Roe v. Commissioner of Social Security

Filing 20

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 6/30/2016. (klm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STANLEY W. ROE,

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

Civil No. 15-cv-229-CJP 1

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Stanley Roe is before the
Court, represented by counsel, seeking review of the final decision of the
Commissioner of Social Security denying him Disability Insurance Benefits
(DIB).
Procedural History
Plaintiff applied for benefits on December 22, 2011, alleging disability
beginning on August 19, 2010. (Tr. 20). After holding an evidentiary hearing,
ALJ William Mackowiak denied the application in a written decision dated
October 15, 2013. (Tr. 20-29).

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.

1

This case was referred to the undersigned for final disposition upon consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 10.

1

Issues Raised by Plaintiff
Plaintiff raises the following point:
1. The ALJ erred in forming plaintiff’s RFC by improperly rejecting the
opinion of plaintiff’s primary medical source.
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:
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
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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 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
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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 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
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ALJ Mackowiak followed the five-step analytical framework described
above. He determined that plaintiff had not been engaged in substantial gainful
activity since his alleged onset date. He found that plaintiff had severe
impairments of heart murmur, peripheral neuropathy, obesity, lumbar
radicular pain, history of left rotator cuff tear, and history of carpal tunnel
syndrome. The ALJ further determined these impairments do not meet or equal
a listed impairment. (Tr. 22).
The ALJ found that plaintiff had the residual functional capacity (RFC) to
perform work at the sedentary level, with physical and mental limitations. (Tr.
23). Based on the testimony of a vocational expert (VE), the ALJ found that
plaintiff was not able to do his past work. (Tr. 27). However, he was not
disabled because he was able to do other jobs which exist in significant
numbers in the regional and national economies. (Tr. 28).
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
Plaintiff was born on July 12, 1965, and was forty-five years old on the
alleged onset date of August 19, 2010. He was insured for DIB through
December 31, 2015. (Tr. 157-58, 191). He previously worked as a machine
operator for an automotive company. (Tr. 136). He took amitriptyline for
depression, fenofibrate for high cholesterol, Lisinopril and propranolol for high
5

blood pressure, Lyrica and Tylenol for pain, and vitamin B12 injections. (Tr.
168, 188).
Plaintiff submitted function reports in March and August 2012. (Tr. 144-54,
175-85). He stated that he could not walk very well due to numbness in his feet
and pain in his hip and he could not hold small items because he had no
control of his hands. (Tr. 144, 175). On a daily basis, he would wake up, eat
breakfast, make a simple breakfast for his daughter, watch television, eat
dinner, and go to bed. He lived with his wife, two daughters, and a dog. His
wife and daughters took care of the dog (Tr. 145-176). He stated that it was
difficult to get dressed, bathe, and shave. (Tr. 176).
Plaintiff could prepare simple meals like sandwiches and soup, and he was
able to do light cleaning a few times a month. (Tr. 146, 177). He could drive
and was able to handle finances. He occasionally shopped for groceries but his
wife typically did the shopping for their household. (Tr. 147, 178). He claimed t
have difficulty lifting, squatting, bending, standing, reaching, walking, sitting,
kneeling,

talking,

climbing

stairs,

remembering,

completing

tasks,

concentrating, and following instructions. He could walk about a block before
needing to rest for fifteen to twenty minutes. (Tr. 149, 180). Plaintiff stated that
prednisone caused boils, weight gain, and drowsiness. Lyrica also caused
weight gain and drowsiness. (Tr. 151, 182).
2. Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing on
September 24, 2013. (Tr. 36). At the beginning of the hearing the ALJ noted
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that plaintiff had a high school education, previously worked as a machine
operator, and his major medical problems involved his spine, peripheral
neuropathy, kidney stones, lumbar radiculopathy, a history of bilateral carpal
tunnel syndrome, rotator cuff problems, and a heart murmur workup. (Tr. 3738).
Plaintiff testified that in August 2010, prior to leaving work, he had
weakness in his legs, stumbling, staggering, pain in his hips, and pain in his
lower back. The pain in his lower extremities was constant and caused his legs
to be constantly swollen. (Tr. 40). He would need to sit down and rest after
fifteen or twenty minutes of being on his legs. (Tr. 41). He rated his pain as a
ten out of ten, but his pain would improve after he sat down for fifteen or
twenty minutes. (Tr. 41-42). His symptoms occasionally prevented him from
sleeping well as his legs would cramp at night and he would have to walk
around before he was able to go back to sleep. (Tr. 44).
He took six different medications on a daily basis but was not sure that any
of his medications were overly helpful. (Tr. 42-43). He tried physical therapy
and hydrocortisone injections to help with pain but they did not provide pain
relief either. (Tr. 43). Plaintiff stated that his medications occasionally caused
drowsiness that would require him to lie down for about an hour. He testified
that he needed to lie down due to these side effects about fifteen to twenty days
per month. (Tr. 44).
Plaintiff could mow his lawn on his riding lawn mower and could weed-eat
his lawn but it took significantly longer than it did in the past. After fifteen to
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thirty minutes of any activity he needed to sit and rest. (Tr. 45). He had a
twenty-six year old daughter with Down syndrome that lived with him and his
wife. (Tr. 46). Plaintiff fixed her lunch and cared for her daily. (Tr. 46-47). He
stated that he could no longer go hunting and he found it difficult to focus on
tasks. (Tr. 46).
A vocational expert (VE) also testified. (Tr. 50-56). The ALJ asked the VE a
hypothetical question which comported with the ultimate RFC assessment,
that is, a person of plaintiff’s age and work history who was able to perform
sedentary work limited to lifting up to ten pounds occasionally, standing and
walking for two hours out of an eight hour day and sitting up to six hours out
of an eight hour day. The person should never climb ladders, ropes, or
scaffolding, and could occasionally climb stairs or ramps. (Tr. 52). Additionally,
the person could occasionally balance, stoop, kneel, crouch, and crawl, and
could frequently reach, handle, finger, and feel with the bilateral upper
extremities. He should avoid concentrated exposure to hazards such as moving
machinery, unprotected heights, and hazardous machinery. Finally, the person
should be limited to work with simple, routine, and repetitive tasks. (Tr. 52-53).
The VE testified that the person could not perform any of plaintiff’s previous
work. However, he could do jobs that exist in significant numbers in the
national economy. Examples of such jobs are document preparer, circuit board
assembler, and surveillance system monitor. (Tr. 53-54). The VE testified that if
the person was off task for more than fifteen percent of the workday all work
would be precluded. (Tr. 54-55).
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3. Medical Evidence
Plaintiff saw neurologist Anthony Collins in March 2010 complaining of
paresthesias and cramping in his legs and feet. Dr. Collins ordered an MRI. (Tr.
201). The MRI showed scattered white matter in plaintiff’s brain, which Dr.
Collins found suspicious for multiple sclerosis (MS). (Tr. 201, 208, 219).
Thereafter, plaintiff underwent nerve conduction testing for MS which came
back negative. (Tr. 211). Additional MRIs of plaintiff’s cervical, thoracic, and
lumbar spine were taken and showed disc protrusions at T9-10, small central
L5-S1 disc protrusion associated mild spinal stenosis and moderate bilateral
foraminal narrowing. (Tr. 221-225).
Plaintiff began seeing physician’s assistant David Padgett at the Marshall
Clinic Effingham in April 2010. (Tr. 420-21). Plaintiff saw Mr. Padgett over
fifteen times from 2010 until 2012 for treatment involving his legs, sinus
infections, back pain, B12 deficiency, depression, anxiety, and a heart
murmur. (Tr. 349-428, 468-78, 505-61). Mr. Padgett regularly changed
plaintiff’s medications and referred him to specialists for treatment. (Ex., Tr.
358-59, 361-63, 389-91, 406-07, 410-11). His assessments of plaintiff’s
impairments usually stated that plaintiff had a B12 deficiency, depression,
anxiety, low back pain, and numbness in his legs. (Tr. 361, 372, 403, 406-07,
408-09).
Plaintiff also saw Dr. Douglas Dove in 2010. (Tr. 214-16). Plaintiff was
unable to tandem walk and had no deep tendon reflexes in his bilateral upper
and lower limbs. The remainder of the neurological examination was normal.
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Dr. Dove’s impressions were evidence of lower limb paresthesia and ataxia and
he ordered additional EMG testing of the lower limbs. (Tr. 214-15). The EMG
results were indicative of a left S1 radiculopathy and diffuse generalized
peripheral polyneuropathy. (Tr. 215-16).
In December 2010, plaintiff saw pain specialist Dr. Mohamed El-Ansary.
(Tr. 256-57). Plaintiff had tenderness in his S1 areas but no sensory defects in
his lower extremities and no motor defects. (Tr. 257). Dr. El-Ansary reviewed an
MRI of his lumbar spine that showed disc protrusion at L5-S1, somewhat more
to the left and his impression was disc protrusion at L5-S1 with radiculopathy.
He recommended epidural and trigger point injections. (Tr. 257). Thereafter,
plaintiff received at least five injections in 2011. (Tr. 258-63). Plaintiff also
attended physical therapy to help with his back and leg pain. (Tr. 289-94; 32628). He met his physical therapy goals and reported feeling that he had
improved. (Tr. 292, 294). He still had pain, but had no new symptoms. (Tr.
293).
4. Consultative Examinations
In June 2012, plaintiff underwent a mental consultative examination with
clinical psychologist Jerry Boyd, Ph.D. (Tr. 430-34). Plaintiff was very agitated
during the exam but was alert and correctly oriented times four. (Tr. 431). Dr.
Boyd opined that plaintiff’s attention, concentration, and short-term memory
showed significant impairment. (Tr. 431-32). He felt plaintiff could follow
simple, repetitive instructions but would have reduced persistence due to his
physical impairments. (Tr. 433).
10

Plaintiff also underwent a physical consultative examination with Dr. Vittal
Chapa in June 2012. (Tr. 437-39). Plaintiff informed Dr. Chapa that he stopped
working in 2010 due to health problems. Plaintiff reported a history of bilateral
carpal tunnel surgeries, left shoulder rotator cuff surgery, and gallbladder
surgery. (Tr. 437). Plaintiff’s knee reflexes were 1+ bilaterally, ankle reflexes
were 2+ bilaterally, and his peripheral pulses were 3+ bilaterally. (Tr. 438). Dr.
Chapa noted that plaintiff could perform manipulations with his hands, he had
a full range of motion in his joints, he had no edema, and there was no specific
motor weakness or atrophy. (Tr. 438-39). On examination, plaintiff could get on
and off the exam table, walk on his toe, and walk on his heels. He had difficulty
tandem walking and was unable to squat and arise. (Tr. 441). Dr. Chapa’s
diagnostic

impressions

were

peripheral

neuropathy

and

multiple

musculoskeletal pains. (Tr. 439).
5. RFC Assessment
State agency physician Henry Rohs, M.D. assessed plaintiff’s physical
RFC in June 2012. (Tr. 457-63). He reviewed medical records but did not
examine plaintiff. He believed plaintiff could occasionally lift twenty pounds
and frequently lift ten pounds. He opined plaintiff could stand, walk, or sit for a
total of six hours in an eight hour workday. (Tr. 457). Plaintiff was limited to
never climbing ladders, ropes, and scaffolds but could perform all other
postural activities frequently. (Tr. 458). Plaintiff should avoid concentrated
exposure of hazards such as machinery and heights due to his neuropathy. (Tr.
460).
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6. Opinions of Treating Physician’s Assistant
Mr. Padgett assessed plaintiff’s work-related limitations on three separate
occasions. (Tr. 366-67, 468-74, 505-07). Mr. Padgett’s first assessment was
completed in August 2011. Mr. Padgett indicated that plaintiff was restricted
from any prolonged sitting, standing, or lifting. (Tr. 366). Mr. Padgett also
stated that plaintiff had severe limitations in his functional physical capacities
and that he was incapable of minimal sedentary activity. He indicated that
plaintiff could never perform the work of any occupation and he did not expect
plaintiff to have any significant improvement in the future. (Tr. 367).
Mr. Padgett’s second opinion was dated December 27, 2012. He felt plaintiff
could sit for two hours in an eight hour workday, sit and stand for one hour in
an eight hour workday, and plaintiff would need to alternate positions
sometimes as often as every fifteen minutes. He felt plaintiff could use his
hands for repetitive actions but could not use his feet in operating foot
controls. (Tr. 470). Mr. Padgett stated that plaintiff could occasionally lift up to
twenty pounds but never anything heavier and plaintiff could occasionally
carry up to ten pounds. Plaintiff could never crawl or climb, occasionally bend
or squat, and could frequently reach above shoulder level. (Tr. 471).
Mr. Padgett opined that plaintiff could never be around unprotected heights
or machinery, plaintiff could drive automotive equipment with moderate
restrictions, and plaintiff had no restrictions regarding exposure to marked
changes in temperature, humidity, and exposure to dust, fumes, and gases.
(Tr. 472). Mr. Padgett opined that plaintiff was not a malingerer but suffered
12

from severe pain that interfered with his sleep and activities of daily living. (Tr.
473). He also indicated plaintiff had spinal impairments that were manifested
by chronic pain and weakness and resulted in the inability to ambulate
effectively. The form he completed regarding plaintiff’s spinal impairments
indicated plaintiff met the requirements for disability under Listing 1.04. (Tr.
468-69).
Mr. Padgett’s final opinion indicated plaintiff could sit, stand, or walk for
two hours each in an eight hour day. (Tr. 505). Plaintiff could not use his feet
for repetitive movements with foot controls. Plaintiff was limited to frequently
lifting and carrying less than ten pounds and occasionally lifting and carrying
up to fifty pounds. He could never bend or climb and occasionally squat, crawl,
and reach above shoulder level. (Tr. 506).
Analysis
Plaintiff’s only argument is that the ALJ improperly weighed the medical
evidence and, as a result, improperly formed plaintiff’s RFC assessment.
A treating physician’s medical opinion is entitled to controlling weight
only where it is supported by medical evidence 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(c)(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
13

from the objective medical findings alone or from reports of
individual examinations, such as consultative 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). It 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).
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). 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

14

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).
ALJ Mackowiak met and exceeded this “lax” standard. First, the ALJ noted
that Mr. Padgett was not an acceptable medical source under 20 C.F.R.
§404.1513. Mr. Padgett’s opinions, therefore, could not establish the presence
of a medically determinable impairment. SSR 06-3p. Plaintiff argues that under
SSR 06-03p Mr. Padgett’s opinions must be weighed using the same factors as
an acceptable medical source. However, as the Commissioner cites, SSR
06-03p actually states:
Although the factors in 20 CFR 404.1527(d) and 416.927(d)
explicitly apply only to the evaluation of medical opinions from
“acceptable medical sources,” these same factors can be applied
to opinion evidence from “other sources” . . . Not every factor for
weighing opinion evidence will apply in every case. The
evaluation of an opinion from a medical source who is not an
“acceptable medical source” depends on the particular facts in
each case.
Therefore, as the Commissioner notes, the ALJ was not required to apply all
the factors when evaluating Mr. Padgett’s opinions. Further, even if Mr.
Padgett had been an acceptable medical source, the Seventh Circuit has held
that the ALJ has not erred when discussing only two of the relevant factors
in 20 C.F.R. § 404.1527(c). Elder v. Astrue, 529 F.3d 408, 415-16 (7th
Cir. 2008). Here, ALJ Mackowiak evaluated enough of the factors in
discounting the opinions to make his analysis adequate.
The ALJ stated that he discounted Mr. Padgett’s opinions because they
conflicted with each other and contradicted Mr. Padgett’s opinion relating to
Listing 1.04. (Tr. 27). Plaintiff attempts to show that Mr. Padgett’s opinions
15

were supported by citing MRI, EMG, and x-ray test results, as well as medical
notes that indicate plaintiff had an abnormal gait, tenderness in his spine, and
difficulty finding a cure for his pain.
However, as the Commissioner notes, plaintiff does not acknowledge that
the ALJ discussed all of the test results he refers to as well as plaintiff’s
difficulties walking, reports of pain, and epidural injections. (Tr. 24-25). The
test results displayed mild disc bulge, radiculopathy, generalized peripheral
polyneuropathy, and calcaneal spurs in plaintiff’s feet. (Tr. 207, 215, 217, 22425, 262, 554). Plaintiff does not explain how these results substantiate Mr.
Padgett’s conflicting reports or restrictive findings and his argument on this
point is ineffective.
The ALJ also reasoned that Mr. Padgett’s opinions were apparently based
on plaintiff’s subjective complaints rather than objective evidence. (Tr. 27).
Plaintiff contends that the ALJ did not clearly find that Mr. Padgett relied upon
plaintiff’s subjective complaints because the ALJ used the phrase “appeared
to.” Since the rest of the objective record does not support the extreme
limitations found within Mr. Padgett’s opinions, it is reasonable for the ALJ to
assume Mr. Padgett’s opinions were formed on plaintiff’s subjective complaints.
See, Burton v. Barnhart, 203 F. App’x 737, 742 (7th Cir. 2006);
Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008).
On the converse, plaintiff argues that if Mr. Padgett relied on plaintiff’s
subjective complaints then he relied upon them the appropriate amount. He
cites portions of the record where he had subjective complaints of pain.
16

However, as the Commissioner notes, plaintiff does not challenge the ALJ’s
finding that plaintiff’s statements of pain and limiting effects of his symptoms
were not fully credible. As a result, plaintiff waives this argument. See,
Thompson v. Colvin, 575 F. App'x 668, 675 (7th Cir. 2014). Since the ALJ
found plaintiff’s complaints not entirely credible, it follows that Mr. Padgett’s
opinions that were seemingly based upon those complaints were also not
credible.
Plaintiff also takes issue with the fact that the ALJ stated Mr. Padgett’s
second opinion was from 2011 when it was actually from 2012. While the ALJ
did state the incorrect date, he does not state that he places any weight on the
timing of the opinions. The ALJ does not conclude that the opinions are
discounted because of the dates, and he has supported his rationale
appropriately. Therefore, since the Court “can predict with great confidence
what the result on remand will be[]” if the case were to be remanded based
upon the ALJ’s error in dates, his mistake equates to nothing more than a
harmless error. McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011).
Plaintiff contends that Dr. Chapa’s assessment of plaintiff took place
halfway between Mr. Padgett’s opinions and substantiates his opinions.
However, Dr. Chapa did not find plaintiff to be disabled in any way. The only
portion of Dr. Chapa’s assessment that coincides with Mr. Padgett’s opinions is
that plaintiff was unable to tandem walk and unable to squat and arise. (Tr.
441). Plaintiff fails to account for the rest of Dr. Chapa’s assessment where he
stated plaintiff had normal gait, no edema, no motor weaknesses, no muscle
17

atrophy, full range of motion in his joints, and normal strength. (Tr. 438-39).
These findings do not support the extreme limitations found in Mr. Padgett’s
opinions, and plaintiff’s argument on this point is unavailing.
Plaintiff states that the ALJ’s rejection of Mr. Padgett’s opinions resulted
in an RFC assessment that did not account for all of plaintiff’s impairments.
Plaintiff does not clarify what additional limitations should have been included
within the RFC assessment. He also fails to demonstrate how the ALJ’s
evaluation was unreasonable. 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
Mackowiak 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 Mackowiak 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 Stanley W. Roe’s application for
disability benefits is AFFIRMED.
The clerk of court shall enter judgment in favor of defendant.
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IT IS SO ORDRED.
DATE: June 30, 2016.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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