Hesse v. Commissioner of Social Security et al

Filing 25

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 4/23/2014. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN HESSE,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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Case No. 13-cv-301-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Steven Hesse, represented by
counsel, seeks judicial review of the final agency decision denying him
Supplemental Security Income (SSI) benefits pursuant to 42 U.S.C. § 423.
Procedural History
After having been previously denied disability benefits, Mr. Hesse applied for
SSI in August, 2009, alleging disability beginning on March 30, 2002. ALJ William
L. Hafer denied the claim on November 29, 2011, after holding an evidentiary
hearing.

(Tr. 123-130).

The Appeals Council remanded.

ALJ Hafer held

another evidentiary hearing and denied the application for benefits in a decision
dated August 3, 2012.

(Tr. 27-39). The Appeals Council denied review, and 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. 24.

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August 3, 2012, decision of the 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 mistakenly found that plaintiff had no treatment after
January, 2011.

2.

The ALJ erred in giving significant weight to an examining doctor’s
report after referring to it as “boilerplate” at the hearing.

3.

The ALJ ignored the diagnoses of failed back syndrome and sciatica.

4.

The ALJ ignored counsel’s request for a consultative orthopedic exam.

5.

The ALJ improperly analyzed plaintiff’s activities.
Applicable Legal Standards

To qualify for 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

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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U.S.C. §423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from
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
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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
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
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evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must
determine not whether Mr. Hesse was, in fact, disabled at the relevant time, but
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 Hafer followed the five-step analytical framework described above. He
determined that Mr. Hesse had not been engaged in substantial gainful activity since
the date of the application. He found that plaintiff had severe impairments of
degenerative disc disease of the lumbar spine and status post fracture of the right
arm radius. He further determined that these impairments do not meet or equal a
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listed impairment.
The ALJ found that Mr. Hesse had the residual functional capacity (RFC) to
perform work at the light exertional level, with some limitations. Based on the
testimony of a vocational expert, the ALJ found that plaintiff was not able to do his
past work as an ironworker. However, he was able to do other jobs which exist in
significant numbers in the regional and local economies.
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.
1.

Prior Decision
Mr. Hesse previously applied for Disability Insurance Benefits (DIB) and SSI

in August, 2005. alleging disability beginning on March 1, 2002. On August 7,
2008, ALJ Sally Reason denied his applications. She noted that he was insured
for DIB only through December 31, 2006.

(Tr. 100-110).

judicial review of that decision, and this Court affirmed.

Mr. Hesse sought
See, Hesse v.

Commissioner, Case No. 09-496-CJP, Doc. 27. Mr. Hesse did not appeal. His
current application was filed about a year after ALJ Reason’s decision.
2.

Agency Forms
Plaintiff was born in 1959. He was 43 years old on the date he initially

alleged as the onset date, March 30, 2002. He was 50 years old on the date he filed
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his current SSI application. (Tr. 315).
Plaintiff said he was unable to work because of chronic severe low back pain
and a steel rod in his right arm. He stopped working on March 30, 2002 because
of a low back injury. (Tr. 319). He had been an ironworker. (Tr. 320).
In his initial Function Report, Mr. Hesse stated that he lived with his
girlfriend and her two children. His girlfriend prepared meals because he could
not stand at the stove long enough to make a meal. He had no difficulties with
personal care. He did light chores such as washing a few dishes. He did not do
housework or yard work because he could not bend, stand or walk for any length of
time. He watched TV and collected pocketknives. He could walk for only one
block. (Tr. 318-333).
After his application was initially denied, plaintiff filed another Function
Report in March, 2010. He indicated that he had difficulties with personal care.
For instance, he had difficulty putting on his pants due to pain. He did no house or
yard work. He went outside only 3 times a month. He went to Wal-Mart with his
girlfriend once a month, and sat on a bench while she shopped. He had poor
concentration due to pain. (Tr. 342-349).
3.

Evidentiary Hearings
Mr. Hesse was represented by an attorney at both evidentiary hearings. (Tr.

47, 80).
The first hearing was on August 1, 2011. In view of the denial of the prior
application, the onset date was amended to August 25, 2009, the date on which the
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current SSI application was filed. (Tr. 82).
Mr. Hesse explained that his Ironworkers pension would be doubled if his
application for social security benefits were granted. (Tr. 84).
Plaintiff testified that he had pain in his low back, left hip and down his left
leg. He also had pain in his right arm. He had fractured his arm in the past and it
was repaired with 2 rods. He had 4 surgeries on his back. The last one was in
2001. (Tr. 86-87).
He could sit for 1 hour and be on his feet for 1 hour. He did not have any
difficulty lifting, but he did have trouble twisting his right wrist. (Tr. 88).
He took morphine, Demerol, muscle relaxers and Xanax. Demerol made
him “a little drowsy.” (Tr. 89).
He felt he could not work at any job because he “deal[t] with a lot of pain” and
a lot of companies would not hire someone who took medications like he took.
(Tr. 90).
A vocational expert (VE) testified that Mr. Hesse’s past work was skilled and
was performed at the heavy exertional level. The skills were not transferable to
sedentary or light work. (Tr. 95).
At the second hearing, plaintiff’s attorney argued that Dr. Davidson’s opinion
should be given controlling weight.

The ALJ and counsel had a discussion

regarding the report of Dr. Feinerman’s consultative examination.

Counsel

described the report as “the standard boilerplate that Dr. Feinerman poses that is
no [sic] consistent with the rest of the medical evidence.”
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(Tr. 50-51).

After

counsel made a few more remarks (not concerning Dr. Feinerman), the following
exchange occurred:
ALJ:

Based on the SSI claim, I also agree with you about your
comment regarding our friend, Dr. Finerman. [sic]. Could
go into more detail but [INAUDIBLE].

Counsel:

Yes, sir.

ALJ:

[INAUDIBLE].

Counsel:

I know a lot about him.

ALJ:

I’ll just leave that be.

Tr. 51-52.
Mr. Hesse testified that he was living with an elderly man who was a friend
of his family. He cooked for this man, but did not do anything else. (Tr. 54-55).
He testified that he was able to stand for 1 hour, walk for 4 or 5 blocks and lift a
gallon of milk. He could not reach overhead with his right arm. (Tr. 55).
The ALJ asked plaintiff if he “had any medical treatment since – spring of
2011?” Plaintiff said, “No, sir.” The ALJ then asked, “Okay, you haven’t seen
doctors, don’t go to see Dr. Davidson anymore?” Mr. Hesse replied, “Oh, yeah,
yeah, I still see Dr. Davidson.” (Tr. 56). Counsel later said, “his more recent
treatment with Dr. Davidson has more been just follow up, it’s kind of an it is what
it is type of thing, it’s …” (Tr. 58).
A VE testified. The ALJ asked the VE to assume a person over the age of 50
who could do light work, limited to occasional stooping, kneeling, crouching,
crawling and climbing stairs. He should never climb ladders, ropes or scaffolds,
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never work at unprotected heights or around dangerous machinery, and should
only occasionally reach in all directions with his right arm. The VE testified that
this person could not do plaintiff’s past work, but could do other jobs which exist in
significant numbers, such as storage rental clerk, cleaner, and photocopy machine
operator. (Tr. 59-60).
4.

Medical Treatment
The treatment records consist of records from the emergency room and the

records of Dr. Robert Davidson.
Mr. Hesse went to the emergency room several times in March, 2008, seeking
Demerol for his back pain. (Tr. 437-461). On March 30, 2008, the emergency
room doctor counseled him “regarding his addiction to prescription pain-killers
and his need to find out his real pain problem.” (Tr. 459). In May, 2008, he
presented with a “spinal” headache exacerbated by mowing grass. (Tr. 470). On
August 4, 2008, he presented with sciatic pain after doing yard work and moving a
dishwasher. (Tr. 476).
Mr. Hesse’s prior application was denied on August 7, 2008.
Dr. Davidson’s records covering the period from January, 2006, through
September, 2009, are located at Tr. 489-525. His office notes contain very little in
the way of objective findings. They are comprised largely of plaintiff’s subjective
complaints of back pain and left leg pain, along with prescriptions for pain
medications.

In September, 2007, Dr. Davidson completed a form report in

connection with plaintiff’s prior application for social security benefits. He
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indicated that plaintiff was unable to flex his spine past 10 degrees and had no
extension at all. (Tr. 494).
Mr. Hesse again went to the emergency room complaining of back pain and
sciatica on September 28, 2009. He was out of his pain medication (Morphine)
and was unable to get ahold of Dr. Davidson. On exam, he was ambulatory and in
no distress. He had no leg weakness. The diagnosis was chronic back pain. He
was administered Demerol and sent home with 3 Vicodin tablets. (Tr. 585-586).
Dr. Davidson’s records document visits on October 30 and November 25,
2009. Plaintiff complained of low back pain and headache. No objective findings
were noted except for his weight. (Tr. 550). In January and February, 2010, his
back pain was the same. The doctor reviewed “paperwork for disability.” (Tr.
549).
Dr. Davidson saw plaintiff in April, June, September and November, 2010.
Mr. Hesse wanted different pain medication, but the doctor refused.

(Tr.

597-598).
The last documented medical treatment was an office visit with Dr. Davidson
on January 21, 2011.

Plaintiff reported that his back was worse in the cold

weather. He had pain in the low back and in the lumbar paraspinal muscles on the
left side. (Tr. 597).
5.

Consultative Examination
Dr. Adrian Feinerman performed a consultative physical exam on November

12, 2009. Mr. Hesse complained of low back pain radiating into his left leg. He
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also complained of headaches. On exam, there was no anatomic deformity of the
cervical, thoracic or lumbar spine. The lumbar range of motion was decreased.
He lacked 30 degrees of flexion, 10 degrees of extension and 15 degrees of lateral
flexion. Ambulation was normal without an assistive device. Straight leg raising
was negative. Muscle strength was normal throughout, and there was no muscle
spasm or atrophy. Fine and gross manipulation were normal. Grip strength was
strong and equal. The range of motion of the right elbow was limited in supination
and pronation. Mr. Hesse was able to tandem walk, walk on heels and toes, squat
and arise, hop, and arise from a chair with no difficulty. Sensation was normal
and he was neurologically intact. (Tr. 526-534).
6.

Dr. Davidson’s Opinion
On March 22, 2011, Dr. Davidson completed a form entitled Medical Source

Statement of Ability to Do Work-Related Activities. He opined that Mr. Hesse could
stand/walk for less than 1 hour at a time and for 3 hours total a day. The same
limits applied to sitting. He could never do postural activities such as stooping or
balancing. His ability to reach, handle, feel and push/pull were affected because
“back instability prevents … motions of reaching, pushing, pulling.”

Dr.

Donaldson also stated that plaintiff was on narcotics and muscle relaxers which
impaired his alertness and coordination. He stated that these limitations had been
present since 2001. (Tr. 603-606).
Analysis
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Plaintiff first argues that the ALJ “made a clear error” in concluding that
plaintiff did not have any medical treatment or take prescribed medication after
January, 2011. The ALJ’s conclusion was based on the fact that the last record of
treatment was a visit with Dr. Davidson on January 21, 2011. See, Tr. 597.
Plaintiff does not argue that the ALJ overlooked records of later treatment.
Rather, he bases his argument on his testimony at the second hearing, quoted
above.
The Court must reject this point. First, the testimony was equivocal. Mr.
Hesse first said that he had no additional treatment since the spring of 2011, but
then claimed to have seen Dr. Davidson.

More importantly, plaintiff never

submitted any additional records from Dr. Davidson.

Plaintiff had the

responsibility to provide medical evidence showing that he has an impairment and
the severity of that impairment.

20 C.F.R. §416.912.

As Mr. Hesse was

represented by counsel, the ALJ was entitled to assume that he was presenting his
“strongest case for benefits.” Buckhanon ex. rel J. H. v. Astrue, 368 Fed. Appx.
674, 679 (7th Cir. 2010).

Far from being a “clear error,” the ALJ’s conclusion

that plaintiff had no medical treatment after January, 2011, was a permissible
conclusion based on the record before him. 3
Plaintiff next argues that the ALJ erred in giving substantial weight to Dr.
Feinerman’s opinion after having described it as boilerplate and inconsistent with

3

The Court notes that plaintiff did not submit any additional medical records to the Appeals Council in support of his
request for review. See, Tr. 5.

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the record at the second hearing.
Notably, plaintiff does not make a substantive argument as to why Dr.
Feinerman’s opinion was not entitled to significant weight. Nor does he argue that
the ALJ erred in discounting Dr. Davidson’s opinion. He simply suggests that he
was sandbagged by the ALJ’s comments.
It is true that, after counsel described Dr. Feinerman’s report as boilerplate
and inconsistent with the record, the ALJ said, “I also agree with you about your
comment regarding our friend, Dr. Feinerman.” Plaintiff suggests that the ALJ’s
later statement that he would “just leave that be” indicated that he would not give
much weight to Dr. Feinerman’s report.

On the contrary, the ALJ made that

remark in response to counsel’s claim that he (counsel) knew “a lot” about Dr.
Feinerman. See, Tr. 51-52. In context, it appears that the ALJ was attempting to
foreclose a beyond-the-record discussion of what counsel “knew” about Dr.
Feinerman, rather than offering an evaluation of the weight to be given to the
doctor’s opinion.
This Court reviews the final decision of the Commissioner made after a
hearing, 42 U.S.C. §405(g), and not the remarks made by the ALJ at the hearing.
Perhaps plaintiff’s sandbagging argument might have some traction in a case where
the ALJ definitively stated that he would discount a particular medical opinion at
the hearing, but later reversed his position without notice to the claimant. This is
not, however, such a case. The ALJ’s remarks about Dr. Feinerman were opaque,
at best. Further, plaintiff does not point to any specific evidence which he would
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have submitted but for the ALJ’s remarks. In view of the fact that plaintiff does not
even attempt to demonstrate that Dr. Feinerman’s opinion was not entitled to
substantial weight, his point is rejected.
Mr. Hesse’s third and fourth points can be swiftly disposed of. He argues
that the ALJ ignored his diagnoses of failed back syndrome and sciatica. The ALJ
did, however, find that he had degenerative disc disease of the lumbar spine, and
discussed his complaint of radiating pain down his left leg. Plaintiff completely
omits any discussion of what the additional diagnoses of failed back syndrome and
sciatica add to the picture.
For his fourth point, he argues that the ALJ erred in ignoring his request for
a consultative orthopedic exam. However, a social security claimant does not have
a right to have a consultative exam by a specialist in the field of his choosing.
Rather, the ALJ has the discretion to determine whether such an examination is
warranted.

20 C.F.R. §416.912(f).

Here, the ALJ procured one consultative

examination. Plaintiff has not shown that it was an abuse of discretion to not
procure a second examination. See, Flener v. Barnhart, 361 F.3d 442, 448 (7th
Cir. 2004), citing Luna v. Shalala, 22 F.3d 687, 692 (7th Cir. 1994).
Lastly, Mr. Hesse argues that the ALJ erred in considering his activities. He
argues that the ALJ should not have considered activities prior to the date of his
current SSI application, and that he erroneously labeled some of his activities as
being inconsistent with a limitation to sedentary exertion.
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In his current application for SSI, Mr. Hesse claimed disability beginning on
March 30, 2002. See, Tr. 282.

He submitted a Disability Report stating that he

had been unable to work since that date. Tr. 319.

His onset date was amended

to a later date only because the denial of his prior claim stood as an administrative
determination that he was not disabled as of the date of that decision. Schmidt v.
Astrue, 496 F.3d 833, 845 (7th Cir. 2007).

However, evidence submitted on the

prior application can be considered if it is relevant to the determination of the
subsequent application. Ibid.; Groves v. Apfel, 148 F.3d 809, 810 (7th Cir.
1998).
The ALJ is directed to consider the claimant’s activities in the course of his
credibility determination. SSR 96-7p. The fact that Mr. Hesse was involved in a
physical altercation after drinking, rode a motorcycle, and did yard work and
welding during a period when he claimed to be unable to do even sedentary work
was relevant to the ALJ’s credibility determination, even though those activities
occurred before the denial of his prior application. ALJ Hafer considered this
evidence as inconsistent statements bearing on plaintiff’s credibility and not as
substantive evidence of his functional capacity at the time of his decision. It was
not error for him to do so.
ALJ Hafer also considered plaintiff’s activities since the date of his present
application. He noted that Mr. Hesse did household chores and tried to use a
riding mower. At the time of the second hearing, he was cooking for an elderly
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friend, although he previously claimed he was unable to stand long enough to
prepare a meal. Notably, the ALJ did not equate these activities with an ability to
sustain full-time work. Rather, he properly considered the conflict between the
apparent ability to do such things and plaintiff’s claims about the extent of his
physical limitations. Pepper v. Colvin, 712 F.3d 351, 368 (7th Cir. 2013).
Plaintiff has not attacked the credibility determination on any other basis.
As the ALJ’s credibility determination is not “patently wrong,” it will not be
overturned. Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009).
In sum, none of plaintiff’s arguments are persuasive. Even if reasonable
minds could differ as to whether Mr. Hesse 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
Hafer committed no errors of law, and that his findings are supported by
substantial evidence. Accordingly, the final decision of the Commissioner of Social
Security denying Steven Hesse’s application for disability benefits is AFFIRMED.
The clerk of court shall enter judgment in favor of defendant.
IT IS SO ORDERED.
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DATE:

April 23, 2014.

s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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