Williamson v. Commissioner of Social Security Administration
Filing
21
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 7/8/2016. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LAURIE A. WILLIAMSON,
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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
Civil No. 15-cv-628-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Laurie A. Williamson,
represented by counsel, seeks judicial review of the final agency decision denying
her application for Disability Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in September 2011, alleging disability beginning
on January 30, 2007. After holding an evidentiary hearing, ALJ Victoria A. Ferrer
denied the application on January 30, 2014. (Tr. 10-24). 2 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.
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. 10.
1
Consistent with the usual practice in social security cases, the Court cites to the transcript number
stamped in the lower right hand corner of each page of the administrative transcript, i.e., (Tr. __).
Plaintiff’s counsel should follow this practice in future cases rather than using the page numbers
assigned by the CM/ECF system.
2
1
Issues Raised by Plaintiff
Plaintiff raises the following issues:
1.
The ALJ erred in weighing the medical opinions.
2.
“The ALJ abused discretion by finding ‘severe’ impairments …and
then later finding ‘mild’ impairments.”
3.
The ALJ’s credibility analysis was erroneous.
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
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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.
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
3
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. Williamson 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)).
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. Elder v. Astrue, 529 F.3d 408,
413 (7th Cir. 2008); 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.
4
The Decision of the ALJ
ALJ Ferrer followed the five-step analytical framework described above.
She determined that plaintiff had not worked at the level of substantial gainful
activity since the alleged onset date, and that she was insured for DIB through
December 31, 2012.
She found that plaintiff had severe impairments of
degenerative arthrosis of both knees, degenerative disc disease and spondylosis of
the lumbar and cervical spine, obesity, and mood disorder.
She further
determined that these impairments did not meet or equal a listed impairment.
The ALJ found that Ms. Williamson had the residual functional capacity
(RFC) to perform work at the light exertional level, with a number of physical and
mental limitations. Based on the testimony of a vocational expert, the ALJ found
that plaintiff was not disabled because she was able to do 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 and is limited to the relevant time period.
1.
Agency Forms
Plaintiff was born in 1963 and was 43 years old on the alleged date of onset,
January 30, 2007. (Tr. 141). She was 5’1” and weighed 200 pounds. (Tr. 147).
She had a GED. She had worked as an assembler in a factory from 1999 to 2007,
as “unskilled labor” in a comic book factory from 1997 to 1998, and as a
cook/waitress from 1993 to 1998. (Tr. 148).
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In a Function Report filed in October 2011, plaintiff said that her ability to
work was limited because she could not sit, stand or walk “long or short periods at
a time.” (Tr. 169). She had no problems with personal care. She did only light
household chores when her medications took effect. She was unable to prepare a
meal alone and only made sandwiches or heated up left overs in the microwave.
Her husband usually did the grocery shopping, but she shopped maybe once a
month. In terms of social activities, she visited her mother and mother-in-law
every other week. She said she had no problems paying attention. Plaintiff said
she could not stand or sit for longer than 15 minutes, and could walk only ½ of a
block. (Tr. 168-177).
2.
Evidentiary Hearing
Ms. Williamson was represented by an attorney at the evidentiary hearing on
August 16, 2013. (Tr. 31).
Plaintiff testified that her husband did most of the household chores and
cooking. She folded clothes and tried to keep the dishes done, but it took her a
long time. She had one friend whom she saw once a month and talked to on the
phone daily.
She saw her grandchildren about once a month.
She watched
television and read. She attended church with her mother-in-law probably once
every four months. (Tr. 35-40). She visited her mother-in-law once a month, and
she helped her father with his finances. (Tr. 42).
Ms. Williamson testified that, probably once a week, she did not get out of
bed all day. (Tr. 41). She said she had pain in her back and neck. She took
Vicodin. She also had depression because of her physical problems. When she
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stayed in bed all day, it was because of both physical pain and depression. (Tr.
44-47).
Plaintiff testified that she had crying spells almost every other day, for almost
the last year. (Tr. 48).
A vocational expert (VE) also testified. The ALJ asked him 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 do work at the light exertional level,
and was able to stand/walk for 6 hours total per day and sit for 6 hours total per
day, limited to occasional pushing and pulling with the lower extremities;
occasional climbing of ramps, stairs, ladders, ropes and scaffolding; occasional
balancing, stooping, kneeling, crouching and crawling; simple, routine and
repetitive tasks and simple instructions; only occasional changes in the workplace;
able to meet production rate pace, but no fast-paced, high-production demands
such as assemble line work. The VE testified that this person could do jobs that
exist in significant numbers in the regional and national economies. Examples of
such jobs are such as fast food worker, cashier and housekeeper. (Tr. 52-54).
3.
Medical Treatment
Plaintiff had on on-the-job injury in March 2006. She had pain in her neck
and left shoulder. She saw Dr. Heffner for a neurosurgical consultation in June
2006. Dr. Heffner noted that an MRI showed degenerative changes at C5-6 and
C6-7, with a possible disc protrusion at C4-5. He did not recommend surgery.
(Tr. 228-229). In April 2007, she continued to complain of diffuse widespread
pain involving he low back, neck, shoulders, arm and legs. He again noted that
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surgery was not indicated, and suggested long term pain management. (Tr. 233).
Pain management specialist Dr. Malla gave Ms. Williamson a series of
epidural injections in the cervical lumbar spine in June, August and October 2007.
These injections gave her temporary pain relief. (Tr. 291-293).
In November 2008, plaintiff told Dr. Malla that the last treatment gave her
more than 50% pain relief for 3 months. He repeated the injections. In February
2009, she said she had more than 50% pain relief for 2 ½ months from the last
injections. Injections were repeated, and, in September 2009, she reported more
than 50% pain relief in her back for 2 ½ months and more than 50% pain relief in
her neck for 3 months. The injections were again repeated. She returned in
March 2010. She no longer had insurance, so she was treated with medication.
On exam, she had tenderness in the cervical spine with no muscle spasm. Range
of motion of the cervical spine was normal, but with pain. Range of motion of both
shoulders was normal with no impingement.
Motor strength of the upper
extremities was normal with no neurological deficits and no wasting.
Grip
strength was 3/5 bilaterally. There was moderate tenderness at L5-S1 with no
muscle spasm. Range of motion of the lumbar spine was reduced in all directions.
Motor strength was 5/5 bilaterally . Superficial reflexes were within normal limits.
Dr. Malla prescribed Flexeril and Lortab. (Tr. 294-301).
The earliest office note from primary care physician Dr. Mark Preuss is dated
February 11, 2010, although plaintiff was apparently already an established patient
at that time.
She complained of bilateral knee pain.
redness or swelling of the knees.
On exam, she had no
She had mild crepitus bilaterally.
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The
diagnosis was osteoarthritis bilateral knees. She was already taking a number of
medications, including Ultram, Xanax, Flexeril, Lexapro and Tramadol. She told
the doctor that her niece had stolen her last refill of Tramadol.
prescribed Daypro and Toradol.
medication review in March 2010.
(Tr. 448).
She was
Ms. Williamson returned for
She was on multiple medications.
complained of low back and neck pain, as well as depression.
She
She was not
suicidal, but was sad on a daily basis and had loss of interest, agitation and
irritability.
Relevant diagnoses were depression, suboptimally controlled, and
chronic neck and back pain. Risperdal was added to her other medications. (Tr.
446). In April 2010, she complained of back pain. On exam, she was moderately
uncomfortable trying to stand and get up. She had difficulty bending at the waist.
Straight leg raising was positive at 45 degrees. Dr. Preuss recommended physical
therapy. (Tr. 447).
Plaintiff returned to Dr. Preuss in May 2010. She was taking Lexapro and
Risperdal for depression.
The Risperdal helped somewhat.
She continued to
have low back pain with some numbness and tingling in the left upper leg. She felt
“off balance” often. She said she did not want to return to Dr. Malla because he
“treated her poorly.” Dr. Preuss gave her an intramuscular shot of Toradol and
increased the dosage of Risperdal. (Tr. 445). On June 18, 2010, Dr. Preuss
noted that the increased dosage of Risperdal was helping, and her depression had
improved, but she still had “some sad times.” She complained of pain all the way
down her leg into her foot. She had tenderness in the lower lumbar area and
positive straight leg raising on the left at about 30 degrees. He gave her another
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Toradol shot and recommended a lumbar MRI. (Tr. 444).
Ms. Williamson was seen in the emergency room at Chester Memorial
Hospital in June 2010 following a car accident. A CT scan of the cervical spine
showed moderately severe narrowing at C5-6 and C6-7, with moderate central
spinal stenosis, and mild to moderate degenerative disc disease at C3-4 and C4-5.
(Tr. 317).
The diagnosis was chest wall contusion and abdominal contusion
following a motor vehicle accident. Vicodin was prescribed.
(Tr. 310).
Dr. Preuss saw her the next day and diagnosed multiple significant
contusions, a rib fracture, possible concussion, and abrasions. (Tr. 443).
On June 28, 2010, Dr. Preuss noted that a lumber MRI done before the car
accident showed annular bulging at L4-5, hypertrophic facet arthrosis, possible
slight compression of the left L5 nerve root, and small disc protrusion at L5-S1with
compression of the right S1 nerve root. He suggested that she return to a pain
clinic for management of her low back pain. (Tr. 442). In August 2010, she
reported that the pain clinic she had been seeing said they would not treat her any
longer. (Tr. 440). In December 2010, she told Dr. Preuss that she had not gone
to the pain management clinic in St. Louis as they had discussed, but she was
willing to go to a clinic in Cape Girardeau, Missouri. Dr. Preuss noted that she
looked fatigued and “somewhat sedated.” He refilled her Lortab and gave her a
Toradol shot. (Tr. 439).
Plaintiff began treatment at Brain & NeuroSpine Clinic in Cape Girardeau,
Missouri, a pain management clinic, in January 2011. On exam, she weighed 220
pounds. Gait and station were normal. Strength was 5/5 in the upper and lower
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extremities. Grip strength was 4+/5 bilaterally. Straight leg raising was negative.
Sensation was intact to light touch.
She showed no depression, anxiety or
agitation, memory was intact, and attention and concentration were normal. An
MRI showed degenerative changes, most significantly at the L5-S1 level. She was
prescribed Neurontin and a series of injections.
She was to continue with
medication management by her primary care doctor. (Tr. 417-420). She was
administered epidural lumbar injections in January and February 2011.
(Tr.
422-429). In March, she reported that she had 20% pain relief. She was to go for
a neurosurgical consultation. (Tr. 432).
In July 2011, plaintiff fractured her right ankle jumping into a swimming
pool. The fracture required open reduction and internal fixation. By October
2011, the fracture was healed and she was able to bear full weight. (Tr. 468-475).
In December 2011, plaintiff reported to Dr. Preuss that her husband’s hours
at work had been cut and she was applying for disability. She also reported that
some of her Xanax had been stolen. She asked if she could take more Xanax and
Lortab. Dr. Preuss noted that she was “somewhat tearful.” She complained of
difficulty sleeping. The doctor did not allow for any more Lortab or Xanax, and
told her she has to “hold steady.” She told her to restart Risperdal, and said she
had to take it “faithfully.” He also noted that it was not “to her benefit to up
analgesics or addictive medications.” She was also given an injection of Toradol.
(Tr. 507-508).
On January 3, 2012, plaintiff was taking Risperdal as well as Lexapro, and
did not feel as sad or like crying. She had a form for Dr. Preuss to fill out for her
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disability application. (Tr. 506). In February 2012 she was again a little tearful.
She again asked for more Lortab and Benzodiazepines (Xanax), but Dr. Preuss told
her “she was not to do that.” (Tr. 575). In March 2012, she was depressed and
agreed that a change of antidepressants might be useful.
Effexor instead of Lexapro.
She was started on
A month later, her depression was somewhat
improved. She had good eye contact, was more alert, and was smiling some. (Tr.
573-574).
In September 2012, she was seen for complaints related to
sinusitis/upper respiratory infection/ bronchitis. (Tr. 572).
Her date last insured for DIB was December 31, 2012.
Dr. Preuss saw her for an upper respiratory infection in January 2013. (Tr.
571). One week later, she told Dr. Preuss that her niece had again stolen some of
her pills. He told her that she is responsible for her own meds. He gave her
enough Klonopin and Percocet to get her through the five days until her regular
prescriptions could be refilled. He stated that, “In the future we’ll take a tough
stand and refuse any further medications should she ask me and tell me someone
stole them.” (Tr. 570).
The last visit with Dr. Preuss was in April, 2013. Plaintiff admitted to Dr.
Preuss that she had not been taking her depression medication as she was
supposed to. Her mother had died and she had been drinking alcohol. He told
her to continue Effexor and Wellbutrin, and to avoid alcohol. (Tr. 568).
Ms. Williamson attended 10 counselling sessions at the H Group from April
2013 to July 2013, after her date last insured for DIB.
The notes document
plaintiff’s on-going difficulties in dealing with her family. (Tr. 598-613).
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4.
Treating Doctor’s Opinion
In January 2012, Dr. Preuss completed a form assessing plaintiff’s ability to
do physical work-related activities. (Tr. 511-513). He indicated that, in an 8
hour workday, plaintiff could stand/walk for a total of 3 hours and sit for a total of
3 hours. She could stand/walk for ½ hour at a time and sit for ½ hour at a time.
She could never climb, stoop, crouch or crawl, and could only occasionally balance
and kneel. He said that her ability to reach and push/pull were affected, but did
not say how.
The form asked the doctor to cite medical findings in support of his opinion.
He cited degenerative disc disease at C5-6 and C6-7, left shoulder arthrosis, left
paracentral disc herniation at L5-S1, and osteoarthritis and history of patellar
fracture in the left knee. Dr. Preuss said that plaintiff’s limitations dated from
June 2010.
5.
Opinions of State Agency Consultants
There was no consultative physical examination.
James Peterson, Ph.D., performed a consultative psychological exam in
October 2011. (Tr. 478-480). He noted that plaintiff was lucid, alert, friendly and
cooperative.
Eye contact was appropriate and speech was normal.
She was
oriented and displayed no memory problems. He diagnosed mood disorder due to
a general medical condition.
Analysis
Plaintiff applied for DIB only. She was last insured for DIB as of December
31, 2012. In a DIB case, a claimant must establish that she was disabled as of her
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date last insured. Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997).
It
is not sufficient to show merely that the impairment was present as of the date last
insured; rather plaintiff must show that the impairment was severe enough to be
disabling as of the relevant date. Martinez v. Astrue, 630 F.3d 693, 699 (7th Cir.
2011).
Ms. Williamson first argues that the ALJ erred in assigning no weight to Dr.
Preuss’ opinion.
Dr. Preuss is, of course, a treating doctor. The opinions of treating doctors
are to be evaluated under 20 C.F.R. §404.1527. Obviously, the 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.
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,
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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 Dr. Preuss’ opinion. After reviewing the medical evidence, ALJ Ferrer
gave “no weight” to his opinion because it was poorly supported, inconsistent with
the medical evidence as a whole, and inconsistent with the record as a whole. She
acknowledged that diagnostic tests demonstrated objective abnormalities, but
pointed out that physical examinations showed that plaintiff had a greater
functional capacity than was indicated by Dr. Preuss.
Further, the medical
records indicated that she responded well to treatment.
Immediately prior to her discussion of Dr. Preuss’ opinion, the ALJ
discussed the medical evidence in detail. For instance, she noted that a physical
exam in May 2007 showed tenderness of the cervical and lumbar spine, full range of
motion of the cervical spine and reduced range of motion of the lumbar spine.
Range of motion of all other joints was normal. Neurological exam was normal,
motor function was normal, and plaintiff had full strength in the upper extremities.
In January 2011, physical exam showed normal gait and station. Neurological
exam was normal.
Further, the medical records reflected that conservative
treatment was effective in reducing plaintiff’s pain. (Tr. 19-20).
In support of her argument that Dr. Preuss’ opinion should have been given
controlling weight, plaintiff cites to Tr. 586-588. She points out that Dr. Preuss
recommended no lifting , bending or twisting at Tr. 588. However that was in April
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2010, and Dr. Preuss prescribed physical therapy on that same date.
January 2011, she had evidently improved.
By
An exam at Brain & NeuroSpine
Clinic in in that month showed normal gait and station, full strength in the upper
and lower extremities, 4+/5 grip strength bilaterally, negative straight leg raising,
and intact sensation.
(Tr. 417-420).
Plaintiff also points out that Dr. Preuss
noted that she had trouble getting up onto the table and that he “reported claimant
as ‘off balance.’” See, Doc. 15, p. 3. In fact, Dr. Preuss wrote that plaintiff said
that she “[h]as felt off balance often.” (Tr. 586). Dr. Preuss did not report that he
observed that she was off balance or that he tested her balance. In short, the
isolated notes cited by plaintiff do not contradict the ALJ’s conclusion that Dr.
Preuss’ opinion was not supported by the medical evidence as a whole.
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” her reasons for accepting or rejecting evidence, a
standard which the Seventh Circuit has characterized as “lax.” Berger v. Astrue,
516 F.3d 539, 545 (7th Cir. 2008); Elder v. Astrue, 529 F.3d 408, 415 (7th Cir.
2008). The Court finds that ALJ Ferrer more than met the minimal articulation
standard here.
Plaintiff’s second argument is a complete nonstarter. She appears to argue
that the ALJ committed error by finding that she had a severe mental impairment
16
(mood disorder) at step two, but also finding that she had only mild and moderate
functional limitations when determining whether the “B criteria” were met. This
argument rests upon a misunderstanding of the process for evaluating mental
impairments.
The ALJ properly followed the process for evaluating mental impairments set
for in 20 C.F.R. §505.1520a. Simply put, to the extent that plaintiff is arguing that
a finding that she has a severe mental impairment mandates a finding that she has
severe limitations in considering the B criteria, she is mistaken.
Plaintiff also seems to suggest that the finding that she had a severe mental
impairment mandates a finding that her condition met or equaled a listing. Again,
she is incorrect. “[T]he step two determination of severity is ‘merely a threshold
requirement.’” Castile v. Astrue, 617 F.3d 923, 927 (7th Cir. 2010), citing
Hickman v. Apfel, 187 F.3d 683, 688 (7th Cir.1999).
A finding that a claimant’s condition meets or equals a listed impairment is a
finding that the claimant is presumptively disabled.
In order to be found
presumptively disabled, the claimant must meet all of the criteria in the listing; an
impairment “cannot meet the criteria of a listing based only on a diagnosis.” 20
C.F.R. §404.1525(d). The claimant bears the burden of proving that she meets or
equals a listed impairment. Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012);
Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999).
Here, the only evidence
cited by plaintiff comes from the H Group counselling notes. See, Doc. 15, p. 4.
However, those notes post-date her date last insured, and, in any event, do not
come close to establishing that she met or equaled a listing. In particular, plaintiff
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claims that those records establish that she was unable to leave her home for hours
at a time due to anxiety. However, that is an overstatement. The note, dated April
29, 2013, actually says, “Processed Laurie’s feelings about her father and sisters
calling her names and making accusations against her. Processed that it may take
hours for her to leave her home to go to her father’s due to Anxiety.” (Tr. 612).
The note does not suggest that plaintiff was generally unable to leave her home due
to anxiety. And, crucially, plaintiff never claimed before the ALJ that she was
unable to leave her home for hours at a time due to anxiety.
Lastly, plaintiff argues that the credibility determination was erroneous.
Most of her argument criticizes the ALJ for using boilerplate language. However,
the use of the boilerplate language does not automatically require reversal. It is
harmless where the ALJ goes on to support her conclusion with reasons derived
from the evidence. See, Shideler v. Astrue, 688 F.3d 306, 310-311 (7th Cir 2012);
Richison v. Astrue, 462 Fed. Appx. 622, 625-626 (7th Cir. 2012).
The Court must use an “extremely deferential” standard in reviewing an
ALJ’s credibility finding. Bates v. Colvin, 736 F.3d 1093, 1098 (7th Cir. 2013).
The Court cannot reweigh the facts or reconsider the evidence, and can upset the
ALJ’s finding only if it is “patently wrong.” Ibid. Social Security regulations and
Seventh Circuit cases “taken together, require an ALJ to articulate specific reasons
for discounting a claimant's testimony as being less than credible, and preclude an
ALJ from ‘merely ignoring’ the testimony or relying solely on a conflict between the
objective medical evidence and the claimant's testimony as a basis for a negative
credibility finding.” Schmidt v. Barnhart, 395 F.3d 737, 746-747 (7th Cir. 2005),
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and cases cited therein.
SSR 96-7p requires the ALJ to consider a number of factors in assessing the
claimant’s credibility, including the objective medical evidence, the claimant’s daily
activities, medication for the relief of pain, and “any other factors concerning the
individual’s functional limitations and restrictions due to pain or other symptoms.”
SSR 96-7p, 1996 WL 374186, at *3. While plaintiff’s claims cannot be rejected
solely because they are not supported by objective evidence, 20 C.F.R.
§404.1529(c)(2),
the
ALJ
may
take
that
fact
into
consideration,
since
“discrepancies between objective evidence and self-reports may suggest symptom
exaggeration.” Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008).
Here, the ALJ discounted plaintiff’s testimony because it was not supported
by the objective medical record, including the results of physical and mental exams.
The ALJ noted that plaintiff testified to severe limitations, including that she had to
spend 6 hours out of her day reclining or laying down, and that she stayed in bed all
day at least once a week.
However, the ALJ pointed out that the record
demonstrated that plaintiff was able to perform significant activities of daily living.
For example, she stated in a function report that she was able to prepare simple
meals, do light housework, go out every day, drive a car and go regularly to the
homes of her mother and mother-in-law.
Further, the ALJ pointed out that
plaintiff made statements to her health care providers which contradicted her
claims of disabling symptoms. She told her doctors several times that she had
significant pain relief from epidural injections. In January 2012, she told her
doctor that medication helped her depression and she was not as sad and did not
19
feel like crying. See, Tr. 21.
Plaintiff takes issue with the ALJ’s consideration of her daily activities. An
ALJ is required to consider, among other factors, a claimant’s daily activities in
determining whether she is disabled. 20 C.F.R. §404.1529(a), SSR 96-7p, at *3.
However, the ALJ did not impermissibly equate her daily activities with an ability to
sustain full-time work. Rather, she found that plaintiff’s ability to engage in a
range of daily activities indicated that she was capable of doing more than she
claimed.
This is a permissible conclusion.
Pepper v. Colvin, 712 F.3d 351,
368-369 (7th Cir. 2013).
Plaintiff also argues that the records of the H Group substantiated her
testimony.
See, Doc. 15, p. 6.
Again, those records post-date her date last
insured. She points to no evidence in the medical records during the insured
period that substantiate her claims of disabling mental limitations.
The
counselling notes document that plaintiff had difficulty dealing with her family.
For instance, her son’s girlfriend physically attacked her and the police were called,
her niece called her fifteen times in one day asking for some of her pain
medications, her niece stole her Vicodin and Xanax, and her son refused to get a
job. (Tr. 600-603). The counselling notes certainly document unpleasant and
difficult events in plaintiff’s life, but they do not corroborate her testimony.
Plaintiff has not demonstrated that the credibility determination was
“patently wrong,” and therefore it cannot be overturned. Pepper, 712 F.3d at 367.
Conclusion
After careful review of the record as a whole, the Court is convinced that ALJ
20
Ferrer committed no errors of law, and that her findings are supported by
substantial evidence. Accordingly, the final decision of the Commissioner of Social
Security denying Laurie A. Williamson’s application for disability benefits is
AFFIRMED.
The clerk of court shall enter judgment in favor of defendant.
IT IS SO ORDERED.
DATE:
July 8, 2016.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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