Laymon v. Colvin

Filing 21

MEMORANDUM AND OPINION affirming the final decision of the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of defendant. Signed by Magistrate Judge Clifford J. Proud on 10/24/2014. (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHEILA R. LAYMON,

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

Case No. 14-cv-39-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Sheila R. Laymon, through
counsel, seeks review of the final decision of the Commissioner of Social Security
denying her Disability Insurance Benefits (DIB).
Procedural History
Plaintiff applied for benefits on September 4, 2010, alleging disability
beginning on September 1, 2010. (Tr. 9). After holding an evidentiary hearing,
ALJ Ayrie Moore denied the application for benefits in a decision dated July 17,
2012. (Tr. 9-20). The Appeals Council denied review, and the 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.
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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. 10.

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Issues Raised by Plaintiff
Plaintiff raises the following points:
1. The ALJ’s decision contained an error of law or fact and was not supported
by substantial evidence when he stated that plaintiff did not have an
impairment or combination of impairments that met or medically equaled
the severity of a listed impairment.
2. The ALJ erred in weighing the medical opinions.
3. The ALJ did not properly evaluate plaintiff’s credibility.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes. 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
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:
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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 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

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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 plaintiff 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, 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

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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 Moore followed the five-step analytical framework described above. He
determined that plaintiff had not been engaged in substantial gainful activity since
the date of her application. He found that plaintiff had severe impairments of
post laminectomy syndrome/failed back syndrome status post lumbar fusion for
lumbar degenerative disc disease, lumbar spondylosis, lumbar radiculopathy, and
Graves’ disease hyperthyroidism. The ALJ found that plaintiff had the residual
functional capacity to perform work at the light level, with some limitations.
Based on the testimony of a vocational expert the ALJ found that plaintiff was able
to perform her past relevant work of a receptionist, and was able to do other work
that exists in significant numbers in the regional 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.
1. Agency Forms

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Plaintiff was born in 1961 and was 49 on the alleged onset date of September
1, 2010. She is insured for DIB through December 31, 2014. (Tr. 181). Plaintiff
completed two years of college and received an associate’s degree. (Tr. 186).
According to plaintiff, her multiple bulging and deteriorating discs limit her
ability to work. (Tr. 185). She previously worked as a monitor in a care facility for
disabled adults, a janitor, a line worker, a machine operator, and a secretary, (Tr.
186, 196).
In a Function Report submitted in October, 2010, plaintiff stated she could not
sit, stand, or walk for long periods of time. Her previous job required her to sit at
a desk, walk up and down stairs, and lift filing cabinets throughout her day. (Tr,
208). She stated she did some housework but had to alternate between sitting and
standing to relieve pain and sometimes needed help. (Tr. 209-10). She usually
prepared frozen meals, but if she cooked something she had to sit down after
standing for a long time. (Tr. 210). She had difficulty falling asleep and staying
asleep due to the pain. (Tr. 209).
She reported having difficulties lifting, squatting, bending, standing, walking,
sitting, and completing tasks. (Tr. 213). She was on Vicodin for pain and it
caused her to be drowsy and have constipation. (Tr. 215).
2. Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing on June 20,
2012. (Tr. 27).

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Plaintiff was married and had six adult children. (Tr. 29-30). One of her
daughter’s friends lived with her and her husband, but none of their children
resided in their home. (Tr. 30).
Plaintiff testified to being in pain all the time because of the herniated disc that
compresses the nerves in her back. She had spinal fusion surgery in January,
2011, but her pain was not relieved. She received treatment for her pain from her
family doctor at the time of the hearing, but previously went to a pain
management facility. (Tr. 32-33). Plaintiff had epidural injections and a device
was put in her back to help with pain but neither provided relief. (Tr. 33-34). She
never had physical therapy and it was not recommended. After her surgery,
plaintiff felt there was no improvement in her pain. She stated that she still had
radiating pain down both of her legs. (Tr. 35).
Plaintiff had two bladder surgeries for a pelvic organ prolapse. She felt the
medication she took for it helped and the issues were under control. (Tr. 37). She
took Vicodin and Gabapentin for pain, Pemazol for hypothyroidism, and Celexa
for depression. The Vicodin made her itch so she took allergy pills when she took
Vicodin. (Tr. 38). The Vicodin also caused the plaintiff to have constipation.
Plaintiff felt this issue was serious as she was concerned she would tear her
bladder back down after her surgeries. Her doctor told her that all pain
medications have that side effect. (Tr. 39). Her family doctor treated her for
depression. (Tr. 38). She felt that if she were able to work she would not be

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depressed and therefore her depression would not hinder her ability to work. (Tr.
39).
Plaintiff stated her pain was primarily in her low back and radiates down both
legs. She described the pain as sharp shooting pain that ached at times. (Tr. 43).
She had back pain all the time. The pain worsened when she walked for long
distances, sat in one position for too long, and bent over. (Tr. 44). Plaintiff
testified to being able to sit or stand for thirty to forty minutes at most without
having to move due to pain. (Tr. 45). She could lift ten pounds but not from the
floor. (Tr. 46). Plaintiff stated her pain was normally around a seven on a scale
from one to ten. (Tr. 53).
A vocational expert (VE) also testified. The VE asked plaintiff a series of
questions to explain her role as a secretary and determined the position to be
more closely related to that of a receptionist. The ALJ asked the VE to assume a
person could perform light work, occasionally do postural activities, with no
climbing of ladders, ropes, or scaffolds, no bending from the waist, and no lifting
from the waist to the floor. (Tr. 59). The VE testified that plaintiff could perform
work as a sedentary receptionist as it is generally performed. (Tr. 60). She could
also perform work as a telephone order clerk with the skills she acquired during
her job as a receptionist. (Tr. 61). She would be able to sit for thirty minutes and
stand and stretch after that if needed. (Tr. 62).
3. Medical Treatment

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Plaintiff had a history of back pain, gynecological and urinary problems, and
Grave’s disease.
Plaintiff’s back pain began when she was around nineteen years old and was
injured in a lifting accident. She had another back injury ten years ago that
caused a herniated disc. In April, 2010, she had an MRI of her lumbar spine
performed. The results showed multilevel lumbar degenerative disc disease with
mild stenosis and mild compression of the nerve roots at L4-S1. Schmorl’s nodes
were found at the inferior endplate of T12 and L1 and the superior endplate of
L3. Mild disc bulge and dehydration of intervertebral disks was also found. (Tr.
241-42).
Plaintiff saw Dr. Bashar Alzahabi at Carle Spine Institute after the MRI and he
reported no significant problems except positive straight leg raising on the left.
He recommended steroid injections and noted plaintiff was still able to work. (Tr.
298). She underwent steroid injections from Dr. Victoria Johnson at Carle Spine
Institute that seemed to help at first. (Tr. 253). However, plaintiff later reported
the injections were no longer helping. (Tr. 296).
On September 1st, 2010, plaintiff felt her back pain became unbearable and
she could no longer work. She saw Dr. Johnson that day and was reported to be
in moderate distress. Straight leg raising was mildly positive and she had mild
tenderness in her left gluteal region. Dr. Johnson’s impression was lumbar
spondylosis with radiculopathy. (Tr. 260). She gave plaintiff more steroid
injections to help, but plaintiff’s pain remained the same. (Tr. 268).

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In October, 2010, plaintiff saw Dr. Andrew Wilson at the Terre Haute Neuro
Spine Institute. Dr. Wilson reported plaintiff having an antalgic gait, decreased
flexion with pain, and decreased extension with pain. (Tr. 302). Plaintiff then
underwent lumbar provocative discography which was positive at L5-S1. (Tr. 30910).
In January, 2011, an interbody fusion, transverse process fusion with
instrumentation and placement of a bone stimulator was performed. (Tr. 328-29).
Plaintiff still had problems with her back after this procedure and underwent an
additional MRI in March, 2011. The MRI showed postoperative changes, small
disc bulge, and mild narrowing of neural foramina but no significant discogenic
changes. (Tr. 374-75). A trial spinal cord stimulator was inserted in August,
2011, but was removed a week later. (Tr. 729-732).
Plaintiff had a history of gynecological and urinary complications. She had
symptomatic vaginal vault prolapse. She had an endoscopic four corner bladder
suspension performed in July, 2010. (Tr. 294). In September, 2011, plaintiff went
to Effingham Obstetrics and Gynecology Associated where it was discovered her
vaginal vault had prolapsed. (Tr. 444). She underwent surgery to repair the
prolapse in October, 2011. (Tr. 457-59).
Plaintiff also visited the doctor several times to monitor her thyroid due to her
diagnosis with Graves’ disease. (Tr. 410-17). The medications plaintiff took to
regulate her thyroid function were reportedly working. (Tr. 417).

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Plaintiff regularly saw a family nurse practitioner, DeAnn Miller. (Tr. 280-83,
338-39, 449, 465, 467-69). Ms. Miller’s treatment notes indicate plaintiff had pain
in her back, knee, and problems with her prolapse surgery. (Tr. 280-83, 449).
However, her records do not indicate she found any abnormal findings during her
exams. Ibid. Ms. Miller filled out a Medical Source Statement claiming plaintiff
could never lift or carry over ten pounds, and could only sit, stand, or walk for a
maximum of thirty minutes at a time in a six hour work day. She also stated
plaintiff could only stand for a maximum of ten minutes total in a six hour work
day. (Tr. 471-72). She noted plaintiff could only occasionally balance and climb
stairs and ramps. Plaintiff could never climb ladders or scaffolds, stoop, kneel,
crouch, or crawl. (Tr. 474).
4. RFC Assessments
Two state agency consultants performed RFC assessments based on a review
of plaintiff’s records.
The first RFC assessment was performed by Dr. Julio Pardo in November,
2010. (Tr. 312-18). He believed plaintiff could occasionally lift twenty pounds and
frequently lift ten pounds. He opined that plaintiff could stand, walk, or sit for six
hours out of an eight hour work day. (Tr. 312). She was limited only to occasional
stooping. (Tr. 313).
The second RFC assessment was done by Dr. Towfig Arjmand in February,
2011. (Tr. 347-53). He also felt plaintiff could occasionally lift twenty pounds,
frequently lift ten pounds, and stand, walk, or sit for six hours out of an eight

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hour work day. (Tr. 347). He felt plaintiff could frequently balance, but could only
occasionally climb, stoop, kneel, crouch, or crawl. (Tr. 348).
Analysis
To begin, this Court notes that all of plaintiff’s arguments are entirely
undeveloped. The Seventh Circuit has stated that undeveloped arguments may be
deemed waived. Courts are not expected to research and make legal arguments
for a party, especially when the party is represented by counsel. Nelson v.

Napolitano, 657 F.3d 586, 590 (7th Cir. 2011). However, this Court has
reviewed the record in conjunction with the ALJ’s determinations to make the
decisions below.
Plaintiff’s first argument was that the ALJ erred in finding plaintiff’s
impairments do not equal that of any listed impairment. Plaintiff cites listing 1.04
for disorders of the spine and states that there is “ample evidence to support” her
argument that she meets a listed impairment. However, as the Commissioner
points out, plaintiff fails to address the ALJ’s argument that the medical evidence
did not demonstrate plaintiff’s musculoskeletal impairments met or medically
equaled the criteria for listing 1.04. (Tr. 12).
A finding that a claimant’s condition meets or equals a listed impairment
means that the claimant is presumptively disabled.

In order to be found

presumptively disabled, the claimant must meet all of the criteria in the listing.
20 C.F.R. §416.925(d). Plaintiff bears the burden of showing that his condition

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meets or equals the listed impairment. Maggard v. Apfel , 167 F.3d 376, 379380 (7th Cir. 1999).
The ALJ considered and evaluated plaintiff’s entire medical history on
record, including the conditions plaintiff lists, and analyzed thoroughly why the
listing was not met. The ALJ noted the nerve root compression was only mild, she
was able to ambulate effectively, and she had normal muscle strength and tone.
Additionally, the ALJ stated the sporadic incidents of defects plaintiff did have
were apparently resolved after her lumbar fusion surgery. (Tr. 12). The ALJ noted
plaintiff’s doctors found no abnormal exam findings on several occasions. (Tr. 1215). Plaintiff failed to explain how the ALJ erred in his analysis and how she met
the criteria for listing 1.04. Therefore, the ALJ’s decision regarding plaintiff’s
impairments not meeting listing 1.04 stands.
Plaintiff’s second argument is the ALJ did not give adequate weight to her
treating source, a family nurse practitioner Deann Miller. Plaintiff admits Ms.
Miller is not an acceptable medical source per the regulations. However, plaintiff
contends that her opinion should be given more weight than the state agency
consultants because she had treatment history with plaintiff. Plaintiff is incorrect.
First, it is appropriate for an ALJ to rely upon the assessment of a state
agency consultant. Schmidt v. Barnhart , 395 F.3d 737, 745 (7th Cir. 2005);

Cass v. Shalala, 8 F.3d 552, 555 (7th Cir. 1993). “State agency medical and
psychological consultants are highly qualified physicians and psychologists who
are experts in the evaluation of the medical issues in disability claims under the

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Act.” Social Security Ruling 96-6p, at 2. Second, the Seventh Circuit has stated
that a treating doctor’s opinion is only entitled to weight when it is supported by
the objective medical evidence. Alena Denton v. Astrue , 596 F.3d 419 (7th Cir.
2010).
As plaintiff points out, Ms. Miller was not an acceptable medical source to
begin. Additionally, the ALJ gave great weight to the state agency consultants’
opinions because they were supported by the record. (Tr. 18). On the other hand,
the ALJ gave Ms. Miller’s opinion little weight because her source statement was
not internally consistent with her exam notes, nor was it consistent with the rest
of the record. (Tr. 17-18). As the Commissioner points out, Ms. Miller was
inconsistent even in her medical source statement where she opined plaintiff
could stand for thirty minutes at a time without interruption but on the next
question stated plaintiff could only stand ten minutes in an eight-hour period. (Tr.
472). Plaintiff never addresses the inconsistencies or explains how Ms. Miller’s
source statement is supported by her records or the rest of the medical evidence.
Therefore, the ALJ’s decision to give Ms. Miller’s opinion little weight is affirmed.
Plaintiff’s final argument was that the ALJ erred in making his credibility
determination. Plaintiff’s argument is yet again undeveloped as it is only two
sentences that cite no portion of the record, the ALJ’s decision, or controlling case
law. However, this Court reviewed the ALJ’s decision and found it to be sound.
Credibility determinations can only be overturned when they are found to be
“patently wrong.” Eichstadt v. Astrue , 534 F.3d 663, 667-668 (7th Cir. 2008),

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citing Jens v. Barnhart , 347 F.3d 209, 213 (7th Cir. 2003). The analysis is
deemed to be patently wrong “only when the ALJ's determination lacks any
explanation or support.” Elder v. Astrue , 529 F.3d 408, 413-414 (7th Cir.
2008). The analysis here is far from patently wrong. The ALJ gave extensive
reasons for finding plaintiff not entirely credible, such as plaintiff’s objective
medical evidence, medications, and daily activities. (Tr. 13-18). The ALJ’s
reasoning built the required logical bridge and therefore his credibility
determination stands.
In sum, none of plaintiff’s arguments are persuasive. Even if reasonable
minds could differ as to whether plaintiff was disabled at the relevant time, 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). ALJ Moore’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 Moore 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 Sheila R. Laymon’s application for disability benefits is
AFFIRMED.

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The clerk of court shall enter judgment in favor of defendant.
IT IS SO ORDRED.
DATE: October 23, 2014.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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