetz’s right
shoulder showing “essentially negative findings other than impressions of
supraspinatus and subscapularis tendinopathy and, in April 2009 specifically, a
small partial labral tear.”
(Id. at 19.) The ALJ also discredited Dr. Edelberg’s
conclusions based on the observations of Dr. Takieddine, who examined Pogatetz
during the same time frame and found him to be smiling and comfortable and to
22
have normal examination results. (Id. at 21.) The ALJ also felt that the very
limited treatment relationship of just two visits tended to “curtail Dr. Edelberg’s
representation that he is Pogatetz’s ‘attending physician.’” (Id. at 21, 588.)
The court finds no error with the ALJ’s determination. Although there is
some ambiguity in the record and in the ALJ’s decision as to whether she
considered Dr. Edelberg to be a “treating source,” the court will consider him as
such for purposes of this review.5 As a treating source, Dr. Edelberg’s opinion is
entitled to controlling weight, provided it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence” in the case record. See 20 C.F.R. § 404.1527(d)(2); Punzio v.
Astrue, 630 F.3d 704, 710 (7th Cir. 2011). An ALJ may discredit a treating source’s
medical record, however, if it is internally inconsistent or inconsistent with the
opinion of a consulting physician—provided the ALJ minimally articulates her
reason for crediting or rejecting evidence of disability. See Berger v. Astrue, 516
F.3d 539, 545 (7th Cir. 2008). A decision to deny controlling weight to a treating
source’s opinion does not prevent the ALJ from considering it. She may still look to
A “treating source” is defined as a “physician, psychologist, or other acceptable
medical source who provides you, or has provided you, with medical treatment or
evaluation and who has, or has had, an ongoing treatment relationship with you.”
20 C.F.R. § 404.1502.
Conversely, a “nontreating source” is “a physician,
psychologist, or other acceptable medical source who has examined you but does not
have, or did not have, an ongoing treatment relationship with you.” Id. During the
hearing, the ALJ asked Pogatetz whether his treating doctor is Dr. Edelberg, to
which Pogatetz answered in the affirmative. (A.R. 66.) Slightly later, however, the
ALJ queried whether there was anything more in the record documenting their
relationship aside from the two treatment notes. (Id. at 78.) Pogatetz answered
“no” and elaborated that he pays out of pocket to see the doctor and thus only sees
him when he can afford to do so. (Id.)
5
23
the opinion, even after opting to afford it less evidentiary weight. Exactly how
much weight the ALJ affords depends on a number of factors, such as the length,
nature, and extent of the treatment relationship, whether the physician supported
his or her opinions with sufficient explanations, and whether the physician
specializes in the medical conditions at issue. See 20 C.F.R. § 404.1527(d)(2)(i)-(ii),
(d)(3), (d)(5).
The relevant issue here is whether the ALJ sufficiently articulated her
reasons for minimizing the weight assigned to Dr. Edelberg’s opinion. The court
finds that she met this flexible standard.
By highlighting Dr. Edelberg’s very
limited treatment relationship, the lack of objective medical findings supporting the
level of debilitating pain alleged, the contradictory findings of Stroger Pain Clinic
physician Dr. Takieddine (made the same month as Dr. Edelman’s first
examination), and the much less dire findings of numerous MRIs, the ALJ more
than minimally articulated her reasons for discrediting Dr. Edelberg’s opinions.
And while Pogatetz takes issue with the ALJ’s decision to select the conclusions of
various non-treating sources over a treating source, the ALJ is permitted to do so
where she concludes that the treating source’s opinion is not well-supported by
medically acceptable diagnostic techniques and not consistent with other evidence
of the record. See Punzio, 630 F.3d at 713; see also Hofslien v. Barnhart, 439 F.3d
375, 377 (7th Cir. 2006) (discussing circumstances in which other medical evidence
is given greater weight than the conflicting evidence of treating physicians).
24
2.
Dr. Steven Clar
Dr. Clar is a treating source physician who examined Pogatetz some nine
times over two years and filled-out an RFC questionnaire on November 5, 2009.
(Id. at 299-304.) Dr. Clar’s RFC focused exclusively on Pogatetz’s right shoulder,
which he believed would likely cause Pogatetz to be absent from work more than
three times a month and would require unscheduled breaks every 30 minutes for 5
minutes at a time. (Id. at 302, 304.) The ALJ afforded Dr. Clar’s RFC opinion
“some weight insofar as they have evidentiary support for no limitations to the left
upper extremity and ambulating without an assistive device.” (Id. at 22.) However,
she then found “scant objective evidence to support the level of pain that would
require unscheduled breaks every thirty minutes.
Further, the manipulative
limitations to the right upper extremity seem inconsistent with Dr. Clar’s own
clinical findings of full range of motion.” (Id.) Pogatetz now argues that these
determinations were in error as Dr. Clar’s diagnoses were based on a review of
numerous
right
shoulder
MRIs
indicating
supraspinatus
tendinopathy,
acromioclavicular osteoarthritis, and a possible labral tear. (R. 21, Pl.’s Br. at 11.)
Once again, as a treating source, Dr. Clar’s opinion is entitled to controlling
weight, provided it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2). And once again, the
relevant issue here is whether the ALJ sufficiently articulated her reasons for
reducing the weight assigned to Dr. Clar’s opinion. The court finds that she did.
25
The ALJ noted that Dr. Clar’s RFC addressed only Pogatetz’s right shoulder pain.
With this limitation in mind, she evaluated the RFC opinion against Dr. Clar’s own
examination notes from the prior year indicating that Pogatetz had full range of
motion in his right shoulder and only a mildly positive Hawkins Test. (A.R. 22,
347.)
She concluded that these findings were inconsistent with Dr. Clar’s
subsequent opinion that Pogatetz would be extremely limited with respect to the
use of his right extremity (between 10% and 25% functionality), would need a fiveminute break every thirty minutes, and would likely have medical absences three
times a month. Substantial evidence therefore supports the ALJ’s conclusion that
Dr. Clar’s RFC recommendation is entitled to little weight. See Clifford v. Apfel,
227 F.3d 863, 871 (7th Cir. 2000).
One further point regarding the ALJ’s treatment of Drs. Clar and Edelberg
deserves greater discussion: a very notable aspect of the medical record is the
existence of records from five other doctors, including four pain, surgical or shoulder
specialists, all of whom examined Pogatetz once between May 2009 and May 2010—
the same time period within which Pogatetz received care from Drs. Clar and
Edelberg—but none of whom found Pogatetz to suffer from injuries nearly as severe
as suggested by the two treating source physicians.
Dr. Jacob Manuel, an
orthopedic physician with Stroger Hospital, examined Pogatetz in May 2009 and
reviewed the MRIs, noting right shoulder tenderness with provocative movements
of the bicep and the possibility of a SLAP tear, but also good strength and good
overhead flexion.
(A.R. 362.)
Dr. Sami Takieddine, an anesthesiologist with
26
Stroger Hospital, examined Pogatetz in October 2009 and noted that he was
“comfortable [and] smiling” while reporting a pain level of eight out of ten, had a
completely normal gait, a normal range of motion in his joints, a normal soft tissue
examination, normal muscle strength, and placed a heavy bag on his right shoulder
despite reports of severe pain.
(Id. at 557-58.)
Dr. Nishitkumar Patel, an
orthopedic surgeon with Mount Sinai Hospital, reviewed Dr. Clar’s MRIs when he
examined Pogatetz in January 2010, noting the presence of tendinopathy and a
possible labral abnormality along with some AC joint pain and tenderness, but also
finding Pogatetz to have full range of motion. (Id. at 519.) Dr. David Garelick, an
orthopedic surgeon and shoulder specialist with Mount Sinai Hospital, examined
Pogatetz in May 2010 and also reviewed the MRIs, finding them to be
“unremarkable” and noting a lack of tenderness with the AC joint. (Id. at 521.)
Finally, state examining physician Dr. Linda Palacci noted in her report that while
Pogatetz had diminished right shoulder range of motion and severe pain during
these range of motion exercises, he was able to squeeze a blood pressure cuff, pick
up coins and a pen, tie his shoes, and button and unbutton with no difficulty. (Id. at
392, 394). He experienced mild difficulty turning a door knob but had grip strength
of five out of five. (Id. at 394.) She noted no problems associated with any other
joint. (Id. at 394.)
While these doctors are not treating sources, it is compelling that none of
them were able to find any impairment suggestive of the level of disability
recommended by Drs. Clar and Edelberg.
27
The ALJ took note of each of these
reports in her medical summary and specifically noted that she was affording the
Stroger and Mount Sinai Hospital doctor opinions “great weight” based on their
objective clinical findings, while she afforded considerably less weight to the two
treating physicians based on the lack of objective evidence and “disproportionate”
clinical findings (Dr. Edelberg) or RFC conclusions that were “inconsistent” with the
doctor’s own clinical findings (Dr. Clar). (Id. at 21-22.) Against the backdrop of the
ALJ’s discussion of these numerous and consistent examinations by pain and
orthopedic specialists, as well as Dr. Palacci, the court reiterates its conclusion that
the ALJ fully considered the relevant medical record when deciding that
Dr. Edelberg’s and Dr. Clar’s opinions were either not well-supported by medically
acceptable diagnostic techniques or not consistent with the other substantial
evidence in the record. See 20 C.F.R. § 404.1527(d)(2); see also Punzio, 630 F.3d at
713 (noting that an ALJ’s examination of a treating source’s opinion against other
evidence in the record “will weed out those who are either poorly versed in their
patient’s condition or unable to opine objectively”).
Finally, while Pogatetz argues that the observations of these non-treating
source doctors may have been the consequence of them having seen him on a “good”
day, as opposed to a “bad” day, (R. 21, Pl.’s Br. at 10), the court disagrees that
Pogatetz has provided any evidence as to having a “good” day of sufficient
painlessness to explain away these findings—especially the observations that he
was able to carry a heavy bag on his right shoulder or perform full range of motion
exercises. Pogatetz testified at the hearing that he is in constant (“24/7”) pain, often
28
with a pain level of 10 out of 10, and that he can lift no more than keys or a phone.
(A.R. 67.) He also submitted into the record a summary dated July 20, 2009, that
he prepared himself wherein he described his right shoulder pain as “constant” and
claimed that he was unable to use his right arm for such basic tasks as turning
pages, typing, or opening doors. (Id. at 231-33). In a second summary dated August
2010, Pogatetz stated that on the days he is able to get out of bed, he still suffers
pain of such severity that he cannot leave the house or stand for long periods. (Id.
at 313-14.) Pogatetz made similar comments during the hearing. (Id. at 72-73.)
This collective evidence does not support Pogatetz’s contention that on a “good” day
he is able to carry a heavy bag on his right shoulder. Accordingly, the court finds
the good-day argument unpersuasive.
3.
Nurse Practitioner Daniel Ceballos
NP Ceballos met with Pogatetz once in August 2009 and then a few weeks
later completed an RFC questionnaire in which he concluded that Pogatetz has no
use of his right arm, would need a 15-minute break every hour if working, and
would be absent from work more than three times a month. The ALJ afforded NP
Ceballos’s opinion “very limited weight” based on her finding that “it is simply
unsupported by the preponderance of the objective medical evidence,” as well as on
the fact that he is not a recognized medical provider and had only a brief treatment
history with Pogatetz. (Id. at 21-22.) Pogatetz takes issue with this determination
asserting that the ALJ failed to assess this medical opinion pursuant to the
checklist items enumerated in 20 C.F.R. § 404.1527(c).
29
The applicable social security regulations require ALJs to consider all
relevant evidence in an individual’s record.
Relevant evidence may come from
“acceptable medical sources,” such as licensed physicians and psychologists, or from
“other sources,” such as nurse practitioners and licensed clinical social workers.
SSR 06-03p, 2006 WL 2329939, at *2 (August 9, 2006); see also 20 C.F.R.
§ 416.913(d)(1) (listing nurse practitioners among occupations that are not
“acceptable medical sources”). That being said, only “acceptable medical sources”
may give medical opinions “that reflect judgments about the nature and severity of
[the claimant’s] impairment(s),” including symptoms, diagnoses and prognosis,
what the individual can still do despite the impairment(s), and physical and mental
restrictions. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). Similarly, only “acceptable
medical sources” can be considered treating sources. SSR 06-03p at *2; see also 20
C.F.R. §§ 404.1502, 416.902. While the social security regulations provide criteria
for evaluating the medical opinions of “acceptable medical sources,” there is less
clarity as to how to consider opinions and evidence from “other sources” like nurse
practitioners. SSR 06-03p instructs that the same factors used to evaluate medical
opinions from “acceptable medical sources” can be applied to “other sources,”
although not every factor will apply in every case. SSR 06-03p at *5-*6.
The court finds that substantial evidence supports the ALJ’s decision to give
NP Ceballos’s RFC opinion “very limited weight.” According to SSR 06-03p, “the
adjudicator generally should explain the weight given to opinions from these ‘other
sources,’ or otherwise ensure that the discussion of the evidence in the
30
determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning.” Id. at *6 (noting also that “there is a distinction between
what an adjudicator must consider and what the adjudicator must explain in the
disability determination”). The ALJ based her conclusion on a disparity between
NP Ceballos’s findings that Pogatetz suffers poor knee strength (two on a scale of
five) and other medical evidence indicating normal knee strength (five on a scale of
five), as well as his own observation that Pogatetz was able to walk with a steady
gate. (A.R. 21.) The ALJ noted that no other provider recommended in favor of
environmental restrictions or found Pogatetz completely unable to use his right
hand (something even Pogatetz does not assert). (Id. at 22.) She further explained
that NP Ceballos had a very limited treatment history (just one visit) and further
that he is not a recognized medical provider. (Id.) The court is satisfied that the
ALJ complied with the guidelines established in SSR 06-03p.
B.
Credibility Analysis
If, as here, the ALJ finds that the claimant has an impairment that could
produce the symptoms alleged, the ALJ must determine the extent to which the
symptoms limit his ability to work.
In making this determination the ALJ
considers the entire record, including “the claimant’s pain level, medication,
treatment, daily activities, and limitations.” Schomas v. Colvin, 732 F.3d 702, 70809 (7th Cir. 2013); see also SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996); 20
C.F.R. § 404.1529(a). This analysis also requires the ALJ to make a credibility
determination as to the claimant’s statements about his pain and other symptoms.
31
SSR 96-7p at *1. Pogatetz argues that the ALJ improperly assessed his credibility
by using boilerplate language and by failing to build a logical bridge between the
evidence and her conclusion that his testimony was less than credible and
exaggerated. But Pogatetz has a particularly high hurdle to overcome here because
this court may only overturn an ALJ’s credibility assessment if it is “patently
wrong.” See Skarbek v. Barnhart, 390 F.3d 500, 504-05 (7th Cir. 2004). That means
that this court will not substitute its judgment regarding the claimant’s credibility
for the ALJ’s, and Pogatetz “must do more than point to a different conclusion that
the ALJ could have reached.” Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010).
Pogatetz contends that the ALJ’s credibility analysis was insufficient and
consisted only of a single statement: “the objective medical evidence simply does not
support the alleged degree of debilitating pain throughout the claimant’s body or
the alleged extent of his physical limitations.” (R. 21, Pl.’s Br. at 14; A.R. 19.) The
court disagrees. The ALJ expressly stated that Pogatetz’s complaints of constant
pain throughout his entire body had “limited credibility” and that she felt there was
a “degree of magnification of symptoms” and of “inconsistencies in the record” that
underscored her conclusion. (A.R. 18.) In support, she cited the results of several
MRIs yielding essentially normal findings outside of tendinopathy and mild
arthritis and, in the latest one, a small partial labral tear; the notation of
Dr. Takieddine observing Pogatetz to be comfortable and smiling at the pain clinic
despite allegations of extreme pain; the findings of shoulder specialist Dr. Garelick,
who noted unremarkable MRIs, no AC joint tenderness, and no objective problems
32
with the right shoulder; and the observations of various other physicians that
Pogatetz walked with a normal gait and had full range of motion. His allegations of
needing to use an ankle brace and a cane despite an absence of support for needing
these assistive devices further reduced Pogatetz’s credibility. The ALJ provided
sufficient explanation for why she found Pogatetz’s symptoms to be magnified and
his testimony to be exaggerated.6 Accordingly, there is no basis for the court to find
this aspect of the ALJ’s credibility analysis to be “patently wrong.” See Elder v.
Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008) (“It is only when the ALJ’s
determination lacks any explanation or support that we will declare it to be
‘patently wrong’ and deserving of reversal.”)
Similarly, the court disagrees with Pogatetz’s claim that the ALJ failed to
analyze his activities of daily living or the type, dosage, effectiveness, and side
effects of medication as directed in SSR 96-7p.
The ALJ noted his testimony
regarding the extent of his constant and “crippling” right shoulder pain, constant
pain in his ankles, knees, left shoulder, and hips, and pain sensations of a burning
and tingling nature. (A.R. 17-18.) Regarding his activities of daily living, the ALJ
addressed in her step-three analysis that Pogatetz suffers moderate restrictions in
this area, noting that he can shop in stores but needs help with the bags, can groom
In Carradine v. Barnhart, 360 F.3d 751 (7th Cir. 2004), the Seventh Circuit held
that pain alone, even when unsupported by objective evidence, can be sufficient for
a disability finding. But in cases where there is a lack of objective medical findings
supporting the claimant’s allegations of severe pain, the ALJ must be alert to the
possibility of exaggeration and carefully evaluate the claimant’s credibility so as to
separate out those claimants who are alleging to feel more pain than they actually
do from those claimants whose pain is truly a reflection of a disabling condition. Id.
at 754.
6
33
himself but struggles due to a loss of functionality in his right arm, and relies on his
roommate for food preparation and housekeeping.
(Id. at 15-16.)
She also
summarized some of his daily living limitations at step four, including testimony
from Pogatetz that he cannot lift a coffee cup with his right hand or reach overhead
with his right arm, can only walk for one block, and can only stand for five minutes
before needing to sit down. (Id. at 18.)
Regarding his medications, the ALJ noted
that Tramadol was ineffective, while morphine sulfate CR appears to be effective.
(Id. at 18-19.) She also took note of Dr. Edelberg’s prescription of both Vicodin and
Methadone, the latter of which Pogatetz said he tolerated poorly. (Id. at 19.) While
not a perfectly complete analysis, these references, taken together, allow the court
to sufficiently examine that which the ALJ relied upon when she concluded that
Pogatetz’s allegations of pain and daily limitations were not fully credible. See
Pepper, 712 F.3d at 369 (finding that although the ALJ could have been more
specific, the ALJ’s explanation was sufficient and thus not “patently wrong”). An
ALJ is not required to mention every piece of evidence in the medical record
provided she articulates some legitimate reasons for her conclusions. See Clifford v.
Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Finally, Pogatetz attacks the ALJ’s use of the following standard, but oftcriticized boilerplate language:
After careful consideration of the evidence, the undersigned finds 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 [RFC].
34
(A.R. 18.)
This language has been criticized by the Seventh Circuit as getting
“things backwards,” because an ALJ is required to make an independent credibility
determination before assessing the claimant’s ability to work.
See Bjornson v.
Astrue, 671 F.3d 640, 645-46 (7th Cir. 2012). This boilerplate suggests that the ALJ
disregarded the claimant’s testimony because it did not conform to her preconceived
view of the RFC. See id. But the Seventh Circuit also has made it clear that an
ALJ’s use of this objectionable language does not amount to reversible error if she
“otherwise points to information that justifies [her] credibility determination.” See
Pepper, 712 F.3d at 367-68. In other words, there is no need to reverse based on an
ALJ’s use of this boilerplate where she gave other reasons, grounded in evidence, to
explain her credibility determination. See Filus v. Astrue, 694 F.3d 863, 868 (7th
Cir. 2012). Here, as discussed above, the ALJ provided a number of supported
reasons to explain her conclusion that Pogatetz’s testimony is less than fully
credible.
C.
The RFC Determination
Pogatetz also challenges the ALJ’s RFC determination, asserting that she
failed to include in her ruling, and in the hypotheticals posed to the VE, specific
language contained in Dr. Jerrold Heinrich’s Mental RFC Assessment that Pogatetz
could “concentrate and persist adequately on tasks within an organized setting
where speed of performance was not essential for the work tasks.” (A.R. 463). The
Commissioner argues in response that the ALJ reasonably accommodated
Pogatetz’s problems with respect to concentration, persistence, or pace by limiting
35
him to work in a routine, predictable environment and to work that is simple and
routine.
The ALJ was obligated to include in her RFC only those limitations
supported by medical evidence in the record, see Young v. Barnhart, 362 F.3d 995,
1003 (7th Cir. 2004), and that she finds credible, see Schmidt v. Astrue, 496 F.3d
833, 846 (7th Cir. 2007). The ALJ’s RFC here established that Pogatetz is limited to
light, unskilled work with certain mental health restrictions, including a limitation
to performing simple and routine work; limited social interaction with others; no
sustained contact or interaction with the general public; no requirement to work in
cooperation with other employees or on a team; and limited supervision in a routine
and predictable environment. (A.R 17.) Given these restrictions, the court finds no
merit to Pogatetz’s claim that the RFC failed to incorporate an “organized setting”
restriction. The court can discern little to no difference between Dr. Heinrich’s
recommendation that Pogatetz work in an “organized setting” and the RFC’s
restriction that he work in a “routine, predictable environment.”
Similarly unavailing is Pogatetz’s assertion that the RFC is defective because
neither it nor the hypothetical posed to the VE contains specific language regarding
a limitation on pace. The court notes conflicting language within Dr. Heinrich’s
RFC assessment:
on the one hand, Dr. Heinrich found that Pogatetz is not
significantly limited with respect to his “ability to complete a normal workday and
workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest
36
periods,” (id. at 461-62), but then he otherwise notes that Pogatetz “could
concentrate and persist adequately on tasks within an organized setting where
speed of performance was not essential for the work task,” (id. at 463). The ALJ did
not specifically mention this disparity, although she did favorably credit
Dr. Heinrich’s conclusions that Pogatetz suffers moderate difficulties in social
functioning and concentration and persistence, can perform simple tasks,
understand and carry out simple instructions consistently, adjust to infrequent
changes, and infrequently interact with others. (Id. at 22.) With these restrictions
in mind, she then limited Pogatetz to simple, routine, unskilled work and further
restricted his exposure to co-workers, supervisors, and the general public.
The
court concludes that this is an appropriate limitation, regardless of some conflicting
language within the assessment. The Seventh Circuit has stated that “claimants
who ‘often experience[ ] deficiencies of concentration, persistence, or pace’ are
capable of performing semi-skilled work.” Simila v. Astrue, 573 F.3d 503, 521-22
(7th Cir. 2009) (quoting Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003)).
Additionally, “those who are ‘mildly to moderately limited in these areas’ are able to
perform ‘simple and repetitive light work.’” Id. (quoting Sims v. Barnhart, 309 F.3d
424, 431 (7th Cir. 2002)). By limiting Pogatetz to unskilled, simple, and routine
work, the ALJ adequately crafted an RFC based on Dr. Heinrich’s own findings and
limitations—limitations she found both “consistent with the evidence of record and
generally affirmed by Dr. Rosenfeld’s testimony.”7 (A.R. 22.)
7
At most, the court can find only harmless error with respect to the ALJ’s decision
37
D.
Third Party Evidence
Next, Pogatetz claims that the ALJ erred in rejecting letters submitted by his
friends and family that detail the pain and functional limitations each has observed
him to suffer. The ALJ considered the written statements but dismissed them as
inconsistent with the preponderance of the medical evidence. (A.R. 23.) The ALJ
also dismissed a letter from Dr. Todd Plumb, a doctor of unknown affiliation, on the
basis that there is no evidence Dr. Plumb ever examined Pogatetz. (Id.)
As noted earlier in this case, SSR 06-03p addresses the consideration of
opinions from non-medical sources, a category that includes nurses, parents, and
friends. This ruling states that when evaluating evidence from these non-medical
sources, “it would be appropriate to consider such factors as the nature and extent
of the relationship, whether the evidence is consistent with other evidence, and any
other factors that tend to support or refute the evidence.”
(emphasis added).
SSR 06-03p at *6
Furthermore, the ALJ generally should explain the weight
afforded to these opinions or otherwise discuss the evidence in sufficient detail to
enable a subsequent reviewer to follow her decision. Id. However, the opinions are
not medical opinions and thus are not entitled to controlling weight. Id. at *2.
Here, the ALJ clearly explained why she found Dr. Plumb’s letter to be highly
suspicious: there is no evidence that Dr. Plumb ever examined or treated Pogatetz,
to afford Dr. Heinrich’s opinion “great weight” without mentioning or including the
part of the assessment suggesting a pace limitation. But even this is a stretch. The
court will not nitpick at every gap in the ALJ’s opinion, see Johnson v. Apfel, 189
F.3d 561, 564 (7th Cir. 1999) (stating that “[w]hen a claimant argues that there are
fatal gaps or contradictions” in the ALJ’s decision, the court will give the opinion “a
commonsensical reading rather than nitpicking at it”).
38
thus she doubted his ability to opine as to Pogatetz’s full body pain and physical
limitations. (A.R. 23.) The ALJ made quick work of the remaining letters too, but
she did consider them and found them inconsistent with the preponderance of the
medical evidence. She explained that the letters corroborated Pogatetz’s allegations
of pain and functional loss but still did not establish evidence of disability. (Id. at
23.) Considering that the ALJ already had devoted a great deal of her decision to
explaining why she found Pogatetz capable of gainful employment and to describing
which medical reports she relied upon in making this determination, the ALJ’s
failure to reiterate at length these same medical reasons in the context of
redundant third-party statements is hardly in error. This is not a situation where
the ALJ neglected to analyze an entire line of evidence or otherwise fell below the
minimal level of acceptable articulation. See Carlson v. Shalala, 999 F.2d 180, 181
(7th Cir. 1993) (finding that the ALJ’s failure to discuss claimant’s wife’s testimony,
which corroborated claimant’s own testimony, was not in error).
E.
New and Material Evidence
Finally, Pogatetz objects to the Appeals Council’s refusal to review the ALJ’s
decision, arguing that he submitted “new and material evidence” that should have
resulted in the Appeals Council’s review under 20 C.F.R. § 404.970(b). Pogatetz
submitted a number of documents subsequent to the ALJ’s hearing, but his
argument on appeal focuses solely on the February 2011 letter from Dr. Edelberg.
The court reviews de novo the Appeals Council’s decision to deny review of the
ALJ’s decision. See Farrell, 692 F.3d at 771.
39
Where, as here, the Appeals Council denied review based on an ambiguous
finding that the “information does not provide a basis for changing the [ALJ’s]
Decision,” (A.R. 2-3), the Seventh Circuit has interpreted this language to mean
that the Appeals Council rejected the additional information as “non-qualifying
under the regulations;” in other words, that it was neither “new” nor “material.”
Farrell, 692 F.3d at 771. With this clarification in mind, the court turns to 20
C.F.R. § 404.970(b), which provides:
If new and material evidence is submitted, the Appeals Council shall
consider the additional evidence only where it relates to the period on
or before the date of the [ALJ] hearing decision. The Appeals Council
shall evaluate the entire record including the new and material
evidence submitted if it relates to the period on or before the date of
the [ALJ] hearing decision. It will then review the case if it finds that
the [ALJ’s] action, findings, or conclusion is contrary to the weight of
the evidence currently of record.
These requirements are similarly stated in the Hearings, Appeals and Litigation
Law Manual (“HALLEX”), § I-3-3-6, which states:
For the AC to consider additional evidence, the regulations require
that the evidence is new, material, and related to the period on or
before the date of the ALJ decision. This means the evidence is:
1. Not part of the claim(s) record as of the date of the ALJ decision;
2. Relevant, i.e., involves or is directly related to issues adjudicated by
the ALJ; and
3. Relates to the period on or before the date of the ALJ decision,
meaning it is: (1) dated before or on the date of the ALJ decision, or (2)
post-dates the ALJ decision but is reasonably related to the time
period adjudicated by the ALJ.
Pogatetz maintains that Dr. Edelberg’s February 2011 letter contains information
both new and material. The court disagrees. HALLEX provides that evidence is
40
not new when it is duplicative. Id. at § I-3-5-20. Dr. Edelberg reiterates in his
letter many of Pogatetz’s complaints and functional limitations, opines that
Pogatetz’s condition makes sustained employment impossible,8 and refers to the
Levaquin class-action lawsuits and medical literature. In rendering her decision,
the ALJ took into consideration Pogatetz’s claim of fluoroquinolone toxicity,
including his allegations of pain and functional limitations, the medical literature
submitted on this subject, and the existence of pending Levaquin multi-district
litigation. In fact, Pogatetz stated during the hearing that he was not part of any
lawsuit because he did not experience an Achilles tendon rupture—a prerequisite
for inclusion in the Levaquin MDL.
As such, the information in Dr. Edelberg’s
letters concerning fluoroquinolone antibiotics is not “new.”
Dr. Edelberg’s letter also contains information pertaining to fibromyalgia, but
while this information is “new,” it is not “material” because it is not relevant to the
issues determined by the ALJ: the medical record up through the date of the ALJ’s
hearing decision contains no reference to a fibromyalgia diagnosis, so any
information on this subject is simply outside the bounds of the present claim. See
Schmidt v. Barnes, 395 F.3d 737, 742 (7th Cir. 2005) (finding no new and material
evidence where “[n]one of the proffered evidence speaks to [the claimant’s] condition
as it existed at or prior to the time of the administrative hearing”); Getch v. Astrue,
539 F.3d 473, 484 (7th Cir. 2013) (“Medical evidence postdating the ALJ’s decision,
“Medical source opinions on issues reserved for the Commissioner,” such as
matters that “direct the determination or decision of disability,” are not medical
opinions at all and are not entitled to consideration. 20 C.F.R. § 404.1527(e)(1).
8
41
unless it speaks to the patient’s condition at or before the time of the administrative
hearing, could not have affected the ALJ’s decision and therefore does not meet the
materiality requirement.”).
Finally, Pogatetz maintains that the Appeals Council should have reviewed
his case because Dr. Edelberg’s letter explains why his condition, like fibromyalgia,
cannot be shown through objective medical evidence or medical tests. Pogatetz
maintains that this argument is a “rebuttal to the ALJ’s decision to accord treating
physician Dr. Edelberg’s opinion very little weight.” (R. 21, Pl.’s Mot. at 20.) But
this argument is really nothing more than a disagreement with the process by
which the ALJ resolved Pogatetz’s claim. The ALJ was bound to follow the social
security regulations, which require evidence of a medically determinable physical or
mental impairment. See 20 C.F.R. § 404.1505(a). To prove the existence of an
“impairment,” a claimant must provide evidence of “medically acceptable clinical
and laboratory diagnostic techniques” supporting an anatomical, physiological, or
psychological abnormality. Id. at § 404.1508. However, proving an impairment
becomes problematic when a claimant reports symptoms that are not verifiable by
medical experts. See Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir. 2006). As noted
by the Seventh Circuit, a classic example of this situation is pain: “[i]ts existence
cannot be verified, and since a person can experience intense, disabling pain even
though no physical cause can be found, there is great difficulty in determining
whether the person really is experiencing the pain that he reports.” Id. In cases
such as these, the ALJ necessarily must base her decision on the claimant’s
42
credibility. Id. And while an ALJ may not disbelieve a claimant’s testimony simply
because it seems in excess of objective medical evidence, she may “have solid
grounds for disbelieving a claimant who testifies that she has continuous, agonizing
pain.” Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir. 2006). Here, the ALJ
repeatedly noted the lack of objective medical evidence supporting the extent of
Pogatetz’s complaints of pain, but this was not the full extent of her analysis. She
also clearly expressed her reasons for doubting Pogatetz’s credibility—not as to
whether he experienced pain, but as to whether his pain rendered him disabled.
Given the discussion on the ALJ’s credibility analysis, the court finds that
Pogatetz’s final contention also lacks merit.
Conclusion
For the foregoing reasons, Pogatetz’s request is denied and the decision of the
Commissioner is affirmed.
ENTER:
____________________________________
Young B. Kim
United States Magistrate Judge
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