Walsh v. Colvin
Filing
38
MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 7/9/2018: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH WALSH,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.
)
)
)
)
)
)
)
)
)
)
)
No. 16 C 3823
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 the Social Security Administration (“Commissioner”)
denying Plaintiff’s application for Disability Insurance Benefits (“DIB”) under Title
II of the Social Security Act. 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, Plaintiff’s petition to reverse the Commissioner’s decision is denied, and
the Commissioner’s cross-motion for summary judgment [Doc. No. 30] is granted.
PROCEDURAL HISTORY
Plaintiff filed his application for DIB on March 22, 2013, alleging disability
beginning on March 22, 1978, his date of birth. His application was denied initially
on March 22, 2013 and upon reconsideration on December 13, 2013, after which he
timely requested a hearing before an Administrative Law Judge (“ALJ”), which was
Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to
Federal Rule of Civil Procedure 25(d).
1
held on July 10, 2014. Plaintiff personally appeared and testified at the hearing and
was represented by counsel. A vocational expert also testified.
On December 8, 2014, the ALJ denied Plaintiff’s claim for DIB, finding him
not disabled under the Social Security Act. After noting that Plaintiff met the
insured status requirements through December 31, 2015, the ALJ proceeded
through the five-step sequential evaluation process required by Social Security
regulations. See 20 C.F.R. § 404.1520 and 416.902(a). At step one, the ALJ found
that Plaintiff has engaged in substantial gainful activity since March 22, 1978, his
alleged onset date. From 2000 to 2010, Plaintiff worked as a purchasing agent
research associate, budget analyst, and office clerk. The ALJ found that, although
he has engaged in substantial gainful activity since his alleged onset date (the date
of his birth), an unadjudicated period exists, since he stopped his research job in
2010, and the ALJ continued on to the remaining steps.
At step two, the ALJ determined that Plaintiff had the following severe
impairments: cerebral palsy with paresthesia in the right lower extremity; history
of left knee surgery; bilateral nystagmus; anxiety disorder; history of attention
deficit disorder; depression; obsessive-compulsive disorder; and overweight. The
ALJ concluded at step three that the impairments, alone or in combination, did not
meet or medically equal the severity of a listed impairment. See C.F.R. Part 404,
Subpt. P, App. 1. The ALJ analyzed Plaintiff’s impairments under listing 1.02
(major dysfunction of a joint); 1.03 (reconstructive surgery or surgical arthrodesis of
a major weight-bearing joint); 11.07 (cerebral palsy); 12.02 (neurocognitive
2
disorders); 12.04 (depressive, bipolar and related disorders); and 12.06 (anxiety and
obsessive-compulsive disorders).
Before step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform sedentary work, subject to the following limitations:
using his lower extremities no more than occasionally to push/pull and operate foot
controls; reaching in front or overhead no more than frequently; no work requiring
good detailed vision and/or frequent reading or work requiring more than occasional
viewing of a computer/television screen/monitor or to look at one for more than
twenty minutes at a time; a sit-stand option, with the ability to stand for one to two
minutes after sitting for forty-five minutes; no exposure to work hazards such as
unprotected heights and dangerous moving machinery; no more than occasional
contact with the general public, coworkers, or supervisors; and work limited to three
to four step simple repeated routine tasks. Based on this RFC, the ALJ concluded
that Plaintiff was unable to perform any of his past relevant work. However,
considering Plaintiff’s age, education, work experience, and RFC, there were jobs
existing in significant numbers in the national economy that the plaintiff could
perform, including hand sorter, assembler, and packer, leading to a finding that he
was not disabled under the Social Security Act.
The Social Security Administration Appeals Council denied Plaintiff’s request
for review on February 2, 2016, leaving the ALJ’s decision as the final decision of
the Commissioner and therefore reviewable by the District Court under 42 U.S.C. §
3
405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005); Herron v.
Shalala, 19 F.3d 329, 332 (7th Cir. 1994).
DISCUSSION
I.
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
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.”) (internal 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 plaintiff, “he must build an
4
accurate and logical bridge from the evidence to [her] 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).
We review the ALJ’s decision but we play an “extremely limited” role. Elder,
529 F.3d at 413. Where conflicting evidence would allow reasonable minds to differ,
the responsibility for determining whether a plaintiff 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.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
II.
ANALYSIS
Plaintiff argues that the ALJ’s decision warrants remand because she: (1)
should have had a medical expert testify at the hearing; (2) erred in rejecting
medical source opinions; and (3) improperly concluded that Plaintiff retains an
ability to work based on his daily activities.
5
A.
Testifying Medical Expert
Certain evidence in the record, including a June 26, 2014 ophthalmological
examination and a July 12, 2013 RFC form completed by Plaintiff’s treating
psychologist, Dr. Beresford, were not available to the state agency consultants,
whose mental and physical examinations both took place on June 18, 2013. 2
Plaintiff argues that the ALJ was required to have a medical expert testify at the
hearing in order to analyze this evidence with respect to listing 11.07C (cerebral
palsy). In order to meet this listing, a claimant must show he has cerebral palsy
along with “[s]ignificant interference in communication due to speech, hearing, or
visual deficit.” C.F.R. Part 404, Subpt. P, App. 1 (11.07); see also id. (11.00E.2)
(“Under 11.07C, we need evidence documenting that your cerebral palsy has
resulted in significant interference in your ability to speak, hear, or see. We will
find you have ‘significant interference’ in your ability to speak, hear, or see if your
signs, such as aphasia, strabismus, or sensorineural hearing loss, seriously limit
your ability to communicate on a sustained basis.”).
Social Security Ruling (“SSR”) 96-6p 3 provides that an ALJ “must obtain an
updated medical opinion from a medical expert . . . [w]hen additional medical
evidence is received that in the opinion of the administrative law judge or the
Appeals Counsel may change the State agency medical or psychological consultant’s
Dr. Beresford also wrote a letter dated February 2015, after the ALJ rendered her
decision, and that letter was submitted to the Appeals Council.
2
3
Interpretive rules, such as SSRs, 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).
6
finding that the impairment(s) is not equivalent in severity to any impairment in
the Listing of Impairments.” 4 SSR 96-6p, 1996 WL 374180, at *3-4 (July 2, 1996).
According to Plaintiff, the state agency physicians did not have the benefit of
a complete record in analyzing his poor vision with respect to this listing.
Specifically, Plaintiff contends that those physicians did not consider evidence
demonstrating that his vision had deteriorated, was not correctable, would impact
his ability to carry out tasks involving hand and eye coordination, and that his
depth perception was not within normal limits and had significantly decreased. He
argues that this evidence was directly relevant to consideration of listing 11.07C,
and it was reversible error, pursuant to SSR 96-6p, for the ALJ not to have called a
medical expert to testify about it.
Defendant responds that the decision whether to require a medical expert to
testify is entirely within the ALJ’s discretion under SSR 96-6p. Because the ALJ in
this case did not believe the new evidence would change the agency consultants’
findings, no updated medical opinion was required. The Court agrees that the
decision whether to seek out another expert opinion is within the sound discretion
of the ALJ. Plaintiff has failed to argue or prove that the ALJ’s exercise of that
In his reply, Plaintiff argues that the SSR requires an updated medical expert opinion in
this case, quoting its requirement that one “must be obtained by the administrative law
judge or the Appeals Council before a decision of disability based on medical equivalence
can be made.” SSR 96-6p, 1996 WL 374180, at *1. The Court agrees with Defendant that
this requirement does not apply when the ALJ is making a decision of non-disability based
on medical equivalence. Otherwise, the above guidance giving the ALJ the discretion
whether to obtain an updated medical opinion in cases finding no equivalence would be
nonsensical. See id. at 3-4. This reading is also consistent with the SSR’s other requirement
that the ALJ obtain a medical expert’s opinion if the ALJ believes the symptoms and
laboratory findings support equivalence to a listing, but no additional medical evidence is
received. See id.
4
7
discretion in this case was unreasonable or not supported by substantial evidence.
Furthermore, Plaintiff has not even argued that his vision problems meet the
listing, making any potential error harmless. The only limitation Plaintiff offers is
that the vision impairments “would impact his ability to carry out tasks involving
hand and eye coordination.” (See Pl.’s Mem. at 9.) Listing 11.07C, however, requires
that the visual limitation “seriously limit[s his] ability to communicate on a
sustained basis.” C.F.R. Part 404, Subpt. P, App. 1 (11.00E.2). Plaintiff has not
explained how his visual difficulties have limited his ability to communicate, which
is required to come within the scope of listing 11.07(C).
Plaintiff also makes an undeveloped, conclusory argument that a medical
expert should have opined about the updated statement from his treating
psychiatrist Dr. Beresford and its effect on the analysis of listing 11.07(C).
Specifically, Plaintiff finds significant Dr. Beresford’s notations that he had
difficulty completing tasks, accomplishing goals, and tolerating stress. In addition,
Plaintiff believes a medical expert should have been consulted to analyze, in the
context of listing 11.07 and its medical equivalent, Dr. Beresford’s opinion that
Plaintiff’s medication could affect his motor functioning.
Plaintiff has again failed to offer any reason that his limitations in
maintaining a schedule and completing tasks relate to listing 11.07(C)’s focus on
speech, hearing, or visual deficits leading to communication problems. Moreover, if
he intended to analyze this evidence under another subsection, the argument
nevertheless fails. Listing 11.07(B) requires a marked limitation in physical
8
functioning and a marked limitation in one of four categories, including
“[c]oncentrating, persisting, or maintaining pace.” C.F.R. Part 404, Subpt. P, App. 1
(11.07B.3). Plaintiff has not shown that Dr. Beresford’s suggestion of a possible
effect on motor functioning is equivalent to a marked limitation.
B.
Treating Physician Rule
Plaintiff next contends that the ALJ improperly discounted the opinions of
his treating physicians, substituting her lay opinion instead. An ALJ must give
controlling weight to a treating physician’s opinion if the opinion is both “wellsupported” 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 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.
Plaintiff maintains that the ALJ improperly rejected the opinion of his
treating ophthalmologist regarding his visual limitations. Although the ALJ stated
she gave little weight to a July 2012 opinion that Plaintiff “could never read fine
9
print, work around unprotected heights, [and] perform activities that require good
distant, detailed vision,” (R. 17), she nevertheless included in the RFC limitations
on work requiring detailed vision or unprotected heights. Plaintiff has therefore not
shown any harm from the ALJ’s alleged error.
Plaintiff also faults the ALJ for giving little weight to Dr. Beresford’s
psychiatric opinion. The ALJ’s reasons for giving Dr. Beresford’s opinion little
weight included: he reported episodes of decompensation, without evidence of any
hospitalizations or inpatient treatment; he opined that Plaintiff would miss three
days of work a month, which was not consistent with evidence in the record that
Plaintiff engaged in a number of activities; and there were no treatment notes
reflecting Dr. Beresford’s July 3, 2014 opinion that Plaintiff had persistence and
concentration problems that would prevent him from working. According to
Plaintiff, the ALJ’s proffered reasons for discounting Dr. Beresford’s opinion were
insufficient, because the opinion was based upon a lengthy treatment history; and
as Dr. Beresford explained to the Appeals Council, his clinical notes were not
written with an eye toward a disability determination.
Plaintiff’s arguments are not persuasive. Although he argues that there is an
explanation for the lack of treatment notes, he does not dispute that they were in
fact insufficient. Plaintiff also fails to explain the major inconsistency between Dr.
Beresford’s statement that Plaintiff experienced decompensation and the lack of
evidence in the record supporting any such episodes. Therefore, despite the length
10
of the treating relationship, substantial evidence supported the ALJ’s decision not
to give great weight to Dr. Beresford’s opinion.
C.
Activities of Daily Living
Finally, Plaintiff argues that the ALJ improperly found he was not disabled
based on his activities of daily living, such as volunteer work and going shopping, to
church, and prayer groups. Plaintiff maintains that this was insufficient to find he
was capable of full-time employment, as his volunteer attendance was sporadic,
only once or twice a week.
It is true, as Plaintiff asserts, that the Seventh Circuit has criticized the
reliance on limited daily activities in finding against a claimant’s alleged
limitations, “repeatedly caution[ing] that a person’s ability to perform daily
activities, especially if that can be done only with significant limitations, does not
necessarily translate into an ability to work full-time.” Bjornson v. Astrue, 671 F.3d
640, 647 (7th Cir. 2012); see also Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013)
However, daily activities are nonetheless a factor that an ALJ is required to
consider by the regulations and the Administration’s guidance, see 20 C.F.R. §
404.1529(c)(3)(i), and an ALJ does not err simply by doing so. See Schmidt v. Astrue,
496 F.3d 833, 844 (7th Cir. 2007).
Plaintiff’s brief fails to direct the Court to the reasons he does not volunteer
more consistently, nor does it explain that these reasons would preclude him from
competitive employment at a sedentary RFC level, with the additional restrictions
imposed by the ALJ. It is not the Court’s function to scour the record to find out the
11
answers to those questions or otherwise to make arguments in support of Plaintiff’s
disability. The record thus contains uncontradicted evidence that Plaintiff engages
in a number of activities outside the home and that he travels independently to
those activities. Without any argument minimizing those activities, the Court must
find that substantial evidence supports the ALJ’s determination that Plaintiff’s
daily activities reflect an ability to work at the sedentary level with the stated
restrictions.
CONCLUSION
For the foregoing reasons, Plaintiff’s petition to reverse the Commissioner’s
decision is denied, and the Commissioner’s cross-motion for summary judgment
[Doc. No. 30] is granted.
SO ORDERED.
ENTERED:
DATE:
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
July 9, 2018
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?