Chastain v. Commissioner of Social Security
Filing
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MEMORANDUM AND OPINION. The final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits is AFFIRMED.The Clerk of Court is directed to enter judgment in favor of defendant. Signed by Magistrate Judge Clifford J. Proud on 3/18/2019. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANDREA G. C., 1
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Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil No. 18-cv-1136-CJP 2
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff seeks judicial review of the
final agency decision denying her application for Disability Insurance Benefits (DIB)
and Supplemental Security Income (SSI) benefits pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in July 2014, alleging she became disabled as of
July 24, 2012. After holding an evidentiary hearing, ALJ Susan Smoot denied the
application on May 17, 2017. (Tr. 16-31). 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.
Plaintiff’s full name will not be used in this Memorandum and Order due to privacy concerns.
See, Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.
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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. 14.
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Issue Raised by Plaintiff
Plaintiff raises the following issues:
1. The ALJ erred in weighing the opinion of plaintiff’s treating
neurologist.
2. The ALJ failed to properly include limitations arising from
migraine headaches in the RFC assessment.
3. The ALJ erred in assessing the statement of plaintiff’s daughter.
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).
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
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. The standard for disability
under both sets of statutes are identical. Furthermore, 20 C.F.R. § 416.925 detailing medical
considerations relevant to an SSI claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB regulations.
Most citations herein are to the DIB regulations out of convenience.
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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
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
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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. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003).
This Court uses the Supreme Court’s definition of substantial
evidence, i.e., “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971).
In reviewing for “substantial evidence,” the entire administrative record is
taken into consideration, but this Court does not reweigh evidence, resolve
conflicts, decide questions of credibility, or substitute its own judgment for that of
the ALJ. Murphy v. Colvin, 759 F.3d 811, 815 (7th Cir. 2014). However, while
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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 Smoot followed the five-step analytical framework described above.
She determined that plaintiff had not been engaged in substantial gainful activity
since the alleged onset date. She was insured for DIB only through December 31,
2014.
The ALJ found that plaintiff had severe impairments of obesity, degenerative
disc disease of the cervical, lumbar, and thoracic spine, and migraines, which did
not meet or equal a listed impairment.
The ALJ found that plaintiff had the following residual functional capacity
(RFC):
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can
occasionally climb ramps and stairs and occasionally climb ladders, ropes or
scaffolds. She can occasionally stoop, kneel, crouch and crawl. She must
avoid concentrated exposure to loud noise, fumes, odors, dust, gases and
poor ventilation. The claimant must avoid concentrated exposure to moving
mechanical parts and unprotected heights.
The ALJ found that plaintiff could not do her past relevant work as a line
operator supervisor or a line worker.
Based on the testimony of a vocational
expert, the ALJ found that plaintiff was not disabled because she was able to do
other jobs that exist in significant numbers in the national economy.
The Evidentiary Record
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The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order.
1.
Agency Forms
Plaintiff was born in 1971 and was 41 years on the alleged date of disability.
(Tr. 217).
She said she was 5’4” tall and weighed 220 pounds.
She had
completed the ninth grade. She had worked as a line operator in a food factory.
(Tr. 220-222).
In a Function Report submitted in September 2014, plaintiff said she
suffered from chronic daily headaches that did not respond to medication. (Tr.
245).
Plaintiff’s adult daughter, Rebecca Warchol stated in a Function Report that
plaintiff was “unable to do simple tasks when having a headache.” She had to lay
down.
Her headaches lasted days and sometimes a week.
Plaintiff did
housework if she was able to, but “if headache comes she has to lay down.” Ms.
Warchol helped plaintiff with cooking and laundry when plaintiff was not able to do
it. Ms. Warchol wrote, “Even though she can do some things, she can never know
when the headache will occur or for how long it will last. I have to stay with her to
help with daily activities when she isn’t able to her herself. I worry I may have to
quit my job to help her when her headaches come on since all she can do most days
is lay in bed.” (Tr. 257-264).
2.
Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing in April
2017. (Tr. 42).
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Plaintiff lived with her children, who were 13 and 5 years old. (Tr. 44).
Plaintiff testified that she could not work because she “started getting
massive headaches in 2011.” Her neurologist put her on Topamax, which helped a
little, but had no effect after a while. She tried over-the-counter medications. She
took Propranolol, which helped her blood pressure, but she still had headaches.
She went to the emergency room for headaches a couple of times. The only thing
that really worked was morphine. (Tr. 49-52).
When plaintiff gets a bad headache, she is “confined to a room with silence
and a fan.” Her 26-year-old daughter would come and take care of her children.
The older daughter helped whenever she needed it, doing laundry, cleaning the
house, and cooking meals. Plaintiff averaged two to three “bigger” headaches a
week. (Tr. 52-64). She was unable to do her household chores when she had a
headache. She said the “chances are very slim” that she could go without missing
at least two days a month from a job due to headaches. (Tr. 64).
Plaintiff testified that she also had problems with her upper and lower back,
and the left side of her neck. (Tr. 54).
A vocational expert (VE) also testified. The ALJ asked him a hypothetical
question which corresponded to the RFC assessment. The VE testified that this
person could not do plaintiff’s past work, but she could do other jobs that exist in
the national economy. (Tr. 68-69). He also testified that a person who missed
work on two or more days a month would be unemployable. (Tr. 71).
3.
Relevant Medical Records
Plaintiff saw Dr. Trivedi, a neurologist, in May 2013 for evaluation of
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headache.
She said she had been having daily headaches for six months. She
described the headaches as “debilitating and pressure.” Her physical exam was
normal. The assessment was chronic daily headaches, likely from depression or
stress related. He prescribed Amitriptyline (Elavil). (Tr. 360-362).
Dr. Trivedi saw plaintiff three more times in 2013. He prescribed Topamax.
(Tr. 363-365, 370-374, 382-384).
When plaintiff returned in February 2014, she said her headaches were
getting worse even though the dosage of Topamax had been increased. Dr. Trivedi
ordered an MRI and instructed her to taper off Topamax and to start Propranolol, a
beta-blocker. She was also to keep a blood pressure journal. (Tr. 366-369). In
April 2014, she reported that she continued to have daily headaches. A previous
MRI from January 2013 showed hyperintensities in subcortical white matter in
parietal areas. The new MRI showed no changes. Dr. Trivedi instructed her to
continue Propranolol for hypertension and to restart Topamax.
He ordered a
sleep study. (Tr. 378-381). The sleep study showed moderate sleep apnea. (Tr.
390).
Plaintiff went to the emergency room in August 2014 for a headache lasting
for four days. She was given an injection of Hydromorphone HCL (Dilaudid) and
was discharged in improved condition. (Tr. 450-469).
In October 2014, plaintiff told Dr. Trivedi that her headaches were
intermittent, and she had two emergency room visits since July 2014. She said
she had twenty-two headaches since August 2014.
She had “self-titrated” her
medication, decreasing the dosage of Topamax and not taking Propranolol as
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prescribed.
Dr. Trivedi explained the role of preventative therapy and
breakthrough pain medications, and the “realistic goal of headache treatment.” He
noted that she may have some breakthrough headaches, but that did not mean that
her medication was not effective. Further, too many analgesics could cause rebound
headaches. She was to restart Propranolol and Topamax, and to try Indomethacin
for breakthrough pain. (Tr. 814-817).
In March 2015, plaintiff reported that her headaches were better, but she was
having mood swings and wanted to stop Topamax to see if that was the cause. (Tr.
813). Her headaches got worse, so Topamax was restarted in May 2015. (Tr.
807). In August 2015, her headaches were getting better, but she was having
cognitive issues.
The dosage of Topamax was decreased.
(Tr. 796-801).
In
December 2015, her headaches were “fluctuating.” Her headache was “now day 8
mild dull pain.”
She was taking ibuprofen for neck pain.
Prednisone was
ordered for her head and neck pain. Dr. Trivedi instructed her to stop taking
ibuprofen due to analgesic rebound pain and to take Aleve for all kinds of pain.
She was to continue taking Topamax. (Tr. 789-794).
Plaintiff’s last visit with Dr. Trivedi was in June 2016.
15-16 headaches a month.
She was having
She said she was taking Topamax regularly.
Her
hypertension was “acting up” so Propranolol was restarted. Because Dr. Trivedi
was leaving the office, she was to be referred to another neurologist. (Tr. 781-786).
Plaintiffs saw Dr. Tiffany Ward, a neurologist in Dr. Trivedi’s former office, in
February 2017.
Dr. Ward’s impression was chronic intermittent frequent
headaches since giving birth five years earlier. Her headaches were sometimes
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sudden in onset and sometimes required visits to the emergency room. Dr. Ward
instructed plaintiff to restart Propranolol and filled out “SSI paperwork.” (Tr.
775-780).
Plaintiff also complained of headaches to an orthopedic specialist who saw
her for neck pain in March 2016. (Tr. 581). In September 2016, she complained
of headaches to her primary care physician.
(Tr. 626).
She complained of
chronic headaches again to an orthopedic specialist in October 2016. (Tr. 647).
4.
Dr. Ward’s Opinion
On February 20, 2017, Dr. Ward completed a form assessing plaintiff’s RFC.
(Tr. 819-823). Dr. Ward indicated that plaintiff was able to work an 8-hour day
and that she was able to stand, walk, and sit for 8 hours each in a work day.
However, she needed an opportunity to lie down or recline for 20 minutes every 3
hours. She was able to frequently lift up to 100 pounds. Dr. Ward indicted that
plaintiff had headaches 4 to 5 days a week, and she would be likely to miss work 2
or more days a month because “She has frequent headaches. Some are
incapacitating.”
Dr. Ward stated that her disagnosis was not based on any tests
or examination results.
Analysis
Plaintiff’s first point challenges the AJL’s consideration of Dr. Ward’s
opinion.
Although Dr. Ward treated plaintiff, the ALJ was not required to fully credit
her opinion because of her status; “while the treating physician’s opinion is
important, it is not the final word on a claimant’s disability.” Books v. Chater, 91
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F.3d 972, 979 (7th Cir. 1996)(internal citation omitted).
A treating source’s
medical opinion is entitled to controlling weight only where it is supported by
medical findings and is not inconsistent with other substantial evidence in the
record. Brown v. Colvin, 845 F.3d 247, 252 (7th Cir. 2016), citing Clifford v.
Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
Plaintiff’s application was filed before March 27, 2017.
The applicable
regulation, 20 C.F.R. § 404.1527(c)(2), provides, in part:
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 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]
If the ALJ decides not to give the opinion controlling weight, she is to weigh it
applying the factors set forth in § 404.1527(c)(1)-(6).
Supportability and
consistency are two important factors to be considered in weighing medical
opinions. 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).
Here, the ALJ said she gave “some weight to the opinion from the treating
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physician since it was not consistent with the record as a whole. The probative
evidence showed the clamant did have some limitations in her functioning due to
her neck and back pain, in particular her ability to lift.” (Tr. 28). In the next
paragraph, the ALJ said, “Nevertheless, Dr. Ward concluded the claimant was able
to sustain competitive employment.
This opinion from the neurologist
contradicted the claimant’s assertion that her headaches precluded her from
working.” (Tr. 28).
Plaintiff argues that the ALJ ignored the part of Dr. Ward’s opinion in which
she stated that plaintiff would be likely to miss work two or more days a month due
to headaches.
However, as defendant argues, the ALJ went on to state, “the
treatment record did not support [plaintiff’s] assertion that her headaches were
occurring
frequently,
and
preventing
her
from
maintaining
consistent
employment.” (Tr. 28).
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 Smoot easily met the minimal articulation standard here.
Giving the decision a commonsense reading, it is clear that the ALJ rejected Dr.
Ward’s opinion about plaintiff missing work due to headaches because it was
contradicted by the treatment records. Notably, plaintiff does not argue that the
ALJ ignored or misconstrued the treatment records. Further, Dr. Ward stated
that her diagnosis was not based on any test or examination results. An ALJ is not
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required to accept a medical opinion that is based on the claimant’s subjective
complaints. Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004).
Plaintiff’s second point is a nonstarter. She argues that the RFC assessment
does not account for her headaches. Again, the ALJ determined that the treatment
record does not support her claim that her headaches preclude her from working,
and plaintiff does not argue that the ALJ ignored or misconstrued the treatment
records.
Lastly, plaintiff takes issue with the ALJ’s handing of her adult daughter’s
statement. She argues that the ALJ distorted her statement by characterizing her
as saying that plaintiff “had difficulty performing activities when having a headache”
and “had difficulty performing simple tasks when experiencing a bad headache.”
(Tr. 26). Plaintiff argues that her daughter actually said that she was unable to
perform activities, not that she “had difficulty.” However, this semantic argument
ignores the ALJ’s rationale for giving the statement only “some” weight.
The ALJ explained that the daughter’s statement indicated that plaintiff was
able to regularly engage in a number of daily activities, including caring for her
young children, cooking meals, cleaning the house, shopping, watching tv and
reading, going for walks, and managing the household finances.
The ALJ
concluded that the ability to perform this array of activities was inconsistent with
her claim that she was unable to work outside the home. Further, the ALJ pointed
out that the treatment records showed that plaintiff did not always take her
medication as directed and that her headaches improved when she did so. She
also pointed out that plaintiff did not see a neurologist for headaches between June
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2016 and February 2017, which contradicted her claim that that her headaches
were severe enough to prevent her from working.
This is not a case in which the ALJ failed to discuss evidence favorable to the
plaintiff or misconstrued the medical evidence.
Plaintiff’s arguments are little
more than an invitation for this Court to reweigh the evidence.
She has not
identified a sufficient reason to overturn the ALJ’s conclusion.
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 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 at 413.
Conclusion
After careful review of the record as a whole, the Court is convinced that ALJ
Smoot 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 plaintiff’s application for disability benefits is AFFIRMED.
The Clerk of Court is directed to enter judgment in favor of defendant.
IT IS SO ORDERED.
DATE:
March 18, 2019.
s/ Clifford J. Proud
CLIFFORD J. PROUD
U.S. MAGISTRATE JUDGE
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