McReynolds v. Berryhill
Filing
35
MEMORANDUM Opinion and Order. Signed by the Honorable Jeffrey Cole on 10/30/2018: Civil case terminated. Mailed notice(jms, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ELAINE MCREYNOLDS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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No. 17 C 5642
Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
Plaintiff, Elaine McReynolds, seeks judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying her application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Ms. McReynolds asks the
Court to reverse and remand the ALJ’s decision, and the Commissioner seeks an order affirming
the decision. For the reasons set forth below, the ALJ’s decision is affirmed.
INTRODUCTION
Ms. McReynolds was born on December 22, 1956 and has a history of insulin dependent
diabetes, obesity, low back pain, hypertension, hypothyroidism, and depression. She obtained a
GED in 1988 and previously worked as a baggage handler at O’Hare Airport. Ms. McReynolds
alleges that she became totally disabled on April 10, 2010 due to diabetes, depression, sciatica,
low back problems, bronchitis, hyperthyroidism, glaucoma, and hypertension. Ms. McReynolds’
insured status for DIB purposes expired on March 31, 2016, which means she had to show she
was disabled on or before that date to be eligible for DIB. Shideler v. Astrue, 688 F.3d 308, 311
(7th Cir. 2012).
Under the standard five-step analysis used to evaluate disability, the ALJ found that Ms.
McReynolds had not engaged in substantial gainful activity since her alleged onset date of April
10, 2010 (step one) and her obesity, hyperlipidemia, diabetes mellitus, hypothyroidism,
hypertension, and Graves’ disease were severe impairments (step two). (R. 20). The ALJ
determined that Ms. McReynolds’ diabetes, hypertension, and thyroid disorders did not qualify as
a listed impairment (step three). Id. at 22-23. The ALJ concluded that Ms. McReynolds retained
the residual functional capacity (“RFC”) to perform medium work (i.e., “lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds” and “a good
deal of walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.”), see 20 C.F.R. §§ 404.1567(c); 416.967(c), except that she was
limited to only frequent operation of foot controls bilaterally, occasional climbing of ladders, ropes,
and scaffolds; frequent climbing of ramps and stairs, stooping, crouching, kneeling, and crawling;
and no concentrated use or exposure to moving machinery and unprotected heights. Id. at 23.
Given this RFC, the ALJ concluded that Ms. McReynolds was unable to perform her past
relevant work as a baggage handler. (R. at 31). At step five, the ALJ found that Ms. McReynolds
could perform other jobs that exist in significant numbers in the national economy, such as bagger,
sandwich maker, and dining room attendant.
Id. at 32.
The Appeals Council denied Ms.
McReynolds’ request for review on June 9, 2017. Id. at 1-6. Ms. McReynolds now seeks judicial
review of the final administrative decision of the Commissioner, which is the ALJ’s decision.
O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010).
ANALYSIS
1.
Under the Social Security Act, a person is disabled if he has an “inability to engage in any
substantial gainful activity by reason of a 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 claimant is disabled within the meaning of the Social Security Act, the ALJ conducts a
five-step inquiry: (1) whether the claimant is currently unemployed; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets or equals any of the listings
2
found in the regulations, see 20 C.F.R. ' 404, Subpt. P, App. 1 (2004); (4) whether the claimant
is unable to perform her former occupation; and (5) whether the claimant is unable to perform any
other available work in light of her age, education, and work experience.
20 C.F.R. ''
404.1520(a), 416.920(a) (2012); Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000). These steps
are to be performed sequentially. 20 C.F.R. '' 404.1520(a), 416.920(a) (2012). “An affirmative
answer leads either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled.
A negative answer at any point, other than Step 3, ends the inquiry and leads to a determination
that a claimant is not disabled.” Clifford, 227 F.3d at 868 (quoting Zalewski v. Heckler, 760 F.2d
160, 162 n.2 (7th Cir. 1985)).
Judicial review of the ALJ’s decision is limited to determining whether the ALJ’s findings
are supported by substantial evidence or based upon a legal error. 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). A reviewing 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.
Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998).
Finally, an ALJ’s credibility
determination should be upheld “unless it is patently wrong.” Schaaf v. Astrue, 602 F.3d 869, 875
(7th Cir. 2010).
The ALJ denied Ms. McReynolds’ claim at step five of the sequential evaluation process,
finding that she had retained the residual functional capacity to perform a significant number of
unskilled medium jobs in the national economy. Ms. McReynolds challenges the ALJ’s decision
on two main grounds: (1) the ALJ improperly assessed her subjective symptom allegations and
(2) the ALJ erred in determining Ms. McReynolds can perform a range of medium-exertional work.
The arguments are addressed below.
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A.
The ALJ’s Symptom Evaluation
1.
Ms. McReynolds argues that the ALJ’s credibility determination discounting the severity
of her subjective symptoms was patently wrong because the ALJ 1) improperly considered her
noncompliance with treatment recommendations, 2) impermissibly played doctor by failing to rely
on a medical opinion to support his assessment of her subjective assertions, 3) ignored her
hypothyroidism, and 4) improperly rejected her assertion that she could not consistently afford
her diabetes medications.
The Court finds that the ALJ’s evaluation of Ms. McReynolds’
subjective symptoms is supported by substantial evidence and that no legal error was committed.
Ms. McReynolds’ first argument is that the ALJ erroneously discounted her credibility
regarding the severity of her symptoms based on her noncompliance with diabetes treatment
recommendations. The regulations quite sensibly provide that “if the individual fails to follow
prescribed treatment that might improve symptoms, we may find the alleged intensity and
persistence of an individual’s symptoms are inconsistent with the overall evidence of record.”
SSR 16-3p, 2016 WL 1119029, at *8 (March 16, 2016). The ALJ found that Ms. McReynolds’
alleged symptoms and limitations were not fully consistent with the weight of the evidence in the
record. (R. 24). The ALJ noted that Ms. McReynolds’ diabetes was generally well controlled with
routine and conservative treatment, including insulin, diabetic medication, and an effort to monitor
and control carbohydrate intake. Id. The ALJ noted that, not surprisingly, Ms. McReynolds’
allegations of fatigue and tiredness generally occurred when her blood sugars were uncontrolled
and she was not complying with diet or medication. Id.
The ALJ noted, for example, that in early 2012, Ms. McReynolds complained of significant
fatigue when her blood sugar levels were not well controlled and she was not following prescribed
treatment. (R. at 24, 359). By mid-2012, Ms. McReynolds was “working very hard on her carb
consumption,” and her diabetes was “[w]ell controlled.” Id. at 350. The ALJ pointed out that by
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the end of 2012, Ms. McReynolds’ condition improved when she controlled her diet and began
treatment of her hyperthyroidism, a condition which affected her blood sugar levels. Id. at 24,
293, 296. As another example, the ALJ noted that Ms. McReynolds’ episodes of hypoglycemia,
which she reported left her unable to do anything, were addressed when she learned to match
her insulin dosage to her food intake. Id. at 24, 445. Based on this evidence, the ALJ concluded
that if Ms. McReynolds “were to follow her physician’s orders with the same degree of diligence
she had in the past, the record supports the conclusion that her symptoms would be better
controlled.” Id. at 24. The ALJ therefore found Ms. McReynolds’ allegation that her condition had
not changed since her alleged onset date inconsistent with the record evidence, which
demonstrated that her condition improved and her symptoms were better controlled when she
followed her physician’s recommendations. Id.
Ms. McReynolds contends that the ALJ improperly considered her noncompliance with
her diabetes diet and medication in deciding she was not disabled. Ms. McReynolds relies on
Social Security Ruling (“SSR”) 82-59 and Social Security regulation 20 C.F.R. § 404.1530, which
provides that “[i]n order to get benefits, you must follow treatment prescribed by your medical
source(s) if this treatment is expected to restore your ability to work.” 20 C.F.R. § 404.1530(a);
see also 20 C.F.R. § 416.930(a). A “disabled person cannot qualify for benefits if she refuses to
follow a prescribed course of treatment that would eliminate the disability.” Pesek v. Apfel, 215
F.3d 1330, at *3 (7th Cir. 2000)(Emphasis supplied).
In this case, the ALJ properly analyzed Ms. McReynolds’ failure to follow her diabetes
treatment regimen. The ruling and regulations cited by Ms. McReynolds that govern a failure to
follow prescribed treatment do not apply to Ms. McReynolds’ case. SSR 82-59 only applies to
individuals with a “disabling impairment” that precludes them from engaging in any substantial
gainful activity. SSR 82-59, 1982 WL 31384, at *1 (1982); see also 20 C.F.R. §§ 404.1530(a) &
416.930(a). SSR 82-59 provides that an “individual who would otherwise be found to be under a
disability but who fails without justifiable cause to follow treatment prescribed by a treating source
5
which the Social Security Administration (SSA) determines can be expected to restore the
individual’s ability to work, cannot by virtue of such ‘failure’ be found to be under a disability.” SSR
82-59, 1982 WL 31384, at *1.
The ALJ did not find that Ms. McReynolds was disabled and that she would not be disabled
if she complied with her diabetes treatment. Instead, the ALJ found that Ms. McReynolds’
condition improved if she followed her diabetes treatment regimen. The ALJ stated: “this is not
to say that the claimant is asymptomatic, or even that the claimant would be completely
asymptomatic if she followed the directions of her physicians to the letter.” (R. 25). The ALJ
continued that if Ms. McReynolds was “asymptomatic, the undersigned would have found her
impairments to be non-severe. Rather, complete control of her conditions is unlikely to be
achieved, even with good diligence over the treatment regimen necessary to achieve good control
over her diabetes, hyperthyroidism, hyperlipidemia, and other impairments. However, with that
said, even with only partial control, by her own report, to treating sources, her condition improves.”
Id.
There is substantial evidence that when followed, the diabetes treatment regimen Ms.
McReynolds was prescribed was successful in better controlling her diabetes. Therefore, the ALJ
did not err in considering how Ms. McReynolds’ condition improved during periods when she
followed recommended treatment. Since the ALJ did not find Ms. McReynolds disabled and then
deny benefits because she did not follow a prescribed treatment plan that would restore her ability
to work, the ALJ did not violate SSR 82-59 or misuse the noncompliance regulations.
2.
Ms. McReynolds’ second argument is that the ALJ impermissibly played doctor by
assessing her subjective assertions without a medical opinion. Ms. McReynolds asserts that the
ALJ offered his own independent medical opinion when he determined that “all of Ms.
McReynolds’ diabetic symptoms result from non-compliance with the prescribed diet or
medication regime” because there is no medical opinion in the record supporting this finding.
(Doc. 23 at 8). We reject Ms. McReynolds’ argument on this point because the ALJ did not find
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that all of Ms. McReynolds’ diabetic symptoms result from noncompliance. Rather, the ALJ
reached the exact opposite conclusion, finding that Ms. McReynolds would not be “completely
asymptomatic [even] if she followed the directions of her physicians to the letter.” Quite the
contrary. The ALJ found that “complete control of her conditions is unlikely to be achieved, even
with good diligence over the treatment regimen necessary to achieve good control over her
diabetes, hyperthyroidism, hyperlipidemia, and other impairments.” (R. 25). Because the ALJ
did not play doctor or develop his own medical opinions in assessing Ms. McReynolds’ symptoms
by observing that Ms. McReynolds would not be completely asymptomatic if she followed her
prescribed diet and medication regime, her second argument is without merit.
3.
Ms. McReynolds next asserts that the ALJ ignored the effect of her hypothyroidism and
Graves’ disease on her fatigue levels in his subjective symptom analysis, focusing solely on her
diabetes and treatment compliance. But, the ALJ acknowledged and discussed Ms. McReynolds’
hypothyroidism and Graves’ disease at several points in his decision. The ALJ first considered
Ms. McReynolds’ hypothyroidism and Graves’ disease at step two, finding them to be severe
impairments. (R. 20). In assessing Ms. McReynolds’ RFC, the ALJ considered the effect of Ms.
McReynolds’ hypothyroidism and Graves’ disease on her fatigue levels by giving her “allegations
of fatigue, tiredness, and weakness some benefit of the doubt.” Id. at 30. There is no requirement
that the ALJ repeat the same factual analysis of this evidence in his credibility determination.
Buckhanon ex rel. J.H. v. Astrue, 368 Fed. Appx. 674, 678 (7th Cir. 2010) (the Court reads the
ALJ’s decision as a whole and the ALJ is not required to create “tidy packaging” throughout his
decision); see also Rice v. Barnhart, 384 F.3d 363, 370 n.5 (7th Cir. 2004)(“It is proper to read the
ALJ’s decision as a whole” and “would be a needless formality to have the ALJ repeat substantially
similar factual analyses” in multiple parts of the decision). Reading the ALJ’s decision as a whole,
the ALJ adequately considered the impact of Ms. McReynolds’ hypothyroidism and Graves’
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disease on her fatigue levels and did not err in failing to specifically include the fatigue effect of
these conditions in the credibility part of his decision.
4.
Ms. McReynolds next challenges the ALJ’s determination regarding her credibility, arguing
that the ALJ rejected her testimony that she had difficulty affording her medication as an
explanation for her irregular diabetes medication compliance. The administrative law judge was
not obliged to believe all her testimony. Indeed, credibility determinations of an ALJ are given
special deference. Castille v. Astrue, 617 F.3d 923, 929 (7th Cir. 2010). Applicants for disability
benefits have an incentive to exaggerate their symptoms, and an administrative law judge is free
to discount the applicant's testimony on the basis of the other evidence in the case. Johnson v.
Barnhart, 449 F.3d 804, 805 (7th Cir. 2006). Reviewing courts should rarely disturb an ALJ's
credibility determination, unless that finding is unreasonable or unsupported. Metzger v. Astrue,
263 Fed.Appx. 529, 533, 2008 WL 397578, 4 (7th Cir. 2008). See also Alvarado v. Colvin, 836
F.3d 744 (7th Cir. 2016). It must not be forgotten that the ALJ, not the reviewing court, is in the
best position to evaluate credibility having had the opportunity to observe the plaintiff testifying
during the hearing. Castille, 617 F.3d at 928.
An “ALJ may deem an individual’s statements less credible if the medical reports or
records show that the individual is not following the treatment as prescribed.” Murphy v. Colvin,
759 F.3d 811, 816 (7th Cir. 2014). “[I]f the individual fails to follow prescribed treatment that might
improve symptoms, we may find the alleged intensity and persistence of an individual’s symptoms
are inconsistent with the overall evidence of record. We will not find an individual’s symptoms
inconsistent with the evidence in the record on this basis without considering possible reasons he
or she may not comply with treatment or seek treatment consistent with the degree of his or her
complaints.” SSR 16-3p, 2016 WL 1119029, at *8.
At the administrative hearing, the ALJ may need to “ask why he or she has not complied
with or sought treatment in a manner consistent with his or her complaints.” Id.; see also Shauger
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v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (“[a]lthough a history of sporadic treatment or the
failure to follow a treatment plan can undermine a claimant’s credibility, an ALJ must first explore
the claimant’s reasons for the lack of medical care before drawing a negative inference.”). “An
inability to afford treatment is one reason that can ‘provide insight into the individual’s credibility.’”
Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008). See also Roddy v. Astrue, 705 F.3d 631, 638
(7th Cir. 2013) (noting that “the agency has expressly endorsed the inability to pay as an
explanation excusing a claimant’s failure to seek treatment.”). See also SSR 16-3p, 2016 WL
1119029, at *9.
Here, the ALJ satisfied his duty under SSR 16-3p by expressly considering Ms.
McReynolds’ alleged financial limitations in his decision. He did not, however, find Ms.
McReynolds’ argument persuasive: “[a]lthough the claimant raised financial concerns regarding
her ability to consistently get her medications, she did not report such difficulties to her treatment
providers; therefore, the undersigned does not find that this is a good excuse for poor, or
incomplete, compliance.” (R. 28-29).
As we have noted, the ALJ was not required to credit unquestioningly Ms. McReynolds’
testimony about her inability to afford medication. Rather, an ALJ is only required to “consider
explanations for instances where [a claimant] did not keep up with her [diabetes] treatment,” not
to accept all explanations. Myles v. Astrue, 582 F.3d 672, 677 (7th Cir. 2009); SSR 16-3p, 2016
WL 1119029, at *9 (“we will consider and address reasons for not pursing treatment that are
pertinent to an individual’s case.”). A contrary rule would effectively eliminate the ALJ’s role as a
fact finder and require that a fact finder blindly accept an applicant’s testimony. That, of course,
is the antithesis of the ALJ’s role in Social Security cases.
The ALJ in this case properly considered whether Ms. McReynolds’ testimony was
credible and whether the evidence supported her claim, including assessing whether there were
notations in her treatment record corroborating her testimony that she could not afford medication.
Cf. Craft, 539 F.3d at 679 (holding ALJ erred when she “drew a negative inference as to Craft’s
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credibility from his lack of medical care” but did not “note that a number of medical records
reflected that Craft had reported an inability to pay for regular treatment and medicine.”);
Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999)
(criticizing ALJ’s rejection of a claimant’s complaints for lack of treatment “when the record
establishes that the claimant could not afford it” and finding the record contained such
corroborating evidence).
By contrast, Ms. McReynolds’ assertion that she failed to obtain
diabetes medication due to lack of funds is uncorroborated by any evidence in the record. The
ALJ was not obligated to blindly and unquestionably credit Ms. McReynolds’ explanation where
the record shows she never expressed a financial difficulty to treating providers who could have
helped her obtain medication. SSR 16-3p, 2016 WL 1119029, at *9 (stating “[w]e will review the
case record to determine whether there are explanations for inconsistencies in the individual’s
statements about symptoms and their effects, and whether the evidence of record supports any
of the individual’s statements at the time he or she made them.”). 1
In the absence of corroborating treatment notes documenting financial difficulties, the ALJ
reasonably rejected Ms. McReynolds’ testimony about her inability to afford medication as an
excuse for her lack of consistent compliance. Because the ALJ fully and properly considered Ms.
McReynolds’ claimed reason for not consistently taking her diabetes medication, his credibility
determination is not patently wrong and should not be disturbed.
B.
The ALJ’s Residual Functional Capacity Determination
1
In other contexts, courts have recognized that while silence is generally so ambiguous that it is of little
probative force, it may be significant where it would have been natural for the person to make the assertion
that is missing. Georgia v. South Carolina, 497 U.S. 376, 389 (1990); 3A John Henry Wigmore, Evidence
in Trials at Common Law § 1042 at 1058 (James H. Chadbourn rev., 1970).
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5.
Ms. McReynolds contends that the ALJ’s RFC determination with respect to her physical
limitations is unsupported by substantial evidence. “The RFC is an assessment of what workrelated activities the claimant can perform despite her limitations.” Young v. Barnhart, 362 F.3d
995, 1000 (7th Cir. 2004); SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996) (stating “RFC is an
administrative assessment of the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may cause physical or mental
limitations or restrictions that may affect his or her capacity to do work-related physical and mental
activities.”). The ALJ’s RFC assessment must incorporate all of the claimant’s limitations which
he finds are supported by the medical record. Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014).
The ALJ concluded that Ms. McReynolds has the severe impairments of obesity,
hyperlipidemia, diabetes mellitus, hypothyroidism, hypertension, and Graves’ disease. (R. 20).
After consideration of the evidence, the ALJ determined that Ms. McReynolds could perform
medium work involving only frequent operation of foot controls bilaterally, occasional climbing of
ladders, ropes, scaffolds, frequent climbing of ramps and stairs, stooping, crouching, kneeling,
and crawling, and no concentrated use or exposure to moving machinery and unprotected
heights. (R. 23). Ms. McReynolds raises two challenges to the ALJ’s RFC assessment. First,
she argues that the ALJ created an evidentiary deficit when he “rejected all opinions of record
regarding Ms. McReynolds’ physical capacity” and then improperly used his own lay interpretation
of the medical evidence. (Doc. 23 at 10). Ms. McReynolds’ argument finds no support in either
the law or the facts.
Ms. McReynolds’ suggestion that the ALJ is required to adopt a single medical opinion as
the basis for the RFC is incorrect. An ALJ “must consider the entire record,” and “is not required
to rely entirely on a particular physician’s opinion or choose between the opinions [of] any of the
claimant’s physicians.” Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007). Rather, it is the role
of the ALJ to resolve conflicts in the evidence and to formulate an appropriate RFC based on
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consideration of the entire record. Diaz v. Chater, 55 F.3d 300, 306 n.2 (7th Cir. 1995) (the
determination of RFC “is an issue reserved to the [Commissioner],” based on “the entire record,
including all relevant medical and nonmedical evidence” and “if conflicting medical evidence is
present, the SSA has the responsibility of resolving the conflict.”).
Ms. McReynolds’ contention that the ALJ left an evidentiary deficit by “rejecting all opinions
of record regarding [her] physical capacity” is not accurate. (Doc. 23 at 10). The ALJ did not
reject the opinions of consultative examiner Dr. Bhavana P. Vaidya and the state agency
physicians. The ALJ partially accepted Dr. Vaidya’s opinion that Ms. McReynolds had no workrelated limitations associated with her impairments and the state agency physicians’ opinions that
Ms. McReynolds had no severe physical impairment. (R. 30). Though this evidence supports a
finding that Ms. McReynolds has no limitations related to her impairments, the ALJ gave Ms.
McReynolds’ allegations of fatigue, tiredness, and weakness “some benefit of the doubt” and
found her more limited than Dr. Vaidya. Id. After noting the state agency physicians’ opinions
that Ms. McReynolds did not have a severe impairment, which received partial weight, the ALJ
explained that he reduced Ms. McReynolds to a range of medium work “taking into account the
evidence received at the hearing level, and the claimant’s allegations.” Id. Although the ALJ did
not fully adopt these physicians’ opinions in developing the RFC, he appropriately weighed them
against the rest of the evidence. That is his job. Blind acceptance of either side’s position is not.
Moreover, the ALJ properly assigned partial weight to Dr. Kameron Matthews’ statement,
given after only his first visit with Ms. McReynolds. Dr. Matthews stated that Ms. McReynolds
was under his care for diabetes, hypertension, hyperlipidemia, hypothyroidism, and depression.
(R. 329). Dr. Matthews indicated that Ms. McReynolds “regularly experiences symptoms that
affect her daily activities” and asked for accommodation when possible. Id. The ALJ explained
that Dr. Matthews’ statement did not contradict the limitations found in the ALJ’s RFC
determination.
Id. at 30-31.
Because Dr. Matthews did not provide any medical opinions
regarding specific functional limitations related to Ms. McReynolds’ impairments, the ALJ
12
reasonably assigned little weight to Dr. Matthews’ statement. (R. 30, 329). Indeed, in Books v.
Chater, 91 F.3d 972, 978 (7th Cir. 1996), the court emphasized that “[g]iven that Dr. Lloyd failed
to venture an opinion as to the extent of Books’ limitations or as to his residual capabilities, the
evidentiary usefulness of his findings is slight, at best.”
Finally, the ALJ reasonably rejected the opinion of Ms. McReynolds’ treating physician,
Dr. Paul Ruestow, because Dr. Ruestow “ignore[d] the section of the form requesting him to
provide clinical signs, symptoms, or even a valid diagnosis, to explain the alleged degree of
impairment he indicated the claimant experienced.” (R. 31, 347). Significantly, the ALJ found in
addition, that Dr. Ruestow’s opinion was inconsistent with his own treatment records, which
revealed that Ms. McReynolds’ diabetes was well controlled and was not based on a thorough
physical examination “to substantiate the alleged extent of claimant’s physical limitations.” Id. at
31, 350. The ALJ also explained that Dr. Ruestow’s opinion was provided prior to Ms.
McReynolds’ effective treatment for hyperthyroidism. Id. at 31, 293.
By partially relying on the opinions of Dr. Vaidya and the state agency reviewing
physicians, there was no evidentiary deficit, and the ALJ did not improperly substitute his
judgment for that of a physician. Quite the contrary. The RFC determination limited Ms.
McReynolds to a range of medium work that was more restrictive than suggested by Dr. Vaidya
and the state agency physicians. The ALJ properly accepted portions of the opinion evidence,
but also incorporated additional limitations to account for some of Ms. McReynolds’ subjective
symptoms. See Cabrera v. Astrue, 2011 WL 1526734, at *12 (N.D. Ill. 2011) (“Plaintiff is correct
that [the RFC] is more restrictive than the state agency consultants’ findings of no manipulative
limitations whatsoever, but the ALJ fairly credited Plaintiff’s testimony in that regard and modified
the RFC assessment accordingly); Dampeer v. Astrue, 826 F.Supp.2d 1073, 1085 (N.D. Ill. 2011)
(RFC was supported by substantial evidence where the ALJ “accepted alternate medical evidence
and incorporated several additional limitations to give Claimant’s subjective assessments the
benefit of the doubt.”). Because the ALJ did not draw any improper medical conclusions in
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concluding that Ms. McReynolds is capable of a range of medium work, the Court rejects this
argument as a basis for reversal and remand.
6.
Ms. McReynolds also contends that the ALJ should have sought an updated opinion from
an independent medical expert who could have reviewed all of her medical records.
Ms.
McReynolds points out that in July 2018, Dr. Jeffrey Kramer, a neurologist, diagnosed her with
neuropathy.
(Doc. 23 at 11; R. 395).
Peripheral neuropathy is nerve damage caused by
chronically high blood sugar and can lead to numbness, loss of sensation, and sometimes pain
in the feet, legs, or hands. It has been estimated that 60% to 70% of all people with diabetes
eventually develop peripheral neuropathy, although not all suffer pain. Nerve damage is not
inevitable. Nor does neuropathy necessarily result in a finding that a claimant is unable to perform
work. See, e.g., Leverenz v. Berryhill, 691 F. App'x 445, 448 (9th Cir. 2017); McCoy v. Astrue,
648 F.3d 605, 608 (8th Cir. 2011); Flaherty v. Astrue, 515 F.3d 1067, 1069 (10th Cir. 2007);
Williams v. Barnhart, 178 F. App'x 785 (10th Cir. 2006); Long v. Astrue, 2011 WL 721518, at *3
(E.D. Pa. 2011); Gray v. Astrue, 2010 WL 5479682, at *2 (W.D. Va. 2010). Studies have shown
that people with diabetes can reduce their risk of developing nerve damage by keeping their blood
sugar levels as close to normal as possible. See Martinez v. Berryhill, 2017 WL 2661625 (C.D.Cal.
2017);
Hardman
v.
Comm'r,
2015
WL
869869,
at
*12
(E.D.
Mich.
2015);
https://www.webmd.com/diabetes/peripheral-neuropathy-risk-factors-symptoms#1.
The state agency physicians did not review Dr. Kramer’s report. Thus, the ALJ gave the
state agency physicians’ finding of no severe impairments only partial weight, finding that Ms.
McReynolds was more limited, based on her testimony and allegations of fatigue, tiredness, and
weakness. (R. 30).
An ALJ is required to submit “new and potentially decisive” medical evidence that could
“reasonably change the reviewing physician’s opinion” to “medical scrutiny.” Stage v. Colvin, 812
F.3d 1121, 1125 (7th Cir. 2016); Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014). Ms.
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McReynolds does not explain how peripheral neuropathy of her lower extremities meant that she
was unable to work, and she has not shown how a new diagnosis could reasonably change the
previous functional opinions. Ms. McReynolds fails to cite to any medical evidence indicating that
a peripheral neuropathy (of her lower extremities) resulted in any functional limitations. In fact,
Dr. Kramer did not find any specific functional limitations resulting from Ms. McReynolds’
peripheral neuropathy. As the ALJ indicated, Dr. Kramer’s notes indicate that he observed Ms.
McReynolds had normal gait and a negative Romberg test. (R. 394). A Romberg test is defined
as “when a patient, standing with feet approximated, becomes unsteady or much more unsteady
with eyes closed.” Gruettner v. Berryhill, 2018 WL 4047121, at *3 n. 3 (E.D. Wis. 2018).
The ALJ further noted that although a physical therapy exam a month later on August 31,
2016 demonstrated reduced lower extremity strength, Ms. McReynolds, herself, reported that she
was independent in bed mobility, car transfers, community ambulation, grooming, ambulation at
home, stairs, toilet transfers, bathing, and dressing. (R. at 29, 411-12). On September 28, 2016,
as the ALJ noted, Ms. McReynolds’ treating physician observed normal exam results, including
normal gait. Id. at 30, 444. Because Ms. McReynolds points to nothing in Dr. Kramer’s record or
subsequent records that suggest functional limitations that would qualify as significant and
potentially dispositive, the court concludes that the ALJ’s failure to submit Dr. Kramer’s record to
a medical expert for review does not require remand. See Allen v. Astrue, 2011 WL 3325841, at
*12 (N.D. Ill. 2011) (“[a] mere diagnosis does not establish functional limitations, severe
impairments, or an inability to work.”).
7.
Second, Ms. McReynolds argues that the ALJ’s RFC determination that she can perform
the lifting requirements of medium exertional work is unsupported by substantial evidence. She
asserts that the ALJ’s RFC analysis was inadequate because he merely summarized the medical
evidence and did not create a “logical bridge” between the evidence and his conclusion. We
15
disagree and find that the ALJ’s determination that Ms. McReynolds is capable of lifting 25 pounds
frequently and 50 pounds occasionally is supported by substantial evidence.
“The ALJ needed only to include limitations in his RFC determination that were supported
by the medical evidence and that the ALJ found to be credible.” Outlaw v. Astrue, 412 Fed. Appx.
894, 898 (7th Cir. 2011). Ms. McReynolds suggests that her obesity, diabetes, Graves’ disease,
and hypothyroidism are inconsistent with the ALJ’s RFC determination that she can lift up to 50
pounds occasionally and 25 pounds frequently during a workday. Ms. McReynolds testified that
she can only lift eight pounds. (R. 56). Of course, as we have shown, the ALJ was not required
to accept at face value Ms. McReynolds’ testimony. His function was to make determinations
based upon the entire record. If it were otherwise, trials would be unnecessary, and ALJs would
not be charged with the delicate task of making credibility judgments.
The ALJ sufficiently explained how he reached his RFC’s lifting limitation. The ALJ found
that Ms. McReynolds has the ability to perform the lifting requirements of medium exertional work
based on Dr. Vaidya‘s consultative examination, which showed normal strength, normal range of
motion, normal grip strength, normal ability to lift and carry, and no peripheral neuropathy, and
the state agency physicians’ finding that Ms. McReynolds had no severe impairments. Id. at 28,
30, 70-71, 77-78, 87-88, 95-96, 303-04. The ALJ noted that Dr. Matthews did not provide any
specific functional limitations, including lifting restrictions, and did not contradict the lifting
requirements of medium work in the RFC. 2 Id. at 30. Inconsistency between a diagnosis and a
doctor’s treatment notes is significant and properly factors into a credibility determination. See
Cohen v. Astrue, 258 F. App'x 20, 27 (7th Cir. 2007); Collins v. Barnhart, 114 F. App'x 229, 233
(7th Cir. 2004); Marshall v. Comm'r, Soc. Sec. Admin., 660 F. App'x 874, 876 (11th Cir. 2016).
2
On July 28, 2016, Dr. Kramer assessed a “combination of neuropathy and probably OA” (osteoarthritis)
and referred McReynolds to physical therapy for gait and balance. (R. 395). Dr. Kramer’s assessment
noted reduced tendon reflexes and abnormal sensory examination but contained no lifting restrictions. At a
physical therapy consultation on August 31, 2016, McReynolds was found to have reduced strength in her
bilateral lower extremities (not upper extremities). Id. at 411-12. McReynolds has not shown that the
diagnosis of peripheral neuropathy of the lower extremities would affect her ability to lift.
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The ALJ also noted that Dr. Ruestow’s opinion was provided before the treatment of Ms.
McReynolds’ hyperthyroidism, which was effective in improving her symptoms. (R. at 293). Ms.
McReynolds’ suggestion that she is incapable of lifting 25 pounds frequently and 50 pounds
occasionally is not supported by any medical evidence in the record apart from Dr. Ruestow’s
opinion which the ALJ reasonably discounted. Because the medical records, including those of
Dr. Vaidya and the state agency reviewers, do not indicate that Ms. McReynolds needed greater
lifting restrictions, substantial evidence supports the ALJ’s lifting restriction.
CONCLUSION
For the reasons and to the extent stated above, the ALJ’s decision is affirmed. Plaintiff’s
Motion for Summary Reversal or Remand [22] is denied, and the Commissioner’s Motion for
Summary Judgment [30] is granted. The Clerk is directed to enter judgment in favor of the
Commissioner of Social Security and against Elaine Ms. McReynolds.
Jeffrey Cole
United States Magistrate Judge
Dated: 10/30/18
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