Conrad v. Colvin
Filing
21
MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 6/5/2017. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DORIS CONRAD,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,1
Defendant.
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No. 16 CV 8624
Magistrate Judge Young B. Kim
June 5, 2017
MEMORANDUM OPINION and ORDER
Doris Conrad seeks disability insurance benefits (“DIB”) and supplemental
security income (“SSI”) based on her claim that she is disabled by seizures. After an
Administrative Law Judge (“ALJ”) denied her applications for DIB and SSI and the
Appeals Council declined review, Conrad brought this lawsuit seeking judicial
review of the denial. See 42 U.S.C. § 405(g). Before the court are the parties’ crossmotions for summary judgment.
For the following reasons, Conrad’s motion is
denied and the government’s is granted:
Procedural History
Conrad filed her DIB and SSI applications in January 2013 claiming a
disability onset date of November 30, 2012. (Administrative Record (“A.R.”) 14-16.)
After her claims were denied initially and upon reconsideration, (id. at 102-05, 109-
Nancy A. Berryhill became the Acting Commissioner on January 23, 2017.
Pursuant to Federal Rule of Civil Procedure 25(d), she is automatically substituted
as the named defendant in this case.
1
14), Conrad sought and was granted a hearing before an ALJ. That hearing took
place on February 5, 2015. (Id. at 30-65.) On April 24, 2015, the ALJ issued a
decision finding that Conrad is not disabled and, therefore, not entitled to DIB or
SSI. (Id. at 14-25.) When the Appeals Council declined review, (id. at 1-3), the
ALJ’s decision became the final decision of the Commissioner, see Schomas v.
Colvin, 732 F.3d 702, 707 (7th Cir. 2013). Conrad filed this lawsuit seeking judicial
review of the Commissioner’s final decision, see 42 U.S.C. §§ 405(g), 1383(c), and the
parties consented to this court’s jurisdiction, see 28 U.S.C. § 636(c); (R. 9).
Facts
From 1991 through 2010, Conrad worked full-time as a cook at a fast food
restaurant. (A.R. 199.) She asserts that she was terminated in 2010 and has not
worked since. Conrad was represented by counsel at her hearing before the ALJ
where she presented documentary and testimonial evidence in support of her claim
that she is disabled as a result of epilepsy, obesity, mood swings, and depression.
(See R. 17, Pl.’s Mem. at 2.)
A.
Medical Evidence
In November 2012 Conrad visited Provident Hospital of Cook County
complaining of back pain. (A.R. 271-74.) She reported a month of worsening back
pain, but was able to walk to the emergency room. She also requested refills for
seizure and back pain medications. (Id. at 272.) Conrad reported no recent seizure
activity and had no other complaints. (Id.) She was sent home with refills for her
medications and educational materials discussing back pain. (Id. at 274.)
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In January 2013 Conrad made an appointment with Dr. Awais Azmat for
treatment related to seizures. (Id. at 275.) Conrad reported that she was diagnosed
with seizures in her twenties and that she had been “seizure free for about 3
months.” (Id.) She reported being compliant with her medications and that she was
not experiencing other problems, including anxiety, depression, mania, suicidal
ideations, or delusions. (Id. at 275-76.) In April 2013 Conrad again saw Dr. Azmat,
this time for headaches. (Id. at 286.) She reported that she had not experienced a
seizure for a month, she was compliant with her medications, and she could relieve
her headache symptoms with analgesics. (Id.)
Between February and June 2013, Drs. James Madison and Charles Kenney
submitted four Disability Determination Explanation (“DDE”) forms regarding
Conrad. (Id. at 66-79, 82-99.) On each DDE form the physicians reported that a
consultative examination was not required. (See id. at 68, 75, 85, 94.) Drs. Madison
and Kenney both noted that Conrad’s seizure medication effectively prevented
seizures and that her impairments did not preclude work-based activity. (Id. at 69,
76, 86, 95.) They both opined that Conrad had no exertional limitations but had
postural limitations related to climbing ladders, ropes, and scaffolds. (Id. at 69, 76,
86-87, 95-96.) Each of them found Conrad capable of work, including heavy duty
jobs, and noted that she was not limited to unskilled work. (Id. at 71, 78, 88-89, 9798.)
Between July 10 and July 15, 2013, Conrad was hospitalized at St. Bernard
Hospital. (Id. at 259-60.) She was diagnosed with pulmonary embolism, discharged
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with a prescription for Warfarin, and instructed to follow up with her primary
physician within three days. (Id. at 301-05.) Conrad saw Dr. Azmat three days
later as instructed. (Id. at 395-97.)
Then in August 2013 Conrad was admitted to Jackson Park Hospital after
complaining of dizziness and general weakness. (Id. at 327-28.) Conrad reported
that she lived alone and denied mental illness. (Id. at 332, 336.) She also reported
that her last seizure occurred a month earlier. (Id. at 333.) A carotid Doppler test
showed minimal scattered plaque with normal flow in the vertebral arteries. (Id. at
339-40.) Echocardiogram results were “probably consistent with the diagnosis of
hypertensive heart disease.” (Id. at 341.) A head CT scan did not reveal any “acute
intracranial abnormality.” (Id. at 342.) Last, a series of x-rays produced generally
unremarkable findings, but results were consistent with pulmonary emboli. (Id. at
343-47.) Conrad was released without any restrictions. (Id. at 327.)
In September 2013 Conrad requested refills for her medication at the Cook
County Health and Hospitals System. (Id. at 399.) The records note “no sign of
impending seizures.” (Id.) Neurologic and psychiatric symptoms were negative,
and Conrad had no other complaints beyond her request to have her prescriptions
filled. (Id. at 400.)
Her neurologic system review notes state that she was “[a]lert
and oriented to person, place, time, and situation, normal motor observed, normal
speech observed, normal condition observed.” (Id. at 401.) Her psychiatric system
review notes also state that she was “[c]ooperative, appropriate mood [and] affect,
normal judgment.” (Id.)
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In November 2013 Conrad saw Dr. Azmat for a follow-up visit. (Id. at 392.)
Conrad was out of her seizure medication and reported that she had one seizure
since her last appointment, but had “no acute complaints.” (Id.) Conrad also asked
Dr. Azmat to complete disability-related paperwork. (Id.) Dr. Azmat completed a
Physical Residual Functional Capacity (“RFC”) questionnaire and reported that she
had been treating Conrad for one year and that Conrad suffers from a seizure
disorder and pulmonary embolism. (Id. at 307-09.) Dr. Azmat reported that pain,
dizziness, and fatigue were not applicable to Conrad’s RFC. And while Dr. Azmat
noted that Conrad has anxiety, he opined that there was no indication of
depression, somatoform disorder, personality disorder, or other psychological factors
affecting her physical condition. (Id. at 307.) Dr. Azmat estimated that: (1) Conrad
would experience pain rarely; (2) she could sit for more than two hours
consecutively without needing to get up; (3) she could stand for more than two hours
consecutively without needing to sit; (4) she could both sit and stand for about four
hours per work day; (5) she did not need to shift positions between sitting, standing,
or walking and had no need to take unscheduled breaks; and (6) she could lift up to
20 pounds rarely, 10 pounds occasionally, and less than 10 pounds frequently. (Id.
at 307-08.) Dr. Azmat gave Conrad a fair prognosis. (Id. at 307.) In the section
instructing the doctor to describe any limitations, including psychological
limitations, that would affect Conrad’s “ability to work at a regular job on a
sustained basis,” Dr. Azmat did not limit Conrad’s ability to perform a regular job in
any way. (Id. at 309.)
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In March 2014 Dr. Azmat saw Conrad for another follow-up visit. (Id. at
385.) Conrad had “no acute complaints.” (Id.) A neurologic check revealed no
concerns. (Id. at 386 (“Alert and oriented X4, No abnormal balance, No confusion,
No numbness, No tingling, No headache.”).)
Dr. Azmat continued Conrad on
Coumadin and her seizure medications with instructions to return in three months.
(Id.) An x-ray report from May 2014 notes that Conrad’s pulmonary emboli were no
longer a problem. (Id. at 315 (“Pulmonary emboli seen on the prior study are no
longer evident, presumably resolved. No pulmonary embolism evident.”).) That
same month Conrad reported worsening and radiating back pain during an
emergency room visit, but a physical exam found full range of motion in her
extremities. (Id. at 317-18.) In July 2014 Dr. Azmat conducted a precautionary
follow-up to check for pulmonary embolism. (Id. at 382.) Again in September 2014
Dr. Azmat conducted laboratory testing and checked Conrad for pulmonary
embolism and vitamin D deficiency. (Id. at 378.) A CT scan revealed “[n]o evidence
of pulmonary embolism in the main pulmonary artery or major branches.” (Id. at
380.) Dr. Azmat noted that Conrad was “[a]lert and oriented” with no abnormal
balance, no confusion, no numbness, no tingling, and no headaches. (Id. at 379.)
Her psychiatric status was recorded as “Cooperative, Appropriate mood [and] affect,
Normal judgment, Non-suicidal.” (Id. at 380.)
In December 2014 Dr. Azmat treated Conrad for pain in her lower right
extremity that had been bothering her for a few months. (Id. at 374.) The medical
summary again notes that Conrad was alert and oriented with no abnormal
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balance, no confusion, no numbness, no tingling, and no headaches. (Id. at 375-76.)
Conrad’s psychiatric review was also unchanged and generally unremarkable. (Id.
at 376.) In January 2015 Conrad was again treated for pain in combination with
weakness and dizziness for which she received prescription acetaminophen-codeine
and ibuprofen. (Id. at 416.)
B.
Record of Hearing
The initial portion of Conrad’s February 2015 hearing—approximately 30
minutes in duration—was not properly recorded. As a result, there is no recording
of Conrad receiving instructions of her rights, the initial summary and admission of
exhibits, the discussion of the vocational expert’s (“VE”) qualifications, Conrad’s
attorney’s opening statement, and a portion of Conrad’s testimony. (A.R. 32-35.)
However, the hearing monitor had taken notes, and upon discovering the recording
issue, the ALJ summarized the matters already discussed for the record: (1) Conrad
had no objection to the VE’s qualifications; (2) Exhibit 1A through Exhibit 7F had
been admitted; and (3) Conrad had been recently treated for headaches and asthma.
(Id. at 33-34.) The ALJ summarized Conrad’s counsel’s opening statement, which
included a request for a post-hearing consultative examination and an assertion
that Conrad had received special education which, according to the ALJ, is
contradicted to some degree by Conrad’s report in Exhibit 2E. (Id. at 34 (reporting
that she attended school through ninth grade and took regular classes).) Conrad’s
counsel added that he had observed some cognitive issues and had problems
interacting with his client. (Id.) The ALJ then summarized in some detail the
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missing portion of Conrad’s testimony, including a summary of her activities of
daily living, her education, and a speech problem. (Id. at 34-35.) When the ALJ
completed his summary, Conrad’s counsel added only that there were questions
about Conrad’s difficulty speaking and stuttering. (Id. at 35.) The ALJ agreed and
noted that he observed Conrad was having some difficulty responding to his
questions as well and that she testified that she had always had speech issues. (Id.)
C.
Conrad’s Hearing Testimony
Conrad testified that she performs some cleaning tasks and can write simple
things like “bread” when she prepares a grocery list, but her roommate generally
takes care of trips to the grocery store. (A.R. 36-37.) She fills her daily schedule by
attending church, reading the Bible, and watching television. (Id. at 37, 48; see also
id. at 246 (listing television, crossword puzzles, and reading as daily activities used
to maintain her focus).) She testified that she cannot ride the city bus because she
would get dizzy and fall. (Id. at 38.) Conrad also testified that she can only sit for
30 minutes at a time and that she cannot walk long distances, but did not provide
an estimate of the distance she can walk. (Id. at 43-44.)
Regarding her employment history, Conrad testified that she had worked in
the kitchen at a Burger King for several years, but she was terminated following an
argument with a customer. (Id. at 40, 45.) Leading up to her termination, Conrad
had been calling in sick because, according to her, she was experiencing seizures.
(Id. at 46.) In terms of her health, Conrad said that she has even “more seizures
now,” but could not recount how often.
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(Id. at 41.)
She explained that she
sometimes seizes in her sleep and knows this because she will wake up dizzy and
weak with a headache and bite marks on her tongue. (Id. at 41-42.) She believed
that she experienced one nighttime seizure the week before the hearing, despite
having been compliant with her medications. (Id. at 43.)
D.
Angela Wright’s Testimony
Angela Wright testified that she is Conrad’s godchild and roommate.
(A.R. 49.) According to Wright, she met Conrad in 2010 and began living with her
in mid-2014. (Id. at 49, 55.) Wright testified that Conrad had recently begun to
physically weaken and develop fatigue and, during the month before the hearing,
Conrad began experiencing dizzy spells. (Id. at 50-52.) During the six or seven
months before the hearing, Wright estimated that Conrad had been seizing two or
three times per week, perhaps as often as every other night. (Id. at 50, 53, 56
(clarifying that Wright did not personally witness all seizures).) During that same
period, Wright also testified she helped Conrad dress, prepared Conrad’s food,
picked up Conrad’s medication, attended Conrad’s medical appointments, and did
most of the work around the house. (Id. at 52.) Wright later testified that she had
been cooking and cleaning for Conrad for one and a half years, meaning that she
had taken on those responsibilities for nearly a year before she moved in with
Conrad. (Id. at 54.) Wright also testified that Conrad cannot read at all, (id. at 53),
contradicting Conrad’s reported ability to read, (see id. at 37, 48, 246).
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E.
Vocational Expert’s Hearing Testimony
The VE described Conrad’s prior work at Burger King as equivalent to a fast
food worker position (DOT No. 311.472-010) that would be classified as light and
unskilled with an SVP of 2.
(A.R. 60.)
The ALJ presented the VE with a
hypothetical individual with Conrad’s vocational profile, of advanced age and
limited education who experiences seizures and episodes of dizziness, would need to
avoid ladders, ropes, or scaffolding and exposure to hazards such as unprotected
heights, moving mechanical parts, machinery, and open dangerous conditions, with
no exertional limitations.
(Id. at 60-61.)
The VE opined that a hypothetical
individual with that RFC could perform medium duty jobs such as hand packager,
kitchen helper, and inspection inspector. (Id. at 61.)
F.
The ALJ’s Decision
The ALJ evaluated Conrad’s claims under the required five-step analysis.
See 20 C.F.R. §§ 404.1520(a), 416.920(a). As an initial matter, the ALJ determined
that Conrad met the insured status requirement of the Social Security Act through
December 31, 2015. (A.R. 16.) At step one, the ALJ concluded that Conrad had not
engaged in substantial gainful activity since November 30, 2012. (Id.) At step two,
the ALJ concluded that Conrad suffered from severe impairments related to
epilepsy and obesity. (Id.) At step three, the ALJ determined that Conrad did not
have an impairment or combination of impairments that met or medically equaled
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(A.R. 19.) Before turning to step four, the ALJ considered Conrad’s RFC to perform
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full-time work in spite of her limitations. The ALJ determined that Conrad had the
RFC “to perform a full range of work at all exertional levels,” but with limitations
that precluded her “from climbing ladders, ropes, or scaffolds.” (Id. at 20.) The ALJ
also eliminated “exposure to workplace hazards, such as unprotected heights,
moving machinery, and open dangerous conditions.” (Id.) At step four, the ALJ
determined that Conrad is unable to perform any past relevant work, but at step
five, the ALJ concluded that she was able to perform jobs existing in significant
numbers in the national economy. (Id. at 25.) Accordingly, the ALJ concluded that
Conrad is not disabled. (Id.)
Analysis
Conrad argues that the ALJ erred in failing to order a consultative
examination, in formulating the RFC, and in providing what she asserts is an
incomplete record of the administrative hearing. (R. 17, Pl.’s Mem. at 6-8.) 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
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accurate and logical bridge 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 and citation omitted). And where the Commissioner commits an error of
law that is not harmless, the court must reverse the decision regardless of the
evidence supporting the factual findings. See Binion ex rel. Binion v. Chater, 108
F.3d 780, 782 (7th Cir. 1997).
A.
Consultative Medical Examination
Conrad first argues that the ALJ erred in concluding that there was no need
to order a consultative examination to obtain additional medical information after
the hearing. (R. 17, Pl.’s Mem. at 6.) Conrad argues that there are discrepancies
related to her educational level and particularly whether she had special education
needs. (Id.) According to her, a consultative examination would fill in what she
contends are gaps in the evidence related to her cognitive and emotional difficulties.
(Id.)
Conrad does not cite any specific information that was omitted from the
ALJ’s summary of the first 30 minutes of the hearing. Also, instead of citing any
cases to support her argument that this case should be remanded for a consultative
examination, Conrad relies on scant information in the record regarding her mental
status, including a reference to Dr. Azmat’s RFC questionnaire where he indicated
that Conrad experiences anxiety. (Id. at 7.) Conrad also erroneously asserts that a
DDE form “determined that a physical and mental consultative examination was
necessary.”
(Id. (citing A.R. 68 (but this exhibit states that a consultative
12
examination was not required).) Moreover, Conrad relies heavily on her self-reports
of feeling depressed and sad along with her counsel’s personal opinion about
Conrad’s ability to communicate and interact with others. (R. 17, Pl.’s Mem. at 7.)
However, the ALJ found her allegations to be inconsistent with the record, and
Conrad does not contend that the ALJ erred in assessing the credibility of her selfreports.
As the government correctly points out, the ALJ has discretion to decide how
much evidence is needed and whether to order a consultative examination. (See
R. 19, Govt.’s Mem. at 2 (citing 20 C.F.R. § 404.1519a(a)).) In fact, the claimant
bears the burden of introducing objective evidence that additional development of
the record is necessary. Poyck v. Astrue, 414 Fed. Appx. 859, 861 (7th Cir. 2011).
“If the ALJ denied the request for an examination, on appeal the claimant must
show prejudice by pointing to specific medical evidence that was omitted from the
record.” Id. at 861. Following this standard, the Seventh Circuit has affirmed an
ALJ’s decision not to order a consultative examination when “no treating physician
suggested work-limitations for [the claimant] because of her depression, and [the
claimant had] not suggested why [the ALJ’s] explanation [was] flawed.” McFadden
v. Astrue, 465 Fed. Appx. 557, 560 (7th Cir. 2012). Generally, the appropriate time
to order a consultative examination is when it would provide additional information
beyond what is found in the claimant’s medical records.
See 20 C.F.R.
§§ 404.1519a(a), 404.1519a(b) (explaining that consultative examinations are
13
appropriate to clarify inconsistencies in the evidence or when the totality of the
evidence is insufficient to decide the claim).
But an ALJ is given latitude to decide whether a claimant’s medical evidence
is insufficient and whether a consultative examination would fill an apparent gap.
See Skinner v. Astrue, 478 F.3d 836, 844 (7th Cir. 2007). In sum, ALJs have a duty
to develop the record fully and fairly, but that does not mean that a consultative
examination is required at the claimant’s request. In his written decision, the ALJ
examined records relevant to Conrad’s mental health, even citing to records
showing that she denied problems with depression and anxiety when speaking to
her healthcare providers.
(Cf. A.R. 18 (noting, however, that Conrad reported
anxiety when dealing with her pulmonary embolism).) The ALJ also recognized
that Conrad stuttered and might have a learning disorder, but whether she
attended special education classes during high school was an unanswered
question—that could neither be confirmed nor rejected without Conrad’s school
records, which are outside the scope of a consultative examination. (Id.) The ALJ
also considered Conrad’s post-hearing statement in combination with the record to
conclude that she had no medically determinable mental impairment and did not
undergo psychiatric treatment, psychological counseling, or mental health therapy.
(Id.)
Here, Conrad’s physician did not restrict her ability to work for any reason
related to her mental health. Moreover, Conrad does not point to “specific medical
evidence that was omitted from the record” to show that she was prejudiced. Poyck,
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414 Fed. Appx. at 861. Instead, she cites self-reported symptoms and her counsel’s
personal opinion, neither of which is supported by specific medical evidence. See
Parker v. Colvin, 660 Fed. Appx. 478, 482 (7th Cir. 2016) (rejecting counsel’s
attempt to “play doctor”). Accordingly, Conrad has not shown that the ALJ erred in
declining to order a post-hearing consultative examination to evaluate her
psychiatric and mental state.
B.
RFC Determination
Conrad argues that the ALJ made an improper RFC determination because,
according to her, the ALJ did not adequately consider Dr. Azmat’s opinion. (R. 17,
Pl.’s Mem. at 8 (citing A.R. 307-09).) Conrad’s RFC argument focuses entirely on
the ALJ’s assessment of her mental health and ends with another request for a
consultative medical examination.
In a confusing statement at the heart of
Conrad’s argument, she asserts, “[w]hile that treating source opinion did not only
address the mental issues, it did reference that Plaintiff had anxiety.” (Id.) Conrad
appears to contend that while Dr. Azmat did not address her mental issues, he did
check a box for anxiety. (See A.R. 307.) Conrad also incorrectly asserts that the
ALJ “noted that there was no medical source opinion in the record.” (R. 17, Pl.’s
Mem. at 8.) That reading ignores what the ALJ actually wrote. The ALJ made
reference to multiple opinions when he wrote that “[n]o treating source has offered
an opinion of any greater limitation” than the opinions provided by the state agency
medical consultants, Drs. Madison and Kenney. (A.R. 23.) Thus, the questions for
the court are whether Dr. Azmat’s opinion, which was referenced by the ALJ but
15
not considered in detail, imposed greater mental health restrictions than
Drs. Madison and Kenney and, if so, whether that error was harmless.
As the ALJ noted, no doctor assessed greater mental limitations for Conrad
than the state agency consultants. That is because Dr. Azmat’s November 2013
opinion placed no limitations on Conrad’s “ability to work at a regular job on a
sustained basis.” (See A.R. 309.) And a January 2014 depression screening did not
identify any indication of depression. (Id. at 391.) Together Drs. Azmat, Madison,
and Kenney did not identify any reason to impose mental health-based job
restrictions on Conrad. See McFadden, 465 Fed. Appx. at 560 (agreeing with an
ALJ’s decision against ordering a consultative examination when no treating
physician had suggested work limitations and claimant had not pointed to a flaw in
the ALJ’s reasoning). Conrad has not identified any such restriction, nor has the
court’s review of the record revealed any evidence to support her argument that she
suffers from mental limitations not adequately incorporated in the RFC assessment.
See Buffolino v. Colvin, No. 12 CV 50245, 2015 WL 1285277, at *5 (N.D. Ill. March
20, 2015) (rejecting argument that ALJ inadequately analyzed the medical records
to develop an appropriate RFC when plaintiff’s brief “has done the same by merely
citing to the record without analyzing the medical records or explaining how they
support [claimant’s] argument”); Cabrera v. Astrue, No. 10 CV 4715, 2011 WL
1526734, at *12 (N.D. Ill. April 20, 2011). Accordingly, Conrad has not shown that
the ALJ committed any error in analyzing her limitations related to mental health
in formulating the RFC. And because Conrad has not raised any challenge to the
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ALJ’s physical RFC assessment, any potential challenge to that aspect of the
decision is waived.
C.
Hearing Record
Last, Conrad argues that a new hearing is necessary to remedy the missing
initial 30 minutes of her hearing.
(R. 17, Pl.’s Mem. at 8-9 (citing HALLEX
§§ I-1-0-1, I-2-6-40(A)).) As the hearing transcript makes clear, the ALJ was alerted
to the miscue by the hearing assistant who had been taking notes from the start of
the proceeding. (A.R. 33.) The ALJ then orally summarized on the record what had
been discussed up to the point when the hearing assistant realized that the recorder
had not been activated.
(Id. at 33-35.)
When the summation was complete,
Conrad’s counsel noted that the ALJ had also asked about Conrad’s trouble
speaking and stuttering before agreeing, “[t]hat was the only thing I would add.”
(Id. at 35.) Conrad has not explained how any of the statements made off the record
might have changed the ALJ’s decision or otherwise described any prejudice
stemming from any omission. The impact of the off-the-record discussion is further
diminished by Conrad’s counsel’s affirmance on the record that the ALJ’s summary
of what had transpired up to that point was accurate and complete.
The relevant statute requires the Commissioner to “file a certified copy of the
transcript of the record including the evidence upon which the findings and decision
complained of are based.” 42 U.S.C. § 405(g). The HALLEX law manual, which
governs how each ALJ is expected to conduct hearings, addresses the very issue
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that arose during Conrad’s hearing.
The HALLEX law manual instructs the
following:
If the hearing assistant or VHR discovers during the hearing that
there are partial omissions or that portions of the hearing recording
are inaudible, he or she will immediately alert the [ALJ]. After
determining what information is missing or inaudible, the ALJ will:
Summarize the missing testimony or questioning;
Verify the summary's correctness and accuracy with the
claimant and representative, if any, on the record; and
Read the summary into the record.
HALLEX § I-2-6-46(A). The ALJ complied with these instructions by reciting what
had happened and granting Conrad’s counsel an opportunity to supplement the
record. See id. Conrad’s counsel had one point to add after the ALJ completed his
summation, it was recognized on the record, and the hearing moved on. (A.R. 35.)
Because the ALJ complied with the law manual and Conrad has shown no prejudice
stemming from the off-the-record portion of the proceeding, the recording error does
not require a remand.
Conclusion
For the foregoing reasons, Conrad’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
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