Miller v. Colvin

Filing 60

OPINION AND ORDER. For the reasons stated in the accompanying Opinion and Order, the Court affirms the ALJ's decision to deny Miller's application and grants the Commissioners motion for summary judgment 46 . Mail ILND 450. Civil case terminated. Signed by the Honorable Sara L. Ellis on 2/7/2019. Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DOUGLAS A. MILLER,
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner of Operations, Social Security
Administration, 1
Defendant.

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No. 17 C 235
Judge Sara L. Ellis

OPINION AND ORDER
Plaintiff Douglas A. Miller seeks to overturn the final decision of the Commissioner of
Social Security (the “Commissioner”) denying his application for disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423. Before the Court is
Miller’s appeal of the Administrative Law Judge’s (“ALJ”) decision denying his application for
DIB and the Commissioner’s motion for summary judgment. Because the ALJ’s analysis
satisfied the requirements of Social Security Ruling 83-20 (“SSR 83-20”) and properly evaluated
Miller’s symptoms, the Court affirms the ALJ’s decision to deny his application and grants the
Commissioner’s motion for summary judgment.
BACKGROUND
I.

Medical History
On December 8, 2004, Miller had surgery performed on his left foot to fix a broken bone

in that foot. AR 401. The doctor who performed surgery also noted that Miller was suffering
from an acute gout attack, with a diffuse edema on his left foot at the site of the gout. AR 401.
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The Court substitutes Nancy A. Berryhill for Carolyn W. Colvin as the proper defendant in this action.
Fed. R. Civ. P. 25(d).

The surgery went well, with no complications. AR 401–02. After the surgery, Miller’s nurse
noted that Miller reported discomfort in his foot between a three and a four on a scale of one to
ten. AR 403. She also noted that Miller was using crutches to get to the bathroom. AR 403.
The nurse’s report further described Miller as obese and noted a history of asthma. AR 403.
After these reports, Miller’s medical history is silent until February 28, 2013, when
Miller saw a nurse at Greater Elgin Family Care Center (“Greater Elgin”). AR 414. Over the
next two years, Miller continued follow up at Greater Elgin, seeking treatment for depression,
gout, hypertension, acute gouty arthropathy, diabetes, hypertension, depression, and
hyperlipidemia. AR 462, 469, 473, 476, 482, 488, 547, 554, 560, 567, 574, 595, 604. Miller
also saw several specialists, including a cardiologist for his hypertension and an orthopedic
specialist for his right hip pain. AR 663, 705, 708, 711, 714, 718, 728. He admitted himself to
Sherman Hospital in September 2014 for acute renal insufficiency. AR 529. His doctors at
Sherman Hospital diagnosed him with acute renal failure, which was likely induced by Miller’s
medications and new diet. AR 532. They also noted diabetes, hypertension, morbid obesity, a
history of gout, and depression. AR 529. After his hospital visit, Miller began seeing a
specialist for his kidney problems as well, which included chronic kidney disease. AR 625, 631,
636, 646.
Dr. Mahesh Shah conducted a radiological evaluation for the Bureau of Disability
Determination Services on June 10, 2013, and he determined that Miller had a severe degree of
degenerative disease of the right hip. AR 449. Also on June 10, 2013, Dr. Jorge Aliaga
performed an internal medicine consultative evaluation on Miller. AR 451. Miller reported to
Aliaga that he received treatment for diabetes for the past six months, that he had a history of
hypertension since January 2013, and that he had suffered from gout attacks since he was 35.

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AR 451. He reported two to three gout attacks per year, with the last one being in February and
lasting six weeks. AR 451. Miller stated that he had hip problems since he fell from a ladder in
2004, when he also broke his foot. AR 451–52. He noted that he had pain in his right hip and
could not walk more than five blocks without resting. AR 452. He was taking medication for
his pain and rated his pain at a five or six out of ten. AR 452. He also noted a history of asthma.
AR 452. Aliaga’s physical exam revealed full range of motion in the shoulders, elbows, wrists,
left hip, knees, and ankles. AR 453. He had a decreased range of motion in his right hip,
however, due to pain. AR 453. His posture and gait were normal, without need of assistive
device. AR 453. He did have difficulty squatting and arising due to right hip discomfort, but he
could sit and stand without difficulty. AR 454. He appeared depressed. AR 454. Aliaga
diagnosed Miller with diabetes, hypertension, gout, “[p]ossible degenerative osteoarthritis of the
right hip aggravated by his trauma in 2004,” asthma, and depression. AR 454.
Dr. Ernst Bone and Dr. R. Oh, both Disability Determination doctors, reviewed Miller’s
medical files and determined that, because there was “no other evidence from claimant’s treating
sources” from the time period between Miller’s alleged onset date and his date last insured, they
had to deny his claim “for insufficient evidence.” AR 135, 147. They did, however, check “yes”
to affirm that Miller’s impairments would reasonably be expected to produce his pain and
symptoms and that the medical evidence alone substantiated Miller’s statements about the
intensity, persistence, and functionally limiting effects of the symptoms. AR 136, 148. Dr. M.
Difonso, PsyD, and Dr. Loretta McKenzie, PhD, also Disability Determination doctors, noted no
information regarding a psychiatric impairment prior to the date last insured. AR 136, 148.

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III.

Disability Claim and Hearing Testimony
On April 23, 2013, Miller filed for DIB. AR 218. He alleged that he became disabled on

November 28, 2003. AR 218. The Commissioner initially denied his claim on July 23, 2013
and again on reconsideration on June 27, 2014. AR 153, 159. Miller requested a hearing, which
was held on July 7, 2015 and at which Miller did not have counsel representing him. AR 39. Dr.
James M. McKenna, a medical expert, testified at the hearing. AR 21. Although the ALJ’s
opinion states that Stephanie Archer, a vocational expert, also testified, the transcript of the
hearing does not reflect this.
A.

Miller’s Testimony

Miller testified that his youngest son and his son’s girlfriend live with him. AR 56. He
was able to drive, although only about once a month prior to the hearing and once a week prior to
that. AR 56. Miller stated that he did little cleaning, although he periodically washed the dishes
and did some cooking. AR 57. He dressed and bathed himself when able to leave his bed,
although approximately 2-3 days per week the pain and swelling in his legs prevented him from
doing so. AR 57.
Miller stated he became disabled on November 28, 2003, when he fell from a ladder
while decorating a Christmas tree. AR 57–59. He testified that he injured his hips, knees, and
ankles, and he also broke two bones in his foot as a result of the fall. AR 59. Miller did not have
insurance at the time, and so rather than immediately seeking medical attention, he confined
himself to bedrest for eight days. AR 59–60. After he was still suffering symptoms, he saw a
podiatrist for his pain. AR 60. After reviewing an x-ray of Miller’s foot, the doctor determined
that Miller had two broken bones and would need surgery, although the surgery had to wait until
the swelling in Miller’s feet went down. AR 60. Miller had outpatient surgery on his left foot on

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December 8, 2004. AR 60–61. Miller stated that he could not walk for three or four months
after the surgery because his feet were so swollen. AR 62. After about eight months, he testified
that he was able to walk without crutches approximately once a week. AR 63. He further
testified that since his surgery, he has been confined to his bed for three days each week. AR 64.
Miller stated that he went to rehab for his foot, which helped him walk. AR 66. Other than the
treatment discussed above, he did not have any other treatment for his foot prior to 2007. AR 67.
He did not have treatment for his heart or hip prior to 2007. AR 67.
Miller did testify that he suffered gout attacks 3-4 times per year prior to 2007, and he
sought treatment for those attacks. AR 67. Initially the gout attacks lasted about three days; by
2007, they lasted for two weeks. AR 67. The podiatrist who performed surgery on his foot also
prescribed Miller medication for the gout, which made the outbreaks less severe and less
frequent. AR 68.
Miller testified that he did not seek treatment for his hip and foot again until 2013, due to
lack of resources and the fact that he did not have insurance. AR 69. He did not seek out low
cost medical care or clinics because he was unaware of them—his sister “dragged” him to one in
2013 because of his condition. AR 69. He first saw a doctor again in February 2013. AR 70.
Miller testified that he mentioned his hip pain at the first appointment, but the doctor wanted to
focus on his blood pressure, which he found more concerning. AR 70. Miller stated that he did
not go to the doctor until 2013 because he viewed going to a doctor as “a sign of weakness.” AR
72. He testified that he wanted to recover through rehab on his own. AR 72.
Miller stated that he attempted to rehab himself in 2006 by going to a nearby recreation
center and working with staff members there. AR 72, 75. He testified that he once went to the
recreation center 183 days in a row and usually would go 3-4 days per week. AR 73. He walked

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in the swimming pool, swam, lifted weights with his upper body, and did sets of exercises with
his legs without weights. AR 73–74. After this rehab and prior to 2007, Miller testified that he
was able to walk about 1000 steps without assistance. AR 74.
B.

Medical Expert Evidence

Dr. James McKenna testified next. McKenna testified that the record reflected that on
December 8, 2004, Miller was morbidly obese. AR 78. Using Miller’s height and weight at the
time, McKenna calculated a BMI of 38.5. AR 78. However, McKenna stated that, with regard
to Miller’s foot, Miller’s medical record merely reflected “somebody who may have had a
fracture or two.” AR 79. McKenna testified that he would have expected “perfect healing”
based on the surgery performed and found no evidence in the record of any complication
resulting from that surgery. AR 79. McKenna stated that the next medical records after Miller’s
foot surgery are from 2013, and nothing in those reports date back to 2007. AR 80.
McKenna also noted that Miller listed a history of asthma, but that asthma was “not
established as a medically determinable impairment in the file.” AR 80. McKenna noted that
gout is listed in Miller’s file prior to 2007, but that it appeared manageable and he would not
expect it to be a severe problem. AR 80–82. McKenna also stated that he found no evidence of
a severe medically determinable impairment regarding Miller’s ankle or hip. AR 83. Looking at
Miller’s record for 2013, McKenna testified that he found no evidence relating his medical
problems in 2013 back to 2007, although the records from 2013 did support severity after 2013.
AR 85.
IV.

The ALJ’s Decision
On July 17, 2015, the ALJ issued a written decision denying Miller DIB. AR 21–30.

Following the five-step analysis used by the Social Security Administration, the ALJ found at

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step one that Miller had not engaged in substantial gainful activity “during the period from his
alleged onset date of November 28, 2003 through his date last insured of December 31, 2007.”
AR 23. The ALJ then proceeded to step two, concluding that Miller did not have an impairment
or combination of impairments that significantly limited his ability to perform basic work-related
activities for 12 consecutive months prior to his date last insured. AR 23. In light of this, the
ALJ found that Miller did not have a disability before his date last insured. AR 30.
The ALJ noted in her decision that the state agency had already determined that Miller
was disabled for purposes of Supplemental Security Income (“SSI”) payments but found that the
medical records could not support a finding that Miller’s disability occurred prior to the date last
insured. AR 29. She found that Miller’s testimony was not credible due to inconsistencies
between his testimony and the record. AR 28–29. She placed significant weight on McKenna’s
testimony for his review of the medical record and to the Disability Determination doctors for
their opinions that there was insufficient evidence of a severe impairment. AR 30. She also
noted that she received no opinions from any of the claimant’s treating sources prior to the date
last insured. She concluded, “[i]n sum, the conclusion that the claimant did not have an
impairment or combination of impairments that significantly limited his ability to perform basic
work activities prior to the date last insured is supported by the substantial weight of the medical
evidence of record, and the conservative nature of his treatment prior to the date last insured.”
AR 30.
LEGAL STANDARD
I.

Standard of Review
In reviewing the denial of disability benefits, the Court “will uphold the Commissioner’s

final decision if the ALJ applied the correct legal standards and supported her decision with

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substantial evidence.” Bates v. Colvin, 736 F.3d 1093, 1097 (7th Cir. 2013). 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, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)
(citation omitted) (internal quotation marks omitted). Although the Court reviews the entire
record, it does not displace the ALJ’s judgment by reweighing facts or making independent
credibility determinations. Beardsley v. Colvin, 758 F.3d 834, 836–37 (7th Cir. 2014). But
reversal and remand may be required if the ALJ committed an error of law or the decision is
based on serious factual mistakes or omissions. Id. at 837. The Court also looks to “whether the
ALJ built 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) (quoting Craft v. Astrue,
539 F.3d 668, 673 (7th Cir. 2008)). “[H]e need not provide a complete written evaluation of
every piece of testimony and evidence,” Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012)
(quoting Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)), but “[i]f a decision ‘lacks
evidentiary support or is so poorly articulated as to prevent meaningful review,’ a remand is
required,” Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012) (quoting Steele v. Barnhart, 290
F.3d 936, 940 (7th Cir. 2002)).
II.

Disability Standard
To qualify for DIB or SSI, a claimant must show that she is disabled, i.e. that she is

unable 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 12 months.” 42 U.S.C.
§ 423(d)(1)(A); Weatherbee v. Astrue, 649 F.3d 565, 568 (7th Cir. 2011). To determine whether
a claimant is disabled, the Social Security Administration uses a five-step sequential analysis. 20

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C.F.R. § 404.1520; Kastner, 697 F.3d at 646. At step one, the ALJ determines whether the
claimant has engaged in substantial gainful activity during the claimed period of disability. 20
C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ considers whether the claimant’s physical or
mental impairment is severe and meets the twelve-month durational requirement. 20 C.F.R.
§ 404.1520(a)(4)(ii). At step three, the ALJ determines whether the claimant’s impairment(s)
meet or equal a listed impairment in the Social Security regulations, precluding substantial
gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Pt. 404, Subpt. P, App. 1. If the
claimant’s impairment(s) meet or medically equal a listing, the individual is considered disabled;
if a listing is not met, the analysis continues to step four. 20 C.F.R. § 404.1520(a)(4)(iii). At
step four, the ALJ assesses the claimant’s residential functional capacity (“RFC”) and ability to
engage in past work. 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant can engage in past relevant
work, she is not disabled. Id. If she cannot, the ALJ proceeds to step five, in which the ALJ
determines whether a substantial number of jobs exist that the claimant can perform in light of
her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). An individual is
not disabled if she can engage in other work. Id. The claimant bears the burden of proof on
steps one through four, while the burden shifts to the government at the fifth step. Weatherbee,
649 F.3d at 569.
ANALYSIS
In seeking to overturn the ALJ’s decision, Miller argues that (1) the ALJ erred when she
did not apply SSR 83-20 to determine the onset date of Miller’s disability, and (2) the ALJ did
not properly evaluate Miller’s symptoms. The Court addresses each of these contentions in turn.

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I.

Letters Outside of the Record
As an initial matter, Miller has submitted new evidence that was not part of the

administrative record. When reviewing the ALJ’s disability determination, the Court cannot
consider evidence that was not before the ALJ. Eads v. Sec’y of the Dep’t of Health and Human
Servs., 983 F.2d 815, 817 (7th Cir. 1993). “However, the Court can order a remand under
sentence six of 42 U.S.C. § 405(g), which requires a plaintiff to show that there is ‘new evidence
which is material and that there is good cause for the failure to incorporate such evidence into the
record in a prior proceeding.’” Rudolph v. Colvin, No. 12-C-1159, 2013 WL 5945788, at *1
(E.D. Wis. Nov. 5, 2013) (quoting 42 U.S.C. § 405(g)). “Evidence is ‘material’ if there is a
‘reasonable probability’ that the Commissioner ‘would have reached a different conclusion had
the evidence been considered,’ and evidence is ‘new’ if it was ‘not in existence or available to
the claimant at the time of the administrative proceeding.’” Id. (quoting Perkins v. Chater, 107
F.3d 1290, 1296 (7th Cir. 1997)). Miller does not provide any argument regarding these issues.
Although he is currently pro se, Miller was represented by counsel until shortly before he filed
the reply brief, and counsel wrote both briefs.
Regardless, the Court cannot consider the newly submitted evidence because Miller
cannot meet the standards for newness. Miller began seeing his current doctor and nurse in
2013, and he could have asked them to provide their medical opinion regarding when his severe
medical impairment began before his hearing with the ALJ. He also could have sought to follow
up with his podiatrist before his hearing with the ALJ. Unfortunately, none of this evidence
qualifies as new, and so the Court proceeds to review the Commissioner’s decision based on the
record before the ALJ.

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II.

Applicability of SSR 83-20
SSR 83-20 “provides the analytical framework for determining an onset date where a

claimant is disabled but it is unclear when her disability began.” Smith v. Colvin, 208 F. Supp.
3d 931, 939 (N.D. Ind. 2016). The question at the heart of this issue is what constitutes a finding
of disability sufficient to trigger SSR 83-20’s procedures. Miller contends that, because the
Social Security Administration found Miller disabled and eligible for SSI, the ALJ should have
proceeded to determine the onset date of his disability using SSR 83-20. The Commissioner
responds that SSR 83-20 only applies once the ALJ formally completes the five-step sequential
analysis and concludes that the claimant is disabled.
“[B]ecause SSR 83-20 is a directive to the ALJ as to the operative ground rules and
procedure that must be followed where a claimant is or has been disabled and where the claim
necessitates a determination of the onset of that disability, the only precondition to the ALJ’s
resort to SSR 83-20 should be the fact that the ALJ has found such disability—and not the
particular manner in which the ALJ has articulated that finding.” Campbell v. Chater, 932 F.
Supp. 1072, 1075 (N.D. Ill. 1996) (cited by Schenck v. Barnhart, 357 F.3d 697, 701 (7th Cir.
2004)). Other district courts in the Seventh Circuit have reached the same result as Campbell.
See Summers v. Berryhill, No. 15 C 7820, 2017 WL 1178521, at *6–7 (N.D. Ill. Mar. 30, 2017)
(noting that the Commissioner’s SSI disability finding was “a finding of disability for Plaintiff’s
DIB application, triggering the application of SR 83-20”); Smith, 208 F. Supp. 3d at 939–40
(finding that, “where the evidence is at very least ‘ambiguous’ regarding the possibility that ‘the
onset of [the claimant’s] disability occurred before the expiration of her insured status,’ the ALJ
should turn to SSR 83-20 to make the necessary retroactive findings” (quoting Grebenick v.
Chater, 121 F.3d 1193, 1201 (8th Cir. 1997)). But see Patterson v. Colvin, No. 1:13-cv-00553-

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SEB-TAB, 2014 WL 2511625, at *3 (N.D. Ind. June 3, 2014) (holding that, despite the ALJ’s
conclusion that the claimant was disabled at the time of the hearing, the ALJ made “no
preexisting disability finding” because she decided the claimant did not have a disability prior to
the date last insured, and so SSR 83-20 was not triggered).
Here, the Social Security Administration had already determined that Miller was disabled
for the purposes of his SSI payments. The ALJ acknowledged this in her written decision.
Miller’s disability at the time of his application for DIB and hearing in front of the ALJ is
undisputed on the record; at the hearing itself, both the ALJ and McKenna agreed that Miller was
disabled after 2013. AR 85–86. As the ALJ acknowledged during the hearing, “under Title XVI
[Miller] had already been found disabled by the state agency” and so the “only issue” in front of
the ALJ was Miller “prov[ing] that [he] was disabled prior to December 31, 2007,” which is the
date last insured. AR 45–46. This is the same situation as that in Summers, and that disability
finding triggered SSR 83-20. 2017 WL 1178521, at *6–7.
The Commissioner’s citation of Schloesser v. Berryhill to support her argument that SSR
83-20 does not apply is unpersuasive, because in fact Schloesser supports the application of SSR
83-20 to this situation. 870 F.3d 712, 718 (7th Cir. 2017). In Schloesser, the Seventh Circuit
noted that “SSR 83-20 only addresses the situation in which a finding is made ‘that an individual
is disabled as of an application date and the question arises as to whether the disability arose at
an earlier time.’” Id. (quoting Schenck, 357 F.3d at 701). The Social Security Administration
has already made a finding that Miller is disabled; thus, even by the authorities the
Commissioner cites, the ALJ should have applied SSR 83-20.

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III.

Application of SSR 83-20 2
Having decided that the ALJ should have applied SSR 83-20, the Court must next decide

whether the ALJ implicitly followed SSR 83-20 or whether the Court should remand the case for
the ALJ to do so. Failure to explicitly refer to SSR 83-20 is not fatal “if the ALJ nevertheless
conducted the requisite analysis.” Pugh v. Bowen, 870 F.2d 1271, 1274 (7th Cir. 1989).
According to SSR 83-20, where “it is impossible to obtain medical evidence establishing the
precise date an impairment became disabling,” “it will be necessary to infer the onset date from
the medical and other evidence.” SSR 83-20, 1983 WL 31249, at *2 (1983). When the ALJ
must infer the onset date, the ALJ should seek the advice of a medical advisor. Id. at *3. SSR
83-20 provides further guidance to the ALJ regarding what to do if the file does not contain
sufficient evidence to determine the onset date:
If reasonable inferences about the progression of the impairment
cannot be made on the basis of the evidence in the file and
additional relevant medical evidence is not available, it may be
necessary to explore other sources of documentation. Information
may be obtained from family members, friends, and former
employers to ascertain why medical evidence is not available for
the pertinent period and to furnish additional evidence regarding
the course of the individual’s condition.
Id. The ALJ may only rely on lay evidence to the extent that “it is not contrary to the medical
evidence of record,” and the ALJ’s judgment regarding the onset date “must have a legitimate
medical basis.” Id.
Miller argues that the ALJ’s analysis was insufficient to fulfill the requirements of SSR
83-20 on multiple grounds, namely: the ALJ erred (1) when she did not ask McKenna questions
targeted to understand at what point it would be reasonable to infer that Miller’s disability began,
2

Miller argues that the Commissioner did not argue in response that the ALJ explicitly or implicitly
followed SSR 83-20, and so she has waived the argument. Doc. 51 at 2. However, the Commissioner did
make this argument and has not waived it. Doc. 47 at 6 (“[P]laintiff points to no legitimate medical basis
relating back to the applicable disability period.”). The Court will consider the argument on the merits.

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(2) when she did not request additional information from the podiatrist who performed Miller’s
foot surgery in 2004, (3) when she did not attempt to determine the frequency and duration of
Miller’s gout attacks, and (4) when she did not explore other sources of documentation from
family and friends.
The ALJ did seek the advice of a medical advisor, as directed by SSR 83-20. Looking to
the transcript of the hearing, Miller’s characterization of the ALJ’s questioning of McKenna is
incorrect. The ALJ did ask McKenna questions seeking to determine whether the medical
records in the file provided any evidence relating back to the date last insured, prior to December
31, 2007. AR 85. She asks McKenna: “So there’s nothing that is relating back prior to 2007 to
show a severe medically determinable impairment?” AR 85. She follows up: nothing “[t]hat
would support a severe medically determinable impairment?” AR 85. McKenna responds both
times that nothing in the record supports such a finding. 3 AR 85.
Miller also argues that the ALJ erred when she did not follow up with the podiatrist who
performed his 2004 foot surgery. In support of this argument, Miller attaches a letter from the
podiatrist written subsequent to the ALJ’s decision, in which the doctor noted that Miller had
“verbal complaints of pain to [his] lower extremity including [his] foot, knees, and hip.” Doc.
37-2. He also submits a letter from his current doctor and nurse, who state their belief that Miller
“has been disabled most likely since 2004.” Doc. 51 at 26. According to Miller, these letters
show that the ALJ should have followed up with the podiatrist and other doctors prior to issuing
her decision. However, the podiatrist had not even written the letter prior to the ALJ’s decision,
3

Miller argues that McKenna did not address the agency examiner’s opinion that the degenerative
osteoarthritis in Miller’s hip was “aggravated by the trauma in 2004.” AR 454. However, this
speculation from the agency examination conducted in 2013 does not establish when the condition in
Miller’s hip became a disability, and there is nothing to suggest that McKenna did not take this
assessment into account when determining that the records from 2013 onward did not support a severe
medically determinable impairment prior to the date last insured in 2007.

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and Miller represented at the hearing that the only records regarding his foot surgery were those
that were in the record already. AR 43. He also testified that he tried to contact the podiatrist
himself, but he was no longer in business. AR 92. With Miller himself informing the ALJ that
she could not find any further records and that the podiatrist was unavailable, it is difficult to
fault her for ending the inquiry there. And the ALJ did consult with a doctor, who concluded
after reviewing all of the records and listening to Miller’s testimony that there was no medical
basis on which to find a medical determinable severe impairment prior to his date last insured.
She had no reason to believe that consulting with further doctors would lead to a different result.
In addition, Miller argues that the ALJ should have developed the record further
regarding his gout attacks. Again, looking to the record, the ALJ questioned Miller about his
gout attacks, asking him about the nature of the attacks, how often they occurred and how long
they lasted, and the type of treatment he received for the condition prior to 2007. AR 67–68.
The ALJ also asked McKenna about Miller’s gout, after McKenna had listened to Miller’s
testimony. She noted that the podiatrist’s notes from Miller’s 2004 surgery noted an “acute gout
attack,” and McKenna testified in response that gout was a “treatable disease.” AR 82. When
she asked him if the gout was a severe medical impairment, McKenna replied that it was not.
AR 82. Miller’s argument that the ALJ “failed to determine the frequency and duration of gout
attacks and the corresponding functional impact” is directly contradicted by the transcript of the
hearing. Doc. 37 at 13. She appropriately questioned Miller and McKenna regarding Miller’s
gout symptoms, and she specifically asked Miller about the frequency and duration of his gout
attacks. AR 67–68.
Finally, Miller asks the Court to find that the ALJ erred when she did not seek out other
sources of documentation from Miller’s family and friends. He suggests that, where the ALJ

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cannot determine the onset date from the record and the medical expert, SSR 83-20 requires the
ALJ to explore other sources of documentation from family and friends. SSR 83-20 requires no
such thing, however; it merely suggests that “[i]f reasonable inferences about the progression of
the impairment cannot be made on the basis of the evidence in file and additional relevant
medical evidence is not available, it may be necessary to explore other sources of
documentation,” such as seeking out “[i]information from family members, friends, and former
employers.” SSR 83-20, 1983 WL 31249, at *3. This language clearly imposes no requirement
on the ALJ. Cf. Eichstadt v. Astrue, 534 F.3d 663, 667 (7th Cir. 2008) (noting that language in
SSR 83-20 that the ALJ “should call on the services of a medical advisor when onset must be
inferred” implied that “the ultimate decision was up to the ALJ” (internal quotation marks
omitted)).
Moreover, the only other person present who could have testified at the hearing was
Miller’s sister, Marilyn Dacken. Doc. 37-1. The record reflects that Dacken would not have
been helpful in establishing Miller’s disability before December 31, 2007: in the function report
she filled out, she noted that she “did not know the severity of his condition” for “some time”
due to an estrangement. AR 300. She stated that she convinced him to go to the doctor when
she found out. AR 302. If this doctor visit did not occur until 2013 due to an estrangement,
Dacken may not have known about Miller’s disability prior to 2007. And, based on the
transcript of the hearing, the ALJ gave Miller the opportunity to have his sister testify at the end
of the hearing, when she asked Miller three times if he had anything else to add to the record.
AR 88, 92, 93.
Ultimately, the flaw in Miller’s argument here is that SSR 83-20 requires that the ALJ’s
finding regarding an onset date have a legitimate medical basis. Aulik v. Berryhill, 711 F. App’x

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806, 808 (7th Cir. 2018) (finding that, because the claimant did not provide any medical
evidence of his disability, “[i]t is . . . difficult to see how any medical examiner could have
provided an opinion, grounded in the requisite legitimate medical basis” that the claimant’s
disability dated back to the date last insured (internal quotation marks omitted)). Based on the
record and the testimony available to her, the ALJ simply did not have a legitimate medical basis
for finding an onset date prior to December 31, 2017. Analysis using SSR 83-20’s framework
does not fix this problem.
IV.

Symptom Evaluation
Miller also argues that the ALJ erred in her evaluation of his symptoms. He contends

that the ALJ’s analysis of his credibility was too vague and that the ALJ impermissibly
discredited Miller’s testimony regarding his disability solely because of his lack of medical
treatment without assessing the underlying reasons for his lack of treatment. Doc. 37 at 15–16.
The record establishes that neither of these arguments has merit. Review of the ALJ’s written
decision shows that the ALJ provided multiple reasons why she did not find Miller’s testimony
credible. AR 28–29. She described multiple inconsistencies, both between Miller’s testimony
and the record and between different portions of Miller’s testimony. For example, she stated that
“[d]espite the extreme limitations he testified to prior to 2007, he noted that in 2006, he had
stated his own rehab at a rec center where he swam, exercised in a pool, and lifted weights.” AR
28. Also contrary to Miller’s argument, she did consider the underlying reasons for his lack of
treatment. AR 28 (Miller “did not seek medical attention or rehabilitation beyond his podiatrist,
because he was determined to rehab himself”).
Miller also argues that the ALJ failed to cite “crucial evidence” supporting his credibility,
which was that the Disability Determination doctors who evaluated him checked “yes” to the

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form questions of whether (1) Miller’s impairment could reasonably be expected to produce his
pain and (2) Miller’s statements regarding the intensity, persistence, and limiting effects of the
symptoms were substantiated by the medical evidence. AR 115, 147–48. However, these
checked boxes say nothing of the credibility of Miller’s statements regarding the length of time
he has been disabled. In addition, the ALJ noted that she was giving the Disability
Determination doctors’ opinions weight regarding their determination that there was insufficient
evidence of a severe impairment. AR 30. Unlike the ALJ decision in Scrogham v. Colvin, 765
F.3d 685, 698–99 (7th Cir. 2014), where the Seventh Circuit found that its review of the record
generally revealed that the ALJ considered evidence about the claimant selectively, the ALJ
thoroughly reviewed the record in this case. Unfortunately, that review did not result in Miller’s
favor, but he has not established that the ALJ erred in her decision.
CONCLUSION
For the foregoing reasons, the Court affirms the ALJ’s decision to deny Miller’s
application and grants the Commissioner’s motion for summary judgment [46].

Dated: February 7, 2019

______________________
SARA L. ELLIS
United States District Judge

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