Trammell v. Astrue
Filing
36
MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 3/25/2014. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KAY TRAMMELL,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration, 1
Defendant.
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No. 12 CV 6780
Magistrate Judge Young B. Kim
March 25, 2014
MEMORANDUM OPINION and ORDER
Kay Trammell claims that she is unable to work because of knee, back, hip,
and arm pain stemming from osteoarthritis.
She sought disability insurance
benefits (“DIB”), see 42 U.S.C. §§ 416(i), 423, but her application was denied in a
final decision by the Commissioner of the Social Security Administration.
Trammell filed this appeal from that decision, see 42 U.S.C. § 405(g), and currently
before the court are the parties’ cross motions for summary judgment. For the
following reasons, the Commissioner’s motion for summary judgment is granted and
Trammell’s is denied:
Procedural History
Trammell applied for a period of disability and DIB on July 31, 2009,
claiming that she became unable to work on July 10, 2009. (Administrative Record
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
(“A.R.”) 77, 188.) After her claims were denied initially and upon reconsideration,
(id. at 94-99), Trammell sought and was granted a hearing before an administrative
law judge (“ALJ”). The ALJ initiated a hearing on August 20, 2010, and explained
to Trammell her right to representation. (Id. at 63-65.) When Trammell said that
she would like to pursue representation, the ALJ adjourned the hearing until
February 15, 2011. Trammell retained an attorney who represented her at the new
hearing, at which she testified. (Id. at 18-58.) On March 8, 2011, the ALJ issued a
decision finding that Trammell is not disabled within the meaning of the Social
Security Act and denying her DIB claim. (Id. at 77-85.) When the Appeals Council
denied Trammell’s request for review, (id. at 1-3), the ALJ’s denial of benefits
became the final decision of the Commissioner, see Schomas v. Colvin, 732 F.3d 702,
707 (7th Cir. 2013). On August 23, 2012, Trammell 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); (R. 10).
Facts
In July 2009 Trammell was let go from her job as a data entry specialist for
Merrill Lynch Brokerage. (A.R. 28-29, 31, 267.) Shortly after she lost her job,
Trammell applied for DIB, claiming that arthritis-related pain in her back, knees,
hips, and arms prevented her from working. (Id. at 188-94.) Trammell, who was 64
years old when she stopped working, presented both testimonial and documentary
evidence at her February 2011 hearing.
2
A.
Medical Evidence
Trammell’s documentary evidence shows that in February and March 2009
she sought emergency treatment for intermittent discomfort in her left arm. (A.R.
306-08.) In the wake of those visits Trammell’s treating physician, Dr. Rosenberg,
ordered radiology tests for her chest, shoulder, and back. The results showed a
normal heart but degenerative changes around Trammell’s left shoulder and back,
with some narrowing in her intervertebral disc space with osteophyte formation.
(Id. at 299-301.)
In August 2009, the month after she lost her job, Trammell
reported to Dr. Rosenberg that her knees “bother her,” but Dr. Rosenberg wrote
“negative” in her “problem list” with respect to Trammell’s neck and extremities.
(Id. at 327.) Because she had complained of chest pain and had a history of left arm
pain, Dr. Rosenberg referred Trammell for cardiac nuclear imaging, which resulted
in normal findings. (Id. at 326.)
In October 2009 a consulting physician, Dr. Patil, performed an internal
medicine consultative examination at the request of the state disability
determination services office. (Id. at 369-372.) Trammell reported to Dr. Patil that
the pain in her left knee was at the level of nine out of ten, but she had no
complaints with respect to her other joints. (Id. at 369.) He noted that she was
moderately obese (her BMI was greater than 38), but walked with a normal gait.
(Id. at 370, 372.)
Dr. Patil examined Trammell and noted that there were no
obvious deformities of her spine and she did not show any paravertebral tenderness.
(Id. at 371.) He rated her motor strength as 5/5 in her upper and lower extremities
3
and found her fine and gross manipulative abilities in her hands and fingers to be
normal. (Id.) He also reviewed an x-ray of her knee taken the same day as the
examination and noted that it revealed small osteophytes and some joint space
narrowing, but no acute bone or joint abnormality. (Id. at 372.)
Two
weeks
after
the
consultative
examination,
medical
consultant
Dr. Calixto Aquino reviewed Trammell’s file and completed a residual functional
capacity (“RFC”) assessment. (Id. at 378-85.) Dr. Aquino opined that Trammell can
occasionally lift 20 pounds, stand, walk, or sit for about six hours in an eight-hour
day, and is unlimited in her ability to push and pull. (Id. at 379.) Based on her
knee pain, Dr. Aquino concluded that Trammell can only occasionally climb, kneel,
crouch, or crawl. (Id. at 380.) In the “additional comments” section of his report,
Dr. Aquino wrote that he found Trammell’s pain allegations only partially credible.
(Id. at 385.)
Nine months after Dr. Aquino’s RFC assessment, in July 2010, Trammell fell
on her left knee. (Id. at 409.) Dr. Rosenberg ordered x-rays, which revealed no
fractures, but showed degenerative changes throughout her spine, most pronounced
at the L5-S1 level. (Id. at 415-17.) The tests also revealed what the reviewing
doctor described as “large marginal osteophytes” in her right knee and “small
marginal osteophytes” in her left knee, consistent with radiographic osteoarthritis.
(Id. at 417.) Two months later, in September 2010, Trammell submitted to MRIs on
her knees, hips, and back. (Id. at 429-36.) Those tests showed moderate cartilage
narrowing and osteophytes in her left knee, moderate to marked cartilage
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narrowing and osteophytes in her right knee, mild degenerative hip changes, and
mild disc space narrowing at the L5-S1 level of her back with minor disc bulges and
mild to moderate central canal stenosis. (Id.)
In January 2011 Trammell was examined by Dr. Levin, a neurosurgeon. (Id.
at 454.)
He diagnosed her as having cervical radiculopathy, myelopathy, and
lumbar spondylosis. (Id.) He noted that straight-leg testing revealed only low back
pain and that her range of motion is diminished in her lumbar spine and cervical
area. (Id.) Pursuant to his recommendation, Trammell underwent a cervical spine
MRI a few days later.
(Id. at 455-56.)
That test confirmed the spondylosis
diagnosis, revealing moderate narrowing at the C5-6 and C6-7 levels, but no spinal
stenosis or cord impingement. (Id. at 456.) Based on his review of the MRI results,
Dr. Levin recommended that Trammell receive steroid injections and begin physical
therapy to help manage her pain. (Id. at 458.)
B.
Trammell’s Hearing Testimony
At her hearing before the ALJ, Trammell testified that she is disabled by
“constant pain” in both knees. (A.R. 41.) Only lying down helps relieve her pain,
although she also takes Motrin and Advil for relief. (Id. at 42.) Trammell said that
because of her pain, she can only sit for 10 to 12 minutes at a time and stand or
walk for only about 5 minutes. (Id. at 34-35.) She testified that her left arm hurts
so badly that she is not able to lift anything with it, although she could lift the
equivalent of a gallon of milk with her right. (Id. at 36-37.) Trammell said that it is
very difficult for her to navigate stairs, so if she has to go to her basement to do
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laundry, she stays near the machine until it is done. (Id. at 37.) Trammell said
that she is able to drive, go shopping, prepare simple meals, and wash a few dishes.
(Id. at 39-40.) She lives with her daughter and two grandchildren, and she relies on
them to help her with most household chores. (Id. at 27, 39-40.)
Trammell also testified that she has pain in her left arm and rheumatoid
arthritis in her thumb. (Id. at 36, 41.) She said that her left arm had been hurting
all the time for over a year and that her doctors attribute her symptoms to
degenerative disease in her neck and shoulders. (Id. at 45-46.) Trammell testified
that the pain makes it difficult for her to type. (Id. at 55.)
Trammell also described the nature of her past work as a data entry
specialist at Merrill Lynch. (Id. at 31.) She testified that her job entailed picking
up orders from various places in her office, requiring her to climb flights of 30 stairs
and then enter the orders into a computer system. (Id. at 31-34.) She estimated
that the job required her to be on her feet walking for 15 minutes out of every 30
minutes. (Id. at 32.) She spent the other half of her day sitting. (Id. at 32-33.)
The ALJ questioned Trammell about her receipt of unemployment benefits
following the July 2009 loss of her job. When the ALJ first asked for how long
Trammell received unemployment benefits, she said she received three months of
benefits from her job, and “nothing” in 2010. (Id. at 29.) She then said that she
thought she received $250 in benefits in January 2010. (Id. at 30.) When the ALJ
said that it “looks like you received” $5,300 in the first quarter of 2010, $4,100 in
the second, $6,100 in the third, and $5,700 in the fourth, Trammell conceded that
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she received more than three months of unemployment and that she received those
benefits throughout 2010. (Id.)
C.
The ALJ’s Decision
After hearing the proffered evidence, the ALJ concluded that Trammell is not
disabled under sections 216(i) and 223(d) of the Social Security Act. (A.R. 85.) 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 [she] can perform [her] past relevant work; and
(5) whether the claimant is capable of performing any work in the
national economy.
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 RFC] based on all the relevant medical
and other evidence.”
20 C.F.R. § 404.1520(e).
The ALJ then 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).
Here, at the first two steps of the framework the ALJ found that Trammell
has not been employed since July 10, 2009, and that she has severe impairments
consisting of bilateral knee pain and back pain secondary to osteoarthritis,
hypertension, and asthma. (A.R. 79.) She did not include left-thumb pain among
7
the severe impairments because she noted that there are no medical records to back
up Trammell’s assertion that she has arthritis in her thumb and that there are no
records suggesting that she had voiced that complaint to her treating physicians or
the consulting examiner.
(Id. at 79-80.)
After determining that Trammell’s
impairments are not of Listing-level severity, the ALJ then turned to the RFC
assessment and determined that Trammell has the RFC to perform a limited range
of light work.
(Id. at 80.)
In explaining that decision, the ALJ discussed the
objective medical findings, allotted great weight to the conclusions of the state
agency consulting physicians, and concluded that Trammell’s testimony was not
credible. (Id. at 80-85.) Turning to step four, the ALJ concluded that Trammell is
capable of performing her past relevant work as a data entry clerk. (Id. at 85.)
Accordingly, she concluded that Trammell is not disabled within the meaning of the
Social Security Act. (Id.)
Analysis
In moving for summary judgment Trammell argues that the ALJ committed
reversible errors in assessing her credibility, crafting her RFC, and classifying her
past relevant work. This court’s task in reviewing the ALJ’s decision is to ensure
that it is free of legal error and supported by substantial evidence. See Scheck v.
Barnhart, 357 F.3d 697, 699 (7th Cir. 2004). Substantial evidence is that which a
“reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted).
The substantial evidence standard requires the ALJ to “build an accurate and
8
logical bridge from the evidence to his conclusion,” see Clifford v. Apfel, 227 F.3d
863, 872 (7th Cir. 2000), 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). At this stage the court will neither reweigh the evidence
nor substitute its own judgment for the ALJ’s. See Ketelboeter v. Astrue, 550 F.3d
620, 624 (7th Cir. 2008). Instead, the court limits its review to ensuring that the
reasons articulated by the ALJ are adequately supported. See Jelinek v. Atrue, 662
F.3d 805, 811 (7th Cir. 2011).
A.
The Credibility Analysis
Trammell challenges the ALJ’s finding that her testimony regarding her
limitations is less than credible.
(A.R. 84-85.)
The ALJ is entitled to special
deference with respect to the credibility determination, because her ability to see
and hear the claimant puts her in the best position to evaluate whether the
claimant is being forthcoming. See Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir.
2000). The Seventh Circuit has made clear that reviewing courts “should rarely
disturb an ALJ’s credibility determination, unless that finding is unreasonable or
unsupported.” Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008). Accordingly,
Trammell’s burden here is particularly high because this court will not reverse an
ALJ’s credibility determination unless it is “patently wrong.” See Simila v. Astrue,
573 F.3d 503, 517 (7th Cir. 2009).
There is no need to linger on Trammell’s argument that the ALJ’s decision
should be reversed because she invoked the oft-criticized boilerplate language
9
asserting that the “intensity persistence, and limiting effects of [Trammell’s]
symptoms are not credible to the extent they are inconsistent with the above
residual functional capacity assessment.” (A.R. 81.) Although it is true that this
kind of “hackneyed language” adds nothing to the analysis, Shauger v. Astrue, 675
F.3d 690, 696 (7th Cir. 2012), the “simple fact that an ALJ used boilerplate
language does not automatically undermine or discredit the ALJ’s ultimate
conclusion if [she] otherwise points to information that justifies his credibility
determination,” Pepper, 712 F.3d at 367-68.
Where, as here, the ALJ gives a
number of additional supported reasons to explain her credibility determination,
use of the boilerplate does not amount to reversible error. See Schomas, 732 F.3d at
708; Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012).
Trammell also argues that the ALJ erred in finding her “not credible based
on her receipt of unemployment benefits in 2010.” (R. 19, Pl.’s Br. at 11.) Trammell
argues that it was error for the ALJ to hold this factor against her without
considering whether financial desperation drove her to certify herself ready to work
in her unemployment benefits application at the same time she was applying for
disability benefits. (Id. at 11-12.) But here, it was not just the fact that Trammell
applied for and received unemployment benefits that the ALJ held against her, but
rather what the ALJ perceived as her caginess in responding to questions regarding
those benefits.
The ALJ was concerned that when asked about her receipt of
unemployment benefits, Trammell “first testified she did not get these benefits,
then said it was for three months, but, as noted above, computer records maintained
10
by the Administration show that she received benefits in 2010 and she then
testified she got them throughout 2010.” (A.R. 84-85.) The ALJ was entitled to find
that Trammell’s shifting answers with respect to this line of questioning detracts
from her credibility, and her characterization of Trammell’s testimony is supported
by the transcript. (Id. at 28-30.) In any event, even if it were the act of certifying
herself ready to work that the ALJ used to discredit Trammell, she was entitled to
view that as among the factors to be balanced in weighing her credibility. See
Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir. 2005); Jernigan v. Sullivan, 948
F.2d 1070, 1074 (8th Cir. 1991).
Trammell next objects to the ALJ’s discussion of her daily activities and
conclusion that those activities are inconsistent with the level of pain she described
at the hearing. (R. 19, Pl.’s Br. at 13-15.) But this is not a case where the ALJ
primarily relied on the claimant’s daily activities to discredit her symptom
allegations or equated her ability to perform household tasks with the rigors of fulltime work. See, e.g., Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013); Hughes v.
Astrue, 705 F.3d 276, 278 (7th Cir. 2013). Instead, the ALJ mentioned her daily
activities in one sentence in the course of her lengthy discussion explaining why she
found Trammell’s allegations less than fully credible, stating that “[d]espite alleging
constant knee pain, she continues to do chores around the house, including making
simple meals and doing laundry every two to three weeks and shopping.” (A.R. 84.)
This small part of the ALJ’s overall analysis makes clear that she did not conclude
that Trammell can perform full-time work simply because she can prepare meals,
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do laundry, and grocery shop. Rather, the ALJ explained that one of the many
reasons she believed Trammell was exaggerating her pain is because the chores she
described performing would be difficult to complete for someone who was truly
experiencing the level of pain Trammell described. An ALJ is specifically charged
with considering a claimant’s daily activities in evaluating the credibility of her
pain allegations, see SSR 96-7p, 1996 WL 374186, at *5 (1996); Filus, 694 F.3d at
869, and the ALJ reasonably discharged that duty here.
Although reasonable
minds might disagree over whether someone with Trammell’s claimed level of pain
could perform the chores she described, the ALJ’s conclusion cannot be
characterized as “patently wrong.” See Pepper, 712 F.3d at 367; see also Shideler v.
Astrue, 688 F.3d 306, 310 (7th Cir. 2012) (noting that “if reasonable minds can differ
over whether the applicant is disabled, we must uphold the decision under review”).
Next Trammell faults the ALJ for stating in the course of her credibility
analysis that “[t]here is no mention by any treating source of a need for, or
recommendation for surgical intervention.” (A.R. 84.) According to Trammell, this
statement is improper because it suggests that the “ALJ’s conclusions were founded
on her own lay understanding of Ms. Trammell’s impairments and her own
unqualified knowledge of what treatment is appropriate.” (R. 19, Pl.’s Br. at 15.)
Although Trammell is correct that an ALJ is not permitted to “play doctor” and
make independent medical conclusions regarding an appropriate course of
treatment, see Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996), that is not what
her comment reflects here.
Her comment regarding the lack of evidence that
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surgical intervention was ever considered comes on the heels of her long
explanation of how Trammell’s complaints are inconsistent with the medical record.
The ALJ considered that Trammell had complained of knee pain for years before
she stopped working because of a layoff and that she had experienced back and hip
pain for the past year. (A.R. 84.) She highlighted records noting that Trammell
reported a pain level of nine to a doctor on the same day that she did not appear to
be in any distress and was walking with a normal gait.
(Id.)
She noted that
Trammell reported improvements in her pain when she received cortisone
injections. (Id.) The ALJ observed that Trammell treats her pain mostly with overthe-counter medications. (Id.) Only after this detailed discussion of the medical
evidence did she observe the lack of recommendation for surgery.
Because the
comment was made in the course of a long credibility analysis, supported by the
record, explaining why the ALJ found a mismatch between the objective record and
Trammell’s testimony, this is not a case where the credibility analysis hinges on an
ALJ’s rogue assumption of a doctor’s role. See Dixon v. Massanari, 270 F.3d 1171,
1177-78 (7th Cir. 2001) (finding that ALJ did not “play doctor” where she
“thoroughly discussed the medical evidence”). Accordingly, the sentence Trammell
highlights does not provide a basis to reverse the ALJ’s credibility analysis.
Finally, at least with respect to her challenge to the ALJ’s credibility
findings, Trammell argues that the ALJ erred in failing to explain her observation
that Trammell’s August 2009 complaint to Dr. Rosenberg that “her knees still
bother her . . . is not consistent with a significantly limiting impairment.” (A.R. 84;
13
R. 19, Pl.’s Br. at 12-13.) Although it might be safe to assume that the ALJ meant
to convey that a person with disabling pain likely would describe her pain in terms
more emphatic than being “bothered,” the court agrees with Trammell that the
ALJ’s failure to explain what she meant renders that one aspect of her credibility
analysis unsupported. That one error, however, is not enough to dismantle what is
otherwise a thoroughly explained and well-supported credibility decision.
See
Simila, 573 F.3d at 517 (noting that ALJ’s credibility decision need not be “flawless”
to survive judicial review); Shramek, 226 F.3d at 811 (noting that court’s role is not
to “nitpick” ALJ’s credibility analysis). Here the ALJ outlined why she believed
Trammell’s complaints to her doctors appear out of proportion to the doctors’
observations, discussed her daily activities and medication side effects, and walked
through why she believed Trammell was less than forthcoming in testifying
regarding unemployment benefits.
(A.R. 84-85.)
Because the ALJ’s credibility
analysis is both reasonable and supported, this court will not disturb it. See Getch,
539 F.3d at 483.
B.
The RFC Assessment
Trammell also argues that the ALJ improperly relied on the opinions of the
state consulting physicians in determining that she has the RFC to perform a
limited range of light work, because those opinions were rendered without the
benefit of nearly a year’s worth of more recent MRIs and other objective tests.
Specifically, Trammell argues that MRIs conducted in July and September 2010, as
well as diagnoses she received from Dr. Levin in January 2011, show that her
14
condition significantly deteriorated in the months after the consulting physicians
submitted their report and RFC assessment. (R. 19, Pl.’s Br. at 8-9.) Accordingly,
she argues that the ALJ was obligated to seek out updated medical opinions instead
of relying on the input of doctors whose take on the case predated the new tests.
In arguing that the ALJ was required to obtain an updated medical opinion
before determining her RFC, Trammell relies on a policy interpretation and case
law that deal with the question of medical equivalency, rather than the RFC
analysis, or involves an ALJ’s incomplete analysis of existing evidence. Specifically,
she relies on SSR 96-6p, but that policy interpretation states that an ALJ “must
obtain an updated medical opinion from a medical expert” where
additional medical evidence is received that in the opinion of the [ALJ]
or the Appeals Council may change the State agency medical or
psychological consultant’s finding that the impairment(s) is not
equivalent in severity to any impairment in the Listing of
Impairments.
SSR 96-6p, 1996 WL 374180, at *3-*4 (1996). That quote is specifically found under
the heading “Medical Equivalence to an Impairment in the Listing of Impairments.”
Id. at *3. No such admonition is found in the “Assessment of RFC” section that
follows. Id. at *4. The cases she cites also deal with medical equivalence or are
otherwise distinguishable. In Cirelli v. Astrue, 751 F.Supp.2d 991, 1003-04 (N.D.
Ill. 2010), the district court reversed the ALJ’s decision because the claimant had
received a Hepatitis C diagnosis after the state agency physicians reviewed the
record, and the ALJ neither sought an updated evaluation nor any medical opinion
before determining that his Hepatitis C was not equivalent to the listings.
15
In
Muhammad v. Astrue, 585 F.Supp.2d 1023, 1033 (N.D. Ill. 2008), the district court
remanded the case for an updated medical opinion under SSR 96-6p where the
claim concerned a closed period of disability and the only medical opinion in the
record was written in the middle of that period. Finally, in Buckner v. Astrue, 680
F.Supp.2d 932, 940 (N.D. Ill. 2010), the district court faulted the ALJ for
prioritizing outdated consulting physician opinions over more recent treating
physicians’ opinions and not basing the RFC “on a complete review of all the
relevant evidence.” Because Trammell is not arguing that her impairments meet
any of the Listings, nor has she pointed to any treating physician opinions that may
have trumped the consulting physicians’ opinions here, the law she has cited is of
limited utility.
Importantly, SSR 96-6p only requires an ALJ to obtain an updated expert
opinion where, in the ALJ’s opinion, the new evidence might change the initial
opinion. SSR 96-6p, 1996 WL 374180, at *4; Buckhanon v. Astrue, 368 Fed. App’x
674, 679 (7th Cir. 2010). Here, the ALJ considered the more recent test results at
length in evaluating Trammell’s RFC and gave no indication that she found them
inconsistent with an RFC for limited light work. She explicitly discussed the July
2010 x-rays and noted that they showed knee osteophytes consistent with
osteoarthritis but no evidence of degeneration in her hips. (A.R. 82.) She discussed
the September 2010 MRI results and acknowledged that they showed cartilage
changes in Trammell’s knees and fraying in the meniscus and stenosis of the
lumbar spine. (Id.) She noted that in a follow-up to those exams, Dr. Patel gave
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Trammell a cortisone injection but noted no loss of strength, sensation, reflexes, or
stability in Trammell’s knees. (Id.) She also discussed Dr. Levin’s January 2011
evaluation at length, noting his diagnoses of cervical radiculopathy, myelopathy,
and lumbar spondylosis. (Id.) The ALJ noted that tests Dr. Levin ordered showed
no spinal stenosis or cord impingement. (Id.) Thus there is no reason to think that
the newer test results or Dr. Levin’s diagnoses would have changed the ALJ’s
opinion. See Hinton-Trigg on behalf of D.H. v. Astrue, No. 1:12-CV-00010, 2013 WL
228240, at *8 (N.D. Ind. Jan. 22, 2013) (noting that “the relevant inquiry is the
degree of claimant’s limitations during the relevant period, not the diagnosis that
she was assigned”).
As the Seventh Circuit has made clear, “although ALJs bear some
responsibility for developing the administrative record . . . they are also free to
assume that a claimant represented by counsel has presented her strongest case for
benefits.” Buckhanon, 368 Fed. App’x, at 679. Where a claimant represented by
counsel neither asks the ALJ to recontact the state-agency consultants nor submits
any opinion from a treating physician, the “appropriate inference is that [the
claimant] decided that another expert opinion would not help her.” Id. Thus where,
as here, the ALJ reviews the entire record and expressly relies on the
uncontradicted opinions of state-agency consultants, that decision is supported by
substantial evidence. See id.; see also Filus, 694 F.3d at 867 (noting that ALJ is
entitled to accept state consulting physicians’ opinions where no contradictory
medical opinions in record); Scheck, 357 F.3d at 702 (observing that ALJ’s duty to
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make complete record “can reasonably require only so much” because “no record is
‘complete’—one may always obtain another medical examination, [or] seek the
views of one more consultant” (quotation and citation omitted)).
Trammell also argues that the RFC analysis is marred by reversible error
because, she says, the ALJ failed to evaluate how her arm and hand pain limits her
ability to work. She says that because her arm pain is a symptom of a diagnosed
impairment—specifically radiculopathy and myelopathy—the ALJ erred in rejecting
that evidence without providing a reviewable explanation. (R. 19, Pl.’s Br. at 1011.) She further argues that Trammell’s testimony regarding her difficulties with
lifting and typing shows that her arm pain constitutes an outcome-determinative
limitation that the ALJ overlooked.
Contrary to Trammell’s argument, the ALJ did not overlook Trammell’s arm
pain; she explicitly discussed that limitation and concluded that it is not as severe
as Trammell claims. At step three of the analysis, the ALJ declined to characterize
Trammell’s alleged thumb pain as a severe impairment, noting that she never
mentioned that pain to any of her treating or consulting physicians and that there
is no objective evidence supporting a conclusion that it constitutes a severe
impairment.
(A.R. 79-80.)
In analyzing her RFC, the ALJ acknowledged that
Trammell reported arm pain in her disability report and recognized that Dr. Levin
had diagnosed radiculopathy and myelopathy.
(Id. at 81-82.)
But she also
recognized that the state-agency physician found that she has no manipulative or
fingering limitations and that objective tests showed she had full motor strength in
18
her upper extremities. (Id. at 82.) The only evidence Trammell points to suggesting
that her arm pain interfered with her ability to function is her own testimony, but
as discussed above, the ALJ gave ample reasons for her decision to discount that
testimony. When the ALJ’s decision is viewed as a whole, it is clear that she took
into account the evidence of Trammell’s arm and hand pain but reasonably
concluded that her pain in those respects is not as limiting as she claims and is
consistent with her RFC. For these reasons, this court finds that the ALJ did not
commit reversible error in assessing Trammell’s RFC.
C.
Trammell’s Past Relevant Work
Trammell’s final challenge to the ALJ’s decision comes in the form of her
argument that the ALJ erred in characterizing her former job with Merrill Lynch as
that of a data entry clerk and concluding that Trammell is capable of performing
that work as generally performed in the economy.
(R. 19, Pl.’s Br. at 17-18.)
According to Trammell, that conclusion amounts to reversible error because her
work at Merrill Lynch is actually a composite job made up of the elements of two or
more occupations. (Id. at 18.) Trammell’s attorney did not raise this argument
during the hearing nor ask the ALJ to call a vocational expert to analyze her past
relevant work.
(See A.R. 23, 32-34, 57.)
In fact, in his opening statement
Trammell’s attorney characterized her work as a “data entry employee,” described
how much walking her previous job entailed, then explained:
I say that not because I feel that that’s necessarily a vocational
element for you to consider at the end of this, but to explain the reason
why she has so many pains and why she probably has the level of pain
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and degeneration that she now experiences, because the job was
arduous, specifically.
(Id. at 23.) In her briefs to this court, Trammell does not identify what distinct
occupations comprised what she now describes as her past “composite job,” but
argues that because she engaged in significant walking and stair climbing at
Merrill Lynch, her role there does not fit into the definition of data entry clerk as
that work is generally performed.
In analyzing whether a claimant is capable of returning to her past relevant
work the ALJ may consider the “actual functional demands and job duties of a
particular past relevant job” or the “functional demands and job duties of the
occupation as generally required by employers throughout the national economy.”
SSR 82-61, 1982 WL 31387, at *2 (1982); see also Steward v. Bowen, 858 F.2d 1295,
1299-1300 (7th Cir. 1988).
Where a claimant can perform only one or two tasks
associated with her previous jobs, the first of these two inquiries must be resolved
in her favor. Valencia v. Heckler, 751 F.2d 1082, 1087 (9th Cir. 1985). Moreover,
where a claimant’s past work “has ‘significant elements of two or more
occupations,’” that work consists of a “composite job” and “must be ‘evaluated
according to the particular facts of each individual case.’” Garcia v. Colvin, No. 12
CV 4191, 2013 WL 3321509, at *11 (N.D. Ill. June 28, 2013) (quoting SSR 82-61,
1982 WL 31387, at *2 (1982)).
Where the claimant’s past work consists of a
composite job, “an ALJ may not deem a claimant capable of performing past
relevant work by dividing the demands of a composite job into two separate jobs and
finding . . . her capable of performing the less demanding of the two jobs.” Peterson
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v. Astrue, No. 1:09 CV 00209, 2010 WL 3219293, at *7 (N.D. Ind. Aug. 12, 2010)
(internal quotation and citation omitted). In other words, the ALJ’s conclusion that
a claimant is not disabled should not be based on her ability to perform only a
subset of her past relevant work. See id.
Here, Trammell has made no attempt to describe what distinct occupations
go into what she characterizes as her composite past work, instead focusing in on
the peculiarities of how she performed her job under the conditions present at her
particular former employer. Specifically, to show that her work does not qualify as
the work of a data entry clerk as generally performed she relies on the fact that the
office where she worked was spread out onto many floors of office space requiring
her to climb stairs throughout the day as she picked up and delivered orders.
(R. 19, Pl.’s Br. at 17.)
But she does not argue that the level of climbing and
walking she described is characteristic of data entry work as generally performed,
or that those aspects of her past relevant work are part of some separate occupation
that the ALJ should have brought into her analysis. Past relevant work is a term
that “refers to the type of job, not to idiosyncratic duties that the employer may
have imposed.” Hughes, 705 F.3d at 279 (citing 20 C.F.R. § 404.1560(b)(2)); see also
Orlando v. Heckler, 776 F.2d 209, 215 (7th Cir. 1985) (noting that past relevant
work analysis does not require ALJ to consider whether claimant can “return to his
specific past relevant job”). Based on Trammell’s own testimony, the level of stairclimbing she was required to perform at her past job was a product of her former
office’s layout, not of some separate occupation that she performed as part of her
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data-entry work. The question the ALJ faced was not whether Trammell could
return to her specific job in that particular office environment, but whether she “can
return to a ‘job’ [s]he held that exists at other employers.” See Smith v. Barnhart,
388 F.3d 251, 253 (7th Cir. 2004); see also Getch, 539 F.3d at 482 (“In other words,
the ALJ need not conclude that the claimant is capable of returning to the precise
job he used to have; it is enough that the claimant can perform jobs substantially
like that one.”). Because the ALJ reasonably explained why she believes Trammell
is capable of performing the work of a data entry clerk as it is generally performed,
this court concludes that her decision is supported by substantial evidence.
Conclusion
For the foregoing reasons, the Commissioner’s motion for summary judgment
is granted, Trammell’s is denied, and the decision of the Commissioner finding that
Trammell is not disabled within the meaning of the Social Security Act is affirmed.
ENTER:
____________________________________
Young B. Kim
United States Magistrate Judge
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