French v. Colvin

Filing 18

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 9/14/2016. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DONALD F. FRENCH II,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 14 CV 10240
Magistrate Judge Young B. Kim

September 14, 2016

MEMORANDUM OPINION AND ORDER
Donald French filed an application for Disability Insurance Benefits (“DIB”)
alleging that he is disabled because of left shoulder pain, chronic and severe neck
pain, radiating pain and numbness in his arms and hands, and headaches. After
the Commissioner of the Social Security Administration denied his application,
French filed this suit seeking judicial review. See 42 U.S.C. § 405(g). Before the
court are the parties’ cross-motions for summary judgment.

For the following

reasons, French’s motion for summary judgment is denied, the government’s is
granted, and the Commissioner’s final decision is affirmed:
Procedural History
French filed his DIB application in January 2012 alleging a disability onset
date of October 14, 2010. (Administrative Record (“A.R.”) 197-98, 222.) After his
claim was denied initially and on reconsideration, (id. at 73-74), French requested
and was granted a hearing before an Administrative Law Judge (“ALJ”).

The

hearing took place on September 4, 2013. (Id. at 27-72.) At the hearing, French
amended his alleged onset date to a later date, July 23, 2011. (Id. at 33.) On
September 27, 2013, the ALJ issued a decision finding that French is not disabled
and not entitled to DIB. (Id. at 8-21.) When the Appeals Council denied review, (id.
at 1-6), the ALJ’s decision became the final decision of the Commissioner, see
Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013).

French filed this action

seeking judicial review, (R. 1); see 42 U.S.C. § 405(g), and the parties consented to
this court’s jurisdiction, (R. 5); see 28 U.S.C. § 636(c).
Background
On September 21, 2007, French was working as a machine operator at a
manufacturing plant when he suffered injuries to his left shoulder and neck from an
on-the-job accident. He was 42 years old at the time. French says that since his
injury he has had debilitating and on-going pain in his neck and back and daily
headaches. At his hearing before the ALJ, French presented both documentary and
testimonial evidence in support of his DIB application.
A.

Medical Records
After French injured his left shoulder and neck in 2007, he continued to feel

pain despite undergoing treatment for his injuries.

In April 2008, French

underwent a surgical procedure to correct a rotator cuff tear in his left shoulder.
(A.R. 499-500.)

In December 2008, he received another corrective procedure to

improve his left shoulder motion. (Id. at 502.)

2

The following year, on August 13, 2009, Dr. Daniel Mulconrey performed a
spinal fusion procedure to treat French’s cervical spondylosis, upper extremity
radiculopathy, and axial neck pain.

(Id. at 503.)

complications during or after this procedure.

Dr. Mulconrey noted no

(Id. at 505.)

In March 2010

Dr. Mulconrey restricted French’s lifting to 10 pounds for his left shoulder and 25
pounds for his cervical spine for three months. (Id. at 429.) Dr. Mulconrey noted
that French continued to have some mild axial neck pain, as well as intermittent
discomfort in his left shoulder, but wrote that he had improved since his last
appointment. (Id. at 426.) In July 2010 Dr. Mulconrey ordered a cervical spine
CAT scan which revealed no evidence of spinal stenosis and showed that his cervical
vertebral alignment appeared normal.

(Id. at 433.)

On August 17, 2010,

Dr. Mulconrey opined that French is “[t]otally unable to work from now until:
9/1/10. At 9/1/10 he will need to decide between proceeding with surgery” or a
functional capacity evaluation. (Id. at 428.)
On September 27, 2010, an MRI of French’s cervical spine indicated small
disc bulges but no significant stenosis in any area. (Id. at 396.) The following
month Dr. Mulconrey performed a spinal fusion for his degenerative disc disease
and stenosis. (Id. at 435.) After the procedure Dr. Mulconrey noted that French
was in stable condition and suffered no post-operative complications. (Id. at 437.)
In November 2010 French reported to Dr. Mulconrey that he was in too much pain
to do physical therapy. (Id. at 411.) Dr. Mulconrey started French on Flexeril, a
muscle relaxant, and continued with his Norco prescription. (Id.) In April 2011

3

French told Dr. Mulconrey that his headaches had dramatically improved since
surgery, but that he continued to experience numbness in his upper extremity. (Id.
at 407.)

Dr. Mulconrey reviewed French’s 2009 functional capacity evaluation

restricting him to light work with a 10 to 20 pound lifting restriction and no work
above chest level, and opined that these restrictions were reasonable. (Id.)
Records indicate that from April 2010 through July 2013, French was a
patient of Dr. Arnold Faber, who treated him for his chronic back and neck pains.
(Id. at 506-34.)

Dr. Faber diagnosed him with chronic pain syndrome and

degenerative cervical radiculopathy. (Id. at 516.) In August 2010, Dr. Faber rated
French as being 50% reduced in his ability to perform functions including sitting,
standing, turning, pulling, and speaking, and wrote that he should not work until
released by a surgeon. (Id. at 469.) In May 2011, Dr. Faber wrote that French had
not been able to work since his accident because of pain and numbness and that he
expected the disability to continue indefinitely.

(Id.)

Dr. Mulconrey noted in

September 2011 that he did “not disagree” with Dr. Faber’s assessment of French’s
condition and inability to work. (Id. at 403.) In April 2013, Dr. Faber examined
French and again opined that he was more than 50 percent reduced in his ability to
walk, bend, stand, stoop, sit, turn, climb, push, pull, and travel and in his ability to
perform fine and gross manipulation. (Id. at 519.) A May 2013 MRI of French’s
lumbar spine showed mild degenerative irregularities and mild stenosis. (Id. at
529-30.)

4

French visited Dr. Mulconrey again in July 2013, complaining of back and leg
pain at a level of nine on a ten-point scale. (Id. at 535.) He also reported that
standing and walking worsened the pain. (Id.) Dr. Mulconrey determined that
French suffered from disc displacement, lumbar pain, and low extremity pain. (Id.
at 536.) He recommended physical therapy as well as another epidural steroid
injection. (Id. at 536-38.) Dr. Mulconrey wrote that French showed significant
improvement with conservative treatment and noted that he expected continued
improvement with physical therapy and steroid injections. (Id.)
On Dr. Mulconrey’s referral French went to a pain clinic in July 2013. (Id. at
541-42.) Dr. Eugene Becker examined French and noted that French used a cane to
ambulate and had a decreased range of motion in the neck. (Id. at 541.) Dr. Becker
also noted that French had significant disc herniation, and recommended that
French undergo physical therapy. (Id. at 541-42.) French declined Dr. Becker’s
offer to administer an epidural steroid injection at that time, but indicated he would
consider steroid injections in the future. (Id. at 542.)
On March 10, 2012, Dr. Stanley Simon conducted a consultative examination
for the Bureau of Disability Determination Services (“DDS”). 1 (Id. at 475-78.)
Dr. Simon noted that French was able to get on and off the exam table without
difficulty and walk more than 50 feet without support. (Id. at 477.) He also found
that French was able to fully extend his hands and that the range of motion in his
elbows and wrists was not limited. (Id.) Dr. Simon also noted that French had full

1 In the ALJ’s opinion, the ALJ erroneously refers to Dr. Simon as Dr. Taiwo, but
the record shows that Dr. Simon conducted the consultative examination.
5

range of motion of the lumbar spine but that he complained of dizziness during
forward bending.

(Id.)

Dr. Simon concluded that French has chronic bilateral

shoulder pain, a history of chronic neck pain, neuropathy of the hands, headaches,
and hypertension. (Id. at 478.) He completed a Range of Motion form and noted
significant limitations in the range for French’s cervical spine and some limitations
for his shoulder. (Id. at 481.) French’s range of flexion for his right shoulder is
120/150 and for his left is 90/150. (Id.)
That same month, medical consultant Dr. Richard Smith reviewed the
medical records and completed a physical residual functional capacity (“RFC”)
assessment for French. (Id. at 488-95.) Dr. Smith opined that French could lift 20
pounds occasionally and 10 pounds frequently, stand and walk at least two hours in
an eight-hour workday, and sit about six hours in an eight-hour workday. (Id. at
489.) Because of decreased range of motion in both shoulders, Dr. Smith opined
that French would be limited to reaching overhead only occasionally. (Id. at 491.)
He further concluded based on the medical records that French’s statements are
partially credible because objective medical evidence does not support his
allegations that he needs assistance dressing and showering. (Id. at 493.)
B.

Hearing Testimony
At his hearing before an ALJ on September 4, 2013, French appeared

represented by an attorney.2 He testified that he is six feet tall, weighs 375 pounds,

Before eliciting testimony from French, the ALJ noted that French amended his
alleged disability onset date from October 14, 2010, to July 23, 2011. (Id. at 33.) On

2

6

and suffers from pain in his shoulders and hands that is severe enough to prevent
him from working. (A.R. 35, 45.) Because of his lower back pain, he has had
trouble walking.

(Id. at 47.)

French testified that he had several surgeries to

alleviate his neck pain, the most recent in October 2010, and for his shoulders
several years ago. (Id. at 45-46.) Despite the surgeries, he continues to suffer from
neck pain and pain across his shoulder blades. (Id. at 45.) But French said that the
surgeries have helped to reduce the severity of his headaches, which he experiences
two or three times a day. (Id. at 46, 55.)
French further testified that he has suffered back pain for “quite a few
years.”

(Id. at 47.)

Depending on the day or the temperature, he can walk

anywhere from 30 to 100 feet before having any pain. (Id.) French said that he
could stand for about 10 to 15 minutes before needing to sit down. (Id.) French
testified that aside from taking Norco and using Fentanyl patches, he had not had
“any real treatment” for his back pain, but he was “supposed to be getting an
injection” and physical therapy “in the next week or two.” (Id. at 49-50.) French
has been using a cane to walk since February 2013. (Id. at 52-53.) He also wears a
neck collar on occasion for lengthy car rides. (Id. at 53.) French also testified that
his neck mobility is limited because of sharp, stabbing pains. (Id. at 54.)
On a typical day, French wakes up around 5:30 a.m. (Id. at 50.) His children
help prepare his breakfast before they leave for school.

(Id.)

After breakfast,

French will lie on the couch and nap. (Id.) He also sits down to watch television.

July 22, 2011, a different ALJ issued a decision denying his earlier DIB application.
(Id.)
7

(Id.) He testified that he has trouble sleeping for more than three to four hours a
night because he cannot get comfortable, and this makes him “extremely exhausted”
throughout the day. (Id. at 70.) French also explained that he rarely leaves the
house because the pain makes it hard for him to move around. (Id. at 50-51.) His
mother takes him grocery shopping and his children handle the household chores
such as cleaning and cooking. (Id. at 51.) French also has difficulty concentrating
and remembering to complete tasks such as making phone calls. (Id. at 69.)
C.

Vocational Expert Testimony
The vocational expert (“VE”) testified at the hearing that French’s past

employment included work as a construction worker, forklift truck operator, and
machine packager. (A.R. 64-65.) The ALJ asked the VE whether an individual who
can perform light work but cannot climb ladders, ropes, or scaffolding, and who can
occasionally crouch, crawl, and reach overhead bilaterally would be able to perform
French’s previous work. (Id. at 65.) The VE responded that such a person is unable
to perform French’s prior positions but is able to perform sedentary positions
including office worker, general office worker, order clerk, and information clerk.
(Id. at 65-66.) The ALJ then asked whether an individual restricted to sedentary
work, who is unable to climb ladders, ropes, or scaffolding, cannot kneel or crawl,
but can occasionally reach overhead bilaterally, climb ramps and stairs, balance,
stoop, and crouch would be able to perform these positions. (Id.) The VE responded
that such an individual would be able to perform these positions even while using a
cane. (Id. at 67.) However, the VE testified that an individual would be precluded

8

from work if he would miss two to three days of work per month, would require a
15-minute break for every 45 minutes of work, or would be off-task for 15-30 percent
of the workweek. (Id. at 67-68.)
D.

The ALJ’s Decision
On September 27, 2013, the ALJ denied French’s DIB application after

evaluating his claims under the required five-step evaluation process for
determining whether a claimant is disabled. See 20 C.F.R. § 404.1520(a)(4). After
concluding that French meets the insured status through December 31, 2016, the
ALJ determined at step one that French has not engaged in substantial gainful
activity since July 23, 2011, the amended onset date. (A.R. 13.) At step two, the
ALJ found that French has severe impairments including degenerative disc disease
of the cervical spine, degenerative joint disease of the shoulders, lumbar
degenerative disc disease, a herniated disc, diabetes mellitus, hypertension, and
obesity. (Id. at 14.) At step three, the ALJ opined that French does not have an
impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments of 20 C.F.R. Part 404, Subpart P, Appendix
1. (Id.)
Before turning to step four, the ALJ determined that French has the RFC to
perform sedentary work involving occasional balancing, stooping, crouching, and
climbing ramps and stairs, but that he could not kneel, crawl, or climb ladders,
ropes, or scaffolds. (Id.) The RFC further limits French to occasional overhead
reaching bilaterally and requires the use of a cane in the workplace. (Id.) At step

9

four, the ALJ determined that French is unable to perform his past relevant work.
(Id. at 19-20.)

At step five, having considered French’s age, education, work

experience, and RFC, the ALJ determined that there are jobs existing in significant
numbers in the national economy that French could perform, such as office worker,
information clerk, or order clerk. (Id. at 20-21.) As such, the ALJ concluded that
French is not disabled. (Id. at 21.)
Analysis
French argues that the ALJ’s decision denying his application for benefits
should be reversed because, according to him, she failed to adequately consider the
combined effects of his impairments, to properly assess his hearing testimony, to
properly weigh his treating physicians’ opinions, and to pose a complete
hypothetical to the VE during the hearing. This court’s review of the ALJ’s decision
is “extremely limited,” asking only whether the decision is free of legal error and
supported by substantial evidence, meaning “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Stepp v. Colvin, 795 F.3d
711, 718 (7th Cir. 2015) (internal quotations and citations omitted). Because the
court’s role is neither to reweigh the evidence nor to substitute its own judgment for
the ALJ’s, if the ALJ’s decision is adequately supported and explained it must be
upheld even where “reasonable minds can differ over whether the applicant is
disabled.”

Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012).

In order to

adequately support the decision, the ALJ must build “an accurate and logical bridge

10

from the evidence to her conclusion that the claimant is not disabled.” Simila v.
Astrue, 573 F.3d 503, 513 (7th Cir. 2009) (internal quotation omitted).
A.

Combined Effects of Impairments
French first argues that the ALJ failed to consider the combined impact of his

impairments, but the specifics of his argument are confusing. He first references 20
C.F.R. §§ 404.1520(d), 404.1525, and 404.1526, all of which speak to the application
of the listings at step three, but French does not point to any listing that the ALJ
should have considered but overlooked, or develop any argument with respect to the
ALJ’s step-three analysis.

(R. 10, Pl.’s Mem. at 6.)

“In deciding whether an

impairment meets or equals a listed impairment, an ALJ must mention the
relevant listings and make more than a ‘perfunctory analysis’ of whether the
impairment meets the criteria.” See Wurst v. Colvin, 520 Fed. Appx. 485, 488 (7th
Cir. 2013). Here, the ALJ explained in her decision that she considered “all of the
claimant’s impairments, both individually and in combination,” but found that the
“record does not contain any medical opinion indicating that a listing was met or
equaled.”

(A.R. 14.)

The ALJ also specifically considered Listing 1.04 for

degenerative disc disease of the lumbar spine but found that French did not satisfy
this listing as he “lacks any persistent neurological abnormalities, evidence of
arachnoiditis, or pseudoclaudication that resulted in the inability to ambulate
effectively.” (Id.) Because French has not explained how he meets all of the criteria
of any listing that the ALJ overlooked, his step-three challenge is unavailing. See
Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004).

11

French

also

references

severe

systemic

disease,

chronic

obstructive

pulmonary disease (“COPD”), and obesity in arguing that the case should be
remanded for the ALJ to consider the combined effect of these conditions. But
French acknowledges that severe systemic disease as found in his medical record is
a term used by an anesthesiologist to classify his pre-surgery health, rather than a
separate impairment. (See R. 15, Govt.’s Mem. at 2; R. 16, Pl.’s Reply3 at 1; A.R.
327.)

Specifically, severe systemic disease as used in the American Society of

Anesthesiologists’ classification system means the patient has a controlled disease
in one or more body systems, with examples including morbid obesity or
bronchospastic

disease

with

intermittent

symptoms.

See

https://my.clevelandclinic.org/health/treatments_and_procedures/hic_ASA_Physical
_Classification_System (last visited 09/14/16). 4 The notation therefore does not
reflect a separate impairment that the ALJ should have considered in combination
with the others. As for COPD, the ALJ discussed this condition at step two of the
analysis and explained why the evidence suggests it has no more than a minimal

3 When setting the briefing schedule for motions for summary judgment, the court
advised French that a leave of court was required to file a reply brief. (R. 7.)
Despite this requirement, French filed a reply brief without explaining the need and
without seeking leave of court. (R. 16.) However, the court considered French’s
reply brief because the court recently changed its practice regarding the filing of
reply briefs in Social Security cases─giving plaintiffs the option to file a reply but
not requiring one.
The Commissioner cited this website in her response brief to explain the “severe
systemic disease” reference and French did not object to that citation or explanation
in his reply brief.

4

12

impact on French’s ability to perform work activity, even when considered in
combination with his other problems. (A.R. 14.)
The ALJ’s treatment of French’s obesity presents a closer call. The Social
Security Administration has made clear that ALJs should consider the effects of
obesity together with the claimant’s other underlying impairments in evaluating
the severity of symptoms and the RFC. See SSR 02-1P, 2002 WL 34686281, at *3
(Sept. 12, 2002). But an ALJ’s failure to explicitly consider the effects of obesity
may be harmless where the ALJ adopts limitations suggested by doctors who were
aware of the claimant’s obesity and a claimant fails to articulate how obesity has
further limited his conditions and functioning. See Prochaska v. Barnhart, 454 F.3d
731, 736-37 (7th Cir. 2006). In this case, French does no more than state that a
“reasonable mind would review his activities of daily living and know that his
reduction of activity is inconsistent with working,” which is insufficient to show that
he is more limited because of his obesity than the restrictions set forth in the RFC.5
(R. 10, Pl.’s Mem. at 7); see also Prochaska, 454 F.3d at 737; Hernandez v. Astrue,
227 Fed. Appx. 617, 624 (7th Cir. 2008) (“Where the claimant herself is silent in this
regard, we have repeatedly excused as harmless error the failure of an ALJ to
explicitly address the claimant’s obesity as SSR 02–1p prescribes so long as the ALJ

5 This assertion also suggests a misapprehension of the applicable standard of
review. The question at this stage in the process is not whether French has shown
that a reasonable person could look at his medical records and conclude that he is
disabled. The court’s role is not to reweigh the evidence. Instead, as long as the
ALJ’s decision is free of legal error and supported by substantial evidence, the court
must affirm even if reasonable minds may disagree over whether French is
disabled. See Shideler, 688 F.3d at 310.
13

demonstrated that he reviewed the medical reports of the doctors familiar with the
claimant’s obesity.”)
French’s obesity.

More importantly, the ALJ did not ignore the impact of

She devoted a paragraph of her decision to considering the

limiting effects of his obesity on his ability to work. (A.R. 18.) Specifically, the ALJ
explained:
I note that the claimant’s medical problems are exacerbated by obesity.
Body Mass Index (BMI) is a measure of an individual’s obesity, indices
30 and above are considered to be in the obese range. The claimant’s
BMI has ranged from 48.8 to 53.7 . . . . Social Security Ruling 02-01p
notes that the combined effects of obesity with other impairments may
be greater than might be expected without obesity. Based on the
evidence before me, I find that the claimant’s obesity does have a
limiting effect on his ability to work, and given his combination of
impairments, I have reduced him to a range of less demanding
sedentary work.
(Id.) This analysis could have been more specific, but it satisfies the court that the
ALJ considered French’s obesity in connection with his other impairments and
factored this into her RFC determination.
That said, this court is sensitive to the Seventh Circuit’s suggestion that—
especially in cases involving extreme obesity—an ALJ must address in more than a
conclusory manner how the claimant’s weight interacts with or exacerbates his
other impairments. For example, in both Goins v. Colvin, 764 F.3d 677, 681 (7th
Cir. 2014), and Browning v. Colvin, 766 F.3d 702, 706-07 (7th Cir. 2014), the court
reversed the Commissioner’s decisions in part because the ALJs paid insufficient
attention to the claimants’ morbid obesity. Of particular relevance, in Browning the
Court characterized as “sufficiently obvious” that a person with morbid obesity
might have difficulty with the kind of prolonged sitting required by sedentary work,
14

and wrote that an ALJ must do more than acknowledge a claimant’s extreme
obesity in assigning an RFC for sedentary work.

Browning, 766 F.3d at 707.

Although given French’s extreme obesity these decisions give the court pause, here
the ALJ’s discussion of French’s weight was sufficient to build the required logical
bridge between the evidence and her conclusion. The ALJ acknowledged French’s
BMI in the course of analyzing the impact of his obesity on his overall condition and
explained that she added limitations to reduce the range of sedentary work as an
accommodation for his obesity. (A.R. 18.) Moreover, the ALJ gave great weight to
the opinion of consulting physician Dr. Smith, who explicitly referenced French’s
obesity in explaining his opinion that French can perform sedentary work with
some postural and manipulative limitations. (Id. at 18, 489-90.) Thus in contrast to
the situations in Goins and Browning, not only did the ALJ do more than simply
acknowledge French’s obesity, she rested her RFC analysis on a medical expert’s
translation of the kinds of limitations that apply to a person with French’s
combination of obesity and other impairments.

Furthermore, nowhere in his

testimony did French describe any limitations in his ability to sit that might restrict
him beyond the assigned RFC. For these reasons, French has not shown that the
ALJ failed to properly account for the combined impact of his obesity and other
impairments.
B.

Credibility Determination

15

French next argues that the ALJ erred in assessing his credibility by failing
to offer specific reasons for the adverse credibility finding.6 (R. 10, Pl.’s Mem. at 78.)

This court’s review of an ALJ’s analysis of the credibility of a claimant’s

symptoms is particularly deferential because the credibility determination will only
be overturned if it is “patently wrong,” or “divorced from the facts contained in the
record.” See Berger v. Astrue, 516 F.3d 539, 546 (7th Cir. 2008). Here, contrary to
French’s assertions, the ALJ provided a number of well-supported reasons to
explain the adverse credibility finding. For example, the ALJ pointed to a lack of
support in the record for French’s description of his severe and frequent headaches,
which he said he suffered two to three times a day. (A.R. 18, 55.) The ALJ noted
that although French had bad headaches before his surgeries, records after his
onset date “do not document any compelling complaints of headaches or
concentration problems.” (Id. at 18.) Moreover, the ALJ did not accept French’s
testimony that his impairments are so severe he requires help with dressing and
showering because during the DDS consultative examination he was able to “fully
extend the hands, make fists and appose fingers” as well as retain “normal ability to
grasp and manipulate objects.” (Id. at 18, 477.) The ALJ also explained that she

6 The Social Security Administration recently issued an SSR updating its guidance
about evaluating symptoms in disability claims. See SSR 16-3p, 2016 WL 1119029
(effective March 28, 2016). The new SSR 16-3p supersedes SSR 96-7p, eliminating
the term “credibility” from the Administration’s sub-regulatory policies in favor of a
focus on symptom evaluation. Id. at *1. “The change in wording is meant to clarify
that administrative law judges aren’t in the business of impeaching claimants’
character,” but they “will continue to assess the credibility of pain assertions by
applicants.” Cole v. Colvin, __ F.3d __, 2016 WL 3997246, at *1 (7th Cir. July 26,
2016) (emphasis in original).
16

did not accept his testimony regarding the extent of his back pain because the
medical records show that his pain had significantly improved with conservative
treatment and that he had declined or delayed steroid injections and physical
therapy. (Id. at 17.) These are valid reasons for which an ALJ may discount a
claimant’s testimony regarding symptom severity.

See 20 C.F.R. § 404.1529(c);

Berger, 516 F.3d at 546.
C.

Medical Opinions
French next challenges the ALJ’s treatment of several medical opinions,

notably those of Dr. Simon, a DDS examiner, and Dr. Faber, French’s treating
physician. (R. 10, Pl.’s Mem. at 8-13.) With respect to Dr. Simon, French argues
that the ALJ erroneously disregarded his findings in crafting the RFC.

In her

decision, the ALJ found that French “should be limited to occasional overheard
reaching bilaterally.” (A.R. 14.) In his consultative examination, Dr. Simon noted a
“decreased range of motion, abduction 90 degrees with pain, flexion 120 degrees
with pain, extension 30 degrees with pain, [and] internal and external rotation 70
degrees with pain” for his right shoulder. (Id. at 477.) He also noted “decreased
range of motion, abduction 75 degrees with pain, flexion 90 degrees with pain,
internal rotation 40 degrees with pain, and external rotation 60 degrees with pain”
for his left shoulder. (Id.) French argues that the “ALJ’s RFC is not possible”
because, according to him, Dr. Simon’s report shows he cannot perform occasional
overhead reaching.

(R. 10, Pl.’s Mem. at 9.)

But while Dr. Simon did note

limitations in French’s range of motion, nowhere in his report did he say that

17

French is incapable of occasional overhead reaching. Moreover, the two consulting
physicians who reviewed Dr. Simon’s report both concluded that French is capable
of occasional overhead reaching bilaterally. (A.R. 491, 498.) The ALJ was entitled
to rely on these opinions in assessing French’s RFC. See Flener ex rel. Flener v.
Barnhart, 361 F.3d 442, 448 (7th Cir. 2004).
With respect to Dr. Faber, French argues that the ALJ violated the treatingphysician rule when she rejected Dr. Faber’s May 2011 opinion that French had
been unable to work since his 2007 on-the-job injury. (A.R. 469.) Dr. Faber opined
that French has been “limited in his ability to use his upper extremities, sleep,
drive, concentrate, and to perform all activities of daily living,” and that he expected
his disability to continue “indefinitely.” (Id.) In medical evaluations completed on
August 16, 2010, and April 15, 2013, Dr. Faber opined that French was more than
50 percent reduced in his ability to bend, stand, sit, stoop, manipulate grossly and
finely, and use his fingers. (Id. at 469, 519.)
The treating-physician rule “directs the [ALJ] to give controlling weight to
the medical opinion of a treating physician if it is ‘well-supported by medically
acceptable clinical and laboratory diagnostic techniques’ and ‘not inconsistent with
the other substantial evidence.’” Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir.
2006).

Once well-supported contradicting evidence is introduced, the treating

physician’s evidence is no longer entitled to controlling weight. Id. At that point,
“the treating physician’s evidence is just one more piece of evidence for the [ALJ] to
weigh.” Id. at 377. Accordingly, if the treating physician’s opinion is inconsistent

18

with a consulting physician’s opinion, internally inconsistent, or based solely on the
patient’s subjective complaints, the ALJ may discount it.

See 20 C.F.R.

§ 404.1527(c); White v. Barnhart, 415 F.3d 654, 659 (7th Cir. 2005).
In this case, the ALJ determined that Dr. Faber’s medical opinions
warranted little weight for a number of reasons. First, the ALJ found that French’s
pain was managed by medication. For example, in his notes Dr. Faber observed
that French’s pain had improved in May 2013 and that he was doing relatively well
while compliant on medication during a visit in July 2013. (A.R. 19, 531, 533.)
Though French argues in his brief that the ALJ failed to consider the debilitating
side effects of his medication, he testified at the hearing that he did not suffer any
significant side effects from his pain medication and that his Fentanyl patch helps
alleviate his back pain. (Id. at 48-49.)
Second, the ALJ concluded that Dr. Faber’s opinions rested on French’s
subjective allegations and are unsupported by his examination findings. (Id. at 19.)
In response French argues that Dr. Faber’s opinions are supported by an MRI that
post-dates his two opinions. (R. 10, Pl.’s Mem. at 11; A.R. 529.) Obviously, the
results of a test that came after the doctor rendered his opinions could not have
informed those opinions. To the extent he is arguing that the MRI reports bolster
Dr. Faber’s opinions because Dr. Mulconrey recommended epidural injections after
reviewing the reports, Dr. Mulconrey also noted in conjunction with that
recommendation that French “has shown significant improvement in the past
several weeks with conservative treatment care.” (A.R. 536.) French also asserts

19

that Dr. Faber’s opinions are supported by his observations drawn from physical
examinations. But in the “physical exam” section of his treatment notes Dr. Faber
repeatedly indicated that he observed French to be in no acute distress or only mild
distress, or left that portion of the notes blank. (See, e.g., id. at 442-52, 455-57, 486,
506, 508, 510, 512, 514, 525, 533.) Those are not the observations one would expect
to see of a patient who is 50% reduced in his ability to engage in almost all physical
activities, including sitting.

Those records support the ALJ’s conclusion that

Dr. Faber’s opinions rest on French’s subjective complaints, which is a relevant
factor in weighing a treating physician’s opinion. See Ketelboeter v. Astrue, 550 F.3d
620, 625 (7th Cir. 2008) (finding decision to discount treating physician’s opinion
supported by substantial evidence where physician’s conclusions based “almost
entirely” on claimant’s subjective complaints).
Moreover, with respect to Dr. Faber’s opinions, the ALJ correctly pointed out
that his disability finding is not controlling because that is an issue reserved solely
for the Commissioner. See 20 C.F.R. § 404.1527(d). Regardless, the ALJ followed
the regulations and evaluated the medical records to determine that Dr. Faber’s
medical opinions warrant little weight, as they were internally inconsistent.
(A.R. 19); see also SSR 96-5p, 1996 WL 374183, at *3 (July 2, 1996).

Though

Dr. Faber had treated French for 10 years, as the ALJ noted, the limitations he
assigned French are not supported by his own treatment records. In fact, much of
the treatment records from 2010 through 2013 document French’s issues with
bronchitis, obesity, and smoking. (See, e.g., A.R. 452, 510, 514.) The ALJ concluded

20

that Dr. Faber’s treatment of French over the years simply does not support the
degree of the limitations ascribed in his opinions. The ALJ was entitled to rely on
the inconsistencies between Dr. Faber’s treatment notes and his opinions as a basis
to discount those opinions. See Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007).
Third, the ALJ rejected Dr. Mulconrey’s September 19, 2011 note stating that
he did not “disagree with Dr. Faber’s assessment of Donald’s overall medical
condition and his ability to return to work.” (A.R. 403.) The ALJ did so because she
found that the treatment records from April 2011 through September 2011 do not
support this assertion, and Dr. Mulconrey provided no medical basis for this
determination. (Id. at 18-19.) Specifically, the ALJ explained that in April 2011
Dr. Mulconrey had opined that French could perform light work with occasional
reaching, and pointed to no medical changes or new observations to explain why he
“did not disagree” with Dr. Faber’s opinion that French was completely disabled five
months later. (Id.) Again, because the ALJ pointed to the discrepancy between the
doctor’s treatment notes and his opinion, her decision to discount Dr. Mulconrey’s
opinion is supported by substantial evidence.
D.

Hypothetical
Finally, French argues that remand is warranted because the ALJ posed

hypothetical questions to the VE that, according to him, did not wholly capture the
full picture of his limitations. (R. 10, Pl.’s Mem. at 13-14.) Specifically, he faults
the ALJ for failing to include in the RFC limitations tied to what he describes as his
inability to concentrate, difficulty holding objects, and fatigue.

21

Ordinarily, a

hypothetical question to the VE must include all limitations supported by the
medical evidence to ensure that the VE understands the full extent of the
limitations in matching the hypothetical RFC to available jobs.

See Steele v.

Barnhart, 290 F.3d 936, 942 (7th Cir. 2002). But the ALJ is required to incorporate
into the hypotheticals only those impairments and limitations that she accepts as
credible.

See Schmidt, 496 F.3d at 846.

Here, the ALJ did not find French’s

description of his fatigue, concentration, and handling issues credible, so she was
not required to include them in the hypothetical posed to the VE.
Conclusion
For the foregoing reasons, French’s motion for summary judgment is denied,
the government’s is granted, and the Commissioner’s final decision is affirmed.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

22