Guendling v. Colvin
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable Maria Valdez on 10/30/2015: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FREDERICK GUENDLING,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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No. 13 C 3535
Magistrate Judge
Maria Valdez
MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of Social Security denying Plaintiff Frederick Guendling’s
claim for Disability Insurance Benefits. The parties have consented to the
jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
For the reasons that follow, Guendling’s motion for summary judgment [Doc. No.
14] is denied, and Defendant’s motion for summary judgment [Doc. No. 21] is
granted.
BACKGROUND
I.
PROCEDURAL HISTORY
On March 2, 2011, Plaintiff filed a claim for Disability Insurance Benefits,
alleging disability since January 27, 2010. The claim was denied initially and upon
reconsideration, after which he timely requested a hearing before an Administrative
Law Judge (“ALJ”), which was held on February 14, 2012. Guendling personally
appeared and testified at the hearing and was represented by counsel. Vocational
Expert (“VE”) Grace Gianforte also testified.
On March 5, 2012, the ALJ denied the claim, finding him not disabled under
the Social Security Act. The Social Security Administration Appeals Council then
denied Guendling’s request for review, leaving the ALJ’s decision as the final
decision of the Commissioner and, therefore, reviewable by the District Court under
42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
II.
FACTUAL BACKGROUND 1
A.
Background
Claimant was born on October 30, 1956 and was fifty-five years old at the
time of the ALJ hearing. Guendling is about five feet eleven inches tall and weighs
between 220 and 230 pounds. He has a high school education, and his relevant past
experience was as a carpenter and a superintendent of construction.
B.
Medical Evidence
Guendling injured himself on January 27, 2010, in a fall down marble stairs.
His treating orthopedist, Dr. William Farrell, diagnosed him after an MRI with a
tear of the medial meniscus and right knee chondromalacia. He was treated
conservatively at first, then had arthroscopy performed in May 2010. An MRI in
October 2010 showed a residual tear in the posterior horn of the meniscal surface as
well as thinning of cartilage along patellofemoral joint lines. Dr. Farrell continued
conservative treatment, including physical therapy, anti-inflammatory medication,
pain medication, and injections. When this round of treatment did not relieve the
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The following facts from the parties’ briefs are undisputed unless otherwise noted.
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symptoms, Dr. Farrell recommended a second knee scope. Because his insurance
had not approved the procedure, Guendling had not had the knee scope performed
before the hearing. Dr. Farrell’s treatment notes reflect that Guendling is limited in
his ability to kneel and squat as a result of his knee injury. In his last note, written
six days before the ALJ hearing, Dr. Farrell stated for the first time that Plaintiff’s
knee gave him problems with weightbearing and concluded that “[h]e is unable to
work.” (R. 394.)
A January 7, 2010, Functional Capacity Evaluation (“FCE”) performed by
Jim Donahue, a Doctor of Physical Therapy, found that Guendling could stand for
thirty minutes; walk for one mile; lift up to fifty pounds occasionally and twenty-five
pounds frequently; climb up and down one flight of stairs; but he could not stand or
crouch on a narrow beam for thirty seconds or walk on the beam for at least six feet.
Dr. Donahue concluded that Guendling met the medium strength category, but he
would be restricted to not pushing/pulling more than fifty pounds and he could not
crouch. (R. 280.)
An April 29, 2011 independent medical examination performed by Dr.
Kimberly Middleton found that Guendling was limited with regard to repetitive
squatting, kneeling, operating foot pedals, and applying valgus/varus stress on the
right knee, but that he was able to ambulate, sit, stand, bend, reach, lift,
communicate, and use fine and gross movements with both hands. (R. 311.)
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C.
ALJ Decision
The ALJ found at step one that Guendling had not engaged in substantial
gainful activity since his alleged onset date of January 27, 2010. At step two, the
ALJ concluded that he had severe impairments of torn medial meniscus of the right
knee, and status post-arthroscopy of the right knee with partial medial
meniscectomy. The ALJ concluded at step three that the impairments, alone or in
combination, do not meet or medically equal a Listing. The ALJ then determined
that Plaintiff retained the Residual Functional Capacity (“RFC”) to perform work at
the light exertional level, with additional limitations to no kneeling or crouching.
The ALJ concluded at step four that Claimant could not perform his past relevant
work. At step five, based upon the VE's testimony and Claimant’s age, education,
work experience, RFC, and work skills acquired from past relevant work, the ALJ
concluded that Claimant can perform jobs existing in significant numbers, leading
to a finding that he is not disabled under the Social Security Act.
DISCUSSION
I.
ALJ LEGAL STANDARD
Under the Social Security Act, a person is disabled if she has an “inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(a). In order to determine whether a claimant is
disabled, the ALJ considers the following five questions in order: (1) Is the claimant
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presently unemployed? (2) Does the claimant have a severe impairment? (3) Does
the impairment meet or medically equal one of a list of specific impairments
enumerated in the regulations? (4) Is the claimant unable to perform her former
occupation? and (5) Is the claimant unable to perform any other work? 20 C.F.R. §
416.920(a)(4).
An affirmative answer at either step 3 or step 5 leads to a finding that the
claimant is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389
(7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a
finding of disability. Id. The claimant bears the burden of proof at steps 1–4. Id.
Once the claimant shows an inability to perform past work, the burden then shifts
to the Commissioner to show the claimant’s ability to engage in other work existing
in significant numbers in the national economy. Id.
II.
JUDICIAL REVIEW
Section 405(g) provides in relevant part that “[t]he findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is
limited to determining whether the ALJ’s findings are supported by substantial
evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.
2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its
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judgment for that of the Commissioner by reevaluating facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Skinner, 478 F.3d
at 841; see also Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (holding that the
ALJ’s decision must be affirmed even if “’reasonable minds could differ’” as long as
“the decision is adequately supported”) (citation omitted).
The ALJ is not required to address “every piece of evidence or testimony in
the record, [but] the ALJ’s analysis must provide some glimpse into the reasoning
behind her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th
Cir. 2001). In cases where the ALJ denies benefits to a claimant, “he must build an
accurate and logical bridge from the evidence to his conclusion.” Clifford, 227 F.3d
at 872. The ALJ must at least minimally articulate the “analysis of the evidence
with enough detail and clarity to permit meaningful appellate review.” Briscoe ex
rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); Murphy v. Astrue, 496
F.3d 630, 634 (7th Cir. 2007) (“An ALJ has a duty to fully develop the record before
drawing any conclusions . . . and must adequately articulate his analysis so that we
can follow his reasoning . . . .”); see Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005).
Where conflicting evidence would allow reasonable minds to differ, the
responsibility for determining whether a claimant is disabled falls upon the
Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir.
1990). However, an ALJ may not “select and discuss only that evidence that favors
his ultimate conclusion,” but must instead consider all relevant evidence. Herron v.
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Shalala, 19 F.3d 329, 333 (7th Cir. 1994); see Scrogham v. Colvin, 765 F.3d 685, 698
(7th Cir. 2014) (“This ‘sound-bite’ approach to record evaluation is an impermissible
methodology for evaluating the evidence.”).
III.
ANALYSIS
Claimant argues that the ALJ’s decision was in error because: (1) it
improperly weighed the opinion of Dr. Farrell, his treating physician; (2) it did not
consider the impact of obesity on his knee impairment; and (3) it committed an
error of fact in finding that Plaintiff had transferrable skills.
A.
Treating Physician Rule
Claimant argues that the ALJ failed to follow the “treating physician rule” by
not appropriately weighing the opinion of his treating physician, Dr. Farrell.
Guendling also criticizes the ALJ for giving more weight to the opinion of Dr. Jim
Donahue, an examining physical therapist. An ALJ must give controlling weight to
a treating physician’s opinion if the opinion is both “well-supported” and “not
inconsistent with the other substantial evidence” in the case record. 20 C.F.R. §
404.1527(c); see Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). The ALJ must
also “offer good reasons for discounting” the opinion of a treating physician.
Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (internal quotations omitted);
Scott, 647 F.3d at 739. And even if a treater’s opinion is not given controlling
weight, an ALJ must still determine what value the assessment does merit. Scott,
647 F.3d at 740; Campbell, 627 F.3d at 308. The regulations require the ALJ to
consider a variety of factors, including: (1) the length, nature, and extent of the
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treatment relationship; (2) the frequency of examination; (3) the physician’s
specialty; (4) the types of tests performed; and (5) the consistency and support for
the physician’s opinion. See id.
The ALJ gave some weight to Dr. Farrell’s opinion that Guendling would be
limited in his ability to kneel; little weight to his opinion that he would be limited to
minimal ambulation; and little weight to his opinion that Plaintiff should remain off
work or was limited to sedentary/light work. Plaintiff faults the ALJ for failing to
discuss the length, nature, or extent of his treating relationship with Dr. Farrell,
who he saw twenty-seven times over two years, with one surgery. It is true that, in
concluding that in evaluating Dr. Farrell’s opinion, the ALJ did not explicitly
mention the factors discussed above. There is some disagreement within in the
Seventh Circuit as to whether or not an ALJ’s failure to explicitly discuss all the
factors in a decision requires remand on its own. Compare Campbell v. Astrue, 627
F.3d 299, 308 (7th Cir. 2010) (remanding where “[t]he ALJ’s decision indicate[d]
that she considered opinion evidence in accordance with §§ 404.1527 and 416.927”
but did not “explicitly address the checklist of factors as applied to the medical
opinion evidence”) with Schreiber v. Colvin, 519 Fed. App’x 951, 959 (7th Cir. 2013)
(finding ALJ opinion sufficient where, “while the ALJ did not explicitly weigh each
factor in discussing [the doctor’s conclusion], his decision makes clear that he was
aware of and considered many of the factors”); see also Duran v. Colvin, No. 13-CV50316, 2015 WL 4640877, at *8 (N.D. Ill. Aug. 4, 2015) (discussing split in
authority). In this case, Plaintiff has failed to demonstrate that the ALJ’s failure to
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conduct a factor-by-factor analysis would have changed the outcome. The ALJ
concluded that Dr. Farrell’s opinions describing completely disabling symptoms
were not consistent with the medical record. Indeed, Dr. Farrell’s medical notes
consistently describe limitations on kneeling and squatting only; they do not
provide any rationale for limited ambulation or otherwise restrict Guendling to
sedentary work. The ALJ also found that Plaintiff’s claims that he was limited to
sedentary work were inconsistent with his daily activities, which include doing
chores, mowing the lawn, traveling, and golfing (even though Plaintiff attempted to
minimize this activity by stating that he had a handicap sticker on his golf cart).
In addition, the ALJ believed that Dr. Farrell’s statements about work
limitations were made with reference to the requirements for Guendling’s past work
as a carpenter, and therefore were to be given little weight with respect to his
ability to work at all. Although Plaintiff is correct that in his October 2011 note, Dr.
Farrell states that Guendling “should not return to work until I have released him,
despite what the job,” (R. 374), the record is replete with references Dr. Farrell
makes to Plaintiff’s impairments as they relate to his past employment. For
example, in the same October 2011 note, Dr. Farrell states that the opinion of the
independent consultant, which stated that Plaintiff could return to duty but should
avoid kneeling “presents a problem in and of itself.” (R. 374.) Other notes similarly
opine that his disability is specifically related to his inability to kneel and squat,
which Dr. Farrell believed made him wholly disabled due to the nature of his
employment. For example, in May and June 2011, he found the consultant’s
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conclusion that Plaintiff could return to work with a kneeling and squatting
restriction to be “not practical nor feasible at this point in time” because
“[u]nfortunately his job is carpentry,” (R. 378-79); and he reported in April 2011
that “[h]is job necessitates kneeling and squatting. Unfortunately, this has
precluded his ability to return back to regular duty at this point.” (R. 381).
Furthermore, the ALJ was not required to credit Dr. Farrell’s opinion that “[h]e is
unable to work,” (R. 394), because the ultimate issue of disability is reserved to the
Commissioner. See Clifford, 227 F.3d at 870. Because Dr. Farrell’s opinions about
Guendling’s inability to work were not supported by evidence of functional
limitations other than those reflected in the RFC, the ALJ’s decision will not be
disturbed.
Guendling also finds error in the ALJ’s decision to give weight to the FCE
evaluation performed by Dr. Donahue, who is a physical therapist and therefore not
an “acceptable medical source” under the regulations. See 20 C.F.R. § 404.1513(a).
Plaintiff is correct that a physical therapist is not listed as an acceptable medical
source to establish whether a claimant has a medically determinable impairment,
but the regulations do allow evidence from “other sources,” including physical
therapists, to determine the severity of any impairment and its effect on the
claimant’s ability to work. See 20 C.F.R. § 404.1513(d)(1). The ALJ did not use Dr.
Donahue’s opinion to discern whether Guendling had an impairment, but rather to
determine the severity of his impairment and its effect on his work abilities.
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B.
Obesity
Plaintiff next contends that the ALJ erred by failing to consider his obesity as
a medically determinable impairment or as it affected his RFC. The Social Security
Administration “has removed obesity as a separate listing from the list of disabling
impairments.” Castile v. Astrue, 617 F.3d 923, 928 (7th Cir. 2010) (citing SSR 021p). 2 However, the ALJ is required to consider a claimant’s obesity in evaluating
the severity of his other impairments. Id.; see also Martinez v. Astrue, 630 F.3d 693,
689-99 (finding reversible error when the ALJ failed to consider the effect of a body
mass index of over 40 on knee pain). The Seventh Circuit also requires an ALJ to
consider a claimant’s obesity in evaluating her ability to work generally. See
Browning v. Colvin, 766 F.3d 702, 706 (7th Cir. 2014) (explaining that morbid
obesity may make a person unable to perform even sedentary jobs).
Plaintiff points out that his body mass index (“BMI”) has ranged from 30.7 to
32.1, which is at the lower end of the obese range. See SSR 02-1p. However, he has
failed to argue what, if any additional functional restrictions his obesity causes,
other than those already identified by the ALJ. A “claimant must articulate how her
obesity limits her functioning and exacerbates her impairments. . . . This court has
repeatedly excused the harmless error of an ALJ who fails to explicitly address a
claimant’s obesity but arrives at a final decision after reviewing the medical
opinions of physicians familiar with the claimant’s obesity.” Hisle v. Astrue, 258 F.
App’x 33, 37, 2007 WL 4439843, at *4 (7th Cir. 2007) (unpublished decision).
Interpretive rules, such as Social Security Rulings (“SSR”), do not have force of law
but are binding on all components of the Agency. 20 C.F.R. § 402.35(b)(1); accord Lauer v.
Apfel, 169 F.3d 489, 492 (7th Cir. 1999).
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Guendling has not explained how his obesity affects his impairments or that it was
not taken into account by the examiners, and therefore the ALJ’s failure to address
it in detail was at best harmless error.
C.
Transferability of Skills
Finally, Plaintiff argues that the ALJ committed an error of fact in finding
that he had obtained transferrable skills in his previous employment. Pursuant to
SSR 82-41, “[t]ransferability means applying work skills which a person has
demonstrated in vocationally relevant past jobs to meet the requirements of other
skilled or semiskilled jobs.” SSR 82-41. Based on Guendling’s past relevant work as
a carpenter, the VE testified that he had obtained transferrable skills of the use of
hand tools and power equipment; matching and gathering boards of specific grain
color and width to form panels; setting up and operating a bench mounted spindlecarving machine; and operating a band-saw to saw or carve irregular designs on
wood stock. The VE further testified that with those transferrable skills, Guendling
could perform the following jobs at the light level, which exist in significant
numbers in the regional economy: panel lay worker, spindle carver, and band scroll
saw operator.
According to Plaintiff, the ALJ was required to ask Guendling at the hearing
whether he had actually obtained any of the listed skills, and by failing to do so, her
finding that he could use these skills in other jobs was in error. The case cited by
Plaintiff is inapposite, because that ALJ’s decision did not list any of the allegedly
acquired skills, and it failed to explain whether the skills were similar to those
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required for other employment. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d
1219, 1224 (9th Cir. 2009). By contrast, the ALJ listed specific skills Guendling had
obtained and the jobs in which those skills can be used. The Court also notes that at
the hearing, counsel did not elicit any testimony from Guendling suggesting that he
had not obtained those skills, and his brief in support of summary judgment also
makes no such claim. Furthermore, although Plaintiff is correct that the description
of Carpenter in the Dictionary of Occupational Titles lists numerous skills, some of
which he may not have actually obtained in his prior employment, the skills cited
by the VE – e.g., the use of hand tools and matching boards – are not so unusual
that the ALJ’s decision to find he could perform them is unsupported on its face.
The Court concludes that the ALJ’s finding of transferrable skills is supported by
substantial evidence.
CONCLUSION
For the foregoing reasons, Plaintiff Frederick Guendling’s motion for
summary judgment [Doc. No. 14] is denied, and Defendant’s motion for summary
judgment [Doc. No. 21] is granted.
SO ORDERED.
ENTERED:
DATE:
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
October 30, 2015
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