Donaldson v. Commissioner of Social Security

Filing 33

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 8/1/2014. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MODEST E. DONALDSON,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

Civil No. 13-cv-429-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Modest E. Donaldson seeks
judicial review of the final agency decision denying her application for
Supplemental Security Income (SSI) benefits pursuant to 42 U.S.C. § 423.
Procedural History
Ms. Donaldson filed an application for benefits in July, 2006, alleging
disability beginning on July 7, 2006. (Tr. 92). Following an evidentiary hearing,
the application was denied in March, 2009.

(Tr. 38-51).

After the Appeals

Council denied review, plaintiff sought judicial review. See, Modest Donaldson v.
Michael Astrue, Case No. 11-cv-554-JPG-CJP.

District Judge J. Phil Gilbert

ordered the case remanded to the agency for further proceedings in July, 2012.
(Tr. 1008-1034).
On remand, the case was assigned to ALJ Stuart T. Janney. Additional
1

This case was referred to the undersigned for final disposition on consent of the parties, pursuant
to 28 U.S.C. §636(c). See, Doc. 20.

1

medical records were submitted, and ALJ Janney held another evidentiary hearing.
He then denied the application on March 1, 2013. (Tr. 875-906).
Issues Raised by Plaintiff 2
Plaintiff raises the following interrelated points:
1.

The ALJ erred failing to incorporate limitations based on plaintiff’s
need to elevate her legs and on pain and swelling in her hands into his
RFC assessment.

2.

The ALJ failed to properly consider the opinions of Drs. Davis and
Sawar and of physical therapist Wilson.

3.

The ALJ failed to account for plaintiff’s moderate difficulties in
maintaining concentration, persistence or pace.
Applicable Legal Standards

To qualify for DIB or SSI, a claimant must be disabled within the meaning of
the applicable statutes. 3 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).
2

Plaintiff listed a fourth issue in her statement of issues, i.e., that the ALJ failed to properly assess
her credibility. See, Doc. 21, p. 2. However, she presented no argument on that point in the body
of her brief, and the Court deems the issue to have been waived. Nelson v. Napolitano, 657 F.3d
586, 590 (7th Cir. 2011).

3

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. As is 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.

2

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
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
3

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.
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. Donaldson 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)).
4

The Supreme Court has defined “substantial evidence” as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 91 S. Ct. 1420, 1427 (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 Janney followed the five-step analytical framework described above.
He determined that plaintiff had not worked at the level of substantial gainful
activity since the alleged onset date. He found that she had severe impairments of
left knee osteoarthritis and changes of the hip, degenerative disc disease of the
cervical and lumbar spine, asthma/COPD, sleep apnea, hypothyroidism, obesity,
right shoulder adhesive capsulitis, deep vein thrombosis, peripheral neuropathy
and RSD, diabetes, learning disorder, mood disorder secondary to general medical
condition, and history of substance abuse. He determined that these impairments
do not meet or equal a listed impairment.
The ALJ found that Ms. Donaldson had the residual functional capacity
(RFC) to perform work at the sedentary exertional level, with a number of physical
and mental limitations. She had no relevant past work. Based on the testimony
5

of a vocational expert, the ALJ found that plaintiff was not disabled because she was
able to do other jobs which exist in significant numbers in the local and national
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.
The record as it existed prior to the first ALJ’s denial is summarized in the
Report and Recommendation, Doc. 30, in Case No. 11-cv-554-JPG-CJP.
1.

Evidentiary Hearing

Ms. Donaldson was represented by an attorney at the evidentiary hearing
before ALJ Janney on January 28, 2013. (Tr. 920).
Plaintiff was 48 years old in January, 2013. She finished the 8th grade and
had not gotten a GED. (Tr. 923).
Ms. Donaldson testified that her “main issue” was her hands. She had been
diagnosed with reflex sympathetic dystrophy. She had problems with her hands
for 10 years. She testified that her hands “draw” and “crinkle up,” and “don’t do
what you want them to do.” (Tr. 925-926).
Ms. Donaldson also testified that she had to use a wheelchair about 6 months
out of the year because she was unable to put any pressure on her left leg. She had
been told she needed a knee replacement but she did not have any medical
coverage.

(Tr. 928-929, 946).

She said that she sat with her legs elevated

because “they hold a lot of swelling.” She elevated her legs “100 percent of the
6

time” while she was sitting. (Tr. 942-943). She testified that reaching overhead
caused her pain in her left shoulder.

When her attorney pointed out that the

medical records indicated that she had impingement syndrome of the right
shoulder, she said that she was confused. (Tr. 952-953).
A vocational expert (VE) also testified. The ALJ stated that plaintiff had no
past relevant work. He asked the VE a series of hypothetical questions. (Tr.
957-963). One of the questions comported with the ultimate RFC assessment, that
is, a person of plaintiff’s age and work history who was able to do work at the
sedentary exertional level with the following limitations:
•

Only occasional climbing of ramps and stairs;

•

No climbing of ladders, ropes or scaffolds.

•

Only occasional balancing;

•

No concentrated exposure to hazards in the workplace;

•

No use of the lower extremities to operate foot controls

•

Frequent reaching, handling and fingering, but only occasional
overhead reaching with the right arm;

•

No concentrated exposure to environmental irritants;

•

“Due to a moderate degree of maintaining sustained concentration,
persistence, or pace, could understand, remember, and carry out rote
or routine types of instructions that would require the exercise of little
independent judgment or decision making for two-hour work
segments, but could not do so if the tasks were complex or detailed in
nature.”

(Tr. 957-959).
The VE testified that this person could do unskilled sedentary jobs such as
assembler or production worker, hand packager, and inspector, weigher or tester.
7

(Tr. 958). All work would be precluded if the person also needed to elevate her left
leg, take 2 additional breaks a day, or was absent 3 to 4 times a month.

(Tr.

961-962).
3.

Medical Treatment

Dr. James Wachter of Carterville Family Practice was plaintiff’s primary care
physician. In December, 2009, she saw him for pain in her left knee. She was
walking with a limp, and said her knee sometimes gave out on her. Dr. Wachter
noted that she was “trying to get disability.” He discussed with her “consideration
of cane, walker, wheel chair or crutches as needed for management.”

He

suspected osteoarthritis of the left knee with possible internal derangement. (Tr.
1465). In April, 2010, he saw her to follow up on her diabetes, hypertension,
hyperlipidemia and COPD.

There was no mention of knee pain.

She was

noncompliant with her medications. On exam, her extremities were symmetric
with trace edema. (Tr. 1464). She returned in May, 2010, complaining of left
knee pain without significant swelling, redness or warmth.

She said she was

“using a wheelchair more” and had also been using a cane.

Dr. Wachter

recommended physical therapy. (Tr. 1461).
In May, 2010, a Doppler ultrasound study of plaintiff’s left leg showed no
evidence of deep vein thrombosis. (Tr. 1405).
Ms. Donaldson returned to Dr. Wachter in October, 2010. He noted that she
had a long history of noncompliance with medications, and she had been
discharged from physical therapy for noncompliance. She had 2+ pitting edema
of the lower extremities. There was no mention of a wheelchair or cane. (Tr.
8

1460).
Plaintiff was hospitalized for one night after she passed out at a friend’s
house in November, 2010. She had diabetes and believed her blood sugar was
low. A drug screen was positive for cannabis as well as opiates. (Tr. 1420-1421).
In March, 2011, Ms. Donaldson told Dr. Wachter that she had “episodes of
near syncope.” He felt that her noncompliance with medications and skipping
meals were causing many of her problems. She also said she had bilateral hand
weakness, which was “not identified on physical exam.” No swelling was noted in
her legs, and there was no mention of a wheelchair or cane. (Tr. 1785). In April,
2011, she had a left wrist injury which was thought to be tendonitis. Dr. Wachter
prescribed Prednisone. (Tr. 1781). In May, 2011, she had again hurt her wrist
while closing a window. (Tr. 1780). A month later, her pain was much improved,
but not completely resolved. She had a full range of motion of the shoulders,
elbows, wrists and hands. Grip strength was 4/5. The assessment was tendonitis
injury to left arm, forearm and wrist. (Tr. 1779).
Ms. Donaldson had an episode of knee pain in August, 2011. Dr. Nekzad,
who practiced with Dr. Wachter, saw her. She reported that she had gone to the
emergency room, and an x-ray was unremarkable.

He ordered an MRI.

(Tr.

1771).
Ms. Donaldson was hospitalized due to “intractable” pain in her left knee in
late August, 2011.

Dr. Wachter treated her.

An MRI was limited by patient

motion. The impression was diminished size of the lateral meniscus which might
be related to her prior surgery, mild lateral compartment osteoarthrosis and
9

minimal chondromalacia patella, along with nonspecific findings of small joint
effusion and edema.

(Tr. 1721).

She was in the hospital for 5 days.

Dr.

Wachter’s final diagnoses were osteoarthritis of multiple joints, including the left
knee, and chronic pain in the lower extremities secondary to peripheral
neuropathy. (Tr. 1692-1693).
In September, 2011, Dr. Wachter noted that the “main finding continues to
be only peripheral neuropathy of the leg.”

He also noted that there were “some

inconsistencies” with her complaints of pain.

On exam, she had diminished

pulses and some mottling of both legs. There was slight edema in the left leg. She
had minimal motion of the left knee, and said she had been sitting with her leg
stretched out on the sofa all day. He also noted that her hair had been “recently
washed and curled.” He increased the dosage of Neurontin. (Tr. 1768).
She was hospitalized again at Herrin Hospital in early October, 2011, for
cellulitis of the left elbow and MRSA. Dr. Wachter treated her at the hospital. The
admitting note stated that Ms. Donaldson had gone to the emergency room a few
days earlier, and had been prescribed antibiotics. However, she had not filled the
prescription because of the cost. She was not taking her other medications either,
due to lack of insurance and the cost of filling the prescriptions. She was in a
wheelchair due to left leg pain. On exam, she had redness, warmth and swelling in
the left elbow. She also had 1+ edema in the lower extremities. (Tr. 1841-1842).
She was treated with antibiotics and discharged a few days later. In the discharge
summary, Dr. Wachter noted that, with regard to her leg pain, she was ambulating
up and down the hallway and was markedly better, but still had pain. He noted
10

that she had been “wheelchair bound not a month and a half ago associated with the
leg pain.” (Tr. 1839-1840).
On October 21, 2011, she went to Herrin Hospital to have her port flushed. 4
She was noted to be “ambulatory,” as opposed to using a wheelchair, walker,
crutches or cane. (Tr. 1826). The same observation was made on December 2,
2011, February 13, 2012, and April 6, 2012. (Tr. 1803, 1806, 1909). The port
was removed in April, 2012.

The pre-surgical note indicates that all four

extremities were “grossly unremarkable.” There is no indication that she was in a
wheelchair or using an assistive device. (Tr. 1864-1866).
A physician’s assistant in Dr. Wachter’s office saw plaintiff on March 1, 2012.
She said she hit her right elbow on a stove vent about a month earlier and had
persistent shooting pain since then. She could not hold a cup of coffee. She had
positive Tinel’s sign and reduced range of motion. She said she had problems
paying for medical treatment.

Occupational therapy was recommended.

(Tr.

1756). Plaintiff told the physical therapist that she had been cleaning a wall and
hit her elbow on the hood of the stove. The goals of therapy were to achieve range
of motion within functional limits, minimal to no pain with use, and resume use of
the extremity for all activities of daily living/work/leisure tasks. (Tr. 1918-1919).
She was discharged after attending 7 appointments. The last visit was on April 25,
2012. All therapy goals were met. (Tr. 1915).
On May 3, 2012, plaintiff told Dr. Nekzad that she had been having
headaches for the past 3 months. She also said that therapy had not helped her
4

A Port-A-Cath for chemotherapy infusion had been surgically inserted in July, 2008. (Tr. 566-567).

11

elbow.

He ordered MRI studies.

(Tr. 1755).

An MRI of the brain was

unremarkable. (Tr. 1875). An MRI of the right elbow showed mild tendinopathy.
(Tr. 1878).
In June, 2012, she complained to Dr. Wachter about decreased range of
motion of the right shoulder. He diagnosed right frozen shoulder, rotator cuff
tendonitis and trapezius muscle soreness. No complaints regarding her elbow or
hands were recorded. On exam, her extremities were symmetric with only trace
edema. There was no indication that she was in a wheelchair or using an assistive
device. Dr. Wachter noted that she had no insurance, so “going to therapy, etc., is
not an option.” (Tr. 1752). In July, 2012, Dr. Nekzad found that the range of
motion of her right shoulder was extremely limited, and he strongly recommended
physical therapy even though she had no insurance. (Tr. 1751).
In October, 2012, Dr. Wachter noted no abnormal findings with regard to her
extremities. (Tr. 1748).
Ms. Donaldson went to the emergency room for headache and high blood
pressure in November, 2012. She denied neck pain, back pain, extremity pain,
gait abnormality, and numbness. An ECG was normal. (Tr. 1953-1961). A few
days later, she was seen in the office by Dr. Wachter. She said her blood pressure
was going up and down, and she was sleeping poorly and had anxiety.

He

prescribed Klonopin. (Tr. 1937). Ms. Donaldson called his office to get a refill on
November 21, 2012. She said that the medicine “was working.” (Tr. 1938).
The last medical record is dated December 18, 2012.

Ms. Donaldson

complained of stiffness and soreness in the left lower back, and “swelling at times”
12

in her left knee. On exam, she had “poor” range of motion in the back. Dr.
Wachter did not record any measurements of range of motion. She had “some
effusion” in the left knee, but no redness or warmth. She was able to walk “without
significant limp.” Dr. Wachter diagnosed osteoarthritis of the left knee, obesity,
inactivity overall, and chronic low back pain with muscle spasm. He advised her
to continue with conservative management. (Tr. 1936).
4.

Opinions of Drs. J. Michael Davis and Amar Sawar

Medical Source Statements from Drs. Davis and Sawar were in the record
before the first ALJ. Neither of those doctors apparently treated plaintiff after the
Court remanded the case in July, 2012.
Dr. J. Michael Davis is an orthopedic surgeon. He performed arthroscopic
surgery on plaintiff’s left knee for a lateral meniscal tear in September, 2006. (Tr.
248-250).
On October 15, 2007, Dr. Davis filled out a form indicating that Ms.
Donaldson could stand for only 5 to 10 minutes at a time, and could stand or walk
for only a total of 1 hour out of a workday. She required crutches to ambulate and
could never do activities such as stooping or kneeling. However, she was able to sit
for 8 hours and had no restrictions in the use of her hands. The form did not ask
whether she needed to elevate her legs while seated. (Tr. 386-392, 1274-1279).
Neurologist Dr. Amar Sawar assessed plaintiff’s functional capacity in
February, 2009. He had been treating her since December, 2007. He wrote that
he treated her for reflex sympathetic dystrophy and tension headache. He opined
that she was capable of only sedentary work, and indicated that she would need a
13

job where she could change positions at will. He said she did not need to use a
cane or other assistive device when standing or walking. In response to a question
asking whether it was “medically reasonable” for plaintiff to elevate her feet while
sitting, he answered “yes.” (Tr. 864-868, 1281-1285).
5.

Opinion of Physical Therapist

Mallori Wilson, PT, assessed plaintiff’s functional capacity on July 5, 2011.
She noted that Ms. Donaldson walked with a slight antalgic gait on the left. There
is no notation regarding swelling in the legs.

Ms. Wilson opined that Ms.

Donaldson could only occasionally handle, finger and feel with both hands. She
also opined that Ms. Donaldson tested within the sedentary physical demand level,
but she was not capable of competitive employment. (Tr. 1630-1632).
Analysis
The Court notes at the outset that plaintiff has not advanced a substantive
challenge to the ALJ’s finding that her statements regarding her symptoms and
limitations were not credible. To the extent that her arguments rely on her own
statements, they are undermined by the adverse credibility finding.
Plaintiff first two points are intertwined. She argues first that the ALJ did
not properly account for her alleged need to elevate her legs and inability to
frequently use her hands. This argument incorporates her second point, that the
ALJ did not properly consider the opinions of her doctors and physical therapist.
ALJ Janney set forth a detailed discussion of the medical evidence, analyzing
it year-by-year. See, Tr. 885-899. The medical evidence was voluminous, and his
analysis was detailed and thorough. Plaintiff claims that she needed to elevate her
14

feet 100% of the time while she was seated in order to relieve swelling in her legs.
Throughout his discussion of the evidence, the ALJ commented on evidence which
indicated the presence or absence of swelling in plaintiff’s legs. He acknowledged
that she had arthroscopic surgery on her left knee in 2006, and that she had some
set-backs in 2007 while recovering from that surgery. He also acknowledged that a
treating doctor told her to elevate her legs due to swelling in 2007. (Tr. 886-888).
However, he concluded that the need to elevate her legs was temporary.
Plaintiff’s argument is greatly weakened because it relies in large part on her
own statements that she needed to elevate her legs. The ALJ explained why he did
not believe her, and plaintiff has not challenged his conclusion about her credibility.
The rest of her argument relies on occasional notations in the medical records of
swollen legs, Dr. Nanni’s direction to elevate her leg, and Dr. Sawar’s opinion.
Contrary to plaintiff’s suggestion, ALJ Janney did not ignore or disregard any of
this evidence. Rather, he explained in detail why he concluded that the record
established only a temporary need to elevate her legs.
In her reply brief, plaintiff cites Smith v. Astrue, 467 Fed. Appx. 507 (7th
Cir. 2012), in support of her claim that the ALJ failed to properly consider her
claim that she has to elevate her legs. However, that case is of no help to plaintiff.
The plaintiff in Smith advanced a successful attack on the ALJ’s credibility
determination. Further, the ALJ in Smith failed to explain why he concluded that
the plaintiff did not need to elevate his legs.

Smith, 467 Fed. Appx. at 510-511.

In contrast, Ms. Donaldson has not challenged the ALJ’s credibility findings, and
ALJ Janney exhaustively discussed the medical evidence and explained how, in his
15

view, it did not establish that Ms. Donaldson has to keep her legs elevated at all
times while seated.
For the same reasons, the Court rejects Ms. Donaldson’s claim that the ALJ
did not properly consider whether she is able to use her hands frequently. As the
ALJ pointed out, the medical records simply do not support Ms. Donaldson’s claim
that her hands “crinkle” or “draw up” after she uses them for a short time. The
ALJ acknowledged the opinions of Dr. Sawar and PT Wilson, but adequately
explained why he rejected them, as will be discussed more fully below.
With regard to her physical limitations, plaintiff does not point to any
evidence that was overlooked or ignored by the ALJ. On the contrary, the Court
finds that ALJ exhaustively examined the voluminous medical evidence and
specifically explained why he rejected both limitations.
ALJ Janney discussed the opinions of Drs. Davis and Sawar, as well as that
of Ms. Wilson. He acknowledged that Dr. Davis thought that she needed crutches
to ambulate, could not ambulate without a wheelchair or assistive device, and could
never use her left foot. He also pointed out that Dr. Davis thought that plaintiff
could use her hands continuously. He acknowledged that Dr. Sawar opined that
she did not need a cane or other assistive device, she needed to be able to elevate
her feet, and she had limited ability to use her hands. He gave these opinions little
weight.

He also discussed Ms. Wilson’s opinion, noting that, as a physical

therapist, she is not acceptable medical source. (Tr. 901-902).
Drs. Davis and Sawar are, of course, treating doctors.

The opinions of

treating doctors are to be evaluated under 20 C.F.R. §404.1527. Obviously, the
16

ALJ is not required to accept a treating doctor’s opinion; “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). 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).
The ALJ must be mindful that the treating doctor has the advantage of having
spent more time with the plaintiff but, at the same time, he may “bend over
backwards” to help a patient obtain benefits. Hofslien v. Barnhart, 439 F.3d
375, 377 (7th Cir. 2006). See also, Stephens v. Heckler, 766 F.2d 284, 289
(7th Cir. 1985) (“The patient's regular physician may want to do a favor for a
friend and client, and so the treating physician may too quickly find
disability.”).
When considered against this backdrop, the Court finds no error in the ALJ’s
weighing of the doctors’ opinions. ALJ Janney pointed out that the two doctors
contradicted each other on whether Ms. Donaldson needed a wheelchair or
assistive device to walk or stand, and on whether she was limited in using her
hands. He also pointed out that the treatment records contradicted Dr. Davis’
17

opinion that she needed a wheelchair or assistive device, and contradicted Dr.
Sawar’s opinion that she needed to elevate her legs and was limited in using her
hands. The ALJ also made the important point that these opinions were rendered
in 2007 and 2009, respectively. Substantial treatment occurred thereafter, and
neither doctor had the benefit of reviewing the entire treatment record.
An ALJ can properly give less weight to a treating doctor’s medical opinion if
it is inconsistent with the opinion of another 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).

Further, in light of the deferential standard of judicial review, the ALJ is

required only to “minimally articulate” his 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).

The Court finds that ALJ Janney more than met the

minimal articulation standard here.
With respect to Ms. Wilson’s opinion, the ALJ correctly observed that, as a
physical therapist, she is not an “acceptable medical source.”

20 C.F.R.

§404.1513(a); 416.913(a). As such, her report does not constitute a “medical
opinion.” See, 20 C.F.R. §404.1527(a)(2); 416.927(a)(2). (“Medical opinions are
statements from physicians and psychologists or other acceptable medical sources.
. . .”) The ALJ was not required to analyze her report as a medical opinion under
§404.1527, and her report was not entitled to any special weight or deference.
Rather, the opinions of “other sources” such as Ms. Wilson may be considered, as
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may any evidence in the record, to assess the severity of the claimant’s impairments
and the effect of her impairments on her ability to work.

§404.1513(d);

416.913(d).
Plaintiff argues that the ALJ erred in not considering PT Wilson’s opinion
under 20 C.F.R. §416.927(e), which concerns the evaluation of opinions from
non-examining sources. However, Ms. Wilson is not a non-examining source, and
§416.927(e) has no application here.
The ALJ discounted Ms. Wilson’s opinion because it was based on minimal
testing and relied heavily on plaintiff’s subjective statements. The ALJ observed
that it did not appear that Ms. Wilson conducted simulations of actual work activity
as is generally seen in a “typical functional capacities evaluation such as a
Blankenship evaluation.”
“inherently unreliable.”

He therefore determined that her opinion was
(Tr. 902).

Plaintiff has not demonstrated any error

committed by the ALJ in weighing Ms. Wilson’s opinion.
Lastly, plaintiff challenges the mental limitations assessed by ALJ Janney.
Because of her moderate limitation in ability to maintain concentration,
persistence, or pace, the ALJ concluded that she “can understand, remember, and
carry out rote or routine instructions that require the exercise of little independent
judgment or decision making for two-hour work segments, but not if the tasks are
complex or detailed.” (Tr. 882). This limitation was included in the hypothetical
question posed to the VE. (Tr. 957-959).
It is difficult to discern exactly what plaintiff claims is wrong with the above
limitation. She points out that Dr. Sawar said that Ms. Donaldson’s pain and
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medication would affect her concentration for 50% of the day. However, the ALJ
adequately explained why he did not give much weight to Dr. Sawar’s opinion. In
addition, plaintiff suggests that this limitation is simply a limitation to unskilled
work.

However, this argument ignores the fact that the RFC assessment also

limited her to two-hour work segments.
The Commissioner acknowledges that the RFC did not specifically limit
plaintiff to simple one- or two-step tasks. However, one of the jobs that the VE said
she could perform is assembler or production worker.

According to the

Dictionary of Occupational Titles, that job is limited to one- or two- step tasks. It
requires only “Reasoning: Level 1 - Apply commonsense understanding to carry out
simple one- or two-step instructions.” See, Doc. 29, p. 10, n. 2; Doc. 29, Ex. 1.
It is far from clear that the ALJ erred in failing to specify one- or two-step
tasks in the RFC assessment and the hypothetical question. The ALJ excluded
complex and detailed tasks, which seems to have the same effect. In any event, the
Commissioner argues, correctly, that any error was harmless.

Plaintiff

acknowledges this in her reply brief, Doc. 31, p. 6, but argues that the ALJ’s other
errors make it “unclear whether or not Ms. Donaldson could sustain even this one
job. . . .”

However, the ALJ did not commit any other errors, so it is clear that any

error in failing to specify one- or two-steps tasks is harmless. See, McKinzey v.
Astrue, 641 F.3d 884, 892 (7th Cir. 2011).
In sum, none of plaintiff’s arguments are meritorious. Even if reasonable
minds could differ as to whether Ms. Donaldson was disabled at the relevant time,
the ALJ’s decision must be affirmed if it is supported by substantial evidence, and
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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). ALJ Janney’s decision is supported by substantial evidence, and so must
be affirmed.
Conclusion
After careful review of the record as a whole, the Court is convinced that ALJ
Janney 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 Modest E. Donaldson’s application for disability benefits is
AFFIRMED.
The clerk of court shall enter judgment in favor of defendant.
IT IS SO ORDRED.
DATE:

August 1, 2014.

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

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