Bauer v. Colvin
Filing
30
MEMORANDUM Opinion and Order Signed by the Honorable Maria Valdez on 6/29/2018: Mailed notice (lp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DONALD BAUER,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.
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No. 17 C 106
Magistrate Judge
Maria Valdez
MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of the Social Security Administration (“Commissioner”)
denying Plaintiff Donald Bauer’s (“Plaintiff”) claims for Disability Income Benefits
(“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the
Social Security Act (the “Act”). The parties have consented to the jurisdiction of the
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons
that follow, Plaintiff’s motion for summary judgment [Doc. No. 23] is denied and the
Commissioner’s cross-motion for summary judgment [Doc. No. 25] is granted.
Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to
Federal Rule of Civil Procedure 25(d).
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BACKGROUND
I.
Procedural History
Plaintiff filed his applications for DIB and SSI in June 2011, alleging
disability beginning in August 2007 due to chronic neck and back pain, which
radiated into his extremities, and headaches. (R. 321–36, 374.) His applications
were denied initially and again upon reconsideration. (R. 107–10.) After an
Administrative Law Judge (“ALJ”) issued an unfavorable decision, the Appeals
Council (“AC”) remanded the case for further analysis of Plaintiff’s treating
physician, among other things. (R. 111–34.) Plaintiff presented for a second hearing
before an ALJ on March 25, 2015, represented by counsel. (R. 39–73.) A vocational
expert and medical expert also offered testimony. (Id.) On July 31, 2015, the ALJ
issued a partially favorable decision finding Plaintiff disabled from August 5, 2007
through February 16, 2012, but not thereafter. (R. 11–38.) The AC denied review on
November 3, 2016, leaving the ALJ’s decision as the final decision of the
Commissioner and, therefore, reviewable by the District Court under 42 U.S.C. §
405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005); Herron v.
Shalala, 19 F.3d 329, 332 (7th Cir. 1994); (R. 1–7.)
II.
ALJ Decision
On July 31, 2015, the ALJ issued a partially favorable written determination
finding Plaintiff was disabled between August 7, 2005 and February 16, 2012. (R.
11–38.) At step one, the ALJ determined that Plaintiff has not engaged in
substantial gainful activity since August 5, 2007, the date he became disabled and
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met the insured status requirements of the Act through December 31, 2007. (R. 19.)
At step two, the ALJ found that from August 5, 2007 through February 16, 2012,
Plaintiff suffered from the severe impairment of degenerative disc disease of the
lumbar spine, status post fusion surgery. (Id.) At step three, the ALJ determined
that for the period from August 5, 2007 through February 16, 2012, Plaintiff’s
degenerative disc disease met or medical equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, and 416.926); (R. 20.) Based on these
determinations, the ALJ determined Plaintiff was disabled from August 5, 2007
through February 16, 2012. (R. 21.)
Next, the ALJ noted that Plaintiff had no developed any new impairments
since February 17, 2012, and that beginning that date, Plaintiff did not have in
impairment of combination of impairments which disease meet or medical equaled
the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and
416.926); (Id.) Thus, the ALJ determined that medical improvement occurred as of
February 17, 2012, the date Plaintiff’s disability ended. (Id.)
Before step four, the ALJ found that, beginning February 17, 2012, Plaintiff
had the residual functional capacity (“RFC”) to perform work at a sedentary
exertional level, subject to several limitations. 2 At step four, the ALJ concluded that
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At this stage, the ALJ determined Plaintiff:
can occasionally climb ramps and stairs but never ladders, ropes or scaffolds.
He can occasionally balance, stoop, kneel, crouch and crawl. However,
[Plaintiff] cannot tolerate any exposure to or work around hazards such as
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Plaintiff was not capable of performing his past relevant work. (R. 31.) Then,
beginning in February 17, 2012, considering Plaintiff’s age, education, work
experience, and RFC, the ALJ determined that there were jobs that existed in
significant numbers in the national economy that Plaintiff could perform, such as a
document preparer, information clerk, and order clerk. (R. 31–32.) Because of this
determination, the ALJ found that Plaintiff’s disability ended February 17, 2012.
(R. 32.)
DISCUSSION
III.
ALJ Standard
Under the Act, a person is disabled if he has an “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. § 423(d)(1)(a). In order to determine whether a plaintiff is disabled, the ALJ
considers the following five questions in order: (1) Is the plaintiff presently
unemployed? (2) Does the plaintiff have a severe impairment? (3) Does the
impairment meet or medically equal one of a list of specific impairments
enumerated in the regulations? (4) Is the plaintiff unable to perform his former
occupation? and (5) Is the plaintiff unable to perform any other work? 20 C.F.R. §
416.920(a)(4).
moving machinery or unprotected heights. He cannot tolerate work around or
exposure to vibration.
(R. 21–22.)
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An affirmative answer at either step three or step five leads to a finding that
the plaintiff is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386,
389 (7th Cir. 1992). A negative answer to any remaining question precludes a
finding of disability. Id. The plaintiff bears the burden of proof at steps one through
four. Id. Once the plaintiff shows an inability to perform past work, the burden then
shifts to the Commissioner to show the plaintiff’s ability to engage in other work
existing in significant numbers in the national economy. Id.
IV.
Judicial Review
Section 405(g) provides in relevant part that “[t]he findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ's decision is
limited to determining whether the ALJ's findings are supported by substantial
evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.
2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). This Court may not substitute its
judgment for that of the Commissioner by reevaluating facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Skinner, 478 F.3d
at 841; see also Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (holding that the
ALJ's decision must be affirmed even if “reasonable minds could differ” as long as
“the decision is adequately supported.”) (internal citation omitted).
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The ALJ is not required to address “every piece of evidence or testimony in
the record, [but] the ALJ's analysis must provide some glimpse into the reasoning
behind her decision to deny benefits.” Zurawski v. Halter, 245 F.3d 881, 889 (7th
Cir. 2001). In cases where the ALJ denies benefits to a plaintiff, “he must build an
accurate and logical bridge from the evidence to [her] conclusion.” Clifford, 227 F.3d
at 872. The ALJ must at least minimally articulate the “analysis of the evidence
with enough detail and clarity to permit meaningful appellate review.” Briscoe ex
rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); Murphy v. Astrue, 496
F.3d 630, 634 (7th Cir. 2007) (“An ALJ has a duty to fully develop the record before
drawing any conclusions . . . and must adequately articulate his analysis so that we
can follow his reasoning. . . .”); see Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005).
We review the ALJ’s decision but we play an “extremely limited” role. Elder,
529 F.3d at 413. Where conflicting evidence would allow reasonable minds to differ,
the responsibility for determining whether a plaintiff is disabled falls upon the
Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir.
1990). However, an ALJ may not “select and discuss only that evidence that favors
his ultimate conclusion,” but must instead consider all relevant evidence. Herron v.
Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
V.
Analysis
Plaintiff argues that the ALJ’s decision should result in remand because she:
(1) improperly evaluated the medical opinion evidence; (2) erred in calculating his
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RFC; and (3) the Appeals Council failed to consider new and material evidence. For
the reasons that follow, the Court disagrees.
A. Dr. Khan’s Medical Opinion
First, Plaintiff contends the ALJ failed to properly discount the opinion of his
treating physician Dr. Aftab Khan, M.D. who opined on November 3, 2014 that
Plaintiff could, in relevant part, carry no more than five pounds for a minimal
amount of time, could stand for twenty minutes total in an eight-hour workday, five
minutes at a time, could walk for a similar amount of time, could sit for twenty
minutes at time for a total of four hours, had to lie down periodically, needed a cane,
could never reach, handle, finger, feel, push, pull, or operate foot controls, or
perform postural activities. (R. 696–701.) On other occasions, Dr. Khan opined that
Plaintiff was disabled. (R. 526, 581.)
To start, Plaintiff argues that Dr. Khan’s opinion deserved to be accorded
controlling weight. The “treating physician rule” directs the ALJ to give controlling
weight to a claimant's treating physician if it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and not inconsistent with
the other substantial evidence. See 20 C.F.R. § 404.1527(d)(2). The question upon
review is not could the ALJ have accorded controlling weight to the physician, but
rather, did the ALJ provided substantial evidence supporting her decision not to.
Here, the ALJ explained that Dr. Khan’s opinion was not entitled to
controlling weight because it was not supported by the treatment records. (R. 28–
30.) The ALJ pointed out, for example, that other records indicated Plaintiff had no
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sensory or motor loss in his upper or low extremities that would diminish his ability
to lift five pounds. (R. 28.) She also noted that Plaintiff rarely reported difficulty
walking, and only occasionally used a cane, in addition to exhibiting normal gait
and station. (Id.) She also noted that despite Plaintiff’s continued complaints over a
period of years, his medication remained unchanged. (R. 27.) Several of Dr. Khan’s
examination notes demonstrated normal or unremarkable findings with respect to
motor strength, strength and tone, and lower and upper body extremities. (R. 27–
28.) Thus, the ALJ concluded, Dr. Khan’s opinion was not entitled to controlling
weight because it was inconsistent with other evidence. The Court finds that this
discussion is substantial enough for it to trace a path between the evidence of record
and the ALJ’s decision not to accord Dr. Khan’s opinion controlling weight.
But, even if Dr. Khan was not accorded controlling weight, Plaintiff still
argues that his opinion would be entitled to good weight using the factors in 20
C.F.R. § 404.1527. Generally, even where a treater's opinion is not given controlling
weight, an ALJ must still determine what value the assessment does merit. Scott v.
Astrue, 647 F.3d 734, 740 (7th Cir. 2011); Campbell v. Astrue, 627 F.3d 299, 308
(7th Cir. 2010). In making that determination, the regulations require the ALJ to
consider a variety of factors, including: (1) the nature and duration of the examining
relationship; (2) the length and extent of the treatment relationship; (3) the extent
to which medical evidence supports the opinion; (4) the degree to which the opinion
is consistent with the entire record; (5) the physician's specialization if applicable;
and (6) other factors which validate or contradict the opinion. 20 C.F.R. §
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404.1527(c). The ALJ must then provide a “sound explanation” for that decision.
Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011). Plaintiff does not argue
necessarily that the ALJ erred in applying the factors. Rather, he simply points to
evidence from Dr. Khan’s opinions which he believes met the criteria and would
entitle his opinion to greater weight. This is simply not the Court’s standard of
review. Neither Plaintiff, nor this Court, may reweigh the evidence.
Furthermore, even if the Court were to accept Plaintiff’s argument, the ALJ
did evaluate Dr. Khan’s opinion under the regulatory guidance. The ALJ noted that
Dr. Khan was not a specialist, but that he did have a lengthy relationship with
Plaintiff, and that Plaintiff had reported to Dr. Khan with some regularity over a
course of years. (R. 18, 28.) In fact, the ALJ detail several of Dr. Khan’s
appointments with Plaintiff, including the doctor’s findings and his course of
treatment. (R. 26–28.) She then compared Dr. Kahn’s treatment notes to later notes
in the record which demonstrated improvement in Plaintiff’s condition. (R. 30.)
Finally, the ALJ noted that the opinions articulated by Dr. Khan (that Plaintiff
could stand a total of twenty minutes in an eight-hour work day, sit for twenty
minutes at a time for a total of four hours, could never handle, finger, feel, push,
pull, or operate foot controls, etc.) were not supported by any other medical evidence
from Dr. Khan himself, or otherwise. (R. 28.) This discussion provides the
discussion contemplated by the regulatory factors. As a result, the Court finds that
the ALJ did not error when she assigned no weight to the opinion of Dr. Khan.
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Plaintiff additionally argues that the ALJ’s decision should be remanded
because the ALJ misstated that the record contained no evidence dated after
February 16, 2012 which demonstrated neurological deficits. Specifically, Plaintiff
claims this statement is the result of the ALJ handpicking evidence favorable to her
disability determination, while disregarding other critical evidence. Plaintiff then
points to several records which indicate low back pain, lower leg pain, limited range
of motion in the spine, positive straight leg testing, and gait abnormalities after
February 16, 2012. (Pl.’s Br. at 13.) Despite her statement to the contrary, the ALJ
listed much of the evidence Plaintiff complains about, including visits in 2013 to Dr.
Khan where Plaintiff had “painful range of motion”, “limping” and “wore a back
brace.” (R. 26.) The ALJ continues on to detail Plaintiff’s treatment in 2014 noting
Plaintiff’s range of motion continued to be limited by pain and that straight leg
testing was positive. (R. 26–28.) The ALJ then contrasted this to other evidence
demonstrating normal neurological examinations, gait assessments, and motor
strength examinations. (Id.) Thus, contrary to Plaintiff’s argument, the ALJ did not
cherry pick the evidence, but fully discussed the evidence of record.
B. RFC Determination
Next, Plaintiff contends that the ALJ erred when she limited him to
sedentary work with occasional stooping, kneeling, crouching, crawling and
climbing, in light of his documented back pain. In particular, Plaintiff argues that a
“common sense” review of the evidence would reveal that he is unable to perform
these tasks.
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A claimant's RFC is the most he can still do despite his limitations. See 20
C.F.R. § 404.1545(a)(1). When formulating a claimant’s RFC, an ALJ must
incorporate all of a claimant’s limitations which she finds are supported by the
record, Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014), “even those that are nonsevere.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009); see 20 C.F.R. §
404.1545(a)(1) (“We will assess your residual functional capacity based on all
relevant evidence in your case record.”); Denton v. Astrue, 596 F.3d 419, 423 (7th
Cir. 2010) (“[w]hen determining a claimant’s RFC, the ALJ must consider the
combination of all limitations on the ability to work, including those that do not
individually rise to the level of a severe impairment.”). The RFC assessment must
always consider and address medical source opinions. SSR 98-6p.
At the administrative hearing, the ALJ elicited testimony from Dr. Ashok
Jilhewar, M.D. After review of Plaintiff’s record, and listening to his testimony, Dr.
Jilhewar expressed that Plaintiff retained the ability to work at a sedentary
capacity, would be unable to work with ladders, ropes, or scaffolds, but could do all
other activities at an “occasional” level. (R. 61.) He also opined that Plaintiff would
be unable to work at unprotected heights and needed to avoid exposure to
vibrations and work around large moving machinery. (R. 62.) The ALJ subsequently
accorded great weight to Dr. Jilhewar’s opinion and adopted his findings when
formulating her RFC. (R. 21.) Thus, the ALJ’s RFC determination was supported by
the medical expert.
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Plaintiff claims a “common sense” reading of the evidence would clearly
demonstrate that he cannot kneel, crouch, or stoop for two hours during the
workday, particularly in light of his lumbar fusion back pain with radiculopathy.
But the court in the cases cited by Plaintiff did not remand on “common sense”
alone. For example, in Barnett v. Barnhart, the Court found the ALJ improperly
erred at step three because he made his own assumption instead of consulting a
medical expert as to whether the claimant met a listing. 381 F.3d 664, 670–71 (7th
Cir. 2004). The Court merely noted in the conclusion following it analysis that
“[c]ommon sense cause[d it] to question the validity of a finding that a woman
suffering multiple seizures in a single day could be employed as a cashier.” Id. at
671. But, this is not a legal standard that all subsequent courts must adopt.
Because the ALJ’s RFC determination was otherwise supported by Dr. Jilhewar’s
opinion, the Court finds the ALJ made no error.
C. New and Material Evidence
Lastly, Plaintiff argues that the AC failed to include new and material
evidence in his administrative record which would affect the outcome of the ALJ’s
decision.
The AC, in determining whether to review a claim that has been denied by
an ALJ, must evaluate additional evidence that the claimant submits, provided that
the evidence is both “new” and “material” and relates to the period on or before the
date of the ALJ's decision. 20 C.F.R. § 404.970(b); Farrell v. Astrue, 692 F.3d 767,
770–771 (7th Cir. 2012). The Council will then grant de novo review of the ALJ's
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decision only “if it determines based on the supplemented record that the ALJ's
conclusions are contrary to the weight of the evidence.” Stepp v. Colvin, 795 F.3d
711, 721 (7th Cir. 2015). Evidence is considered “new” if it was “not in existence or
available to the claimant at the time of the administrative proceeding.” Stepp v.
Astrue, 795 F.3d at 725 (quoting Perkins v. Chater, 107 F.3d 1290, 1296 (7th Cir.
1997)). Evidence is considered “material” if it “creates a reasonable probability that
the Commissioner would have reached a different conclusion had the evidence been
considered.” Id. The additional evidence must also relate to the period on or before
the date of the ALJ's decision. Schmidt v. Barnhart, 395 F.3d 737, 742 (2005).
Plaintiff first claims that the AC mistakenly omitted from the record a letter
from Dr. Khan dated June 23, 2016, in violation 42 U.S.C. § 405(g). See 42 U.S.C. §
405(g) (noting that “in any case in which the Commissioner has not made a decision
fully favorable to the individual,” the Commissioner shall file “a transcript of the
additional record and testimony upon which the Commissioner’s action in modifying
or affirming was based.”)
To start, the Court notes that Commissioner filed a supplemental copy of the
administrative record on August 2, 2017 which included Dr. Khan’s June 23, 2016
letter, thereby, comporting with the requirements of § 405(g). Thus, Plaintiff’s
argument in this respect is mooted. Furthermore, to the extent Plaintiff argues that
Dr. Khan’s letter was new and material evidence, Plaintiff presents no facts or
analysis in furtherance of his proposition, effectively waiving his argument. United
States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“perfunctory and
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undeveloped arguments, and arguments that are unsupported by pertinent
authority, are waived (even where those arguments raise constitutional issues))”;
see also Handford ex rel. I.H. v. Colvin, No. 12 C 9173, 2014 U.S. Dist. LEXIS 3449,
at *39 (N.D. Ill. 2014) (applying Berkowitz to reject underdeveloped arguments in a
Social Security appeal). But, assuming that Plaintiff had made a colorable
argument, the letter would not be deemed material. Here, the ALJ had already
considered several other pieces evidence from Dr. Khan declaring that Plaintiff was
disabled, including another letter dated February 2013 and a form from November
2014. The June 23, 2016 letter therefore is cumulative of evidence already in the
record.
Plaintiff puts forth a similar argument under this standard with regard to
cervical spine MRIs dated October 23, 2015, which he alleges support his complaint
of headaches. Dr. Khan’s 2016 letter explains that the MRI findings were consistent
with Plaintiff’s complaints of pain. (R. 716.) Plaintiff asserts this evidence would
change the outcome of his disability determination because “the [VE] testified if he
were off task just 16% of the day due to headaches he would be unemployable.” Pl.’s
Br. at 20.
The AC’s letter makes clear that it considered Plaintiff’s MRI’s, but still
determined that any evidence dated after July 31, 2015 would not affect the ALJ’s
decision about whether Plaintiff was disabled beginning on or before July 31, 2015.
(R. 2–6.) While this new MRI evidence may substantiate some of Plaintiff's
complaints of pain and headaches, there is no evidence that these complaints would
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result in Plaintiff being off-task more than 15% of the workday. 3 Therefore the
Court likewise deems the MRI’s as not material, and finds that the Appeals Council
made no error in its consideration of the evidence.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for summary judgment [Doc. No.
23] is denied and the Commissioner’s cross-motion for summary judgment [Doc. No.
25] is granted. Affirmed.
SO ORDERED.
ENTERED:
DATE:
___________________________
HON. MARIA VALDEZ
United States Magistrate Judge
June 29, 2018
The Court notes that the VE testified that an individual who would be off task for more
than 15% of the day for any reason would be unemployable. (R. 72.)
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