Reed v. Colvin
MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 8/11/2017. (ma,)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
KENYA REED, on behalf of KENT
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
No. 16 CV 11133
Magistrate Judge Young B. Kim
August 11, 2017
MEMORANDUM OPINION and ORDER
Kenya Reed brings this lawsuit on behalf of her deceased father, Kent Davis,
challenging the Commissioner of Social Security Administration’s final decision
denying in part Davis’s applications for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). Davis claimed that beginning in 2008 he was
disabled by a combination of pancreatitis, diabetes mellitus, hypertension, and left
shoulder pain. An administrative law judge (“ALJ”) agreed that these conditions
were disabling, but only as of July 7, 2014, four months before Davis passed away.
When the Appeals Court declined to review the ALJ’s assessment of the disability
onset date, Reed brought this action seeking judicial review. See 42 U.S.C. § 405(g).
Before the court are the parties’ cross-motions for summary judgment. For the
following reasons, Reed’s motion is denied and the government’s is granted:
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
automatically substituted as the named defendant.
Davis filed his applications for SSI and DIB in March 2010, claiming a
disability onset date of September 15, 2008. (A.R. 379-89.) After his claims were
denied initially and upon reconsideration, (id. at 198-201), Davis sought and
received a hearing before an ALJ. That hearing took place on October 17, 2011, and
almost two years later an ALJ issued a decision concluding that Davis was not
disabled. (Id. at 205-20.) After Davis sought review from the Appeals Council, it
issued an order vacating the ALJ’s September 2013 decision and remanding the
case for an ALJ to gather additional evidence regarding his impairments and
directing the ALJ to give further consideration to the opinion of state agency
consulting physician Dr. Young-Ja Kim and other evidence.2 (Id. at 226-30.) On
remand, the new ALJ assigned to the case held a second hearing on February 26,
2015. (Id. at 44.) Because Davis passed away three months before the second
hearing, his daughter Reed appeared and testified at the hearing on his behalf. On
July 31, 2015, the ALJ issued a partially favorable decision finding that Davis’s
impairments became disabling as of July 7, 2014. (Id. at 35-36.) When the Appeals
Council denied Reed’s request for review, (id. at 1-6), the ALJ’s partially favorable
decision became the final decision of the Commissioner, see Schomas v. Colvin, 732
F.3d 702, 707 (7th Cir. 2013). Reed timely filed this lawsuit seeking judicial review,
see (R. 1); 42 U.S.C. § 405(g), and the parties consented to this court’s jurisdiction,
see (R. 7); 28 U.S.C. § 636(c).
Dr. Kim is not related in any way to the assigned judge.
Up until December 2007, when he lost his job because of a factory closure,
Davis worked full time as a robotic technician, maintenance technician, and welder.
(A.R. 102-04.) After a period of unemployment, in 2009 he began working for 20
hours a week, and then 13 hours a week, as a pantry coordinator with a
government-funded food program. (Id. at 110-11.) Reed asserts that beginning in
2008, at the age of 54, her father’s health problems prevented him from engaging in
work on a full-time basis.
During the February 2015 hearing, Reed presented
medical and testimonial evidence in support of Davis’s claim.
includes the transcript of Davis’s testimony from the initial hearing in October
The medical record demonstrates that beginning in 2006 Davis had a number
of emergency room visits and hospital admissions related to acute pancreatitis,
hypertension, and uncontrolled diabetes mellitus. Notes from a hospital admission
in March 2008 reflect that Davis had been a heavy drinker for 12 years, but that
after being diagnosed with alcoholic pancreatitis 6 years previously, he had only
been drinking occasionally.
diabetes mellitus and hypertension.
Davis had also been diagnosed with
His March 2008 hospital admission
followed four days after Davis had drunk alcohol and after he had run out of
medications, when he began experiencing epigastric pain and nausea. (Id.) Four
days after his admission Davis checked himself out of the hospital against medical
advice because he was concerned about matters at home. (Id. at 660.) Davis was
readmitted to the hospital just over two weeks later, complaining of chest, low-back,
and flank pain, and this time he stayed for five days. (Id. at 531.)
In November 2008, two months after Davis’s alleged disability onset date,
Dr. Joseph Youkhana performed an internal medicine consultative examination.
(Id. at 605.) Dr. Youkhana noted that Davis had been hospitalized four times since
2002 to deal with fluctuating blood sugar. (Id.) Davis reported that he had some
numbness in his left leg and decreased sensation in his left foot and thigh, and that
his pancreatitis causes constant pain for which he takes Tylenol #3 or Vicodin. (Id.)
He admitted that he had smoked a half pack of cigarettes per day for 27 years and
that he was a heavy drinker from 2001 until 2004, but stated that at the time of the
exam he only drank one beer occasionally. (Id.) Upon examination Dr. Youkhana
observed that Davis showed a full painless range of motion and normal gait and
grip strength, and that he had an entirely normal ability to grasp and manipulate
objects with his fingers.
(Id. at 606.)
Dr. Youkhana observed some decreased
sensation to the touch in Davis’s left lower leg, and described his problems as
including diabetes, hypertension, chronic pancreatitis, and chronic abdominal pain.
(Id. at 606-07.)
In December 2008 consulting physician Dr. Kim filled out a residual
functional capacity (“RFC”) assessment opining that despite his diabetes with early
neuropathy, pancreatitis, and hypertension, Davis retained the capacity to perform
medium work with no postural limitations other than some climbing restrictions.
(Id. at 613-20.)
After reviewing the consulting examination report Dr. Kim
concluded that Davis was only partially credible because his complaints about
difficulty walking and using his hands were not supported by the objective evidence.
(Id. at 618.) The following year consulting physician Dr. Charles Wabner reviewed
Davis’s files and echoed Dr. Kim’s conclusion that Davis could perform medium
work, although in Dr. Wabner’s opinion there was no evidence to support any
postural limitations. (Id. at 680-81.)
Davis was again admitted to a hospital in June 2009 with acute pancreatitis
after complaining of general abdominal pain and vomiting, dizziness, and chest
pain. (Id. at 636, 642.) Davis reported that he had consumed a bottle of beer two
days before his admission and then later he told another doctor he had consumed
three cans of beer before the episode started. (Id. at 655, 660.) The attending
physician wrote that “[t]he patient clearly continues to drink, probably at least 2 to
3 cans of beer daily.”
(Id. at 656.)
Davis also reported smoking four to five
cigarettes per day. (Id.) The physician wrote that Davis’s prognosis was guarded
and that he was in need of alcohol rehabilitation despite Davis’s report that he had
“cut down tremendously” on his alcohol intake. (Id. at 657, 660.) A CT scan of
Davis’s abdomen was suspicious for pseudocyst formation in the pancreas and
possible focal fatty infiltration of the liver. (Id. at 673.)
In June 2010 a second internal medicine consultative examination was
performed, this time by Dr. Alexander Panagos. (Id. at 703.) Davis reported that
he had a history of heavy alcohol use but at the time he was only drinking
occasionally at social functions. (Id.) He also reported having chronic knee and hip
pain for four years that he rated at a level of eight out of ten.
(Id. at 704.)
Dr. Panagos noted that Davis did not appear to be in any acute distress, and that he
had a full range of motion in all of his joints, including the left hip and knee, with
no noted swelling and a normal gait. (Id. at 704-05.) Dr. Panagos further noted
that Davis’s ability to grasp with his fingers and grip was unimpaired on either
(Id. at 705.)
Dr. Panagos described Davis’s issues as including recurrent
attacks of chronic pancreatitis secondary to past heavy alcohol abuse, hypertension,
diabetes, and arthritis of the left hip and knee. (Id. at 706.)
Between the fall of 2011 and May 2013 Davis sought emergency room
treatment on multiple occasions, sometimes complaining of pain in his hands or in
his left arm and shoulder. (See, e.g., id. at 759, 771, 801, 836.) In particular,
October 2011 notes reflect that he was having hand spasms similar to an episode he
had experienced in January of that year when he was found to be hyponatremic.
(Id. at 801.) An x-ray of his shoulder was normal, (id. at 804), and in January 2012
he was noted to have a normal range of motion and strength without any
tenderness, (id. at 773). On at least two occasions his hospital visits were prefaced
by Davis running out of medication. (Id. at 771, 796.) In September 2012 Davis
went to an emergency room complaining that his hands had been cramping and
locking for about a month with increasing frequency. (Id. at 759.) In May 2013
Davis was admitted to the hospital for three days after he experienced a week of
nausea and vomiting. (Id. at 847.) Notes from that visit reflect that he had a
normal range of motion and strength. (Id. at 850.) Davis signed himself out of the
hospital against medical advice, and although the doctor discussed with him his
risks of mortality and morbidity if he left, Davis insisted on leaving. (Id. at 842.)
The notes reflect that at the time he checked himself out Davis’s chest pain had
resolved but his diabetes was uncontrolled. (Id.)
There is one treatment note in the record from Dr. Whitney Lyn, who saw
Davis on September 10, 2013. (Id. at 882.) After listing in her notes Davis’s past
problems and his current medications, she wrote “no health maintenance records
were found.” (Id. at 884.) The notes do not include any description of his thencurrent condition or a treatment plan. (Id. at 882-84.) Three months later, on
December 12, 2013, Dr. Lyn signed an RFC form stating that she had seen Davis
“every three months since 9/2013,” although she noted Davis had been seen in her
clinic since April 2012. (Id. at 1005.) Dr. Lyn also wrote “N/A” in response to a
question asking her to describe Davis’s response to treatment and any response
“that may have implications for working.” (Id.) Nonetheless, Dr. Lyn opined that
Davis could stand for only 20 minutes and walk for less than 2 hours in a given
(Id. at 1005-06.)
She further opined that Davis had significant
limitations with reaching, handling, and fingering that would preclude him from
using his hands more than 75% of the time or fingering more than 50% of the time.
(Id. at 1006.)
The medical record reflects that beginning on July 7, 2014, Davis was again
hospitalized for issues related to diabetes and that this hospitalization marked the
beginning of a rapid deterioration in his health. (Id. at 1069.) In the three months
that followed, Davis required nursing-home care and developed pneumonia and
other serious, acute health problems. (Id. at 893, 994, 1010.) Davis passed away in
Davis’s Hearing Testimony
At his first hearing held on October 17, 2011, Davis appeared and described
his work history and medical problems to the ALJ.
He said that he had been
“constantly” hospitalized with bouts of acute pancreatitis even before 2006, and that
he was disciplined by his last full-time employer for missing too much work.
(A.R. 107-08.) He testified that he quit drinking altogether in July 2010 and that
between 2008 and 2010 he drank only on special occasions, and then it would be
just one beer. (Id. at 117.) Davis said that although doctors had told him to stop
smoking, he still smoked three cigarettes per day. (Id. at 131.) He also testified
that in 2009 he started working 20 hours a week as a pantry coordinator at a food
program, but that his hours were reduced to 13 hours per week after a funding cut.
(Id. at 110-11.)
In describing his medical problems, Davis testified that he could barely lift
his arms because of pain and that he had chronic pain in his left shoulder, hip, and
knee, and pancreatitis pain at a level of six out of ten every day. (Id. at 120-21,
138.) He said that he was taking three Tramadol a day and also prescriptionstrength Ibuprofen for his pain, but that it only helped sometimes. (Id. at 121-22.)
Davis testified that he could walk for two blocks at most and could stand for three
hours, but that he was able to sit all day. (Id. at 125-26.) He also testified that he
had to walk up two flights of stairs to get to his bedroom and that he was able to
take a bus to medical appointments, but the stairs prevented him from going out
often. (Id. at 126-27, 129.) As for daily activities, Davis testified that he watched
television all day and that his daughters came to visit once a week to help with
things like grocery shopping and laundry.
(Id. at 125-26, 128.)
Asked why he
considered himself disabled, Davis testified that he could not do a job standing up
because of his pain, and that his shortness of breath and hand, leg, and feet cramps
prevented him from being able to work full-time. (Id. at 142.)
Dr. Ashok Jilhewar’s Hearing Testimony
At the first hearing the ALJ also elicited the testimony of a medical expert,
Dr. Ashok Jilhewar, to provide an opinion about the limiting effects of Davis’s
Dr. Jilhewar opined that Davis’s most severe impairment was
uncontrolled type II diabetes mellitus, but that the only related complication was
sensory peripheral neuropathy which could be caused by either diabetes or alcohol
(A.R. 144, 146.)
If it were the latter, in Dr. Jilhewar’s opinion the
neuropathy would decrease within two years of alcohol abstinence. (Id. at 147.)
Dr. Jilhewar testified that Davis’s hypertension might also be related to alcohol,
because high blood pressure is associated with alcohol withdrawal. (Id. at 149.) In
Dr. Jilhewar’s opinion the record did not reflect adequate testing to confirm a
diagnosis of chronic pancreatitis, and all of Davis’s hospitalizations had been for
episodes of acute pancreatitis.
(Id. at 153.)
He further stated that Davis’s
descriptions of flank pain were not consistent with chronic pancreatitis, which
manifests in the navel area. (Id. at 168.) According to Dr. Jilhewar, episodes of
acute pancreatitis almost always happen because a person has been abstinent but
then has a small amount of alcohol. (Id. at 153.) Dr. Jilhewar was of the opinion
that if Davis were to completely abstain from drinking alcohol, his acute
pancreatitis would improve. (Id. at 163.) Dr. Jilhewar further opined that Davis
retained the RFC to perform light work with no postural or upper extremity
limitations because the record did not clarify for him how Davis’s complaints of left
shoulder pain would manifest in limits in his upper extremities. (Id. at 165.)
Reed’s Hearing Testimony
Because the second hearing before an ALJ took place on February 25, 2015,
several months after Davis’s death, Reed appeared and testified on his behalf. Reed
testified that she had lived with Davis during her childhood until she was 22 years
old, but that she had not lived with him in 15 years. (A.R. 64.) Reed testified that
before his death she saw Davis at least twice a month. (Id. at 66.) She testified
that Davis was not always able to take care of his personal needs and sometimes
took two minutes just to climb down six stairs. (Id. at 67.) Reed testified that she
made the decision to place him in a nursing home in August 2014. (Id. at 76.)
The ALJ’s Decision
The ALJ applied the required five-step sequence for evaluating disability
claims in reviewing Davis’s applications for DIB and SSI.
§§ 404.1520(a) & 416.920(a).
See 20 C.F.R.
After finding that Davis met the insured status
requirements for DIB through September 30, 2017, at steps one and two of the
sequential evaluation process the ALJ determined that Davis had not engaged in
substantial gainful activity after his alleged disability onset date and that he had
three severe impairments: insulin dependent diabetes mellitus, arthritis in the left
hip and knee, and pancreatitis. (A.R. 19-20.) After concluding at step three that
none of Davis’s impairments met or medically equaled the severity of any listed
impairment, the ALJ determined that before July 7, 2014, Davis maintained an
RFC to perform light work, including the capacity to lift and carry 20 pounds
occasionally and 10 pounds frequently, to sit, stand, and walk for 6 hours in an 8hour workday, and to frequently kneel, crouch, crawl, and climb ramps or stairs.
(Id. at 21-22.) The ALJ further determined that Davis should never have climbed
ladders, ropes, or scaffolds and that he needed to have avoided exposure to
unprotected heights. (Id. at 22.) Based on that RFC the ALJ determined at step
four that until July 7, 2014, Davis maintained the ability to perform his past
relevant work as a maintenance mechanic and an arc welder. (Id. at 34.)
The ALJ determined that Davis’s RFC changed on July 7, 2014, when the
record documents a deterioration in his condition leading to several hospitalizations
for several serious acute conditions leading up to his death in November 2014. (Id.
at 32-33.) The ALJ concluded that during that period Davis was capable of only
sedentary work with several additional limitations, including only frequent
manipulation and the need to miss more than one day of work per month. (Id. at
32.) Given that more limited RFC, the ALJ determined that Davis would not have
been capable of performing any of his past relevant work during the four months
preceding his death, and that given his age, RFC, education, and work experience,
the medical-vocational rules dictated a finding that he was disabled. (Id. at 34-35.)
Accordingly, the ALJ concluded that Davis was disabled as of July 7, 2014, but not
before. (Id. at 35-36.) The ALJ wrote that Reed would not be eligible for any
underpayment of SSI, but that as long as Davis did not have a surviving spouse who
met certain conditions, Reed would be the “appropriate party to receive any
underpayment arising from any disability insurance benefits that might have been
awarded under Title II” for the period between July 7, 2014, and Davis’s death. (Id.
Reed argues that the ALJ made several reversible errors in concluding that
Davis was disabled only as of July 7, 2014, rather than as of his claimed disability
onset date, September 15, 2008.
Specifically, she argues that the ALJ gave
insufficient weight to the opinion of Davis’s treating physician, erred in evaluating
his RFC, and improperly evaluated his symptom descriptions. This court reviews
the ALJ’s decision only to ensure that it is supported by substantial evidence,
meaning “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” See Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012)
(internal quotation and citation omitted). This court’s role is neither to reweigh the
evidence nor to substitute its judgment for the ALJ’s. See Pepper v. Colvin, 712
F.3d 351, 362 (7th Cir. 2013). That said, if the ALJ committed an error of law or
“based the decision on serious factual mistakes or omissions,” reversal may be
required. Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014).
Reed argues that the ALJ committed reversible error in discounting her
hearing testimony and finding Davis’s statements less than fully credible with
respect to the period preceding the assigned disability onset date. This court gives
an ALJ’s assessment of the credibility of a claimant’s statements “special
deference,” overturning that decision only if it is “patently wrong.” Summers v.
Berryhill, No. 16-3849, __ F.3d __, 2017 WL 3048555, at *3 (7th Cir. July 19, 2017)
(internal quotations omitted). Although in 2016 the Social Security Administration
updated its ruling on credibility to clarify that ALJs must focus on the “intensity
and persistence” of a claimant’s symptoms rather than the credibility of the
claimant’s character, the factors an ALJ must weigh remain the same. See SSR 163p, 2016 WL 1020935, at *14167, *14169-70 (effective March 28, 2016); Cole v.
Colvin, 831 F.3d 411, 412 (7th Cir. 2016). Those factors include, among others, the
claimant’s daily activities, factors that precipitate or aggravate symptoms,
medications and their side effects, and other treatments or methods the claimant
uses to relieve symptoms. SSR 16-3p, 2016 WL 1020935, at *14169-70; 20 C.F.R.
§§ 404.1529(c)(3), 416.929(c)(3). This court’s review of the ALJ’s weighing of those
factors “is extremely deferential,” and the standard of review precludes the court
from reweighing the facts underlying the ALJ’s decision. See Bates v. Colvin, 736
F.3d 1093, 1098 (7th Cir. 2013).
Here the ALJ gave a number of supported reasons to explain why he
discounted Davis’s statements regarding the severity of his symptoms.
example, the ALJ faulted Davis for failing to follow his doctors’ orders to abstain
from smoking and alcohol use, despite the evidence that these behaviors
exacerbated his symptoms. (A.R. 30-31.) He noted that Davis’s emergency room
visits often coincided with his failure to take prescribed medicine or alcohol use.3
(Id. at 30.) He noted that Davis’s records show that he had access to medical care
through a public hospital system, but that he saw his primary care doctor—who
provided routine and conservative medication treatment—relatively infrequently.
(Id.) The ALJ wrote that during the two-hour hearing he observed Davis walking
without difficulty and sitting comfortably while remaining focused, and wrote that
those observations undercut Davis’s statements regarding the severity of his pain.
The ALJ further observed that Davis’s description of flank pain was
inconsistent with pancreatic pain, which manifests in the navel area (an
observation supported by Dr. Jilhewar’s testimony, see id. at 168), and noted that
Davis did not describe stomach pain until prompted by his attorney, (id. at 30). The
ALJ observed that despite Davis’s allegations of neuropathy and tingling, he never
complained about those conditions to two of his doctors and that there are several
In her reply brief Reed argues that the ALJ impermissibly failed to analyze
whether Davis would have been disabled absent his alcohol use. (R. 21, Pl.’s Reply
at 9.) But the ALJ did not find that Davis’s alcohol use was material to the
disability determination. (A.R. 30.) Rather, he listed as one factor among many in
his evaluation of Davis’s symptom description the fact that Davis did not follow
medical advice to abstain from alcohol and tobacco, despite evidence that alcohol
use exacerbated his symptoms. (Id.)
records of doctors’ visits in which Davis reported that he had no complaints at all.
(Id. at 30-31.) The ALJ wrote that his treating physicians only performed limited
physical exams, reflecting that Davis’s complaints to them were less severe than
those he presented in support of his applications. (Id. at 31.) The ALJ assessed
Davis’s description of medication side effects but noted that there were no
corroborating treatment notes documenting related complaints. (Id.) Finally, the
ALJ reviewed Davis’s daily activities and found that his part-time work from 2012
through part of 2014, his ability to ride the bus to appointments and church, and his
ability to clean and make meals, among other things, were more significant than
one would expect if Davis’s condition were as severe as he alleged. (Id.)
In her opening brief Reed challenges the ALJ’s treatment of Davis’s daily
activities in the period leading up to July 7, 2014. (R. 18, Pl.’s Mem. at 15-17.)
First she argues that the ALJ erred in characterizing Davis’s part-time work with a
food pantry as amounting to 20 hours per week, when he testified that at some
unidentified date he switched to working only 13 hours per week.
testified that the shift in his hours was the result of a budget cut rather than any
inability on his part to maintain a 20-hour work week.
evidence of part-time work may not be “good evidence of ability to engage in fulltime employment,” Vanprooyen v. Berryhill, No. 16-3653, __ F.3d __, 2017 WL
3097865, at *4 (7th Cir. July 21, 2017), it is nonetheless reasonable for an ALJ to
consider the applicant’s part-time work in evaluating the severity of the alleged
symptoms, see Lott v. Colvin, 541 Fed. Appx. 702, 706 (7th Cir. 2013).
Reed also argues that the ALJ’s analysis of Davis’s daily activities fails to
account for how his pain limited those activities or his need to take unscheduled
breaks while at work and falsely equates his daily activities with an ability to work
full-time. It is true that the Seventh Circuit has repeatedly cautioned ALJs not to
equate daily activities with full-time work. See, e.g., Bjornson v. Astrue, 671 F.3d
640, 647 (7th Cir. 2012). But here, the ALJ weighed Davis’s activities as just one
among many factors he gave to support his analysis of the symptom description.
And although the ALJ did not include in his discussion Davis’s testimony that he
took breaks at work or that pain limited his ability to leave his house as often as he
would like, those omissions do not render the credibility determination “patently
wrong,” especially in light of the litany of other reasons the ALJ provided. See
Schreiber v. Colvin, 519 Fed. Appx. 951, 961 (7th Cir. 2013) (noting that ALJ’s
credibility assessment can be imperfect but still not patently wrong); see also
Shideler, 688 F.3d at 312 (upholding ALJ’s credibility analysis even though that
decision “was not perfect”).
Reed also argues that the ALJ’s assessment of her testimony should be
reversed because, according to her, the ALJ “found [her] testimony credible, but did
not account for the limitations she testified to prior to 2014.” (R. 18, Pl.’s Mem. at
An ALJ is required to explain a decision to dismiss the testimony of a
corroborating lay witness. See Vanprooyen, 2017 WL 3097865, at *4. But here
Reed’s argument overlooks that while the ALJ found Reed “generally credible,” he
explained that he discounted her testimony because he found it was “not very
That is because Reed acknowledged that she had fairly
insubstantial contact with her father in the period leading up to July 7, 2014,
limited to once or twice per month. (Id.) The ALJ also found that Reed lacked “very
specific knowledge of the claimant’s most recent work activity,” which further
limited the value of her testimony. (Id.) Reed has not suggested in her brief that
the ALJ mischaracterized her testimony, or explained why the ALJ should have
given it more weight than he did. Accordingly, Reed has not shown that the ALJ
committed any reversible error in analyzing her testimony.
The RFC and Treating Physician Rule
In her briefs Reed argues separately that the ALJ committed reversible error
in applying the treating physician rule and in formulating the RFC assessment, but
because her arguments on those subjects are intertwined, the court will address
them together. Reed argues that the ALJ’s assessment of Davis’s RFC prior to July
7, 2014, is fatally flawed because it fails to take into account standing, walking, and
hand manipulation limitations assessed by Dr. Lyn and supported by the record.
(R. 18, Pl.’s Mem. at 13.)
Reed further argues that in formulating the RFC
assessment the ALJ inadequately supported his decision to give great weight to the
medical expert’s hearing testimony but only “some weight” to the opinion of
Dr. Lyn, who Reed characterizes as Davis’s treating physician. (Id. at 10-11.)
Beginning with the latter argument, under the treating physician rule an
ALJ is required to give controlling weight to a treating physician’s opinion if it is
“(1) supported by medical findings; and (2) consistent with substantial evidence in
Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008).
If the ALJ
concludes that a treating physician’s opinion is not entitled to controlling weight, he
must give “good reasons” for discounting the opinion, after considering factors
including “(1) whether the physician examined the claimant, (2) whether the
physician treated the claimant, and if so, the duration of overall treatment and the
thoroughness and frequency of examinations, (3) whether other medical evidence
supports the physician’s opinion, (4) whether the physician’s opinion is consistent
with the record, and (5) whether the opinion relates to the physician’s specialty.”
Brown v. Colvin, 845 F.3d 247, 252 (7th Cir. 2016); see also 20 C.F.R. §§ 404.1527(c),
416.927(c). As long as the ALJ articulates his reasons, he “may discount a treating
physician’s medical opinion if it is inconsistent” with the opinion of a consulting
physician. See Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004). But if the
reasons the ALJ gives for discounting the limitations assessed by the treating
doctor “are not supported by the record,” then the “treating physician’s opinion
trumps the conclusions of agency consultants—in particular those who never
examined the claimant.” Vanprooyen, 2017 WL 3097865, at *4.
Here the ALJ gave several reasons why he decided to discount Dr. Lyn’s
opinion, giving it only “some weight.” (A.R. 29.) First, the ALJ noted that Dr. Lyn
had reported in December 2013 that she had seen Davis “every 3 months since only
September 2013.” (Id.) In other words, Dr. Lyn had only seen and examined Davis
The SSA recently adopted new rules for agency review of disability claims
involving the treating physician rule. See 82 Fed. Reg. 5844-01, 2017 WL 168819,
at *5844 (Jan. 18, 2017). Because the new rules apply only to disability applications
filed on or after March 27, 2017, they are not applicable in this case. (Id.)
one time before she provided her RFC opinion. Reed has not identified any other
records demonstrating that Dr. Lyn saw Davis more than once, let alone that she
provided on-going treatment.
(See R. 18, Pl.’s Mem. at 11-12.)
physician rule is meant to prioritize the opinions of treating doctors because they
are “assumed to be familiar with a claimant’s medical issues over time and can
provide a unique perspective.” See Retzloff v. Colvin, 673 Fed. Appx. 561, 567 (7th
Cir. 2016); 20 C.F.R. §§ 404.1527(c), 416.927(c) (noting that treating physicians may
have a “longitudinal picture” of a claimant’s impairments). Reed has not pointed to
any evidence suggesting that Davis and Dr. Lyn had an on-going treatment
Accordingly, the ALJ properly took into account the nature and
frequency of the treating─or more accurately, examining─relationship between
Dr. Lyn and Davis in deciding to discount Dr. Lyn’s opinion.
But even if Dr. Lyn had properly been characterized as merely a one-time
examining physician, the ALJ is required to give supported reasons for discounting
it beyond the existence of conflicting opinions from the non-examining doctors. See
Vanprooyen, 2017 WL 3097865, at *5. Here the ALJ discounted Dr. Lyn’s opinion
after concluding that the limitations she assigned with respect to standing, walking,
lifting, carrying, and performing hand manipulations were unexplained and
unsupported by objective evidence. (A.R. 29.) The ALJ correctly pointed out that
before July 7, 2014, physical examinations were “largely unremarkable from a
musculoskeletal and neurological standpoint,” (id.), and often reflected that Davis
had a full range of motion and strength, (see id. at 773, 850), and negative
neurologic or musculoskeletal symptoms, (id. at 772, 849). Reed points to other
record evidence, including Davis’s own complaints, to argue that the ALJ
improperly overlooked evidence that supported Dr. Lyn’s opinion. (R. 18, Pl.’s Mem.
at 11.) But as explained above, the ALJ adequately explained his evaluation of
Davis’s subjective complaints, and contrary to Reed’s assertions, the ALJ did not
ignore the medical evidence to which she now points. The ALJ acknowledged that
Davis sought treatment in 2012 for hand cramps and recognized that he complained
of pain and tingling. (A.R. 25-26, 30-31.) Reed has not shown how any of those
records support her argument that Davis’s periodic complaints of hand spasms or
cramps translated into any on-going limitations in his ability to use his hands. The
consulting examiner who actually tested Davis’s grip strength and finger grasping
found that he was unimpaired on either side, even though Davis had complained of
finger spasms before that exam. (Id. at 626, 705.) Nothing in the one treatment
note attributed to Dr. Lyn addresses hand problems or walking and standing
difficulties. (Id. at 882-84.) In fact, that note amounts to nothing more than a list of
reported problems and medications, with none expressly tied to issues with
walking, standing, or using his hands. (Id.) Reed essentially argues that the ALJ
should have weighed the objective and subjective evidence differently than he did,
but it is not this court’s role to reweigh the evidence or substitute its judgment for
the ALJ’s with respect to how the conflicting medical opinions should be weighed.
See Pepper, 712 F.3d at 362; see also Loveless v. Colvin, 810 F.3d 502, 507 (7th Cir.
2016) (upholding ALJ’s decision to discount treating physician’s opinion where
contradicted by objective medical evidence and subjective complaints).
Reed’s best argument with respect to the ALJ’s handling of the medical
opinions is that she erred in giving great weight to the opinion of Dr. Jilhewar,
which dates back to the 2011 hearing, because Davis had degenerative conditions
like arthritis that were likely to worsen over time. But the ALJ confronted this
weakness in Dr. Jilhewar’s assessment, and reasoned that his review of the medical
record from the period between 2011 and July 2014 reflected a pattern of
complaints and treatment that were similar to Davis’s complaints and treatment
leading up to Dr. Jilhewar’s testimony. (A.R. 30.) The record supports that finding,
given that Davis complained of hand spasms and left-arm pain both before and after
Dr. Jilhewar’s opinion.
And as the ALJ observed, hospital notes post-dating
Dr. Jilhewar’s testimony repeatedly characterize Davis as having a full range of
motion, normal strength, and a lack of musculoskeletal or neurologic symptoms.
(Id. at 772-73, 849-50, 1082 (noting a full range of motion as late as June 21, 2014).)
Instead of pointing to evidence that would contradict the ALJ’s reasoning,
Reed points out that Davis died from his impairments and argues that Dr. Jilhewar
was therefore necessarily wrong about his assessment of the severity of those
impairments. (R. 18, Pl.’s Mem. at 10.) But the ALJ explained why he believed
Davis’s condition took a turn for the worse in the four months leading up to his
death, and the fact that Davis experienced a downward spiral in his health in July
2014 does not preclude the ALJ’s conclusion that in the years leading up to that
precipice Davis’s limitations were consistent with Dr. Jilhewar’s opinion.
evaluating Dr. Jilhewar’s opinion the ALJ also considered his familiarity with the
longitudinal record leading up to 2011, his ability to observe Davis’s testimony
before formulating his opinion, his familiarity with the regulatory program, and his
Because the ALJ gave several supported
reasons for his decision to prioritize Dr. Jilhewar’s opinion over Dr. Lyn’s, and
because he properly engaged with the regulatory treating-physician factors, the
court disagrees with Reed’s argument that the ALJ erred in weighing the medical
opinions, or failed to include limitations in the RFC that were otherwise supported
by the record.
For the foregoing reasons, the Reed’s motion for summary judgment is
denied, the government’s is granted, and the final decision of the Commissioner is
Young B. Kim
United States Magistrate Judge
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