Ortega v. Colvin

Filing 20

MEMORANDUM Opinion and Order Signed by the Honorable Michael T. Mason on 10/19/2018.(rbf, )

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

)
)
)
)
)
)
)
)
)
)
)

No. 16 C 10938
Magistrate Judge Michael T. Mason

MEMORANDUM OPINION AND ORDER
Claimant Annette Ortega (“claimant”) filed a motion for summary judgment
seeking referral of the final decision of the Commission of Social Security
(“Commissioner”) denying her claim for disability benefits. The Commissioner has filed
a cross-motion asking the Court to uphold the decision of the Administrative Law Judge
(“ALJ”). For the reasons set forth below, claimant’s motion for summary judgment [14]
is denied, and defendant’s cross-motion [15] is granted.
I. BACKGROUND
A. PROCEDURAL HISTORY
Claimant filed an application for disability insurance benefits on April 17, 2012,
alleging disability beginning April 9, 2008 due to thyroid nodules, acid reflux,
depression, and lupus. (R. 1.) Claimant’s initial application was denied on July 18, 2012,
and upon reconsideration on November 26, 2012. After an administrative hearing, the
ALJ issued an unfavorable decision on September 13, 2013. (Id.) After a hearing held
on March 18, 2015, the ALJ entered an unfavorable decision. The Appeals Council

1

denied review on September 26, 2016, making the ALJ’s June 4, 2015 decision the final
agency decision. (R. 388.) This Court has jurisdiction pursuant to 42 U.S.C. § 405(g).
B. RELEVANT MEDICAL EVIDENCE
Claimant seeks disability insurance benefits due to thyroid nodules, acid reflux,
depression, and lupus.
1. Treating Physicians
Claimant’s primary care physician, Dr. Miroslaw Kuptel, treated claimant over the
course of several years. Dr. Kuptel’s progress notes are largely illegeible, but it appears
he treated claimant for a thyroid nodule (R. 395-06), mammograms (R. 435-49), cough
and running nose (R. 583), knee pain (R. 584), and blood work. (R. 582-588.) At some
point, Dr. Kuptel also diagnosed claimant with lupus. Dr. Kuptel stated that claimant
has systemic lupus with chronic joints pain in the knees, shoulders, and hands. (R.454.)
The record reveals that Dr. Shanika Samarasinghe concluded claimant has a 4
cm. left sided thyroid nodule that is stable in size, with two small sub-centimeter nodules
in the right lobe that remain stable. (R. 398.) On October 10, 2011, Dr. Kuptel noted in
his progress notes that claimant denied any compressive symptoms resulting from her
thyroid nodules and claimant was not interested in surgical removal. (R. 395.) The
thyroid nodules tested negative for malignancy and were consistent with a benign
thyroid nodule. (R. 396.) Dr. Kuptel concluded they could reduce the frequency of
surveillance and only monitor the nodules once a year. (Id.)
In an ultrasound performed September 27, 2011, Dr. Samarashinghe concluded
that the nodules in the right lobe of the thyroid and the cystic nodule in the left lobe were
both stable (R.406.) Dr. Samarasinghe ordered another ultrasound of claimant’s

2

nodules on October 16, 2012, to monitor the growth of the nodules. (R.526.) Dr.
Samarasinghe concluded that claimant has stable nodules in the right lobe of the
thyroid and the cystic nodule had decreased in size. (Id.)
It appears that in early 2012, Dr. Kuptel referred claimant to another physician for
her knee pain. On 2/21/12, Dr. Sonia Bobra opined that claimant had mild/moderate
tricompartmental osteoarthritic degenerative changes of the left knee. (R. 593.)
Dr. Kuptel concluded in a letter May 29, 2012, that claimant had difficulty sitting,
walking, standing, bending over, reach, grabbing and holding. (R. 454.) He stated that
claimant was depressed from chronic pain and he noted a “big propability [sic] of her
health failure deterioration.” (Id.) In a physical capacity evaluation dated October 9,
2012, Dr. Kuptel noted that claimant cannot squat, bend, lift, climb, crawl or twist.
(R.528.) He opined that she was unable to work, that her condition was constant and
caused severe limitation in performing activities, and that she could sit and/or stand for
less than 2 hours. (Id.) He also stated that she was more likely to suffer from additional
medical problems in the future. (Id.)
In an MRI on January 7, 2013, it was noted that claimant suffered from knee
pain. (R. 591.) Findings included: a small intra-articular effusion and a moderate sized
cyst, a complex tear of medial meniscus, anterior, body and posterior horns were intact
without evidence of tear, anterior and posterior ligaments were intact, and tendons were
unremarkable. (R. 591-92.) Claimant was directed to follow up as needed. (Id.)
2. Agency Consultants
On July 3, 2012, claimant saw Dr. Jorge Aliaga for a consultative examination.
Dr. Aliaga noted a history of thyroid nodules, but claimant denied any symptoms

3

compatible with hyper-thyroidism and any neck pain or masses. (R.494.) Dr. Aliaga
addressed claimant’s history of lupus since 1993, and noted that she has been affected
in both hands, left knee, and gets episodes of pain about every six weeks in the lower
back. (Id.) However, he noted that claimant can control her symptoms with Prednisone.
At the time of the consultative examination, claimant had just finished her last course of
Prednisone and had minimal discomfort in the hands and left knee. (Id.) Dr. Aliaga
noted that claimant had some limitations in standing and walking when she has flareups. (R.495.) Claimant reported she can do activities of daily living normally and
perform her household chores. (Id.) Her low back pain had also improved. (R. 494.)
Dr. Aliaga examined claimant’s back and spine and concluded that she had full
active range of motion of both the thoracic and lumbosacral spine. (R. 496.) Dr. Aliaga
found that claimant showed a slight favoring of the left leg, but otherwise demonstrated
normal and stable, posture and gait. (Id.) Claimant was also able to walk more than fifty
feet without the use of an assistive device. (Id.) Dr. Aliaga concluded that she had only
mild difficulty getting on and off the examination table. (R. 497.) Claimant also had mild
difficulty completing the “heel-walk” and “toe-walk.” (Id.) Dr. Aliaga found that claimant
could independently squat and arise 150 degrees of knee flexion. (Id.)
On July 3, 2012, claimant had a psychological evaluation with Dr. Don White for
her claims of depression. Dr. White stated that the claimant’s mood and affect reflected
poor sleep, depressed mood, crying spells, and no suicidal thought. (R. 501.) The
claimant has no family history of mental illness and no previous physical abuse. (Id.)
Claimant was prescribed Doxepin (50 mg.) (Id.) Dr. White concluded that the claimant
suffered from a mild mood disorder due to her general medical condition.

4

3. Claimant’s Testimony
On March 18, 2015, claimant testified before the ALJ regarding her impairments.
Claimant testified that she lived with her spouse and has two children and four
grandchildren. (R. 48.) She previously worked for 26 years as an office manager where
her daily duties included: inputting daily orders, billing, and occasionally loading and
unloading trucks once or twice a week. (R. 39.) Claimant further testified that she
stopped working when that company closed, but she continued to look for work
afterwards. (Id.) Claimant explained that she stopped looking for work because she
believed that she could no longer sit for an eight-hour work day due to pain she was
experiencing in her back and her hands. (R. 40.) She also explained she had two back
surgeries while she was employed, and she returned to work after each surgery. (R.41.)
Additionally, claimant states that she suffers from lupus outbreaks every six
weeks, which cause her joints to swell, and she takes Prednisone to help with the pain.
(R. 42.) She explained that each course of prednisone is about two weeks and it takes
about a week for the pain to subside. (R.42.) At the time of the hearing, claimant was
taking the following medications: Voltaren (75 mg) for acid reflux, Lisinopril (10 mg) for
blood pressure, Pravastatin (20 mg) for cholesterol, Zolpidem (10 mg) to help her sleep,
Centroid for her thyroid, and Plaquenil (200 mg) to help treat lupus. (R. 44-45.) She tries
not to take Doxepin (prescribed for depression) because it makes her “dopey”. (R. 44.)
The ALJ asked the claimant about her daily activities and she testified that she is
still able to drive on occasion and dress and bathe herself. (R. 47-48.) She has trouble
cleaning her house and cooking because it is difficult for her to stand over the stove. (R.
47.) The ALJ asked claimant if she uses any assistive device to get around such as a

5

cane or crutches. (R. 49.) Claimant stated that she uses a cane every day and without
a cane she can only stand for about 20 minutes or walk about a block. (Id.)
4. Vocational Expert Testimony
The vocational expert (“VE”) also offered testimony at the hearing before the
ALJ. She determined that the claimant would no longer be able to perform her past work
due to the exertional levels but that there were transferable skills related to the office
manager position. (R. 52.) The VE testified that examples of work would include front
office manager at a hotel, receptionist, and order clerk. (R. 53.) Further, the VE testified
that those jobs would not require any overhead lifting, climbing, crawling, twisting,
squatting, or bending. (R. 54.) The ALJ asked the VE if the amount of sitting was
reduced to only two hours in a eight hour workday, if it would allow for any form of
employment. (Id.) The VE replied that it would not allow for the office manager,
receptionist, or order clerk positions because those are considered sedentary. (Id.)
Additionally, with respect to absenteeism, the ALJ asked the VE if an individual
were to miss one week of work every six weeks would that allow for any of the jobs that
she cited. (R. 55.) The VE replied that in her experience, that would exceed any
employer’s tolerance for excused absences, which is approximately 10-12 per year. (Id.)
C. Legal Analysis
1. Standard of Review
The Court will affirm the ALJ’s decision if it is supported by substantial evidence
and free from legal error. 42. U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d 936, 940
(7th Cir. 2002). Substantial evidence is more than a scintilla of evidence; it is “such
relevant evidence as a reasonable mind might accept as adequate to support a

6

conclusion.” Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995) (quoting Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). We must consider
the entire administrative record, but will not “re-weigh evidence, resolve conflicts, decide
questions of credibility, or substitute our own judgement for that of the Commissioner.”
Lopez, 336 F.3d at 539 (quoting Steele, 290 F.3d at 940).
Although this court accords great deference to the ALJ’s determination, it “must
do more than merely rubber stamp the ALJ’s decision.” Scott v. Barnhart, 297 F.3d 589,
593 (7th Cir. 2002) (citation omitted). The ALJ “must build an accurate and logical
bridge from the evidence in the record.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001). At a minimum, the ALJ must “sufficiently articulate [her] assessment of the
evidence to ‘assure us that the ALJ considered the important evidence…[and to enable]
us to trace the path of the ALJ’s reasoning.’” Carlson v. Shalala, 990 F.2d 180, 181 (7th
Cir. 1993) (per curiam) (quoting Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985)
(internal quotations omitted)).
2. Analysis under the Social Security Act
To qualify for DIB, a claimant must be disabled within the meaning of the Act. In
determining whether a claimant is disabled, the ALJ must consider the following five
step inquiry: “(1) whether the claimant is currently employed, (2) whether the claimant
has a severe impairment, (3) whether the claimant’s impairment is one that the
Commissioner considers conclusively disabling, (4) if the claimant does not have a
conclusively disabling impairment, whether he can perform past relevant work, and (5)
whether the claimant is capable of performing any work in the national economy.”
Dixon, 270 F.3d at 885-86. If the claimant reaches step five, the burden then shifts to

7

the Commissioner to show that “the claimant is capable of performing work in the
national economy.” Id. at 886.
The ALJ followed this five-step analysis here. First, at step one, the ALJ found
that claimant had not engaged in substantial gainful activity during the period from her
alleged onset through her date last insured. At step two, the ALJ found that the
claimant had the following severe impairments: lupos, degenerative disc disease of the
lumbar spine, and degenerative joint disease. At step three, the ALJ found that
claimant did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 C.F.R.
404.1520(d), 404.1525, and 404.1526.
At step four, the ALJ found that through January 1, 2013, claimant had the
residual functioning capacity (“RFC”) to perform light work that involved frequent
handling and fingering, occasional ramp and stair climbing, in a work environment
exclusive of any ladder, rope or scaffold climbing requirements. The ALJ also found
that because of claimant’s age, after January 3, 2013 and through the date of claimant’s
last insured, claimant had the RFC for performing sedentary work involving: standing
and/or walking no more than 2 hours in an 8-hour work day, as well as the other
limitations noted above. At step five, the ALJ found that claimant was unable to perform
any past relevant work but that she had acquired work skills from past relevant work
that were transferable to other occupations available in the national economy. As a
result, the ALJ found that claimant was not disabled under the Act.
Ortega now argues that the ALJ erred in assessing claimant’s RFC, the credibility
of her testimony and the step five analysis. We address each of her arguments below.

8

3. The ALJ’s RFC Determination Is Supported by Substantial Evidence.
Claimant first argues that the ALJ failed to properly weigh the opinion evidence of
record and fully develop the record in determining her RFC. A claimant’s RFC is the
most he or she can do despite limitations and is determined by assessing all the
relevant evidence. 20 C.F.R. § 404.1454.(a)(1). Claimant asserts that the ALJ’s RFC
determination is not supported by substantial evidence.
Dr. Kuptel’s Opinion
First, claimant argues that as part of her RFC determination, the ALJ improperly
disregarded the opinion of treating physician Dr. Kuptel. A treating physician's opinion
is generally entitled to controlling weight; however, it must be “well-supported by
medically acceptable clinical and laboratory diagnostic techniques” and “not
contradicted by other substantial evidence.” Lloyd v. Berryhill, 682 F. App'x 491, 496–
97 (7th Cir. 2017) (holding that the ALJ properly gave minimal weight to treating
physician who “without corroborating objective evidence, severely downplayed
[claimant’s] capabilities.”); see also 20 C.F.R. § 404.1527(c)(2); see also Ghiselli v.
Colvin, 837 F.3d 771, 776 (7th Cir. 2016). A treating physician's opinion regarding the
nature and severity of a medical condition is entitled to controlling weight only if it is (1)
well-supported by medical findings, and (2) consistent with substantial evidence in the
record. 20 C.F.R. § 404.1527(d)(2). The SSR require that an ALJ must offer “good
reasons” for discounting a treating physician's opinion. 20 C.F.R. § 404.1527(d)(2).
Moreover, the Seventh Circuit has held that an ALJ must only “minimally
articulate” her reasons for discounting a treating source's opinion. Elder v. Astrue, 529
F.3d 408, 415 (7th Cir. 2008). This standard is a “very deferential standard that we

9

have, in fact, deemed ‘lax.’” Id. (quoting Berger v. Astrue, 516 F.3d 539, 545 (7th
Cir.2008)). Once well-supported contradictory evidence is introduced, the treating
physician's opinion is no longer controlling but remains a piece of evidence for the ALJ
to weigh. Hofslien v. Barnhart, 439 F.3d 375, 377 (7th Cir.2006). Under 20 C.F.R. §
404.1527(d)(2), the factors relevant to evaluating a treating physician's opinion are: the
length, nature, and extent of the treatment relationship; frequency of examination; the
physician's specialty; the types of tests performed; and the consistency and
supportability of the physician's opinion. 20 C.F.R. § 404.1527(d)(2); Wurst v. Astrue,
866 F. Supp. 2d 951, 962 (N.D. Ill. 2012).
Here, we find that the ALJ adequately articulated her reasons for giving Dr.
Kuptel’s opinion minimal weight. The ALJ acknowledged that in a physical capacity
evaluation, Dr. Kuptel opined that claimant had significant limitations. The ALJ also
described in detail the other medical evidence in the record that does support her RFC
determination, and then noted that she was giving Dr. Kuptel’s evaluation minimal
weight because it was not supported by evidence in the record. The ALJ specified that
the physical evaluation contradicted Dr. Kuptel’s own progress notes, claimant’s own
activity level, and a consultative examination in June of 2012. Because we find that the
ALJ adequately articulated her reasons for giving Dr. Kuptel’s physical evaluation
minimal weight, this is not grounds for remand. Wurst, 866 F. Supp. 2d at 962
(upholding an ALJ’s opinion to discard the treating physician’s evaluation where it was
not supported by the physician’s own treatment notes).
Claimant also argues that Dr. Kuptel’s treatment notes establish a lengthy
relationship, but the records to which she cites are not all Dr. Kuptel’s medical records,

10

and those that are legible do not necessarily corroborate the Dr. Kuptel’s physical
evaluation. Indeed, these records demonstrate that Dr. Kuptel found nothing disabling
about claimant – i.e., “no acute distress” (R. 403), normal neurologic findings and
muscle strength and tone (R. 403, “mild degenerative bone changes” (R. 435).
For these reasons, we find that it was appropriate for the ALJ to determine that
the medical evidence failed to support the limitations offered in Dr. Kuptel’s May and
October 2012 opinions.
The ALJ’s RFC For the Period Commencing in January of 2013
Next, claimant argues that commencing on January 1, 2013, the ALJ failed to
fully develop the record in making her determination that she could perform sedentary
work. Claimant argues that “it is unclear how the ALJ determined that Plaintiff’s
condition changed as of January 1, 2013, without relying on her own lay interpretation of
the medical evidence.”
We find this argument to be without merit. The ALJ noted several medical
records dated January 1, 2013 through October of 2014, which reflected claimant’s
difficulties with her knee. The ALJ explained how these records support her finding that
claimant is capable of sedentary work but no longer capable of doing light work. (R. 2425.) As a result, we find that the ALJ adequately explained her reasons for making this
finding.
The ALJ’s Findings on Her Wrist and Hand Symptoms
Next, claimant argues that the ALJ’s analysis of her wrist and hand symptoms is
not supported by substantial evidence. She asserts that the ALJ should not have
limited her to no more than “frequent” handling because of her chronic hand and wrist

11

pain as a result of her arthritis and lupus. Claimant’s argument relies primarily on her
own at the hearing.
Here, we find that the ALJ properly accounted for claimant’s wrist and hand
issues. She noted that a 2005 progress note reflected problems with mild degenerative
joint disease of the wrist. The ALJ also noted that although claimant complained of
hand pain, her condition improved after a course of medication or injections and
subsequent medical records indicate “hands ok” and “no joint pain.” (R. 21, 621, 634.)
Moreover, the ALJ properly considered the credibility of claimant’s testimony (discussed
further below). For these reasons, we do not find that the ALJ’s findings regarding
claimant’s ability to use her hands and wrists is grounds for remand.
The ALJ’s Questioning at the Supplemental Hearing
Next, claimant argues that the ALJ erred in only asking questions at the hearing
about her condition at that time, rather than during the relevant period. Again, we find
that claimant’s argument is misplaced. Indeed, the ALJ asked claimant, among other
things, about her back pain level in the past, what her past treatment had been, what
medications she took at that time, how much weight she lifted in her past employment,
and how often she had lupus outbreaks. (R. 38-45.) Therefore, we do not find
claimant’s argument persuasive.
4. The ALJ’s Credibility Finding is Supported by Evidence in the Record
Next, claimant argues that the ALJ’s credibility determination is not support by
substantial evidence. To succeed on this ground, claimant must overcome the highly
deferential standard we accord credibility determinations. Because the ALJ is in the best
position to evaluate the credibility of a witness, we only reverse an ALJ’s credibility

12

finding if it is “patently wrong.” Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). The
ALJ must “explain her decision in such a way that allows us to determine whether she
reached her decision in a rational manner, logically based on her specific findings and
the evidence in the record.” McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir. 2011).
Under the Act, an “individual’s statement as to pain or other symptoms shall not
alone be conclusive evidence of disability…; there must be medical signs and findings,
established by medically acceptable clinical or laboratory diagnostic techniques, which
show the existence of a medical impairment…. which could reasonably be expected to
produce the pain or other symptoms alleged and which, when considered with all
evidence required to be furnished under this paragraph (including statements of the
individual or his physician as to the intensity and persistence of such pain or other
symptoms which may reasonably be accepted as consistent with the medical signs and
findings), would lead to a conclusion that the individual is under a disability.” 42 U.S.C.
§ 423(d)(5)(A). Consistent with the Act, the Seventh Circuit has held that “although a
claimant can establish the severity of his own testimony, his subjective complaints need
not be accepted insofar as they clash with other, objective medical evidence in the
record.” Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir. 2007).
Here, we find that the ALJ’s findings regarding claimant’s testimony are not
patently wrong. First, the ALJ articulated how the medical records do not support her
complaints regarding her hand and wrist complaints, and that her musculoskeletal
examinations were largely unremarkable. The ALJ also noted that the evidence reveals
that claimant felt well enough to look for work after her job came to an end. She also
noted that the record does not reflect treatment for her back pain consistent with her

13

complaints. The ALJ also observed that claimant had no problems gardening, cleaning
her home, doing laundry, grocery shopping, and travelling. The ALJ concluded that such
evidence contradicts allegations of disabling pain that the claimant contends.
It is clear that the ALJ’s credibility finding was based on a consideration of the
entire case on record. Contrary to claimant’s suggestion, the ALJ’s credibility
determination contains specific reasons supported by the evidence in the case record.
The court defers to an ALJ’s credibility determination and shall overturn it only if it is
patently wrong. Here, the ALJ fully weighed the claimant’s complaints and alleged
limitations and found them not supported by the objective medical evidence, work
history, and her own activity level. For these reasons, we cannot say that the ALJ’s
credibility determination was “patently wrong.” Instead, we find that the ALJ gave
reasons for her assessment, and built a logical bridge to her conclusion that claimant is
only moderately restricted in activities of daily living.
5. The ALJ’s Step Five Determination Is Supported by Substantial
Evidence.
Finally, claimant argues that the ALJ’s step five findings were incorrect because
her hypothetical to the VE did not adequately account for her physical limitations. After
finding that claimant could not perform her past relevant work, the ALJ asked the VE
whether a hypothetical person with the same age, educational background, work
history, and RFC could perform other jobs in the national or regional economy. The VE
testified that this person could perform jobs as office manager, receptionist, and order
clerk.
Here, we agree with defendant that the ALJ’s hypotheticals included those
limitations that the ALJ found credible. “The ALJ is required only to incorporate into

14

his hypotheticals those impairments and limitations that he accepts as credible.” Simila
v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009). Given the sufficient discussion of medical
evidence and claimant’s credibility, as discussed above, we find these hypotheticals
were appropriate. Because the ALJ properly relied upon the VE testimony in response
to the hypothetical question, this is not a sufficient basis for remand.
III. CONCLUSION
For the reasons set forth above, claimant’s motion for summary judgment is denied
and the Commissioner’s cross-motion for summary judgment is granted. It is so
ordered.

Dated: October 19, 2018

___________________________________
Michael T. Mason
United States Magistrate Judge

15