Herrmann v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The relief requested by the Plaintiff in the 20 Opening Brief is DENIED. The decision of the Commissioner of Social Security is AFFIRMED. Signed by Magistrate Judge John E Martin on 9/24/13. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MICHELE A. HERRMANN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner
of the Social Security Administration,
Defendant.
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CAUSE NO.: 1:12-CV-229-JEM
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Michele A.
Herrmann on July 6, 2012, and the Opening Brief of Plaintiff in Social Security Appeal Pursuant
to L.R. 7.3 [DE 20], filed by Plaintiff on January 3, 2013. The Commissioner filed a response on
April 11, 2013, and Plaintiff filed a reply on June 20, 2013. Plaintiff requests that the partially
favorable May 9, 2012, decision of the Appeals Council, be remanded for further proceedings. For
the reasons set forth below, the Court denies Plaintiff’s request for remand.
PROCEDURAL BACKGROUND
Plaintiff filed a claim for Supplemental Security Income (“SSI”) on June 9, 2003, alleging
disability as of January 1, 1980, due to fibromyalgia, chronic migraines, chronic back and leg pain,
memory loss, loss of concentration, extreme light sensitivity, and irritable bowel syndrome. Her
claim was denied initially and upon reconsideration. On August 8, 2005, Plaintiff appeared with
counsel at an administrative hearing before an Administrative Law Judge and testified on her own
behalf. Plaintiff’s daughter and a vocational expert also testified. On March 27, 2007, the ALJ
issued an unfavorable decision. After a timely request for review, the Appeals Council denied
review, making the decision of the ALJ the final decision of the Commissioner. Plaintiff sought
judicial review in the District Court for the Northern District of Indiana. On August 7, 2008, the
case was remanded.
On June 21, 2007, Plaintiff filed a second SSI application. It was denied initially and on
reconsideration, and Plaintiff again requested a hearing. In August 2008, the Appeals Council
remanded the first claim for a new hearing with the original ALJ and consolidated the second claim
with it. On February 11, 2010, Plaintiff appeared with counsel at that hearing. She, her daughter,
and a VE testified. On January 26, 2011, the ALJ issued another unfavorable decision.
On January 19, 2012, the Appeals Council assumed jurisdiction of the case. On May 9,
2012, the Appeals Council issued a decision adopting the ALJ’s statements concerning the law, the
issues in the case, and the facts, but finding Plaintiff disabled as of her fifty-fifth birthday. Plaintiff
filed this civil action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), for review of the
Commissioner’s decision.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
FACTS
A.
Background
Plaintiff was forty-seven years old at the time of her first application and fifty-five when the
ALJ’s second decision was issued. She has a high school equivalency diploma. She has no past
relevant work experience.
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B.
Medical Evidence
Medical records from treating physician Dr. Dean Dauscher include diagnoses of
fibromyalgia, degenerative disc disease, migraines, and irritable bowel syndrome, dating back to at
least 2003. In March 2003, Dr. Dauscher completed forms for the Wayne Township Trustee in
which he gave his opinion that Plaintiff was unable to work because of the debilitating nature of her
fibromyalgia. In December 2003, he provided the Trustee the same opinion. Various other records
note difficulty walking, pain from foot to leg, and leg cramping. Dr. Dauscher referred Plaintiff to
other doctors for vision problems and for her pain in her lower back and extremities.
In April 2004, Dr. Richard Windsor, O.D., saw Plaintiff for complaints about her vision. She
reported a drastic decrease in visual acuity in the prior four to five years. Dr. Windsor also noted
that Plaintiff reported being very sensitive to light, seeing flashes of light in her peripheral vision,
and sometimes losing focus. In December 2006, Dr. Windsor diagnosed severe photophobia and
accommodation spasm. A May 2008 record from Dr. Windsor noted that Plaintiff’s family
practitioner believed her vision problems to be related to her fibromyalgia.
In September 2004, Dr. Mark E. Zolman saw Plaintiff for her complaints regarding pain in
her lower back and extremities. He ordered an MRI and a trial prescription of Zanaflex. An MRI
was performed and revealed degenerative disc disease, a moderately large right disc protrusion
displacing the right S1 spinal nerve, and a midline disc protrusion. Plaintiff reported that the
Zanaflex did not help. Dr. Zolman diagnosed degenerative lumbar disc disease. He recommended
continuing with her previous medications and beginning physical therapy.
On November 17, 2003, state agency physician Dr. T. Crawford reviewed medical records
submitted by Plaintiff in support of her application. Based solely on the records, Dr. Crawford
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found that Plaintiff could occasionally lift and carry up to twenty pounds, frequently lift or carry up
to ten pounds, stand or walk for about a total of six hours in an eight hour workday, sit for a total
of about six hours in an eight hour workday, frequently climb, and must avoid concentrated exposure
to hazards such as machinery and heights. He found no limitations in reaching, handling, or
fingering.
On October 22, 2007, non-examining state agency physician Dr. J. Sands found, based on
his review of Plaintiff’s medical records, that Plaintiff could occasionally lift and carry up to twenty
pounds, frequently lift and carry up to ten pounds, stand or walk for about six hours in an eight-hour
workday, had unlimited ability to push and pull, and could only occasionally climb, balance, stoop,
kneel, crouch, and crawl. Like Dr. Crawford, Dr. Sands found no evidence in the record to support
finding any limitations in reaching, handling, or fingering. Dr. Sands also noted the report of
consultative examiner Dr. Sebastian Ksionski, who examined Plaintiff six days earlier and had
reported gross deficits in vision, balance, coordination, and gait. Dr. Sands wrote that Dr.
Ksionski’s report was not credible because fibromyalgia would not cause such deficits and because
he was likely too uncritical of Plaintiff’s self-reported symptoms.
At the center of this appeal is a medical source statement from consultative examiner Dr.
Michael Holton. On November 15, 2008, Dr. Holton performed an examination of Plaintiff at the
request of the Social Security Administration. In the narrative section of his report, Dr. Holton
wrote that Plaintiff showed normal muscle strength and tone, including rating a five out of five in
all four extremities. He also wrote that her finger manipulative abilities appeared normal and that
her grip strength measured by dynamometer at thirty-one pounds on the right and eleven pounds on
the left. He diagnosed fibromyalgia and degenerative disc disease.
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In the checkbox section of his report, Dr. Holton checked that Plaintiff could occasionally
lift and carry up to twenty pounds and could only occasionally reach, handle, and finger. When
asked to identify the particular medical or clinical findings that supported this assessment and to
explain how they supported his assessment, he wrote “See page 1,” referring to his earlier narrative.
In the section which asked Dr. Holton to choose from boxes labeled “1” through “8” to reflect how
many total hours in an eight hour workday Plaintiff could sit, stand, and walk, he checked no box
but wrote in the margin that it was “unlikely she would be able to work eight hour days even with
modifications.” AR 531. He provided no narrative explanation of the basis for this opinion.
C.
Vocational Expert Testimony
The ALJ presented the VE with a hypothetical of an individual with the RFC ultimately
contained in the ALJ’s decision. The VE testified that such a person would be able to work as a
cashier, shipping and receiving weigher, or product inspector. Plaintiff’s attorney then presented
the VE with a series of hypothetical individuals with the same RFC as presented by the ALJ but with
various additional limitations. One hypothetical involved an individual with the RFC proposed by
the ALJ but also limited to only occasional reaching, handling, and fingering. The attorney asked
whether such an individual would be still able to perform the jobs of a cashier, shipping and
receiving weigher, or product inspector. The VE testified that all of those jobs would be eliminated
because they all required frequent handling.
D.
ALJ’s Decision
In the most recent decision, the ALJ first found that Plaintiff had not engaged in substantial
gainful activity since the date of her first application. He found she had severe impairments, but that
she failed to establish that she had an impairment or combination of impairments that met or equaled
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a Listing. The ALJ found Plaintiff’s testimony not credible because it was “unsupported with valid
medical opinion [or] credible objective evidence.” AR 332. He found she had a residual
functioning capacity for less than the full range of light work with an ability to lift and carry twenty
pounds occasionally and ten pounds frequently, that she required an option to alternate between
sitting and standing, and that she could not stand and walk for more than half of an eight hour
workday or for more than thirty minutes at a time. He further found her able to reach “extreme
postures (stooping, kneeling, bending, etc.)” only occasionally. Finally he found that Plaintiff could
not “perform work that imposes close regimentation of production.” AR 333. In determining this
RFC, the ALJ gave significant weight to the RFC assessments by State agency physicians Dr. T.
Crawford in November 2003 and Dr. J. Sands in October 2007. He gave little weight to the medical
source statement submitted by consultative examiner Dr. Holter. The ALJ then found that Plaintiff
had no past relevant work. He found, however, that there are jobs that exist in significant numbers
in the national economy that Plaintiff can perform, namely the jobs identified by the VE of cashier,
shipping and receiving weigher, and production inspector. Accordingly, he found Plaintiff not
disabled at any point since her application date.
E.
Appeals Council Decision
After reviewing the ALJ’s decision, the Appeals Council adopted the ALJ’s findings at steps
one through four, including the RFC. The Appeals Council also adopted the ALJ’s determination
that Plaintiff was not disabled at any time from June 9, 2003, through Plaintiff’s fifty-fifth birthday.
However, the Appeals Council found Plaintiff disabled as of her fifty-fifth birthday as directed by
Medical Vocational rule 202.04 and awarded benefits as of that date.
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STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will
reverse only if the findings are not supported by substantial evidence or if the ALJ has applied an
erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial
evidence consists of “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) (quoting Gudgel v.
Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment
for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the
question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning
of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ
“uses the correct legal standards and the decision is supported by substantial evidence.” Roddy v.
Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618
(7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart,
381 F.3d 664, 668 (7th Cir. 2004)). “[I]f the Commissioner commits an error of law,” the Court may
reverse the decision “without regard to the volume of evidence in support of the factual findings.”
White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th
Cir. 1997)).
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At a minimum, an ALJ must articulate his analysis of the evidence in order to allow the
reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that, as a reviewing
court, we may assess the validity of the agency’s final decision and afford [a claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski
v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that she suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent him from
doing his previous work, but considering his age, education, and work experience, it must also
prevent him from engaging in any other type of substantial gainful activity that exists in significant
numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f),
416.920(e)-(f).
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When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not
disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have
an impairment or combination of impairments that are severe? If not, the claimant is not disabled,
and the claim is denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet
or equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically
considered disabled; if not, then the inquiry proceeds to step four; (4) Can the claimant do the
claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,
then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant’s
RFC, age, education, and experience? If yes, then the claimant is not disabled, and the claim is
denied; if no, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(I)-(v), 416.920(a)(4)(I)-(v); see
also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).
At steps four and five, the ALJ must consider an assessment of the claimant’s RFC. The
RFC “is an administrative assessment of what work-related activities an individual can perform
despite [his] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001) (citing SSR
96-8p, 1996 WL 374184 (Jul. 2, 1996); 20 C.F.R. § 404.1545(a)) (other citations omitted). The RFC
should be based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008) (citing
20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of proving steps one through four,
whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d at 886; see also Knight v. Chater,
55 F.3d 309, 313 (7th Cir. 1995).
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ANALYSIS
Plaintiff seeks remand of the ALJ’s decision based on a single argument: She argues that
the ALJ improperly evaluated the opinion of Dr. Michael Holton. The weight assigned to a medical
source opinion is to be determined by evaluating it according to the factors enumerated in 20 C.F.R.
§ 416.927(c). These factors include how well the medical source supports his opinion with relevant
evidence and explanation, whether the opinion is consistent with the record as a whole, whether the
source of the opinion is a specialist, the relationship between claimant and source of the opinion, and
any other factor which tends to support or contradict an opinion. 20 C.F.R. § 416.927(c)(1), (3), (4),
(5), & (6). An ALJ need only minimally articulate his reasons for discrediting a medical source’s
opinion. Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008).
In this case, the ALJ summarized Dr. Holton’s findings, noting in particular the normal
findings and those reflecting only mild impairment. He ultimately discounted Dr. Holton’s opinions
regarding Plaintiff’s limitations because he found them to be unsupported by the objective findings
in Dr. Holton’s report. He wrote that “Dr. Holton’s examination findings of 5/5 muscle strength,
normal sensation and normal manipulative abilities are not consistent with his assessment that the
claimant cannot sustain sitting, standing and walking for eight hours and has limitations regarding
reaching, handling and fingering.” AR 336. Additionally, the ALJ stated that state agency physician
Dr. Sands had found Dr. Holton’s opinion to be not credible.
Plaintiff first argues that the ALJ was mistaken in believing Dr. Sands found Dr. Holton’s
opinion not credible. The record shows that Dr. Sands had actually found the opinion of a different
consultative examiner, Dr. Ksionski, to be not credible. The ALJ simply confused the two
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examiners’ reports. Were this the only factor the ALJ considered in evaluating Dr. Holton’s
opinion, this mistake would result in the ALJ’s assessment having no basis.
The ALJ expressed one other reason, however, for giving Dr. Holton’s opinion little
weight—that the opinion was inconsistent with the findings on which it was supposed to be based.
Plaintiff argues this reason is also invalid because the findings and opinion were not actually
inconsistent. She acknowledges that Dr. Holton’s finding that Plaintiff had normal “fine finger
manipulative abilities” was, in fact, inconsistent with his later opinion that she could only
occasionally finger. She argues that normal fine finger manipulative abilities are not, however,
inconsistent with limitations in handling because handling involves use of the whole hand, not use
of the fingers separately. Plaintiff cites an article from a medical journal in support of her argument
that a grip strength measurement of thirty-one pounds on the right and eleven pounds on the left is
significantly below normal and argues that the grip strength measure is more indicative of handling
ability than “fine finger manipulative ability.” Dr. Holton, however, offered no such explanation
for his opinion that Plaintiff had limitations in handling. Plaintiff lists other of Dr. Holton’s findings
that she argues were consistent with his opinions. She also argues that the ALJ did not actually
explain why he believed the findings he cited were inconsistent with Dr. Holton’s opinions.
The Court is unpersuaded that the ALJ’s evaluation of Dr. Holton’s opinion is so flawed as
to warrant remand. After noting many normal or mildly abnormal findings, the ALJ’s concluding
sentence drawing attention to only the normal muscle strength, sensation, and manipulative abilities
may be somewhat lacking in detail, but the paragraph as a whole sufficiently articulates the ALJ’s
reasoning such that this Court can trace its path. Plaintiff points to other findings that are not
necessarily inconsistent with Dr. Holton’s opinions, but they fail to undermine the ALJ’s
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conclusions when Dr. Holton himself gave no explanation other than “See page 1” to explain to the
ALJ how his findings supported his conclusions. The ALJ evaluated the opinions of numerous
medical sources, enumerating various factors for the weights assigned to each, providing the Court
with further context for the relative weight assigned to Dr. Holton’s opinions. Therefore, even
though the ALJ’s evaluation of Dr. Holton’s opinion may not be perfect, it was sufficient to meet
the “lax” standard for articulation required of an ALJ. See Elder, 529 F.3d at 415.
Plaintiff also argues that the ALJ failed to consider other factors enumerated in 20 C.F.R.
§ 416.927(c) that favored giving the opinion more weight. An ALJ need not, however, provide an
in-depth explanation of how he evaluated each and every factor set out in the regulations. See Elder,
529 F.3d at 415-16 (affirming denial of benefits where ALJ discussed only two of the factors);
Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007) (same). An ALJ is only required to minimally
articulate his reasons for discounting a medical source’s opinion, which is a “very deferential
standard.” Elder, 529 F.3d at 415. The ALJ did so in this instance.
CONCLUSION
Based on the foregoing, the Court hereby DENIES the relief requested in Opening Brief of
Plaintiff in Social Security Appeal Pursuant to L.R. 7.3 [DE 20] and AFFIRMS the Commissioner
of Social Security’s final decision.
So ORDERED this 24th day of September, 2013.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc: All counsel of record
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