Stanley v. Commissioner of Social Security
Filing
24
OPINION AND ORDER AFFIRMING the decision of the Commissioner of Social Security. The Clerk is DIRECTED to enter judgment in favor of the Commissioner and against Stanley. Signed by Magistrate Judge Roger B Cosbey on 4/6/2012. (kjm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JOHN E. STANLEY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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CAUSE NO. 1:11-CV-00248
OPINION AND ORDER
Plaintiff John Stanley appeals to the district court from a final decision of the
Commissioner of Social Security (“Commissioner”) denying his application under the Social
Security Act (the “Act”) for a period of disability and Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”).1 (See Docket # 1.) For the following reasons, the
Commissioner’s decision will be AFFIRMED.
I. PROCEDURAL HISTORY
Stanley applied for DIB and SSI in April 2007, alleging disability as of the first day of
that month. (Tr. 134-40.) The Commissioner denied his application initially and upon
reconsideration, and Stanley requested an administrative hearing. (Tr. 60-119.) On November
10, 2009, a hearing was conducted by Administrative Law Judge (“ALJ”) Bryan Bernstein, at
which Stanley (who was represented by counsel) and a vocational expert testified. (Tr. 28-59.)
On July 2, 2010, the ALJ rendered an unfavorable decision to Stanley, concluding that he was
1
All parties have consented to the Magistrate Judge. (Docket # 11); see 28 U.S.C. § 636(c).
not disabled because he could perform a significant number of unskilled light work jobs in the
economy. (Tr. 14-23.) The Appeals Council denied his request for review, at which point the
ALJ’s decision became the final decision of the Commissioner. (Tr. 1-3.)
Stanley filed a complaint with this Court on July 25, 2011, seeking relief from the
Commissioner’s final decision. (Docket # 1.) In his appeal, Stanley advances essentially two
arguments: (1) that the ALJ erred at step three by finding that he did not meet or equal Listing
1.04, Disorders of the Spine; and (2) that the ALJ improperly discounted the credibility of his
symptom testimony.2 (Docket # 13.)
II. FACTUAL BACKGROUND3
A. Background
At the time of the ALJ’s decision, Stanley was forty-six years old; had a high school
education; and possessed work experience as a delivery driver, hardware clerk, and construction
worker. (Tr. 22-23, 37, 134, 159.) Stanley alleged in his DIB application that he is disabled due
to blindness in his left eye, back and neck degenerative disk disease, and migraine headaches.
(Tr. 158.)
At the hearing, Stanley testified that he lives independently in a house (Tr. 43), and that
he stopped working in construction after he was injured in a car accident in January 2006 (Tr.
32-34). After the accident, he worked part-time in a hardware store; the owner, who was a
2
Stanley also argues that the ALJ erred by: (1) failing to assign controlling weight to the results of the MRI
reports ordered by Dr. Lee, his treating physician, showing spinal stenosis; and (2) failing to consider his spinal
stenosis when determining his residual functional capacity (“RFC”). However, as will be discussed infra in footnote
8, these arguments are subsumed in Stanley’s step-three and credibility arguments and ultimately are of no moment.
3
In the interest of brevity, this Opinion recounts only the portions of the 449-page administrative record
necessary to the decision.
2
family friend, did not let him do any heavy lifting and was flexible in letting him go home if he
got a headache. (Tr. 7, 34-35, 38, 183.) He drives a pickup truck, but states that he “feel[s] every
bump in the road” and thus does not drive long distances. (Tr. 44.) His sister helps him with
household tasks such as vacuuming, but he does his own grocery shopping and meal preparation.
(Tr. 44.) He regularly goes to visit a friend who also has physical limitations. (Tr. 52.)
Stanley stated that he has headaches two or three times a week and that he has constant
neck and low back pain, which worsens when he walks or bends over with his hands raised. (Tr.
40-41, 47-48.) In that regard, he reported that his knees almost give out when he stands at the
sink to brush his teeth and that “if it wasn’t for the cabinet in front of [him], [he would] probably
fall.” (Tr. 40-41.) He stated that he cannot walk very far without having to sit down and that he
usually props his feet up when sitting (Tr. 47, 51); however, if he sits too long, he gets “tensed
up.” (Tr. 48.) He also articulated that his shoulders “bother [him] constantly.” (Tr. 46.) To
reduce his pain, he takes several medications and sits in a hot tub several times a day. (Tr. 41,
49.) Stanley also represented that he feels depressed and has problems with his concentration
and memory, that he has tunnel vision in his left eye from a prior injury, and that his ears
constantly ring. (Tr. 48-50, 52.)
B. Summary of the Relevant Medical Evidence Before the ALJ
In January 2006, Stanley was in an auto accident in which he injured his neck and back.
(Tr. 279.) An x-ray of his neck did not indicate a fracture but did show degenerative cervical
spondylosis from C3 to C7. (Tr. 278.)
In February 2006, Stanley visited Dr. Thomas Lee, his family physician, due to
complaints of neck and right knee pain. (Tr. 320.) Dr. Lee diagnosed him with cervical
3
strain/sprain and right knee pain and prescribed medication; an x-ray of his knee was negative.
(Tr. 320, 328.) Stanley complained of radiating neck pain and headaches through May 2006, but
had normal neurological exams. (Tr. 286-89.) An April 2006 MRI of his neck showed mild to
moderate neural foraminal stenosis and moderately pronounced spondylotic changes from C3-4
to C6-7 and mild to moderate central canal stenosis at C5-6 without spinal cord compression, but
no disk herniation at any level. (Tr. 364-65.) An MRI of his low back showed a moderate disk
bulge with mild foraminal narrowing but no significant central canal stenosis at L5-S1, mild
central canal stenosis at L4-5 from a disk bulge and mild central disk protrusion, a minor disk
bulge with no stenosis at L1-2, and degenerative disk disease at these three levels. (Tr. 275-76.)
In May 2006, Stanley visited Sherry Stohler, a nurse practitioner in Dr. Lee’s office. (Tr.
283-85.) He told her that his neck pain was “extremely improved” after attending physical
therapy, but that he still had moderate low back pain; his pain kept him from pursuing normal
construction jobs but he was picking up odd jobs on the side. (Tr. 283.) Nurse Stohler observed
that Stanley had some decreased range of motion in his back, but a negative straight leg raising
test and normal sensation, reflexes, and muscle strength. (Tr. 284.) Stanley reported that Tylenol
and a muscle relaxant were mildly helpful. (Tr. 283.)
The next month, Stanley told Nurse Stohler that a lumbar steroid injection was only
temporarily helpful, but that physical therapy and medications seemed to be relieving his pain.
(Tr. 279-80.) He had mild low back pain upon movement of the lumbar spine, but full range of
motion. (Tr. 280.) He displayed a mild limp on his left side, but normal balance and gait; a
straight leg raising test was negative. (Tr. 279-80.)
In June 2006, Dr. Julius Silvidi, a neurosurgeon, examined Stanley. (Tr. 292-94.) He
4
observed that Stanley had normal gait, sensation, and reflexes, and that lateral bending and
lumbar flexion were negative for aggravation of pain. (Tr. 293.) A straight leg raising test was
negative. (Tr. 293.) After obtaining a discogram, Dr. Silvidi opined that a lumbar fusion had
only a two-thirds chance of reducing his pain. (Tr. 292.) The following month, Stanley received
another steroid injection and was referred to vocational rehabilitation. (Tr. 264-72.) A December
2006 CT scan of Stanley’s low back showed disk space narrowing, bone spurs, a disk bulge,
mild canal stenosis at L5-S1, and a small protrusion with mild canal stenosis at L4-5, but no
significant stenosis at the remaining levels. (Tr. 346-47.)
In March 2007, Stanley visited Dr. John Shay at the Indiana Back Center for his neck and
low back pain. (Tr. 313-14.) Dr. Shay observed that Stanley had slight tenderness in his neck
and low back, but full range of motion; normal motor strength, sensation, and reflexes; a
negative straight leg raising test; and no evidence of nerve root compression. (Tr. 313-14.) He
assigned him a diagnosis of chronic cervical and lumbar syndromes and recommended he
undergo a facet denervation procedure. (Tr. 314.) Dr. Shay further opined that if the procedure
was unsuccessful, Stanley should seek treatment through a pain management physician who
could manage his use of pain medications over a longer period of time. (Tr. 314.)
The following month, Dr. Bruce Van Drop reported that Stanley responded well to the
lumbar facet joint injections and nerve blocks that were administered several months earlier. (Tr.
330, 336-40, 347-52, 385-98.) He also administered radio frequence nerve ablation at the L2
through L5 levels of the lumbar spine. (Tr. 330, 367-76.)
In June 2007, Stanley underwent a mental status examination by Ceola Berry, Ph.D. (Tr.
243-45.) He demonstrated adequate attention and concentration, average intelligence, intact
5
short term memory but compromised long term memory. (Tr. 244.) She chose not to assign him
a diagnosis and rated his Global Assessment of Functioning (“GAF”) score at 69, indicating mild
symptoms.4 (Tr. 245.)
In July 2007, Dr. Abbas Rampurwala, a consulting physician, examined Stanley. (Tr.
260-62.) He told Dr. Rampurwala that he could drive for twenty-five minutes, sit for thirty
minutes, walk one block, climb three steps, and lift thirty pounds with either arm; he thought he
could mow the lawn in thirty-five minutes if he took several breaks. (Tr. 260.) Dr. Rampurwala
observed that Stanley had full range of motion and normal gait, sensation, muscle strength, tone,
reflexes, grip strength, and straight leg raising tests; he could heel-toe walk and squat. (Tr. 262.)
Dr. Rampurwala diagnosed Stanley with post-traumatic low back pain with L5-S1 spondylosis
on imaging and continued back pain despite treatment. (Tr. 262.) He opined that Stanley was
not a surgical candidate and had at least a mild physical impairment from his back pain. (Tr.
262.)
In August 2007, Dr. Fernando Montoya, a state agency physician, reviewed Stanley’s
records and found that he did not have a severe physical impairment. (Tr. 240.) A second state
agency physician later affirmed this opinion. (Tr. 242.)
In 2008, Dr. Lee saw Stanley every three months for a recheck and medication refill. (Tr.
433-37.) In December, Stanley told Dr. Lee that his back pain was about the same but that his
neck pain had increased. (Tr. 435.) Stanley also said that his pain medication was effective most
4
GAF scores reflect a clinician’s judgment about the individual’s overall level of functioning. AMERICAN
PSYCHIATRIC ASSOCIATION, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed., Text Rev.
2000). And, a GAF score of 61 to 70 reflects some mild symptoms or some difficulty in social, occupational, or
school functioning, but “generally functioning pretty well.” Id.
6
of the time. (Tr. 433.) Dr. Lee continued to prescribe medications.5 (Tr. 433-40.)
III. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
The Court’s task is limited to determining whether the ALJ’s factual findings are supported by
substantial evidence, which means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)
(citation omitted). The decision will be reversed only if it is not supported by substantial
evidence or if the ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 F.3d 863, 869
(7th Cir. 2000).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not re-weigh the evidence, resolve conflicts, decide questions of credibility, or
substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner
are supported by substantial evidence, they are conclusive. Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir. 2003). Nonetheless, “substantial evidence” review should not be a simple rubber-stamp
of the Commissioner’s decision. Clifford, 227 F.3d at 869.
5
On August 10, 2010, Dr. Lee penned a letter indicating that Stanley had limited range of motion and a
long history of degenerative disk disease and joint disease in his cervical, thoracic, and lumbar spines. (Tr. 448.) Dr.
Lee opined that Stanley could not lift, stoop, bend, crouch, or kneel; could walk or climb ramps for a short duration;
could sit or stand for fifteen minutes; and could climb stairs without difficulty. (Tr. 448.) This letter, however, was
not before the ALJ, as Stanley submitted it after the ALJ had rendered his decision in July 2010. Of course, “the
decision reviewed in the courts is the decision of the administrative law judge. The correctness of that decision
depends on the evidence that was before him.” Eads v. Sec’y of the Dep’t of Health & Human Servs., 983 F.2d 815,
817 (7th Cir. 1993) (explaining that an ALJ “cannot be faulted for having failed to weigh evidence never presented
to him”).
7
IV. ANALYSIS
A. The Law
Under the Act, a claimant is entitled to DIB or SSI if he establishes an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to . . . last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A), 1382c(a)(3)(A). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process,
requiring consideration of the following issues, in sequence: (1) whether the claimant is currently
unemployed; (2) whether the claimant has a severe impairment; (3) whether the claimant’s
impairment meets or equals one of the impairments listed by the Commissioner, see 20 C.F.R. §
404, Subpt. P, App. 1; (4) whether the claimant is unable to perform his past work; and (5)
whether the claimant is incapable of performing work in the national economy.6 See Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001); 20 C.F.R. §§ 404.1520, 416.920. An
affirmative answer leads either to the next step or, on steps three and five, to a finding that the
claimant is disabled. Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative answer
at any point other than step three stops the inquiry and leads to a finding that the claimant is not
disabled. Id. The burden of proof lies with the claimant at every step except the fifth, where it
6
Before performing steps four and five, the ALJ must determine the claimant’s RFC or what tasks the
claimant can do despite his limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a), 416.920(e), 416.945(a). The RFC is
then used during steps four and five to help determine what, if any, employment the claimant is capable of. 20 C.F.R.
§§ 404.1520(e), 416.920(e).
8
shifts to the Commissioner. Clifford, 227 F.3d at 868.
B. The ALJ’s Decision
On July 2, 2010, the ALJ issued the decision that ultimately became the Commissioner’s
final decision. (Tr. 14-23.) He found at step one of the five-step analysis that Stanley had not
engaged in substantial gainful activity since his alleged onset date and at step two that he had
severe impairments. (Tr. 16.) At step three, the ALJ determined that Stanley’s impairment or
combination of impairments was not severe enough to meet a listing. (Tr. 16-18.)
Before proceeding to step four, the ALJ determined that Stanley’s symptom testimony
was not reliable to the extent it portrayed limitations in excess of the following RFC:
This individual is not able to perform work that imposes close regimentation of
production. Close regimentation of work activity is a consequence of certain
operational demands for functioning within close tolerances or for an unusually
rapid level of productivity. Such work is characterized by close and critical
supervision that might be required when there is a high value placed by the
employer on the product quality, the raw materials, the equipment employed, or
upon coordination with other workers and the pace of production. Close and
critical supervision in this context would produce unacceptable distress. This
work is different from jobs that allow the employee some independence in
determining either the timing of different work activities, or the pace of work.
Such flexibility as that in the work structure permits the employee an opportunity
to catch up with ordinary productivity, especially when there has been a respite.
This person would require the option to sit or stand while working. Relevant
impairments would prevent this person from standing and walking longer than
50% of the 8 hour work-day. He cannot lift and carry more than 20 pounds
occasionally and 10 pounds frequently. This person cannot engage in prolonged
walking or standing, e.g., for 20 minutes. This person has impaired vision in his
left eye.
This person cannot reach extreme postures (stooping, kneeling, bending, etc.)
more often than occasionally. This person cannot successfully engage in work
demanding constant manipulation involving fine work, gripping, grasping,
twisting, turning, picking, pushing, or pulling with hands or fingers. This
individual cannot undertake work in hazardous conditions. Such work would
include work requiring balance in the context of unprotected heights. The
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individual cannot work around dangerous machinery or around vehicles moving
in close quarters.
(Tr. 19-20.)
Based on this RFC and the vocational expert’s testimony, the ALJ concluded at step four
that Stanley was unable to perform any of his past relevant work. (Tr. 21-22.) The ALJ then
concluded at step five that he could perform a significant number of unskilled light work jobs
within the economy, including laundry folder, mail clerk, and hand trimmer plastic parts. (Tr. 2223.) Accordingly, Stanley’s claims for DIB and SSI were denied. (Tr. 23.)
C. The ALJ’s Conclusion That Stanley Did Not Meet or Equal
Listing 1.04 Is Supported by Substantial Evidence
Stanley first challenges the ALJ’s step-three finding that he did not meet or equal Listing
1.04, Disorders of the Spine, asserting that the ALJ erred when he stated there was no evidence
of spinal stenosis. The ALJ did indeed error in this respect; nevertheless, the ALJ’s oversight is
harmless because Stanley fails to show that he satisfies all the other criteria of Listing 1.04.
To meet or equal a listed impairment, a claimant must satisfy all of the criteria of the
listed impairment. Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006); Maggard v. Apfel,
167 F.3d 376, 379-80 (7th Cir. 1999). “Because the Listings, if met, operate to cut off further
detailed inquiry, they should not be read expansively.” Caviness v. Apfel, 4 F. Supp. 2d 813, 818
(S.D. Ind. 1998). The criteria of Listing 1.04, in relevant part, is as follows:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise of a nerve root (including
the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
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reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine);
or . . . .
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by chronic
nonradicular pain and weakness, and resulting in inability to ambulate effectively,
as defined in 1.00B2b.
20 C.F.R. § 404, Subpart P, App. 1, 1.04A.
Specifically, as to medical equivalence, “[a] claimant cannot qualify for benefits under
the ‘equivalence’ step by showing that the overall functional impact of his unlisted impairment
or combination of impairments is as severe as that of a listed impairment.” Booth v. Comm’r of
Soc. Sec., No. 1:06-cv-122, 2008 WL 744230, at *11 (S.D. Ohio Mar. 19, 2008) (quoting
Sullivan v. Zebley, 493 U.S. 521, 531 (1990)). “Medical equivalence requires that there be a
medical finding equivalent to each and every criterion for a particular impairment.” Jackson v.
Sullivan, No. 91 C 7975, 1992 WL 142614, at *5 (N.D. Ill. June 10, 1992) (emphasis added)
(citing Zebley, 493 U.S. at 531); see Bellmore v. Astrue, No. 4:08-cv-94, 2010 WL 1266494, at
*14 (N.D. Ind. Mar. 25, 2010) (“A claimant must meet the criteria in the capsule definition, as
well as the criteria in the subsidiary paragraphs.” (citations omitted)). The claimant bears the
burden of proving his condition meets or equals a listed impairment. Ribaudo, 458 F.3d at 483;
Maggard, 167 F.3d at 379-80.
Here, the ALJ specifically contemplated Listing 1.04, but observed that the evidence did
not satisfy the Listing’s criteria. (Tr. 17.) More particularly, the ALJ stated:
The claimant is able to ambulate effectively without using assistive devices in
both upper extremities. He can use at least one upper extremity effectively for
gross and fine movements. The claimant does not have loss of strength,
sensation, or reflexes or other evidence of nerve root compression or spinal
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stenosis, and he does not have positive straight leg raising sign. He does not meet
the criteria for spinal disorders in listing 1.04.
(Tr. 17.) Stanley attacks the ALJ’s rationale for his step-three finding, arguing that his MRI
reports did indeed show spinal stenosis.
As Stanley emphasizes, the results of the MRIs and CT scans of his spine indicate
evidence of mild to moderate spinal stenosis. (Tr. 275, 309, 326, 346.) The ALJ’s oversight,
however, ultimately does not necessitate a remand of his step-three finding. See Skarbek v.
Barnhart, 390 F.3d 500, 5004 (7th Cir. 2004) (concluding that an error is harmless when it
“would not affect the outcome of the case”). To reiterate, Stanley “bears the burden of
presenting ‘medical findings equal in severity to all the criteria for the one most similar listed
impairment.’” Booth, 2008 WL 744230, at *11 (emphasis in original) (quoting Zebley, 493 U.S.
at 530); see Gonzales v. Astrue, No. 2:09-cv-573, 2010 WL 5811902, at *8 n.9 (D. Utah Oct. 27,
2010) (same); Carrillo v. Astrue, No. SA-09-CA-44-XR, 2010 WL 2136438, at *5 (W.D. Tex.
May 26, 2010) (same). A claimant’s impairment cannot meet the criteria of a listing based only
on a diagnosis. 20 C.F.R. §§ 404.1525(d), 416.925(d).
In that regard, although the spinal stenosis criteria of Listing 1.04 is met, there is no
evidence that Stanley satisfies the remaining criteria of either subsection A or C. With respect to
Listing 1.04A, the ALJ pointed out that there was no evidence that Stanley had experienced loss
of strength, sensation, or reflexes, or a positive straight leg raising test—required criteria for the
Listing. In particular, the ALJ observed elsewhere in his decision that upon examination
Stanley’s motor function was generally found to be within normal limits (Tr. 21 (citing Tr. 26063, 293, 313-14)), and Stanley fails to cite to any evidence that undercuts the ALJ’s findings
concerning lack of motor loss. This is fatal to his argument. See, e.g., Callaway v. Astrue, No.
12
1:10-cv-01245, 2012 WL 1014833, at *8 (S.D. Ind. Mar. 22, 2012) (affirming the ALJ’s stepthree finding that claimant failed to meet or equal Listing 1.04A where claimant failed to
produce evidence of motor loss accompanied by sensory or reflex loss); Abbott v. Astrue, No.
10-921-CJP, 2011 WL 5834529, at *6-7 (S.D. Ill. Nov. 21, 2011) (same); Franks v. Comm’r of
Soc. Sec., No. C-1-06-810, 2008 WL 648719, at *6 (S.D. Ohio Mar. 10, 2008) (same); Freeman
v. Barnhart, No. 05-1287-JTM, 2006 WL 4059099, at *4 (D. Kan. Aug. 2, 2006) (same).
Likewise, with respect to Listing 1.04C, Stanley makes no attempt to show that he
exhibits “ineffective ambulation.” An inability to ambulate effectively is defined as “an extreme
limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the
individual’s ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 404,
Subpart P, App. 1, 1.00B2b(1). Examples of ineffective ambulation include an inability to walk
without a walker or two crutches, the inability to walk a block at a reasonable pace on rough or
uneven surfaces, the inability to use standard public transportation, and the inability to carry out
routine ambulatory activities, such as shopping and banking. 20 C.F.R. § 404, Subpart P, App. 1,
1.00B2b(2). Therefore, Stanley failed to carry his burden of showing that he met or equaled all
of the criteria of Listing 1.04A or C. See, e.g., Sims v. Barnhart, 309 F.3d 424, 429 (7th Cir.
2002) (rejecting claimant’s assertion that she met a listing where “none of the evidence that [she]
contends the ALJ ignored or misstated establishes that her impairments met or equaled in
severity the criteria under [the] listings”).
Moreover, in reaching his decision, the ALJ relied upon the assessment of the state
agency physicians, who concluded that Stanley’s impairments did not meet or equal a listing.
The state agency physicians completed Disability Determination and Transmittal forms at the
13
initial and reconsideration levels and concluded that Stanley was not disabled. (Tr. 60-63.) The
Seventh Circuit Court of Appeals has articulated that “[t]hese forms conclusively establish that
consideration by a physician . . . designated by the Commissioner has been given to the question
of medical equivalence at the initial and reconsideration levels of administrative review.” Scheck
v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004) (citations and internal quotation marks omitted).
Consequently, “[t]he ALJ may properly rely upon the opinion of these medical experts.” Id.
(citing Scott v. Sullivan, 898 F.2d 519, 524 (7th Cir. 1990)); see also SSR 96-6p, 1996 WL
374180, at *2.
Accordingly, Stanley fails to carry his burden of establishing that he satisfies all of the
criteria for Listing 1.04. Booth, 2008 WL 744230, at *11 (“An impairment that manifests only
some of those criteria, no matter how severely, does not qualify.” (citing Zebley, 493 U.S. at
530)); see Bellmore, 2010 WL 1266494, at *14 (same). The ALJ’s step-three finding that
Stanley did not meet or equal a listing is supported by substantial evidence.
D. The ALJ’s Credibility Determination Will Not Be Disturbed
Stanley also contends that the ALJ improperly discounted the credibility of his symptom
testimony. This assertion, however, is no more successful than his foregoing step-three
argument.
Credibility determinations are the second step in a two-step process prescribed by the
regulations for evaluating a claimant’s request for disability benefits based on pain or other
symptoms. Williams v. Astrue, No. 1:08-cv-1353, 2010 WL 2673867, at *9-10 (S.D. Ind. June
29, 2010); Behymer v. Apfel, 45 F. Supp. 2d 654, 662 (N.D. Ind. 1999); 20 C.F.R. §§ 404.1529,
416.929; SSR 96-7p. First, the ALJ must determine whether there is an underlying medically
14
determinable physical or mental impairment—that is, an impairment that can be shown by
medically acceptable clinical and laboratory diagnostic techniques—that could reasonably be
expected to produce the claimant’s pain or other symptoms. Krontz v. Astrue, No. 1:07-cv00303, 2008 WL 5062803, at *5 (N.D. Ind. Nov. 24, 2008); Williams v. Chater, 915 F. Supp.
954, 964 (N.D. Ind. 1996); 20 C.F.R. §§ 404.1529, 416.929; SSR 96-7p. If the record does not
allow the ALJ to make such a finding, then that ends the inquiry, for a finding of disability
cannot be made solely on the basis of the claimant’s symptoms, even if they appear genuine.
SSR 96-7p.
If, however, the medical evidence shows the existence of an underlying impairment that
could be reasonably expected to produce the claimant’s symptoms, the ALJ must evaluate “the
intensity, persistence, and functionally limiting effects of the symptoms . . . to determine the
extent to which the symptoms affect the individual’s ability to do basic work activities.” SSR 967p; see Herron v. Shalala, 19 F.3d 329, 334 (7th Cir. 1994); Bellmore, 2010 WL 1266494, at
*10; Walker v. Astrue, No. 4:09-cv-44, 2010 WL 1257441, at *5 (S.D. Ind. Mar. 25, 2010); 20
C.F.R. §§ 404.929(c), 416.929(c). “This requires the adjudicator to make a finding about the
credibility of the individual’s statements about the symptom(s) and its functional effects.” SSR
96-7p.
Because the ALJ is in the best position to evaluate the credibility of a witness, his
determination is entitled to special deference. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.
2000). If an ALJ’s determination is grounded in the record and he articulates his analysis of the
evidence “at least at a minimum level,” Ray v. Bowen, 843 F.2d 998, 1002 (7th Cir. 1988); see
Ottman v. Barnhart, 306 F. Supp. 2d 829, 838 (N.D. Ind. 2004), creating “an accurate and
15
logical bridge between the evidence and the result,” Ribaudo, 458 F.3d at 584, his determination
will be upheld unless it is “patently wrong.” Powers, 207 F.3d at 435; see also Carradine v.
Barnhart, 360 F.3d 751, 754 (7th Cir. 2004) (remanding an ALJ’s credibility determination
because the ALJ’s decision was based on “serious errors in reasoning rather than merely the
demeanor of the witness . . . .”).
Here, although the ALJ’s phraseology was a bit confusing at the first step of the two-step
process, he did ultimately conclude that Stanley had an underlying medically determinable
physical impairment that could reasonably be expected to produce his alleged symptoms. (Tr.
19); see Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No principle of administrative
law or common sense requires us to remand a case in quest of a perfect opinion unless there is
reason to believe that the remand might lead to a different result.”). Therefore, the ALJ did not
error by ending his inquiry after step one, but instead properly proceeded to step two to evaluate
the functionally limiting effects of Stanley’s alleged symptoms to determine the extent to which
they would affect his ability to do basic work activities. See Herron, 19 F.3d at 334; 20 C.F.R.
§§ 404.1529, 416.929; SSR 96-7p. In doing so, the ALJ considered the various factors
prescribed by 20 C.F.R. §§ 404.1529(c) and 416.929(c), ultimately concluding that Stanley’s
statements concerning the intensity, persistence, and limiting effects of his symptoms were not
entirely reliable.
In assessing the credibility of Stanley’s complaints, the ALJ thoroughly considered the
various medical source opinions and the objective medical evidence. (See Tr. 19 (discussing
Stanley’s left eye blindness, neck pain, and headaches), 20 (discussing Stanley’s concentration,
memory, judgment, and depression), 21 (discussing Stanley’s range of motion, strength, posture,
16
gait, ambulation, and postural movements).) For example, the ALJ observed that although
Stanley testified that he had headaches two to three times a week, treatment records from Dr. Lee
contain only occasional complaints of headaches and Stanley was never prescribed any
prophylactic medication for them. (Tr. 19.) The ALJ further considered that Stanley’s
examinations by Dr. Rampurwala, Dr. Silvidi, and Dr. Shay all indicated negative straight leg
raising tests; full range of motion; and normal muscle spasms, normal strength, reflexes,
sensation, posture, and gait. (Tr. 21 (citing Tr. 262, 293-94, 313-14).)
Of course, an ALJ is entitled to consider the objective medical evidence, or lack thereof,
as a factor in assessing credibility, and “may properly discount portions of a claimant’s
testimony based on discrepancies between [the c]laimant’s allegations and objective medical
evidence.” Crawford v. Astrue, 633 F. Supp. 2d 618, 633 (N.D. Ill. 2009); see Arnold v.
Barnhart, 473 F.3d 816, 823 (7th Cir. 2007) (“[S]ubjective complaints need not be accepted
insofar as they clash with other, objective medical evidence in the record.”); Smith v. Apfel, 231
F.3d 433, 439 (7th Cir. 2000) (“[A]n ALJ may consider the lack of medical evidence as
probative of the claimant’s credibility.”); 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2); SSR
96-7p.
The ALJ also considered Stanley’s activities of daily living when assessing the
credibility of his symptom testimony, concluding that they “suggest that he is not as limited as
he alleges.” (Tr. 21.) The ALJ specifically noted that Stanley lives independently, drives, shops,
and cares for his own needs. (Tr. 21); see Schmidt, 395 F.3d at 746-47 (considering claimant’s
performance of daily activities as a factor when discounting claimant’s credibility); 20 C.F.R. §§
404.1529(c)(3), 416.929(c)(3); SSR 96-7p. In addition, he observed that Stanley worked as a
17
hardware clerk for many months after his accident which suggested that he had a “fair amount of
capacity,” even though the owner did not require him to do any heavy lifting.7 (Tr. 19; see also
Tr. 21 (finding that his work in the hardware store indicated a “sufficient capacity for a limited
range of light work”).) “Although the diminished number of hours per week indicated that
[Stanley] was not at his best, the fact that he could perform some work cuts against his claim that
he was totally disabled.” Berger v. Astrue, 516 F.3d 539, 546 (7th Cir. 2008).
The ALJ also observed from a brief note in the record, and then confirmed at the hearing,
that Stanley’s treating pain management providers encouraged him to look for vocational
training (and by inference, for work opportunities). (Tr. 19 (citing Tr. 266), 37); see Stevenson v.
Chater, 105 F.3d 1151, (7th Cir. 1997) (“The ALJ was entitled to make reasonable inferences
from the evidence before him . . ., and this inference was eminently reasonable.” (citation
omitted)). Although vocational rehabilitation apparently was unsuccessful (Tr. 37), the ALJ did
not err in considering this evidence.
The ALJ also found that although Stanley denied performing odd jobs after his accident,
the record reflects that just five months after the accident he told Dr. Lee’s nurse practitioner that
he indeed was performing odd jobs. (Tr. 21; compare Tr. 35, with Tr. 283.) Of course, an ALJ is
entitled to consider evidence of any inconsistent statements by the claimant. See Kornfield v.
Apfel, No. 00C 5642, 2003 WL 103009, at *4 (N.D. Ill. Jan. 9, 2003) (discounting a claimant’s
credibility due to her inconsistent statements); SSR 96-7p (“One strong indication of the
7
The owner of the hardware store indicated that “it was very hard for [Stanley] to maintain his work while
standing.” (Tr. 7 (emphasis added).) Accordingly, the ALJ incorporated a sit-to-stand option in Stanley’s RFC and
prohibited him from work that required standing or walking for longer than twenty minutes at a time. (Tr. 19-20.)
The vocational expert then indicated that this was the only limitation that prevented Stanley from returning to work
as a hardware clerk. (Tr. 55.)
18
credibility of an individual's statements is their consistency . . . .”).
In addition, the ALJ observed that Stanley had received relatively conservative treatment
measures for his back pain. (Tr. 21.) The ALJ is entitled to consider the type of treatment that a
claimant has undergone when determining that claimant’s credibility. See Ellis v. Astrue, No.
2:09-cv-145, 2010 WL 3782265, at *20 (N.D. Ind. Sept. 30, 2010) (affirming the ALJ’s
discounting of claimant’s complaints of debilitating fatigue given the discrepancies between her
self-reported symptoms and the lack of treatment for the purported condition); 20 C.F.R. §§
404.929(c)(3), 416.929(c)(3) (considering a claimant’s use of medications and treatment
measures as two factors in analyzing claimant’s subjective symptoms); SSR 96-7p; see also
Simila v. Astrue, 573 F.3d 503, 519 (7th Cir. 2009).
Moreover, the ALJ did indeed credit Stanley’s subjective symptom testimony to some
extent, acknowledging that he had severe impairments. See generally Hodges v. Astrue, No.
1:09-cv-00216, 2010 WL 3717256, at *9 (N.D. Ind. Sept. 14, 2010) (explaining that the relevant
inquiry is whether the claimant’s pain “was of a disabling severity” during the relevant period,
not the diagnosis that he was assigned). Accordingly, to accommodate his various limitations,
the ALJ restricted Stanley to light work with a sit-to-stand option that requires standing or
walking no more than twenty minutes at a time; occasionally reaching extreme postures such as
stooping, kneeling, or bending; and no constant manipulation with the hands or fingers, close
regimentation of production, or exposure to hazardous conditions. (Tr. 19-20); see, e.g., Vincent
v. Astrue, No. 1:07-cv-28, 2008 WL 596040, at *16 (N.D. Ind. Mar. 3, 2008) (affirming ALJ’s
credibility determination where he discredited the claimant’s symptom testimony only in part).
In sum, the ALJ adequately considered the credibility of Stanley’s symptom testimony in
19
accordance with the factors identified in 20 C.F.R. §§ 404.1529(c) and 416.929(c) and ultimately
determined that they were not of disabling severity. In doing so, the ALJ adequately built an
accurate and logical bridge between the evidence and his conclusion, and his determination is
not “patently wrong.” Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000); Powers, 207 F.3d at
435. Therefore, the ALJ’s credibility determination, which is entitled to special deference,
Powers, 207 F.3d at 435, will not be disturbed.8
V. CONCLUSION
For the reasons articulated herein, the decision of the Commissioner is AFFIRMED. The
Clerk is directed to enter a judgment in favor of the Commissioner and against Stanley.
SO ORDERED. Enter for this 6th day of April, 2012.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
8
As explained supra in footnote 2, Stanley also argues that the ALJ erred by failing to assign controlling
weight to the MRI reports ordered by Dr. Lee, his treating physician, showing mild or moderate spinal stenosis.
Stanley’s argument, however, is unavailing, as the diagnosis of an impairment does not alone establish its severity
and its resulting limitations. See Carradine, 360 F.3d at 754 (“The issue in the case is not the existence of these
various conditions of [claimant’s] but their severity and, concretely, whether . . . they have caused her such severe
pain that she cannot work full time.”); Estok v. Apfel, 152 F.3d 636, 640 (7th Cir. 1998) (“It is not enough to show
that [claimant] had received a diagnosis of fibromyalgia . . ., since fibromyalgia is not always (indeed, not usually)
disabling.”). As the ALJ correctly observed, at the time he made his decision (see footnote 5 supra), there was no
medical source statement of record from Dr. Lee, or, for that matter, any other treating physician, assigning Stanley
specific physical limitations (Tr. 20), and Stanley fails to demonstrate how “assigning controlling weight” to the
MRI evidence ordered by Dr. Lee has any impact on the ALJ’s decision, other than with respect to his step-three
analysis. Therefore, Stanley’s argument concerning the ALJ’s consideration of Dr. Lee’s opinion is a nonstarter.
For these same reasons, Stanley’s argument that the ALJ failed to consider his spinal stenosis when
assigning his RFC—which he abandoned in his reply brief (Docket # 23)—is of no moment. The ALJ properly
considered the limitations and pain arising from Stanley’s back problems, together with his activities of daily living,
treatment, and work history, when assigning him a RFC. (See Tr. 19, 21.) To reiterate, “[t]he issue for disability
benefits is not whether a claimant has a disease, but whether that disease affects [his] ability to work.” Buchholz v.
Astrue, No. 08-cv-4042, 2009 WL 4931393, at *11 (C.D. Ill. Dec. 15, 2009) (citing 20 C.F.R. § 404.1545(a)(1)).
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