Cecil v. Commissioner of Social Security
Filing
18
MEMORANDUM AND OPINION affirming the final decision of the Commissioner of Social Security. The Clerk of Court shall enter judgment in favor of defendant. Signed by Magistrate Judge Clifford J. Proud on 4/11/2014. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAWN CECIL,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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Case No. 13-cv-233-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Dawn Cecil, represented by
counsel, seeks judicial review of the final agency decision denying her Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits
pursuant to 42 U.S.C. § 423.
Procedural History
Ms. Cecil applied for benefits in February, 2010, alleging disability beginning
on December 31, 2002. She later amended her onset date to December 31, 2007,
her date last insured for DIB. (Tr. 14). After holding an evidentiary hearing, ALJ
Rebecca LaRiccia denied the application for benefits in a decision dated November
7, 2011. (Tr. 14-25). The Appeals Council denied review, and the decision of the
1
This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 9.
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ALJ became the final agency decision.
(Tr. 1).
Administrative remedies have
been exhausted and a timely complaint was filed in this Court.
Issues Raised by Plaintiff
Plaintiff raises the following points:
1.
The ALJ erred in discounting the opinion of her treating doctor (Dr.
Wong) because she mistakenly believed that an earlier conflicting
opinion was also authored by Dr. Wong.
2.
The ALJ failed to properly assess whether plaintiff met Listing 1.02A
by failing to assess whether she was able to ambulate effectively.
3.
The ALJ failed to properly evaluate plaintiff’s credibility with regard to
her claim that she had a markedly limited ability to stand and walk.
Applicable Legal Standards
To qualify for DIB or SSI, a claimant must be disabled within the meaning of
the applicable statutes. 2 For these purposes, “disabled” means the “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 12
months.” 42 U.S.C. §423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from
2
The statutes and regulations pertaining to Disability Insurance Benefits (DIB) are found at 42
U.S.C. § 423, et seq., and 20 C.F.R. pt. 404. The statutes and regulations pertaining to SSI are
found at 42 U.S.C. §§ 1382 and 1382c, et seq., and 20 C.F.R. pt. 416. For all intents and purposes
relevant to this case, the DIB and SSI statutes are identical. Furthermore, 20 C.F.R. § 416.925
detailing medical considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the
DIB regulations. Most citations herein are to the DIB regulations out of convenience.
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anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C.
§423(d)(3).
“Substantial gainful activity” is work activity that involves doing
significant physical or mental activities, and that is done for pay or profit. 20
C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled. The Seventh Circuit Court of Appeals
has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are considered
conclusively disabling. If the impairment meets or equals one of the
listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the
evaluation continues. The fourth step assesses an applicant's residual
functional capacity (RFC) and ability to engage in past relevant work. If
an applicant can engage in past relevant work, he is not disabled. The
fifth step assesses the applicant's RFC, as well as his age, education,
and work experience to determine whether the applicant can engage in
other work. If the applicant can engage in other work, he is not
disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or combination
of impairments that is serious; (3) whether the impairments meet or equal one of
the listed impairments acknowledged to be conclusively disabling; (4) whether the
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claimant can perform past relevant work; and (5) whether the claimant is capable of
performing any work within the economy, given his or her age, education and work
experience. 20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513
(7th Cir. 2009); Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will automatically be
found disabled if he or she suffers from a listed impairment, determined at step
three. If the claimant does not have a listed impairment at step three, and cannot
perform his or her past work (step four), the burden shifts to the Commissioner at
step five to show that the claimant can perform some other job. Rhoderick v.
Heckler, 737 F.2d 714, 715 (7th Cir. 1984). See also Zurawski v. Halter, 245
F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an “affirmative
answer leads either to the next step, or, on Steps 3 and 5, to a finding that the
claimant is disabled…. If a claimant reaches step 5, the burden shifts to the ALJ to
establish that the claimant is capable of performing work in the national
economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that the scope of review is limited. “The 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). Thus, this Court must
determine not whether Ms. Cecil was, in fact, disabled at the relevant time, but
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whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. See, Books v. Chater, 91 F.3d 972, 977-78 (7th
Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)). This Court
uses the Supreme Court’s definition of substantial evidence, i.e., “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).
In reviewing for “substantial evidence,” the entire administrative record is
taken into consideration, but this Court does not reweigh evidence, resolve
conflicts, decide questions of credibility, or substitute its own judgment for that of
the ALJ. Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997). However,
while judicial review is deferential, it is not abject; this Court does not act as a
rubber stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d 920, 921
(7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ LaRiccia followed the five-step analytical framework described above.
She determined that Ms. Cecil had not been engaged in substantial gainful activity
since the alleged onset date. She found that plaintiff had severe impairments of
discogenic and degenerative disc disease, and osteoarthritis of the left knee
subsequent to arthroscopic knee surgery.
She further determined that these
impairments do not meet or equal a listed impairment.
The ALJ found that Ms. Cecil had the residual functional capacity (RFC) to
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perform work at the light exertional level, with some limitations. Based on the
testimony of a vocational expert, the ALJ found that plaintiff was able to do her
past work as assistant manager of a convenience store.
Further, if she were
limited to sedentary work, she would be able to do other jobs which exist in
significant numbers in the regional economy.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by plaintiff. As plaintiff has not raised a claim
related to her mental condition, the Court will omit substantial discussion of
evidence related only to that subject.
1.
Agency Forms
Plaintiff was born in 1963. She was almost 39 years old on the date she
initially alleged as the onset date, December 31, 2002.
(Tr. 145).
She was
insured for DIB through December 31, 2007. (Tr. 146).
Plaintiff said she stopped working on December 31, 2002, because of her
condition. (Tr. 150).
She worked as a manager of a convenience store from
1994 to 2002. She obtained a GED in 2005. (Tr. 151).
In March, 2010, Ms. Cecil stated in a Function Report that she was able to be
on her feet for about one-half an hour at a time. She said she did household
chores such as dishes, sweeping, mopping, dusting and laundry, but she had to
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take breaks. She went shopping once a week for groceries and household needs.
She prepared meals for herself every day. (Tr. 157-164).
Plaintiff’s claim was initially denied on May 27, 2010. (Tr. 60).
In August, 2010, plaintiff submitted another Function Report.
(Tr.
176-183). She stated that she could not be on her feet for more than 5 to 10
minutes. She said she did not do any household chores except for washing dishes
if it took less than 5 minutes. Her mother took care of everything else. She said
that she shopped for groceries every couple of weeks. She only did the things that
she could do sitting down. Standing and walking were painful, and she had to lie
down because she had pain if she sat too long. She said she would not even try to
walk one-half of a block unless she had to. She was prescribed crutches and a
brace for her knee at an emergency room visit in January, 2010. She used an
assistive device “anytime I’m on my feet.” (Tr. 182).
2.
Evidentiary Hearing
Ms. Cecil was represented by an attorney at the evidentiary hearing on July
28, 2011. (Tr. 32).
Counsel asked the ALJ to consider whether the impairments of plaintiff’s left
knee, cervical spine and lumbar spine, in combination, met or equaled Listing 1.02.
Counsel also asked that the alleged date of disability be amended to December 31,
2007. (Tr. 35).
Plaintiff was 47 years old. She had been separated from her husband for
years, and was staying with her mother. Her mother and her 24 year old daughter
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took care of her. (Tr. 35-36).
Ms. Cecil last worked in 2002 as the assistant manager of a convenience
store. She testified that she stopped working because her knee “got to be really
bad” and her hip hurt. She testified that she could not work at the time of the
hearing because her knee had deteriorated in the last 2 years, her neck hurt, and
her back hurt after sitting too long. (Tr. 37).
Plaintiff had been in prison. Most recently, she spent 6 months in prison in
2010 because she escaped from work release. She did not have a job while on
work release. Before that, she was in prison for about 2 and ½ years. She was
assigned work duties while in prison, but was unable to recall what those work
duties were. (Tr. 38-39).
Ms. Cecil testified that she used a cane at the time of the hearing when her
knee swelled up. She was able to walk without a cane. (Tr. 40).
She was being treated by Dr. Wong. She tried to see him once a month, but
could not always afford it. He was her mother’s boss, and plaintiff testified that
“we’re all real close friends.” Sometimes plaintiff would have her mother talk to
the doctor on the phone for her, or she would “get help over the phone.” Dr. Wong
recommended that she see a pain specialist and a knee doctor, but she could not
afford it. Dr. Wong gave her pain medication. She had just gotten a temporary
medical card and was able to get some MRI studies done. (Tr. 40-41).
On a typical day, she did “not do much of anything.” She watched TV and
did crossword puzzles. Once in a while, she helped her mother with the dishes.
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She testified that her knee “cannot really take any kind of standing at all anymore.”
(Tr. 43-44). She could sit for a couple of hours, but then had to lie down for an
hour or two to rest her neck. She was unable to pick up her grandchildren, who
were 5 and 2 years old. (Tr. 47). Plaintiff testified that she would be unable to do
a job where she was mostly sitting all day and could change positions to make
herself comfortable because she was unable to sit up all day. (Tr. 47-48). She
also had pain in her low back, but her neck was worse. (Tr. 50).
Under questioning from her attorney, Ms. Cecil testified that she was able to
walk through her house without her cane, but otherwise she had to use a cane.
She had been using a cane for a couple of years, and she testified it was prescribed
by Dr. Wong. Even with the cane, she walked slowly. (Tr. 48-49).
The ALJ questioned plaintiff about a visit to an emergency room in January,
2011, which indicated she was intoxicated and had drugs in her system. She
testified that she had been at a strip club with her cousin.
A man who was
supposed to give her a ride home kidnapped her, drugged her, raped her, stabbed
her and left her for dead at a gas station. The ALJ noted that the record said that
she was supposed to be at work. Plaintiff denied having a job. (Tr. 45-46).
A vocational expert (VE) testified that Ms. Cecil’s past work was semi-skilled
and was performed by her at the medium exertional level. (Tr. 52). The ALJ
asked him to assume a person who could do work at the light exertional level,
limited to infrequently stooping, kneeling, crouching, and climbing ramps and
stairs.
She could never climb ladders, and should avoid hazards such as
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unprotected heights and moving machinery.
The VE testified that this person
could do plaintiff’s past work as assistant manager of a convenience store as that
work is generally performed. (Tr. 52-53).
The ALJ then asked the VE to add to the hypothetical that the person needed
to use a cane for ambulation. The VE testified that this would eliminate plaintiff’s
past work. However, at the light level, this person could do the jobs of counter
clerk and office helper. (Tr. 53).
The ALJ then added an assumption that the person needed the ability to
alternate between standing and sitting at will. The VE testified that this would
eliminate the counter clerk and office helper jobs. However, there were sedentary
jobs that this person could do, such as order taker, general office clerk, and
receptionist. (Tr. 53-54).
Lastly, the VE testified that a person who needed to take a 1 to 2 hour break
after working for 2 hours would not be able to sustain full-time competitive
employment. (Tr. 54).
3.
Medical Treatment
Ms. Cecil had arthroscopic surgery to reconstruct the anterior cruciate
ligament in her left knee in April, 1998. She did not return for any follow-up or
rehabilitation program following surgery. (Tr. 375).
In December, 2002, plaintiff went to the emergency room complaining of pain
and swelling in her left knee. She said that she had been kicked in the knee. An
x-ray showed some fluid and advanced arthritis, but no fractures. She was given
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pain medication and told to ice and elevate her knee. (Tr. 360-367).
The record reflects no further medical treatment until plaintiff entered the
Indiana Department of Corrections. She arrived at the Department of Corrections
in September, 2003. She had been held at a jail facility before that date. She was
serving sentences for driving while intoxicated and forgery. Her earliest release
date was October 26, 2006.
She was to serve two years of work release
consecutive to the sentence on the DWI. (Tr. 595-596). She had been in jail since
February, 2003. (Tr. 585).
On September 16, 2003, an intake examination was done. It was noted that
she had surgery on her left knee following a vehicular accident in 1998. She also
had back pain due to poor body mechanics and an injury at work. (Tr. 587).
In October, 2003, plaintiff was working in the prison kitchen washing pots
and pans. (Tr. 546). She requested Motrin for knee pain because she was on her
feet six hours a day at work. (Tr. 541). On October 4, 2003, she was seen in the
prison infirmary. Her left knee was swollen. She was told to “lay in” for a week.
(Tr. 510). On October 20, 2003, she told a psychiatrist that she wanted to work
and she “love[d] work.” (Tr. 501).
In November, 2003, she complained that she hurt her back when she fell
down the ladder from her bed. (Tr. 524). In December, 2003, she requested
medical attention for a toothache, (Tr. 515). Ms. Cecil was seen in the infirmary in
February, 2004, after an altercation with another inmate. She had bruises on her
left kneecap and ankle. She was told to apply ice. (Tr. 434).
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Ms. Cecil was released to probation in June, 2005. (Tr. 405).
The next medical record is a visit to an emergency room in March, 2009.
Plaintiff had fallen off of a roof and landed on her chest. She was ambulatory with
a steady gait. She had no rib fractures. The discharge diagnosis was sternal
fracture, new versus recurrent. (Tr. 268-271).
Ms. Cecil was returned to the Department of Corrections in October, 2009,
after she absconded from a work release program. Her earliest release date was
January 4, 2010. (Tr. 482). A health history form completed on her admission
to prison indicated that she had degenerative joint disease in her back, pain in her
left knee, and “constant pain in neck” since July of 2009. She did not have a brace,
splint or cane. (Tr. 396-397). A Disability Classification form dated October 28,
2009, stated that she had “no disability” and was “capable of performing activities
of daily living.” (Tr. 394).
Plaintiff requested a doctor visit in November 11, 2009, for knee pain. She
was issued a universal knee brace. (Tr. 389).
A Diagnostic and Classification Summary dated December 3, 2009, states
that she was last employed as a manager of a convenience store in 2001, “when she
quit due to her arrest.” (382).
Plaintiff went to the emergency room for a swollen knee in January, 2010.
She had slipped on ice and hyperextended her left knee.
X-rays showed no
fracture or subluxation, but there was small joint effusion, severe osteoarthritis and
postoperative changes consistent with prior ACL repair. She was diagnosed with a
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sprain of the left knee, unable to rule out ACL injury, and alcohol intoxication. She
was given a knee immobilizer and crutches, and was instructed to follow up with a
doctor in 2 to 3 days. (Tr. 350-359).
Ms. Cecil’s next medical treatment was in May, 2010, when she was seen at
Community Health and Emergency Services. That office’s records indicate she
had been seen in February, 2008, for “alcoholism,” but the office note from that
visit is not in the record. (Tr. 295). She was seen by Physician’s Assistant Jessica
Frizzell on three visits in May and June, 2010.
On May 6, 2010, plaintiff
complained of neck pain that had been present for a year, but had become worse in
the past two weeks. She had not sought medical treatment because she had no
health insurance. On exam, her neck was supple and nontender. The range of
motion of the neck was reduced due to pain. She had no tenderness to palpation.
The assessment was “neck pain.” PA Frizzell recommended stretching exercises
and ibuprofen. She was to return as needed. (Tr. 289-290).
Adrian Feinerman, M.D., performed a consultative examination on May 17,
2010. Ms. Cecil told him that her left knee was “fully blown” and she could not put
weight on it.
She said her knee “does not stay in the socket.”
She also
complained of neck pain and arthritic pain in her elbows, knees, hands, back, neck
and feet. She said she did not have a doctor. On exam, her neck was supple with
a full range of motion. The range of motion of the lumbar spine was also full.
Straight leg raising was negative.
There was no anatomic abnormality of the
extremities and no warmth, redness, or swelling of any joint. She had no pain in
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the weightbearing joints.
Ambulation was normal without an assistive device.
Muscle strength was normal throughout. Her left calf was atrophied. The left calf
was 1 inch smaller than the right. She was able to tandem walk, walk on heels and
toes, squat and arise, and hop on one leg. Dr. Feinerman indicated that she did
not need an assistive device. He concluded that she was able to “sit, stand, walk,
hear, and speak normally.” In addition, she was able to “lift, carry and handle
objects without difficulty.” (Tr. 252-260).
Plaintiff returned to PA Frizzell on June 3, 2010, complaining of neck pain as
well as pain in her left knee and low back. She had gotten a temporary medical
card, and wanted to have an MRI done. Her neck was again supple and nontender,
with reduced range of motion. No objective findings were listed as to her knee or
low back. PA Frizzell ordered MRI studies of her cervical spine and left knee, and
prescribed Ultram. (Tr. 287-288).
MRI of the left knee in June, 2010, showed evidence of previous
reconstruction of anterior cruciate ligament with complete disruption of the graft
along with degenerative type tears of the medical meniscal body and lateral
meniscus.
There was joint effusion with evidence of low-level synovitis.
(Tr.
265-266).
MRI of the neck in June, 2010, showed straightening of the usual cervical
lordosis, mild C4-5 canal stenosis, multilevel foraminal stenosis, and extensive
C4-5 degenerative disc disease. (Tr. 267).
On June 30, 2010, PA Frizzell again noted reduced range of motion of the
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neck. She did not note any other objective findings. She did not yet have the MRI
results. (Tr. 285-286).
Ms. Cecil was seen three times by Dr. Geno Wong, who practiced at
Community Health and Emergency Services with PA Frizzell.
On September 21,
2010, plaintiff presented for evaluation and follow up on her chronic knee pain.
He noted that she had “reconstructive surgery” on her knee ten years ago. She said
she was filing for disability. On exam, he noted that her neck was supple and
nontender. Her heart rate was regular and her chest was nontender. Her lungs
were clear. He noted no abnormal findings except for her complaint of left knee
pain. His plan was “refer to pain clinic.” (Tr. 315-316). Ms. Cecil returned on
October 20, 2010, with “disability paper” to be filled out. She told Dr. Wong that
she had pain in her left knee, neck and back, and that she could not do anything
due to pain. Dr. Wong did not note any abnormal physical findings. He wrote
that she “can do sitting job.” He again suggested a referral to pain management.
(Tr. 312-313).
Plaintiff’s last visit with Dr. Wong was on January 12, 2011. She said she
was having depression problems.
She had not been to the pain clinic.
She
needed paperwork filled out for her SSI application. He noted that her pain was
the same. Again, he noted no abnormal physical findings. (Tr. 309-310).
Ms. Cecil was admitted to Southeast Missouri Hospital through the
emergency room on January 14, 2011. She had been found unresponsive on the
street. The next day, she was able to give a history of having been forced to ingest
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pills by a stranger, who then raped her, after she accepted a ride home from a strip
club. The diagnoses were toxic encephalopathy secondary to drug and alcohol
use, acute respiratory failure, resolved, polysubstance abuse, alcohol abuse and
urinary tract infection. (Tr. 319-320).
On February 11, 2011, after reviewing the discharge summary from the
hospital, Dr. Wong wrote “no more narcotics for this patient” in plaintiff’s chart.
(Tr. 308).
4.
RFC Assessment
In October, 2010, a state agency consultant opined that plaintiff could do
light work limited to no foot controls with the left leg, only occasional climbing of
stairs and ramps, no balancing, and occasional kneeling, crouching and crawling.
This doctor reviewed Dr. Feinerman’s report and the MRIs of plaintiff’s knee and
cervical spine in reaching her opinion. (Tr. 299-306).
5.
Opinions of Treating Doctors
PA Frizzell completed a form entitled Medical Evaluation–Physician’s Report.
Among other questions, this form asks the health care provider to assess the
patient’s capacity for sustained physical activity in a number of areas by writing in a
letter. The letter A indicates full capacity, B indicates up to 20% reduced capacity,
C indicates 20 to 50% reduced capacity, D indicates more than 50% reduced
capacity, and E indicates insufficient information.
PA Frizzell completed the form after her June 30, 2010, visit with Ms. Cecil.
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She indicated that Ms. Cecil had left knee stiffness and reduced range of motion, as
well as reduced range of motion on the neck secondary to pain. She described the
MRI findings. With regard to ambulation, PA Frizzell checked the box for “normal”
as opposed to “assisted.” She rated plaintiff’s ability to walk, stand and use public
transportation as up to 20% impaired. She said plaintiff had full capacity to sit.
(Tr. 280-284).
Dr. Wong completed a form entitled Medical Source Statement-Physical on
June 27, 2011. The form does not indicate that he had seen her since January,
2011. He opined that plaintiff could lift and carry less than 5 pounds, stand
and/or walk for less than 1 hour total a day, and sit for a total of 1 hour a day. She
was limited to occasional balancing, crouching, crawling, reaching, handling,
fingering, and seeing. She could never climb, stoop or kneel. She required a cane
for ambulation and/or balance. She needed to lie down or recline every 2 hours to
alleviate her symptoms. (Tr. 598-599).
Analysis
Plaintiff first argues that the ALJ erred in weighing the medical opinions
because she thought that Dr. Wong, and not PA Frizzell, filled out the first report.
Plaintiff argues that the ALJ rejected Dr. Wong’s June, 2011, opinion largely
because it was inconsistent with the first medical report.
Plaintiff’s argument is premised on a highly selective reading of the ALJ’s
decision. It is true that ALJ LaRiccia incorrectly attributed both opinions to Dr.
Wong.
However, her rejection of Dr. Wong’s June, 2011, opinion was not
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primarily based on her belief that Dr. Wong gave two conflicting opinions.
ALJ LaRiccia rejected Dr. Wong’s June, 2011, opinion because his opinion
that plaintiff could not sustain an 8 hour workday was not supported by his
treatment records. She noted that he recorded plaintiff’s subjective complaints,
but his objective findings did not support his opinion that plaintiff was unable to do
any work. She pointed out that his office notes do not document deterioration in
her condition since the June 30, 2010, opinion, and that one of his notes stated that
plaintiff was able to do a sitting job. The ALJ wrote that this note was inconsistent
with Dr. Wong’s opinion that plaintiff needed to lie down every 2 hours and could
only sit for 1 hour a day. (Tr. 22-23).
This Court concludes that the ALJ’s weighing of Dr. Wong’s opinion is not
erroneous.
Notably, a treating doctor’s medical opinion is not automatically
entitled to controlling weight. Rather, it is to be afforded controlling weight only
where it is supported by medical findings and is not inconsistent with other
substantial evidence in the record. Clifford v. Apfel, 227 F.3d 863 (7th Cir.
2000); Zurawski v. Halter, 245 F.3d 881 (7th Cir. 2001).
The version of 20 C.F.R. §404.1527(d)(2) in effect at the time of the ALJ’s
decision states:
Generally, we give more weight to opinions from your treating sources,
since these sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
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examinations or brief hospitalizations. If we find that a treating
source's opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling
weight. [Emphasis added]
It must be noted that, “while the treating physician’s opinion is important, it
is not the final word on a claimant’s disability.” Books v. Chater, 91 F.3d 972,
979 (7th Cir. 1996)(internal citation omitted).
If is the function of the ALJ to
weigh the medical evidence, applying the factors set forth in §404.1527.
Supportability and consistency are two important factors to be considered in
weighing medical opinions. See, 20 C.F.R. §404.1527(d). 3 In a nutshell, “[t]he
regulations state that an ALJ must give a treating physician's opinion controlling
weight if two conditions are met: (1) the opinion is supported by ‘medically
acceptable clinical and laboratory diagnostic techniques[,]’ and (2) it is ‘not
inconsistent’ with substantial evidence in the record.” Schaaf v. Astrue, 602
F.3d 869, 875 (7th Cir. 2010), citing §404.1527(d).
Thus, the ALJ can properly give less weight to a treating doctor’s medical
opinion if it is inconsistent with the opinion of a consulting physician, internally
inconsistent, or inconsistent with other evidence in the record. Henke v. Astrue,
498 Fed.Appx. 636, 639 (7th Cir. 2012); Schmidt v. Astrue, 496 F.3d 833, 842
(7th Cir. 2007).
If the ALJ determines that a treating doctor’s opinion is not
3
The Court cites to the version of 20 C.F.R. §§ 404.1527 that was in effect at the time of the ALJ’s decision.
The agency subsequently amended the regulation by removing paragraph (c) and redesignating
paragraphs (d) through (f) as paragraphs (c) through (e). 77 Fed. Reg. at 10656–57 (2012).
Page 19 of 25
entitled to controlling weight, she must apply the §404.1527(d) factors to determine
what weight to give it. Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010).
Further, in light of the deferential standard of judicial review, the ALJ is required
only to “minimally articulate” her reasons for accepting or rejecting evidence, a
standard which the Seventh Circuit has characterized as “lax.” Berger v. Astrue,
516 F.3d 539, 545 (7th Cir. 2008); Elder v. Astrue, 529 F.3d 408, 415 (7th Cir.
2008).
Here, ALJ LaRiccia easily met and exceeded the “minimal articulation”
standard. She rejected Dr. Wong’s opinion because it was not substantiated by
objective findings, it conflicted with his office notes, it was based largely on
plaintiff’s subjective complaints, and it was inconsistent with other evidence in the
record. These reasons are sufficient.
Plaintiff’s second point is that the ALJ did not adequately discuss whether
she met or equaled Listing 1.02A.
A finding that a claimant’s condition meets or equals a listed impairment is a
finding that the claimant is presumptively disabled.
In order to be found
presumptively disabled, the claimant must meet all of the criteria in the listing; an
impairment “cannot meet the criteria of a listing based only on a diagnosis.” 20
C.F.R. §404.1525(d). The claimant bears the burden of proving that she meets or
equals a listed impairment. Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir.
1999).
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The requirements of Listing 1.02A are
gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous
ankylosis, instability) and chronic joint pain and stiffness with signs of
limitation of motion or other abnormal motion of the affected joint(s), and
findings of appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip,
knee, or ankle), resulting in inability to ambulate effectively, as defined
in 1.00B2b.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02A.
Plaintiff’s argument focuses on the ALJ’s finding that she did not have
“inability to ambulate effectively.” 20 C.F.R. pt. 404, subpt. P, app. 1, §1.00B(2)(b)
sets forth a rather cumbersome definition of inability to ambulate effectively.
Section 1.00B(2)(1) states that “Ineffective ambulation is defined generally as
having insufficient lower extremity functioning (see 1.00J) to permit independent
ambulation without the use of a hand-held assistive device(s) that limits the
functioning of both upper extremities.”
Section 1.00B(2)(2) goes on to give
examples of ineffective ambulation:
the inability to walk without the use of a walker, two crutches or two canes,
the inability to walk a block at a reasonable pace on rough or uneven
surfaces, the inability to use standard public transportation, the inability to
carry out routine ambulatory activities such as shopping and banking, and
the inability to climb a few steps at a reasonable pace with the use of a single
handrail.
The ALJ determined that Ms. Cecil did not demonstrate that she was unable
to ambulate effectively because she admitted that she could walk around her house
without a cane, and there was “no evidence that shows [plaintiff] being unable to
independently initiate, sustain, or complete activities, as described in 1.00B(2)(1).”
Page 21 of 25
(Tr. 18).
Plaintiff points out, correctly, that 1.00B(2)(2) states that the ability to walk
around the house without a cane “does not, in and of itself, constitute effective
ambulation.” However, the regulation does not forbid the ALJ from considering
ability to walk around the house unassisted; it simply forbids the ALJ from relying
solely on that factor.
While ALJ LaRiccia pointed out that plaintiff admitted that she was able to
walk around the house without a cane, she did not rely solely on that factor.
Plaintiff takes issue with the ALJ’s conclusion that there was no evidence that she
was unable to independently initiate, sustain, or complete activities. Plaintiff’s
argument is undermined by the fact that she relies mainly on her own statements
for evidence that she was unable to perform activities of daily living, and the ALJ
found her statements to be less than credible. Thus, her argument on her second
point relies upon the challenge to the credibility findings set forth in her third point.
Plaintiff argues that the ALJ’s credibility findings are lacking because she did
not specifically discuss the credibility of plaintiff’s claim that she could not stand
and walk long enough to perform any job.
The credibility findings of the ALJ are to be accorded deference, particularly
in view of the ALJ’s opportunity to observe the witness. Powers v. Apfel, 207
F.3d 431, 435 (7th Cir. 2000). Social Security regulations and Seventh Circuit
cases “taken together, require an ALJ to articulate specific reasons for discounting
Page 22 of 25
a claimant's testimony as being less than credible, and preclude an ALJ from
‘merely ignoring’ the testimony or relying solely on a conflict between the objective
medical evidence and the claimant's testimony as a basis for a negative credibility
finding.” Schmidt v. Barnhart, 395 F.3d 737, 746-747 (7th Cir. 2005), and
cases cited therein.
Contrary to plaintiff’s suggestion, “an ALJ's credibility
findings need not specify which statements were not credible.”
Shideler v.
Astrue, 688 F.3d 306, 312 (7th Cir. 2012).
SSR 96-7p requires the ALJ to consider a number of factors in assessing the
claimant’s credibility, including the objective medical evidence, the claimant’s daily
activities, medication for the relief of pain, and “any other factors concerning the
individual’s functional limitations and restrictions due to pain or other symptoms.”
SSR 96-7p, at *3. “[D]iscrepancies between objective evidence and self-reports
may suggest symptom exaggeration.” Getch v. Astrue, 539 F.3d 473, 483 (7th
Cir. 2008).
ALJ LaRiccia gave specific reasons for her conclusion that plaintiff’s
allegations were not credible. She pointed out that plaintiff made inconsistent
statements during the evidentiary hearing. She worked while she was in prison,
which was after the onset date she originally claimed, but testified that she was
unable to recall her work duties. The ALJ reasonably questioned the veracity of
that testimony. Although medical treatment was available to her in prison, she
sought treatment only infrequently, suggesting that her pain was not as severe as
Page 23 of 25
she claimed. Her testimony at the hearing was inconsistent with the statements
she made about her activities in the first Function Report.
And, the second
Function Report was inconsistent with the first report, but the medical evidence did
not reflect deterioration in her condition. Lastly, the objective medical findings did
not support her claim that she was unable to do work of any kind.
The ALJ’s credibility assessment need not be “flawless;” it passes muster as
long as it is not “patently wrong.” Simila v. Astrue, 573 F.3d 503, 517 (7th Cir.
2009). ALJ LaRiccia’s analysis is far from patently wrong. It is evident that she
considered the appropriate factors and built the required logical bridge from the
evidence to her conclusions about plaintiff’s testimony. Castile v. Astrue, 617
F.3d 923, 929 (7th Cir. 2010).
It follows, then, that the ALJ was not required to accept plaintiff’s claim that
she was unable to ambulate effectively so as to meet or equal Listing 1.02A. As the
ALJ noted, there was evidence in the record to support the proposition that Ms.
Cecil was, in fact, able to ambulate effectively. For instance, the ALJ noted that the
June 30, 2010, medical opinion rated her capacity to walk and stand as only 20%
reduced. See, Tr. 22.
The Court is constrained to point out that there is an error in the ALJ’s
decision in that she found that plaintiff was able to do her past work as a
convenience store manager, but the VE testified that a person who needed a cane to
ambulate could not do that job. See, Tr. 52-53. Plaintiff has not argued that this
Page 24 of 25
error requires remand, no doubt because the error is obviously harmless. The VE
identified three jobs at the sedentary level that could be done by a person with the
RFC as found by the ALJ. This RFC included use of a cane and a sit/stand option.
See, Tr. 52-53. Therefore, the error is harmless and does not require remand.
McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011).
In sum, none of plaintiff’s arguments are persuasive. Even if reasonable
minds could differ as to whether Ms. Cecil is disabled, the ALJ’s decision must be
affirmed if it is supported by substantial evidence, and the Court cannot make its
own credibility determination or substitute its judgment for that of the ALJ in
reviewing for substantial evidence. Shideler v. Astrue, 688 F.3d 306, 310 (7th
Cir. 2012); Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
Conclusion
After careful review of the record as a whole, the Court is convinced that ALJ
LaRiccia committed no errors of law, and that her findings are supported by
substantial evidence. Accordingly, the final decision of the Commissioner of Social
Security denying Dawn Cecil’s application for disability benefits is AFFIRMED.
The clerk of court shall enter judgment in favor of defendant.
IT IS SO ORDRED.
DATE:
April 11, 2014.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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