Holmes v. Colvin

Filing 20

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 11/29/2017. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HARRIET P. HOLMES,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,1
Defendant.

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No. 16 CV 11264
Magistrate Judge Young B. Kim

November 29, 2017

MEMORANDUM OPINION and ORDER
Harriet Holmes filed applications for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”) alleging that she is disabled by
degenerative arthritis, bronchitis, difficulty walking after surgery on her toes, and
problems breathing while walking. After the Commissioner of the Social Security
Administration denied her applications, Holmes filed this suit 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, Holmes’s motion is denied, and the
government’s is granted:
Procedural History
Holmes filed her DIB and SSI applications on March 31, 2014, alleging a
disability onset date of October 15, 2013. (Administrative Record (“A.R.”) 15.) After
her claims were denied initially and upon reconsideration, (id. at 87-120), Holmes
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
automatically substituted as the named defendant in this case.
1

sought and was granted a hearing before an Administrative Law Judge (“ALJ”), (id.
at 31-84).

The ALJ issued his decision on July 25, 2016, denying Holmes’s

applications. (Id. at 15-25.) When the Appeals Council denied Holmes’s request for
review, the ALJ’s denial of benefits became the final decision of the Commissioner.
See Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015). Holmes filed this suit
seeking judicial review of the Commissioner’s decision, (R. 1); see 42 U.S.C. § 405(g),
and the parties consented to this court’s jurisdiction, (R. 9); see 28 U.S.C. § 636(c).
Background
At her May 2016 administrative hearing before the ALJ, Holmes, represented
by counsel, submitted both documentary and testimonial evidence in support of her
claims.
A.

Medical Evidence
The medical evidence of record shows that Holmes receives primary care

treatment through the Midtown Medical Center where she is seen by Dr. Syed
Husain. Holmes saw Dr. Husain once or twice a month between August 2014 and
April 2016, primarily for management of her ongoing low-back and hip pain.
(A.R. 403-63.)
On January 10, 2014, Holmes underwent x-rays of her lumbosacral spine,
pelvis, and bilateral hips. (Id. at 343-44.) The lumbosacral x-rays revealed no acute
fracture and only mild degenerative facet disease and mild degenerative disk
disease. (Id. at 344.) The pelvic and hip x-rays indicated that the pelvic ring was
intact, the sacroiliac joints were unremarkable, there was pseudo-articulation

2

between the right transverse process of L5 vertebra and the sacrum, and that there
were calcifications in the right and left pelvis. (Id. at 343.) Views of the hips were
unremarkable, demonstrating no acute fracture or dislocation and that the hip
joints were preserved. (Id.)
On September 3, 2014, Holmes underwent an internal medicine consultative
examination performed by Dr. Liana Palacci. (Id. at 356-59.) Holmes reported a
past medical history of low-back pain since approximately November 2013. (Id. at
357.) She denied any history of trauma. (Id.) She indicated that she had x-rays of
her back and was diagnosed with arthritis. (Id.) Holmes told Dr. Palacci that her
pain radiated into the right buttock and leg, but she denied having numbness or
weakness. (Id.) She stated that walking and standing exacerbated her pain and
that sitting alleviated her discomfort. (Id.) Holmes also indicated that she had
been using a non-prescribed cane for balance since February 2014 and that she
needed the cane in order to walk more than 50 feet. (Id.)
Other than noting that Holmes had a mildly antalgic gait, Dr. Palacci
reported that the physical examination was otherwise unremarkable. (Id. at 358.)
She found that Holmes’s grip strength was normal, that she could make fists and
oppose fingers, that her range of motion of the shoulders, elbows, wrists, hips,
knees, and ankles were normal, and that her reflexes were present, equal, and
symmetric. (Id.) Her strength was 5/5 in the upper and lower extremities. (Id.)
Holmes was able to heel-and-toe stand, perform knee squats, and walk 50 feet
without the use of any assistive devices. (Id.) The range of motion of her cervical

3

and lumbar spine were normal and her straight leg raise test was negative. (Id.)
The mental status examination was also normal. (Id.)
Following

Holmes’s

consultative

examination,

non-examining

agency

consultant Dr. Charles Kenney reviewed her records and opined that Holmes
retains the capacity to lift up to 20 pounds occasionally and up to 10 pounds
frequently, and can sit, stand, or walk for approximately six hours in an eight-hour
workday.

(Id. at 99.)

He further opined that Holmes could occasionally climb

ramps, stairs, ladders, ropes, or scaffolds, balance, stoop, kneel, crouch, and crawl.
(Id. at 99-100.)
On January 21, 2015, another non-examining agency consultant, Dr. Bernard
Stevens, reviewed Holmes’s records. Dr. Stevens noted that Holmes had not alleged
worsening symptoms or limitations at the reconsideration level and affirmed
Dr. Kenney’s assessment of Holmes’s exertional limitations. (Id. at 99, 106, 108.)
However, Dr. Stevens assessed less restrictive postural limitations than
Dr. Kenney.

(Id. at 99-100, 109.)

He opined that Holmes would be limited to

occasionally climbing ladders, ropes, or scaffolds, and frequent climbing of ramps or
stairs, stooping, kneeling, crouching, and crawling.

Dr. Stevens found no

limitations with regard to balancing. (Id. at 109.)
Meanwhile, Dr. Husain’s 2014 and 2015 treatment records typically show
Holmes reporting either low-back pain or hip pain made worse with ambulation and
prolonged standing.

(Id. at 403-41.)

Musculoskeletal findings upon physical

examination revealed either low-back tenderness or hip or bilateral hip tenderness.

4

(Id.) Overall, the notes reflect various diagnoses such as low-back pain, hip pain,
joint stiffness, pain in the joint involving the lower leg, and pain in the joint
involving the pelvic region and thigh.

(Id.)

In January 2015 Holmes began

reporting myalgias and lower extremity pain and tightness, for which Dr. Husain
prescribed Flexeril. (Id. at 412-15.) Then in June 2015, Holmes began reporting
lower extremity neuropathic pain.

(Id. at 423.)

The records also reflect

prescriptions for a walker and a shower bench for mobility assistance. (Id. at 418,
427.)
In May 2015 Holmes reported to Dr. Husain that she had been “feeling more
depressed recently.” (Id. at 421.) Dr. Husain noted that Holmes cried during the
interview but that she had not followed up with a previous psychiatric referral.
(Id.) Dr. Husain assessed depression and provided a new referral to a psychiatrist.
(Id. at 421-22.)
On September 1, 2015, Dr. Husain completed a physical Medical Source
Statement. (Id. at 366-71.) He noted diagnoses of degenerative arthritis, hip pain,
and depression. (Id. at 366.) He indicated a satisfactory prognosis and reported
that treatment had consisted of physical therapy and oral pain medication. (Id.)
He noted, among other things, Holmes’s bilateral hip pain, borderline diabetes
mellitus, lower back tenderness, and bilateral hip tenderness. (Id.) Dr. Husain
opined that Holmes’s pain, symptoms, or medication side effects are frequently
severe enough to interfere with her attention and concentration, and that she is
incapable of tolerating even low-stress jobs. (Id. at 367.) He further opined that

5

Holmes’s symptoms prevent her from maintaining the persistence and pace to
engage in competitive employment. (Id.) He indicated that she is incapable of
functioning on a part-time basis, and that her symptoms have a moderate impact on
her ability to perform activities of daily living. (Id. at 368.)
According to Dr. Husain, in an eight-hour day Holmes could sit, stand, and
walk less than two hours each. (Id. at 371.) He wrote that she would have to shift
positions from sitting to standing or walking every 30 minutes, (id. at 370), but that
she could sit continuously for 60 minutes, (id. at 369). Further, Holmes would need
to elevate her legs or feet to 90 degrees. (Id. at 370.) According to Dr. Husain, if
Holmes had a sedentary job her legs should be elevated 100% of the workday. (Id.)
He also opined that Holmes requires the use of an assistive device and is unable to
ambulate effectively unassisted to perform daily activities. (Id. at 367, 369.) She
can occasionally lift 10 pounds, and can walk up to one block without rest or severe
pain. (Id. at 369.)
Dr. Husain opined that physical activity, movement/overuse, temperature
extremes, work stress, and static positioning would cause exacerbation of Holmes’s
symptoms. (Id. at 368.) He further opined that Holmes needed to lie down or
recline throughout the day to alleviate her symptoms, and she would likely be
absent four or more times per month because of her symptoms. (Id.) Additionally,
Dr. Husain indicated that Holmes experiences fatigue that has a moderate impact
on her ability to work and requires frequent, unscheduled rest breaks in addition to
two standard breaks and a lunch break. (Id. at 369.) Holmes should never engage

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in bending, twisting, stooping, climbing, kneeling, crouching, crawling, overhead
work, frequent neck rotation, or walking up inclines; but she can occasionally reach,
pull, push, engage in bilateral firm and fine grasping, and static neck flexion. (Id.
at 370.) Finally, Dr. Husain opined that Holmes is capable of repetitive activities
involving her arms, hands, and upper extremities, and has good use of both hands
and fingers for bilateral manual dexterity, repetitive finger-hand actions, and
manipulation of small objects with both hands. (Id. at 370-71.)
Upon returning to see Dr. Husain later in September 2015, Holmes reported
numbness in the inguinal region. (Id. at 432.) Dr. Husain assessed neuropathy and
referred her to a neurologist. (Id. at 433.) Holmes consulted with a neurologist in
October 2015 for further evaluation of her complaints of numbness and tingling.
(Id. at 399.) Although only the first page of the treatment note from that visit is
available,2 the record indicates that Holmes’s medications at that time included
Flexeril, Tylenol #3, and Elavil, an antidepressant. (Id.)
In October 2015 Holmes reported to Dr. Husain that she had seen a
psychiatrist since her last visit and said she would be arranging a follow-up with a
therapist. (Id. at 436.) The record includes a September 21, 2015 intake form and
monthly Intensive Outpatient Program (“IOP”) physician orders for group

The court notes that the missing pages were addressed at the administrative
hearing, but based on Holmes’s testimony, it was determined that the full note
would not contain any material information and therefore the ALJ chose not to keep
the record open. Holmes’s attorney did not object. (A.R. 36-39.)

2

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psychotherapy at Norwegian American Hospital beginning in October 2015.3 (Id. at
375, 464-69.)

These orders reflect a diagnosis of depression and indicate that

Holmes ambulates with an assistive device. (Id.) There is also evidence of monthly
visits for depression at Norwegian American Hospital from October 13, 2015,
through April 1, 2016, but the treatment notes from these visits were submitted
after the ALJ issued his decision. (See id. at 470.)
At a January 2016 visit with Dr. Husain, Holmes reported recent depression
symptoms secondary to family issues. (Id. at 442.) She continued to report lower
back pain and bilateral hip pain made worse with ambulation, along with lower
extremity neuropathic pain. (Id.) A physical examination again revealed nothing
more than bilateral hip tenderness, and Dr. Husain increased Holmes’s Gabapentin
prescription.

(Id. at 442-43.)

On March 25, 2016, Dr. Husain gave Holmes a

referral for water aerobics classes. (Id. at 453.) Holmes continued to report back
pain, hip pain, and lower extremity neuropathic pain through April 22, 2016, her
last documented doctor’s visit. (Id. at 444-63.)
B.

Holmes’s Hearing Testimony
At her May 4, 2016 administrative hearing, Holmes described her past work

history, symptoms, and daily routine.

She testified that she is unable to work

because of back pain caused by arthritis, neuropathy in her right leg and right arm,
The IOP “is a 3-6 month program that provides intensive group therapy to clients
with active symptoms of mental illness. Treatment goals focus on avoiding
psychiatric hospitalization or relapse, preventing deterioration of severe mood or
psychotic symptoms, and maximizing level of independent functioning.” See
Intensive Outpatient Program–Norwegian American Hospital, available at
https://www.nahospital.org/intensive-outpatient-program/ (last visited Nov. 29,
2017).
3

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bronchitis, and depression. (A.R. 42-43, 49-51.) Holmes discussed her past work as
a case manager and stated that she would no longer be able to perform the physical
demands of the job. (Id. at 42-44.)
Holmes estimated that she could walk approximately half a block without
assistance, and lift up to 15 pounds. (Id. at 66.) She stated that sitting is painful
for her, and some days she is unable to sit for more than an hour without having to
get up and move around.

(Id. at 70-71.)

She does not go outside without her

walker, and when she stands, she has to lean forward in order to ease the pain in
her leg. (Id. at 66, 69.)
As for activities of daily living, Holmes testified that much of her time is
spent sleeping and watching television.

(Id. at 53.)

Occasionally she goes

downstairs to the social room in her building and watches television with other
residents and plays bingo. (Id. at 52.) She no longer attends church because she
has to rely on the church bus for transportation, and she is unable to get ready in
time and cannot stay all day because of her conditions. (Id. at 71-72.) She goes to
the store once or twice a month, but cannot carry her shopping bags, so she has to
hook them onto her walker. (Id. at 49.) Holmes stated that she uses the Pace bus
because she is unable to ride the train or take a regular bus. (Id. at 46-47.) She
washes her dishes and makes her bed, but most other household cleaning chores go
undone. (Id. at 68-69.) Most of her meals are prepared using a microwave oven.
(Id. at 69.) She does laundry once a month and uses a cart to transport her clothing

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to the laundry unit on the first floor. (Id. at 68.) Holmes testified that she is able to
attend to her personal care needs. (Id. at 49.)
In terms of ongoing treatment, Holmes stated that she attends water aerobics
once a week and participates in physical therapy. (Id. at 49, 66-67.) Regarding her
depression, Holmes reported that she recently completed a six-month intensive
outpatient therapy program at Norwegian American Hospital and was scheduled to
begin a similar program at Mercy Hospital the following month. (Id. at 51-53.) Her
current medications included Tylenol #3, diclofenac, Tramadol, Gabapentin, and
Elavil. (Id. at 50-51, 73.)
C.

The ALJ’s Decision
In applying the five-step sequence for assessing disability, see 20 C.F.R.

§ 404.1520(a)(4); Stepp v. Colvin, 795 F.3d 711, 716 (7th Cir. 2015), the ALJ found
as an initial matter that Holmes met the insured status requirements through
December 31, 2015, and has not engaged in substantial gainful activity since her
alleged onset date, (A.R. 17). At step two the ALJ found that Holmes has the severe
impairments

of

obesity,

degenerative

disc

disease,

and

bilateral

hip

tenderness/arthritis. (Id.) The ALJ also noted Holmes’s non-severe impairments of
depression, asthma, elevated cholesterol, myopia, astigmatism, presbyopia,
glaucoma suspect, and arcus senils. (Id. at 20-21.) At step three the ALJ found that
Holmes does not have an impairment or combination of impairments that meet or
medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Id. at 22.) The ALJ then found that Holmes has the

10

residual functional capacity (“RFC”) to perform light work with the additional
limitations of no more than frequent stooping, kneeling, crouching, crawling, or
climbing ramps or stairs, and no more than occasional climbing of ladders, ropes, or
scaffolds. (Id.) Based on this RFC, the ALJ determined at step four that Holmes is
capable of performing her past relevant work as a case manager.

(Id. at 25.)

Accordingly, the ALJ concluded that Holmes is not disabled and denied her DIB and
SSI applications. (Id.)
D.

Post-Decision Evidence Submitted to the Appeals Council
In the months between the ALJ’s and the Appeals Council’s decisions,

Holmes’s attorney submitted additional medical records to the Appeals Council for
review. These records included prescriptions dated March 9, 2015, from Dr. Husain
for Tramadol, a shower bench, and a walker, and mental health treatment notes
from Norwegian American Hospital, dated September 21, 2015, through April 29,
2016. (A.R. 474-565.) In denying Holmes’s request for review, the Appeals Council
wrote that it “considered” this additional evidence, but found that the information
did not “provide a basis for changing the [ALJ’s] decision.” (Id. at 2.)
Analysis
Holmes argues in her motion for summary judgment that the ALJ committed
reversible errors by failing to accord controlling weight to the opinion of her treating
physician and by incorrectly assessing her RFC.

(R. 13, Pl.’s Mem. at 10-16.)

Additionally, Holmes argues that remand is warranted based upon the Appeals

11

Council’s failure to consider certain medical records as new and material evidence.
(Id. at 2-10.)
The 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, 795 F.3d at 718 (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
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 omitted).
A.

The Appeals Council’s Decision
The court first addresses Holmes’s argument that the Appeals Council erred

by declining review in light of new evidence, consisting of prescriptions from
Dr. Husain dated March 9, 2015, and mental health treatment records from
Norwegian American Hospital dated September 2015 through April 2016.
(A.R. 475-565.)

This court’s ability to review the Appeals Council’s decision “is

dependent on the grounds on which the Council declined to grant plenary review.”
See Stepp, 795 F.3d at 722.

Specifically, if the Appeals Council reviewed the

12

evidence and deemed it to be new and material but nevertheless concluded that the
evidence does not demonstrate that the ALJ’s decision was “contrary to the weight
of the evidence,” the Appeals Council’s decision not to engage in plenary review is
not subject to review. See id.; Perkins v. Chater, 107 F.3d 1290, 1294 (7th Cir.
1997).

If, on the other hand, the Appeals Council reviewed the evidence and

concluded that it did not qualify under the regulation as being “new and material,”
the court may assess whether the Council committed a legal error in applying the
relevant regulation. See Stepp, 795 F.3d at 722; Farrell v. Astrue, 692 F.3d 767, 771
(7th Cir. 2012).
In this case, the court must first determine whether the Appeals Council’s
order is more in line with the language of Perkins—and is not reviewable—or with
Farrell and Stepp—and is subject to de novo review. As is often the case, here the
Appeals Council used standard boilerplate language without expressly stating how
it considered the additional evidence at issue, making the current case more akin to
Farrell and Stepp.

See Stepp, 795 F.3d at 723-24.

The minimal information

provided by the Appeals Council in its denial of Holmes’s request for review does
not allow the court to conclude that the Council accepted the prescriptions and
mental health treatment notes as new and material evidence. See id. at 725. As
the Seventh Circuit held in Farrell, the court therefore proceeds on the assumption
that the Appeals Council found the additional evidence not new and material and
turns next to determining whether that finding is erroneous.
omitted).

13

See id. (citation

Evidence is “new” within the meaning of the regulations if it was “not in
existence or available to the claimant at the time of the administrative proceeding,”
and “material” if it “creates a reasonable probability that the Commissioner would
have reached a different conclusion had the evidence been considered.”

Id.

(quotations omitted). Moreover, “if new and material evidence is submitted, the
Appeals Council shall consider the additional evidence only where it relates to the
period on or before the date of the [ALJ] hearing decision.”

See 20 C.F.R.

§ 416.1470(b).
Holmes claims that the Appeals Council erred because the records submitted
were both new and material. The court disagrees. Holmes states in her brief,
“[t]here can be no serious dispute that the records submitted to the Appeals Council
regarding Plaintiff’s mental health treatment were ‘new,’ as they predate the ALJ’s
decision.” (R. 13, Pl.’s Mem. at 6.) However, the fact that the records predate the
ALJ’s decision is precisely the reason why they are not “new.”

“New” is not

construed under 20 C.F.R. §§ 404.970(b) and 416.1470(b) only to mean records that
have been submitted for the first time to the Appeals Council. See Williams v.
Colvin, No. 14 CV 5075, 2015 WL 5227736, at *9 (N.D. Ill. Sept. 4, 2015). As
previously noted, evidence is new in this context only if it was “not in existence or
available to the claimant at the time of the administrative proceeding.” See Stepp,
795 F.3d at 725 (quotations omitted).

Here, there can be no question that the

mental health records were available prior to the May 4, 2016 administrative
hearing as they are dated from September 2015 through April 2016. (A.R. 475-565.)

14

Further, Holmes does not allege that these records were unavailable to her, nor
does she offer any explanation as to why they were not submitted to the ALJ for
consideration at the hearing. See 42 U.S.C. § 405(g) (requiring a showing “that
there is good cause for the failure to incorporate” the additional evidence into the
record in a prior proceeding). Accordingly, Holmes has not shown that the Appeals
Council erred in deeming the additional records to be non-qualifying under 20
C.F.R. §§ 404.970(b), 416.1470. See Barth v. Colvin, No. 13 CV 7788, 2015 WL
7180094, at *7 (N.D. Ill. Nov. 16, 2015).
B.

Treating Physician’s Opinions
Holmes next argues that the ALJ erred in denying controlling weight to the

opinion of her primary care physician, Dr. Husain. (R. 13, Pl.’s Mem. at 10-15.) A
treating physician’s opinion receives controlling weight if it is “well-supported” and
“not inconsistent with the other substantial evidence” in the record. See 20 C.F.R.
§ 404.1527(c)(2); see also Punzio v. Astrue, 630 F.3d at 704, 710 (7th Cir. 2011). An
ALJ must offer “good reasons” for discounting the opinion of a treating physician.
See Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011). If an ALJ denies a
treating physician’s opinion controlling weight, he is still required to determine
what value it merits. See 20 C.F.R. § 404.1527(c); Scott v. Astrue, 647 F.3d 734, 740
(7th Cir. 2011). In assigning that value the ALJ must “consider 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

15

physician’s opinion.”4 Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009); 20 C.F.R.
§ 404.1527(c).
Here, the ALJ gave several supported reasons for ascribing only “minimal
weight” to Dr. Husain’s opinion. First, he found that the opinion was at times
internally inconsistent. (A.R. 24.) For example, the ALJ pointed out that despite
reporting that Holmes is capable of only occasionally performing fine and gross
manipulation, Dr. Husain also indicated that Holmes can perform repetitive
activities of the bilateral hands, arms, and upper extremities. (Id.) The ALJ also
noted that according to Dr. Husain, Holmes can sit for 60 continuous minutes at a
time but apparently also needs to alternate positions every 30 minutes. (See id.)
The ALJ was permitted to take these inconsistencies into account in assessing
Dr. Husain’s opinions.

See Clifford v. Apfel, 227 F.3d 863, 871 (7th Cir. 2000)

(noting that internal inconsistencies may provide good cause to deny controlling
weight to a treating physician’s opinion so long as the ALJ provides an adequate
explanation).
Next, the ALJ accurately found that Dr. Husain’s opinion was “not supported
by the evidence of record that includes x-rays showing unremarkable to only mild
abnormalities, an internal medicine consultative examination showing essentially
normal findings, and treatment notes with only vague and minimal findings.”
(A.R. 24.) Similarly, the ALJ explained that he considered Dr. Husain’s assignment
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.)
4

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of “extreme” limitations to be inconsistent compared to the objective evidence of
record and the doctor’s “sparse exam findings.” (Id.) The record supports these
conclusions. The only abnormality noted on the consultative examiner’s physical
examination was a mildly antalgic gait, and Dr. Husain’s physical examinations
revealed nothing more than bilateral hip tenderness and low-back tenderness.
Simply put, the ALJ found that the medical evidence pertaining to Holmes’s
physical condition was not consistent with Dr. Husain’s RFC assessment, and the
ALJ was entitled to rely on the inconsistencies between Dr. Husain’s treatment
notes and his opinions as a basis to discount those opinions. See Schmidt v. Astrue,
496 F.3d 833, 842 (7th Cir. 2007).
Finally, the ALJ noted that the record lacked evidence of “any mental status
exams (except from the [consultative examination]), mental health treatment, or
antidepressant medications,” and that Dr. Husain’s exam notes showed “no findings
or diagnosis of any mental health condition.” (A.R. 24.) This rationale gives the
court pause. Contrary to the ALJ’s assertion, the record does contain at least some
evidence of mental health treatment and a diagnosis of depression. For instance,
Holmes reported to Dr. Husain in May 2015 that she had been “feeling more
depressed recently.” (Id. at 421.) Dr. Husain noted that Holmes cried during the
interview and he assessed depression, referring her to a psychiatrist. (Id. at 42122.)

Then in September 2015, Dr. Husain assessed anxiety.

(Id. at 434.)

On

October 13, 2015, Holmes reported having seen a psychiatrist and indicated that
she would be arranging a follow-up with a therapist. (Id. at 436.) In January 2016

17

Holmes reported recent depression symptoms secondary to family issues. (Id. at
442.)

Records from Norwegian American Hospital also reflect a diagnosis of

depression and indicate that Holmes began taking antidepressant medication in
October 2015. (Id. at 375, 399, 464-70.) There is also evidence of monthly visits for
depression from October 13, 2015, through April 1, 2016, along with monthly IOP
physician orders for group psychotherapy from that same time period. (Id.)
Significantly, however, the record is silent regarding limitations resulting
from Holmes’s depression. “It is axiomatic that the claimant bears the burden of
supplying adequate records and evidence to prove their claim of disability.” Scheck
v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004) (citation omitted); 20 C.F.R.
§ 404.1512(c) (“You must provide medical evidence showing that you have an
impairment and how severe it is during the time you say that you were disabled.”).
Without such records, the ALJ reasonably concluded that the evidence did not show
that Holmes’s depression was a severe impairment that caused more than “minimal
limitation in [her] ability to perform basic mental work activities.” (A.R. 21); see
Shideler, 688 at 310 (court’s role is not to reweigh the evidence). Holmes’s challenge
to the ALJ’s reliance on the lack of mental health treatment records as a basis for
rejecting Dr. Husain’s opinions rests entirely on the post-decision medical evidence
submitted to the Appeals Council. But evidence that was not before the ALJ, and
any argument based on such evidence, cannot support a court finding of reversible
error. See, e.g., Rice v. Barnhart, 384 F.3d 363, 366 n.2 (7th Cir. 2004); Slayton v.
Colvin, 629 Fed. Appx. 764, 771 (7th Cir. 2015) (stating that “medical records that

18

were not available to the ALJ cannot be used to determine the correctness of the
ALJ’s decision”); Eads v. Sec’y of Dep’t of Health & Human Servs., 983 F.2d 815, 818
(7th Cir. 1993) (noting that “courts may not reverse an [ALJ’s] decision on the basis
of evidence first submitted to the Appeals Council”). Moreover, as the court already
determined, Holmes has failed to show that the Appeals Council erred in deeming
these additional records to be non-qualifying. In sum, Holmes did not meet her
burden of supplying evidence to the ALJ and she “cannot fault the ALJ for [her] own
failure to support [her] claim of disability.” See Scheck, 357 F.3d at 702.
Holmes also argues that the ALJ did not explicitly refer to the regulatory
factors required under 20 C.F.R. § 404.1527(c) when he declined to afford
Dr. Husain’s opinion controlling weight. Under such circumstances, the relevant
inquiry is “whether the ALJ sufficiently accounted for the factors in 20 C.F.R.
§ 404.1527 and built an ‘accurate and logical bridge’ between the evidence and his
conclusion.” Schreiber v. Colvin, 519 Fed. Appx. 951, 969 (7th Cir. 2013) (citations
omitted). Here, the ALJ met this standard because his decision shows that he was
aware of and considered many of those factors, and he logically connects the
evidence in the record to his determination of the weight given to Dr. Husain’s
opinions.
First, the ALJ explicitly identified Dr. Husain as Holmes’s primary care
physician. (A.R. 17.) The ALJ’s decision also describes the length, nature, and
extent of Dr. Husain’s treating relationship with Holmes, the frequency of
Dr. Husain’s examinations, and the types of tests performed. (Id. at 17-18.) The

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ALJ noted that Holmes saw Dr. Husain approximately every two weeks to every
month and a half, and also considered Dr. Husain’s written opinion, which states
that he is board certified in internal medicine and began treating Holmes in August
2013.

(Id. at 17, 366.)

The ALJ indicated that most of Holmes’s visits with

Dr. Husain were related to management of her low-back pain and hip pain, but
acknowledged that Dr. Husain also treated Holmes for occasional acute conditions
such as a cough or upper respiratory infection. (Id. at 17-18.) The ALJ further
noted the objective medical testing, including a mammogram, colonoscopy, and
January 2014 x-rays of the lumbosacral spine, hips, and pelvis. (Id. at 18, 343-44.)
The ALJ also considered the consistency of Dr. Husain’s opinion with the
record and the supportability of his opinion.

As discussed above, Dr. Husain’s

opinion was inconsistent with diagnostic tests and physical examinations, as well as
his own treatment notes. Thus, reading the ALJ’s decision in its entirety, the court
finds that the ALJ adequately engaged with the relevant factors in explaining his
rejection of Dr. Husain’s opinion.
In sum, the ALJ provided sound reasons, supported by substantial evidence,
for declining to give Dr. Husain’s opinion controlling weight. The ALJ’s decision
provides enough detail for the court to trace the logical bridge from his explanation
to his conclusion.

See Rice v. Barnhart, 384 F.3d 363, 370 n.5 (7th Cir. 2004)

(noting that a court properly reads ALJ decisions as a whole). Accordingly, Holmes
has not shown that the ALJ committed reversible error in evaluating Dr. Husain’s
opinions.

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C.

The RFC Determination
Finally, Holmes claims that “even if only partial credit is given to the opinion

of Plaintiff’s treating physician, the RFC is deficient as a matter of law because it
fails to account for the limitations contained within this opinion, numerous of which
are likely outcome-determinative.” (R. 13, Pl.’s Mem. at 12) (emphasis in original).
But developing the RFC is a fact-finding task assigned to the ALJ. See SSR 96-8p,
1996 WL 374184, at *2 n.4 (July 2, 1996). The Seventh Circuit has explained that
“the determination of a claimant’s RFC is a matter for the ALJ alone—not a
treating or examining doctor—to decide.” Thomas v. Colvin, 745 F.3d 802, 808 (7th
Cir. 2014).
Moreover, an ALJ is required to include limitations in the RFC only if he
finds them to be credible and supported by the medical evidence. See Outlaw v.
Astrue, 412 Fed. Appx. 894, 898 (7th Cir. 2011). Because the court has already
determined that the ALJ’s reasons for discounting Dr. Husain’s opinions are
supported by substantial evidence, the ALJ was not required to include those
limitations in his RFC determination. As such, Holmes has not demonstrated any
error in the ALJ’s RFC determination.

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Conclusion
For the foregoing reasons, Holmes’s motion for summary judgment is denied,
and the government’s is granted.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

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