Britt v. Colvin

Filing 19

MEMORANDUM Opinion and Order Signed by the Honorable M. David Weisman on 7/27/2017. Mailed notice (ao,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CLAUDE C. BRITT,
Plaintiff,
v.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security,
Defendant.

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No. 15 C 10320
Magistrate Judge M. David Weisman

MEMORANDUM OPINION AND ORDER
Plaintiff Claude C. Britt appeals the Commissioner’s decision denying in part his
application for Social Security benefits. For the reasons set forth below, the Court affirms the
Commissioner’s decision.

Background
Plaintiff filed an application for benefits on February 10, 2011, alleging a disability onset
date of March 31, 2009. (R. 396.) His application was denied initially on August 15, 2011, and
again on reconsideration on December 28, 2011 (R. 226-29, 237-44.) Plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”), which was held on July 1, 2013. (R. 85149.) On September 12, 2013, the ALJ issued a decision denying plaintiff’s application. (R.
201-10.) The Appeals Council remanded the case (R. 216-19), and a second hearing was held
before an ALJ on February 17, 2015. (R. 43-84.) On March 19, 2015, the second ALJ found
that plaintiff was disabled as of March 7, 2013, but not as of September 12, 2012, the date he
1

On January 23, 2017, Nancy A. Berryhill succeeded Carolyn W. Colvin as Acting Commissioner of Social
Security. See https://www.ssa.gov/agency/commissioner.html (last visited February 28, 2017). Accordingly, the
Court substitutes Berryhill for Colvin pursuant to Federal Rule of Civil Procedure 25(d).

was last insured.2 (R. 20-34.) The Appeals Council denied review (R. 1-4), leaving the ALJ’s
decision as the final decision of the Commissioner. See Villano v. Astrue, 556 F.3d 558, 561-62
(7th Cir. 2009).

Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir.
1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is
generous, it is not entirely uncritical,” and the case must be remanded if the “decision lacks
evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Under the Social Security Act, disability is defined as the “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 12 months.” 42 U.S.C. § 423(d)(1)(A). The
regulations prescribe a five-part sequential test for determining whether a claimant is disabled.
See 20 C.F.R. § 404.1520. Under the regulations, the Commissioner must consider: (1) whether
the claimant has performed any substantial gainful activity during the period for which she
claims disability; (2) if not, whether the claimant has a severe impairment or combination of
impairments; (3) if so, whether the claimant’s impairment meets or equals any listed impairment;
(4) if not, whether the claimant retains the residual functional capacity (“RFC”) to perform her
past relevant work; and (5) if not, whether she is unable to perform any other work existing in

2

The disability determination was driven by the change in plaintiff’s age category during the pendency of this case
from “a younger individual age 45-49” to a 50-year-old person approaching advanced age. (See R. 32-34.)

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significant numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th
Cir. 2001). The claimant bears the burden of proof at steps one through four, and if that burden
is met, the burden shifts at step five to the Commissioner to provide evidence that the claimant is
capable of performing work existing in significant numbers in the national economy. See 20
C.F.R. § 404.1560(c)(2).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since the alleged disability onset date. (R. 23.) At step two, the ALJ found that plaintiff had the
severe impairment of “right foot crush injury with neuropathy.” (Id.) At step three, the ALJ
determined that plaintiff did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments. (Id.) At step four, the ALJ
found that plaintiff could not perform his past relevant work but had the RFC to perform
sedentary work with additional restrictions. (R. 24, 32.) At step five, the ALJ found that there
were jobs that existed in significant numbers in the national economy that plaintiff could have
performed before March 7, 2013, but not after that date. (R. 32-33.) Thus, the ALJ concluded
that plaintiff became disabled on March 7, 2013. (R. 33.)
Plaintiff contends the ALJ erred in assessing the opinion of agency examining expert, Dr.
Hildreth, who opined that plaintiff can sit for only one and one-half hours and stand and walk for
only one hour of an eight-hour workday and needs a cane or walker to walk more than fifty feet.
(R. 986.) The ALJ gave this opinion “moderate weight” because: (1) Dr. Hildreth examined
plaintiff only once; (2) she “over-relied on [plaintiff’s] subjective reports” of his need for a cane;
(3) the degree of difficulty she noted with his ambulation was inconsistent with the notes from
plaintiff’s treating physician; and (4) the exam occurred four months after the alleged disability
onset date. (R. 30-31.)

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The regulations do not, as plaintiff suggests, require the ALJ to accept Dr. Hildreth’s
opinions simply because she is an agency doctor or to give them more weight simply because she
examined plaintiff. See 20 C.F.R. § 404.1527(e)(2)(i) (“Administrative law judges are not bound
by any findings made by State agency medical or psychological consultants, or other program
physicians or psychologists.”); 20 C.F.R. § 404.1527(c)(1) (stating that ALJs “[g]enerally” give
more weight to the opinions of examining sources). Moreover, there is no inconsistency between
the RFC formulated by the ALJ, that plaintiff can perform sedentary work with certain
limitations, and his assignment of moderate weight to Dr. Hildreth’s opinion. Though the ALJ
did not agree that plaintiff can only sit for ninety minutes of a workday, his RFC incorporated
Dr. Hildreth’s ten-pound lifting restriction, her limitation on plaintiff’s walking and standing,
and her opinion that plaintiff needs to use a cane. (See R. 985-86 (setting forth Dr. Hildreth’s
restrictions); R. 24 (stating that plaintiff has the RFC to perform sedentary work with certain
restrictions, including “the use of a cane to ambulate in the workplace”); see also 20 C.F.R. §
404.1567(a) (“Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking and standing
is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met.”). Finally, though the ALJ said Dr.
Hildreth “over-relied” on plaintiff’s report of “need[ing] . . . an assistive device to ambulate” (R.
31), he nonetheless incorporated that limitation into the RFC. (See R. 24.) Thus, to the extent
that statement was error, it was harmless. See Keys v. Barnhart, 347 F.3d 990, 994 (7th Cir.
2003) (stating that “the doctrine of harmless error . . . is fully applicable to judicial review of
administrative decisions”).

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Plaintiff also faults the ALJ for failing to address the May 15, 2008 opinion of plaintiff’s
treating orthopedist, Dr. Vora, who said that plaintiff could “return to work . . . in a seated job . .
. with . . . elevation as needed.” (R. 628.) Though the ALJ should have addressed this opinion,
see 20 C.F.R. § 404.1527 (stating that an ALJ “will evaluate every medical opinion [he]
receive[s]”), his failure to do so was harmless. The record shows that Dr. Vora treated plaintiff
immediately after the injury to his right great toe, almost a year before the alleged onset of his
disability. (See R. 623 (noting that plaintiff was injured on May 3, 2008); R. 616-35 (Dr. Vora’s
records dated May 7 and 15, 2008); R. 396 (benefits application alleging a disability onset date
of March 31, 2009). It also shows that the ALJ gave significant weight to more recent opinions
of other treating, examining, and consulting doctors, none of which said that plaintiff was
required to elevate his foot during the workday. (See, e.g., R. 98-101 (Dr. Slodki’s testimony);
R. 172-83 (Dr. Jhaveri’s report); R. 677-82, 689-98, 705-11, 867-80 (Dr. DeFrino’s records);3 R.
814-17 (Dr. Kodros’ report); R. 981-96 (Dr. Hildreth’s report).) Because the ALJ’s acceptance
of the other medical opinions is an implicit rejection of the foot elevation requirement in Dr.
Vora’s records, the ALJ’s failure to address Dr. Vora’s opinion explicitly is not a basis for a
remand.4
Plaintiff also contests the ALJ’s credibility finding. The Court notes that defendant
recently issued new guidance for evaluating symptoms in disability claims, which “eliminate[es]
the use of the term ‘credibility’” to “clarify that subjective symptom evaluation is not an
examination of an individual’s character.” See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016).
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Dr. DeFrino, plaintiff’s treating specialist, treated plaintiff on August 15, 2008, September 9, 2008, September 30,
2008, October 14, 2008, October 20, 2008, and January 8, 2009, and consistently noted work restrictions that
limited plaintiff to light duty. (R. 677, 689, 692, 694, 696, 698.) However, the need for plaintiff to elevate his foot
was not among those restrictions.
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We also note that Dr. Vora said plaintiff should keep his foot elevated “as needed,” which is not necessarily
inconsistent with a light duty work assignment. Dr. Vora did not “require” that plaintiff keep his foot elevated as
plaintiff suggests. (Pl.’s Br. Supp. Reversing Dec. at 10.) Moreover, plaintiff does not direct us to any evidence that
he was unable to work because constant foot elevation was, in fact, necessary.

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Though SSR 16-3p was issued after the ALJ’s decision in this case, it is appropriate to apply it
here because it is a clarification of, not a change to, existing law, see Pope v. Shalala, 998 F.2d
473, 483-83 (7th Cir, 1993), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th
Cir. 1999) (stating that courts give “great weight” to an agency’s expressed intent to clarify a
regulation), and is substantially the same as the prior regulation. Compare SSR 96-7p, 1996 WL
374186 (July 2, 1996), with SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016).
The ALJ deemed plaintiff’s allegations “not fully credible” because: (1) the functional
limitations noted by his doctors were based on his subjective complaints, not objective evidence;
(2) plaintiff’s workers’ compensation case coupled with his benefits application gave him an
incentive to exaggerate his symptoms; (3) a surveillance video showed that plaintiff walked with
a normal or nearly normal gait, not with a pronounced limp; (4) though plaintiff said he required
an assistive device to walk, the record showed that he used one only sporadically; (5) plaintiff
did not seek free or low cost treatment during the considerable period of time for which there
were no treatment records; and (6) his long-term reliance on over-the-counter pain relievers was
inconsistent with his allegation of constant, severe pain. (R. 31-32.)
As plaintiff correctly points out, it is improper for an ALJ to dismiss reports of pain
simply because they are not corroborated by objective evidence. See Carradine v. Barnhart, 360
F.3d 751, 753 (7th Cir. 2004) (“[O]nce the claimant produces medical evidence of an underlying
impairment, the Commissioner may not discredit the claimant’s testimony as to subjective
symptoms merely because they are unsupported by objective evidence.”) (quotation omitted).
But, as the Seventh Circuit subsequently explained,
Carradine does not imply that an ALJ can never consider the lack of objective
evidence in rejecting a claimant’s subjective complaints. Such a reading would
nullify 20 C.F.R. § 404.1529(c)(2) and (4), which require an ALJ to consider the
objective medical evidence. Instead, Carradine, consistent with the regulations,
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stands for the proposition that an ALJ cannot deny disability “solely because the
available objective medical evidence does not substantiate [the claimant's]
statements.” 20 C.F.R. § 404.1529(c)(2)
Simila v. Astrue, 573 F.3d 503, 519 (7th Cir. 2009) (alteration and emphasis in original). That is
not what the ALJ did here. Rather, he considered the lack of objective evidence as one of many
factors in evaluating plaintiff’s symptoms, as Simila instructs.
Plaintiff also argues that the video evidence of plaintiff’s gait and his irregular use of an
assistive device are not probative of his credibility because the record shows that his symptoms
fluctuate. On the contrary, the record shows that plaintiff repeatedly said he always uses a cane
or walker and has constant, severe pain. (See, e.g., R. 59-60, 66-67, 72-73, 94-95, 121, 536-37,
545, 561, 849, 868-71, 873.) Given plaintiff’s statements, the evidence with respect to his gait
and use (or lack thereof) of a walker or cane is directly relevant to the evaluation of his
symptoms and the ALJ’s credibility assessment.
Plaintiff further asserts that it was improper for the ALJ to infer that plaintiff’s “workers’
compensation case combined with his disability application provide motivation . . . for
exaggeration of his subjective symptoms.”

(R. 31.)

However, the case he cites for that

proposition, Garcia v. Colvin, 741 F.3d 758, 761 (7th Cir. 2013), does not support it, see id.
(stating that an ALJ could not discount the testimony of a claimant’s fiancée because of the
“potential for bias attributable to [the couple’s] relationship,” without explaining which part of
the fiancée’s testimony the ALJ disbelieved), and the only case the Court has found on the issue
suggests that the potential for pecuniary gain may be an appropriate consideration. Cf. Carter v.
Astrue, 413 F. App’x 899, 904 (7th Cir. 2011) (upholding the denial of benefits in a case where
the ALJ “noted that [the claimant] was actively involved in litigation not only for workers’
compensation benefits, but also for race and disability discrimination against his former

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employer” and his “‘substantial financial interest’ in the outcome of these claims . . . likely had
adversely affected his interest in returning to work”).

Thus, the ALJ’s consideration of

plaintiff’s financial interests is not a per se basis for remanding the case.5
In addition, plaintiff says the ALJ improperly inferred that a two-year gap in plaintiff’s
treatment record undercut his allegations of disabling pain, given plaintiff’s explanation that he
was without health insurance during that time. The regulations require ALJs to inquire about the
reasons for a gap in treatment; they do not require the ALJ to believe whatever explanation is
provided. See SSR 16-3p, 2016 WL 1119029, at *8 (Mar. 16, 2016) (“[I]f the frequency or
extent of the treatment sought by an individual is not comparable with the degree of the
individual’s subjective complaints, or if the individual fails to follow prescribed treatment that
might improve symptoms, we may find the alleged intensity and persistence of an individual’s
symptoms are inconsistent with the overall evidence of record. We will not find an individual’s
symptoms inconsistent with the evidence in the record on this basis without considering possible
reasons he or she may not comply with treatment or seek treatment consistent with the degree of
his or her complaints.”). The ALJ only gave plaintiff’s explanation partial credit because: (1)
“there [was] no showing that he attempted to attend any free or low costs clinics”; and (2) “he
did not return to [the County hospitals] for treatment,” though he had been treated there before.
(R. 32.) The Court sees no error in that finding.
Plaintiff’s final argument is that the ALJ failed to follow SSR 96-8p, which provides that
“[t]he RFC assessment must include a discussion of why reported symptom-related functional
5

We do agree that an ALJ cannot rely solely on a claimant’s financial interest in obtaining disability benefits as a
negative factor in making a credibility determination. If this were allowed, every claimant’s testimony would be
deemed less reliable on its face. We do not believe that such an approach is appropriate or allowable. However, in
the instant case, plaintiff had financial interests beyond the disability benefits he was seeking. Moreover, and more
importantly, here there was objective evidence (e.g., the video of plaintiff ambulating with an unimpeded gait) on
which the ALJ relied in making his credibility determination. Additionally, while the ALJ noted plaintiff had
“motivation for secondary gain” (R. 31), in context, the ALJ does not appear to rely exclusively or predominantly on
this consideration in making his credibility assessment.

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limitations and restrictions can or cannot reasonably be accepted as consistent with the medical
and other evidence.” SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996). Specifically, plaintiff
argues that the ALJ failed to discuss in the RFC plaintiff’s need to elevate his foot, his need to
rest or lie down, and his concentration problems. However, the ALJ said that the last two issues
were not medically-indicated functional limitations (see R. 32) and, as discussed above, the
record does not show that foot elevation is such a limitation either.

Accordingly, the Court

rejects this claim of error.

Conclusion
For the reasons set forth above, the Court affirms the Commissioner’s decision, grants
her motion for summary judgment [14], and terminates this case.
SO ORDERED.

ENTERED: July 27, 2017

_________________________________
M. David Weisman
United States Magistrate Judge

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