Suthers v. Commissioner of Social Security

Filing 35

OPINION AND ORDER: The decision of the Commissioner of Social Security is AFFIRMED. Signed by Magistrate Judge Andrew P Rodovich on 2/25/14. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
LYN SUTHERS,
)
)
Plaintiff,
)
)
v.
) No. 1:12-cv-00408
)
CAROLYN W. COLVIN,
)
Acting Commissioner
)
of Social Security,
)
)
Defendant,
)
OPINION AND ORDER
This matter is before the court on the petition for judicial review filed by the plaintiff,
Lyn Suthers, on November 15, 2012. For the following reasons, the decision of the
Commissioner is AFFIRMED.
Background
The plaintiff, Lyn Suthers, filed an application for Social Security Income and Disability
Insurance Benefits on April 9, 2010, alleging that she became disabled on June 22, 2007. (Tr.
10) Her application initially was denied and was denied upon reconsideration. (Tr. 64-70, 73-75,
and 92-104) Suthers requested a hearing before an administrative law judge (ALJ), and a hearing
was held on May 26, 2011 before ALJ Steven J. Neary. (Tr. 29) Suthers appeared and testified
on her own behalf. (Tr. 29) Vocational Expert (VE) Dr. Robert Barkhaus also testified at the
hearing. (Tr. 29.) Suthers was represented by counsel, Kenneth E. Mcvey. (Tr. 29) On July 14,
2011, the ALJ rendered a decision denying benefits. (Tr. 7-28) On September 11, 2012, the
Appeals Council denied review of the ALJ’s decision, making the ALJ’s decision the final

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decision of the Commissioner. (Tr. 1-6 and 148) Suthers filed this action for judicial review of
the final decision of the Commissioner on November 15, 2012.
At step one of the five step sequential analysis for determining whether an individual is
disabled, the ALJ found that Suthers had not engaged in substantial gainful activity since June
22, 2007, her alleged onset date. (Tr. 12) At step two, the ALJ determined that Suthers had the
following severe impairments: lumbar spondylosis, degenerative disc disease at C6-7, left
shoulder impingement, trapezial inflammation, obesity, and depression. (Tr. 12) The ALJ next
found that Suthers’ impairments did not meet or equal Listings 1.02, 1.04, or 12.04. (Tr. 13)
At step four, the ALJ determined that Suthers had the residual functional capacity to
perform less than a full range of light work in that she, “cannot perform more than occasionally
crawling, crouching, kneeling, climbing, stooping, and cannot work at occupations requiring
overhead reaching with her left upper extremity. She cannot engage in occupations that require
complex or detailed tasks, but would remain capable of performing simple repetitive tasks.” (Tr.
15) In reaching this decision, the ALJ followed a two-step process. (Tr. 15) First, the ALJ
determined whether there was an underlying medically determinable physical or mental
impairment. (Tr. 15) Second, the ALJ evaluated the intensity, persistence, and limiting effects of
the claimant’s symptoms to determine the extent to which they limit the claimant’s functioning.
(Tr. 15)
The ALJ first explained that Suthers testified that she had pain in her back, which
appeared at the top of her neck, the center of her back, and in her tailbone. (Tr. 16) Suthers
testified that her condition had worsened since 2007. (Tr. 16) Suthers explained that her pain
was aggravated if she tried to walk or sit for long periods. (Tr. 16) Suthers described having

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problems lifting and carrying because of her left shoulder. (Tr. 16) At the hearing, Suthers
testified that she had problems with her memory as well. (Tr. 16) Suthers reported taking
medication with the side effect of sleepiness. (Tr. 16) Suthers last performed volunteer work in
September 2009 that was required for her to receive public assistance. (Tr. 16)
The ALJ next summarized Suthers’ daily activities. (Tr. 16) Suthers spent her day
waking her daughter up for school, walking her to the bus stop, picking her up in the afternoon,
and getting her a snack. (Tr. 16) Suthers did some household chores in addition to bathing and
dressing herself. (Tr. 16)
The ALJ then assessed Suthers’ medical records. (Tr. 16) The medical evidence revealed
that Suthers is 55 inches in height and weighed 220 pounds, 234 pounds, 241 pounds, and 258
pounds in 2007, 2009, 2010, and 2011, respectively. (Tr. 16) In 2007, a medical examination
showed that Suthers’ motor, sensory, and vibratory functions and gait were normal and that her
deep tendon reflexes were symmetrical and equal. (Tr. 16) In 2009, Suthers was treated for
lower back pain but was able to walk around the room without difficulty. (Tr. 16)
In January 2010, Suthers reported left extremity pain due to lifting 60-pound bags at her
job. (Tr. 16) In August 2010, Saudia Mushkbar, M.D., diagnosed Suthers with left shoulder
impingement and trapezial inflammation. (Tr. 16) Around this time, Suthers alleged that she had
been experiencing left neck and shoulder pain for 15 years. (Tr. 16) X-rays showed degenerative
changes at the acromioclavicular joint. (Tr. 16) Suthers was normal in her left shoulder range of
motion, general strength, grip strength, left radial pulses, and ulnar area pulses. (Tr. 16)
Suthers attempted to treat her pain in a variety of ways. (Tr. 16) She went to physical
therapy, but only on a limited basis due to pain and soreness. (Tr. 16) In August 2010, Suthers

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reported that she stopped taking her pain medication due to its ineffectiveness. (Tr. 16) Suthers
also reported numbness and tingling in her left hand. (Tr. 17) In December 2010, x-rays showed
that Suthers had degenerative disc disease at C6-7. (Tr. 17)
In January 2011, Dr. Mushkbak noted that Suthers reported a history of depression,
anxiety, and low back pain. (Tr. 17) In March 2011, Suthers scored a 44/50 on an Oswestry
Test, which tended to indicate that Suthers was either bed bound or exaggerating. (Tr. 17) On
April 20, 2011, Dr. Coats diagnosed Suthers with a left knee sprain/strain stemming from a
previous fall. (Tr. 17) Subsequently, Suthers was diagnosed at Ortho NorthEast (ONE) with left
degenerative osteoarthritis in the knee/mild patellofemoral degenerative joint disease and
possible medical and/or lateral meniscus tears. (Tr. 17) On April 26, 2011, Suthers saw Julie
Chao, M.D., because she no longer believed that her treatment at ONE was helping. (Tr. 17) Dr.
Chao diagnosed Suthers with lumbar radiculopathy and left shoulder pain and started her on
Perdocet 7 5/325. (Tr. 17)
In May 2011, Suthers had an MRI taken of her lumbar spine and left shoulder. (Tr. 18)
The MRI of Suthers’ lumbar spine revealed multilevel acquired spondylosis superimposed on
mild congenital narrowing L3-S, L3-L4, and L5-S1 mild facet and disc disease, and L4-L5
central disc protrusion with annular tear and moderate facet arthropathy causing moderate
foraminal and central canal narrowing with flattening of the L4 nerve roots in the foramen and
L5 nerve roots in the lateral recess. (Tr. 18) The MRI of Suther’s left shoulder displayed partial
thickness (greater than 50%), partial width (12 mm), undersurface tearing extending 13 mm
medial to lateral with no retraction or muscle atrophy; a small intramuscular ganglion extending
from the infraspinatus tear into the body of the infraspinatus muscle; and tendinopathy without

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tearing of the supraspinatus. (Tr. 18) The MRI also revealed degenerative hypertrophy of the
acromioclavicular joint with a 3 mm subacromial spur indenting the superior aspect of the
supraspinatus. (Tr. 18)
Besides Suthers’ physical impairments, the medical evidence showed that she suffered
from mental impairments. (Tr. 18) In January 2007, Suthers was treated for a panic attack and
prescribed Celexa. (Tr. 18) In September 2010, Wayne Von Bargen, Ph.D., examined Suthers at
the request of the State agency and diagnosed her with a major depressive disorder, recurrent,
moderate severity, and a generalized anxiety disorder. (Tr. 18) Dr. Von Bargen noted that
Suthers had experienced a major depressive episode several years earlier and was suffering from
depressive symptoms including sleep disturbance, worry, and irritability. (Tr. 18) Further, Dr.
Von Bargen indicated that although Suthers symptoms had improved, she still dealt with anxiety
issues. Dr. Von Bargen assigned Suthers a GAF of 60. (Tr. 18)
In May 2011, Suthers was diagnosed with a major depressive disorder, single episode,
severe without psychotic features, and posttraumatic stress disorder, both by Prachee Samant,
MSED, QBHP, and then by Viann Ellsworth, RN, MSN, CNS-BC, at a subsequent evaluation.
(Tr. 18) Although the diagnosis of posttraumatic stress disorder was not rendered by a medically
acceptable source, the diagnosis of depression was consistent with Dr. Von Bargen’s diagnosis.
(Tr. 18) During this assessment, Suthers received a GAF of 48. (Tr. 18) The ALJ explained that
“the GAF score is not purely, or even primarily, an evaluation of psychological limitations in the
sense used by the Social Security Administration.” (Tr. 18) Therefore, the GAF was useful in
providing a snapshot into Suthers condition, but the GAF score did not prove that Suthers had an
ongoing disability under Social Security regulations that would restrict her in a manner greater

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than set out in her residual functioning capacity. (Tr. 18–19)
Although the medical evidence showed that Suthers had severe physical impairments,
the ALJ found that the clinical and objective evidence presented did not preclude her from the
standing, walking, and sitting requirements of light work activity. (Tr. 19) The ALJ determined
that Suthers was precluded from any overhead reaching in her left arm due to shoulder
impairment. (Tr. 19) Nonetheless Suthers’ testified that she was able to lift or carry up to twenty
pounds, so she could perform the lifting required by this exertional level. (Tr. 19) The ALJ
acknowledged that Suthers could not perform more than occasional postural procedures as well
due to her back impairment. (Tr. 19)
With regards to Suthers’ mental impairments, the ALJ determined that Suthers could not
perform more than simple, repetitive tasks because she could not follow or understand detailed
or complex instructions or tasks as a result of her depression. (Tr. 19)
The ALJ concluded that based on the record as a whole, Suthers’ medically determinable
impairments reasonably could be expected to cause the alleged symptoms. However, Suthers’
statements concerning the intensity, persistence, and limiting effects of these symptoms were not
credible to the extent that they were inconsistent with the above stated RFC. (Tr. 19) In reaching
this determination, the ALJ relied on objective evidence that displayed that Suthers was capable
of a higher degree of functioning than she alleged. (Tr. 19–21) The Oswestry Test revealed that
Suthers was exaggerating about her physical impairments. (Tr. 19) In addition, physical therapy
records showed that Suthers benefitted from therapy until she was reminded of her impairment.
(Tr. 19)
With respect to Suthers’ psychological impairments, the ALJ emphasized that Suthers

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never sought treatment for depression and anxiety until May 2011, despite informing doctors that
she had this history. (Tr. 19) Following the hearing, Suthers submitted a form from 2005 stating
that she had anxiety-depression, hypertension, chronic fatigue, and chest pain, which was signed
by Dr. Chaney. (Tr. 20) The ALJ gave little probative value to the form because this was well
prior to Suthers’s onset date (Tr. 20) The ALJ presumed that Suthers’ condition had worsened
since she recently sought treatment, but it was unknown whether Suthers would suffer additional
limitations, and to what extent, once treated. (Tr. 19)
In addition, the ALJ considered Suthers’ testimony that she was unable to be around
others and had memory problems, but he found that these were not of disabling severity because
Suthers did not seek treatment until May 2011. (Tr. 19) The ALJ also noted that Suthers did not
report these problems to Dr. Von Bargen in September 2010. (Tr. 19) At that evaluation, Suthers
correctly repeated five digits forward and three digits backwards and performed simple
arithmetic problems. (Tr. 20) Furthermore, the ALJ acknowledged that Suthers had no problems
interacting with medical staff, attending church, or contacting others by phone. (Tr. 20)
Moreover, the ALJ observed that Suthers denied having any psychological issues, seeking any
mental health treatment, taking medication, or suffering from a mental impairment, when
contacted in May 2010. (Tr. 20) Therefore, the ALJ gave only partial weight to Suthers’
testimony where it was supported by objective evidence of record. (Tr. 20)
The ALJ also considered several other sources with varying weight when reaching this
decision. (Tr. 20) The ALJ afforded great deference to the opinion of Dr. Von Bargen, which he
incorporated into the RFC. (Tr. 20) The State agency medical consultants’ physical assessments
were given partial weight because the determinations did not find a severe impairment relative to

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the Suthers’ ITP. (Tr. 20) The ALJ concurred with the State agency psychological consultants
who concluded that Suthers may have problems with complex or detailed instructions but that
she remained capable of understanding and carrying out simple work-like instructions. (Tr. 20)
At step five, the ALJ concluded that Suthers could not perform past relevant work as a
residential advisor. (Tr. 21) However, the ALJ identified other jobs that Suthers could perform,
including electrical accessories assembler (600 jobs regionally), small products assembler (3,000
jobs regionally), and laundry folder (300 jobs regionally). (Tr. 21) The ALJ noted that he relied
on the VE’s testimony to reach these conclusions. (Tr. 21)

Discussion
The standard for judicial review of an ALJ’s finding that a claimant is not disabled within
the meaning of the Social Security Act is limited to a determination of whether those findings are
supported by substantial evidence. 42 U.S.C. § 405(g) ("The findings of the Commissioner of
Social Security, as to any fact, if supported by substantial evidence, shall be conclusive.");
Pepper v. Colvin, 712 F.3d 351, 361–362 (7th Cir. 2013); Schmidt v. Barnhart, 395 F.3d 737,
744 (7th Cir. 2005); Lopez ex rel Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
Substantial evidence has been defined as "such relevant evidence as a reasonable mind might
accept to support such a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420,
1427, 28 L. Ed.2d 852 (1972)(quoting Consolidated Edison Company v. NRLB, 305 U.S. 197,
229, 59 S. Ct. 206, 217, 83 L.Ed.2d 140 (1938)); See also Pepper, 712 F.3d at 361–362; Jens v.
Barnhart, 347 F.3d 209, 212 (7th Cir. 2003); Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir.
2002). An ALJ’s decision must be affirmed if the findings are supported by substantial evidence

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and if there have been no errors of law. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013);
Rice v. Barnhart, 384 F.3d 363, 368–369 (7th Cir. 2004); Scott v. Barnhart, 297 F.3d 589, 593
(7th Cir. 2002). However, "the decision cannot stand if it lacks evidentiary support or an
adequate discussion of the issues." Lopez, 336 F.3d at 539.
Disability and supplemental insurance benefits are available only to those individuals
who can establish "disability" under the terms of the Social Security Act. The claimant must
show that she is unable " 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). The Social Security regulations enumerate the five-step sequential
evaluation to be followed when determining whether a claimant has met the burden of
establishing disability. 20 C.F.R. § § 404.1520, 416.920. The ALJ first considers whether the
claimant is presently employed or "engaged in substantial gainful activity." 20
C.F.R.§ § 404.1520(b), 416.920(b). If she is, the claimant is not disabled and the evaluation
process is over. If she is not, the ALJ next addresses whether the claimant has a severe
impairment or combination of impairments which "significantly limits . . . physical or mental
ability to do basic work activities." 20 C.F.R. § § 404.1520(c), 416.920(c). Third, the ALJ
determines whether that severe impairment meets any of the impairments listed in the
regulations. 20 C.F.R. § 401, pt. 404, subpt. P, app. 1. If it does, then the impairment is
acknowledged by the Commissioner to be conclusively disabling. However, if the impairment
does not so limit the claimant's remaining capabilities, the ALJ reviews the claimant's "residual
functional capacity" and the physical and mental demands of her past work. If, at this fourth

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step, the claimant can perform her past relevant work, she will be found not disabled. 20 C.F.R.
§ § 404.1520(e), 416.920(e). However, if the claimant shows that her impairment is so severe
that she is unable to engage in her past relevant work, then the burden of proof shifts to the
Commissioner to establish that the claimant, in light of her age, education, job experience and
functional capacity to work, is capable of performing other work and that such work exists in the
national economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § § 404.1520(f), 416.920(f).
Suthers complains that the ALJ erred because he determined that she had moderate
limitations in concentration, persistence, or pace, and failed to incorporate these limitations into
the hypotheticals he posed to the VE. Suthers relies on Stewart v. Astrue, 561 F.3d 679 (7th Cir.
2009), and O'Connor–Spinner v. Astrue, 627 F.3d 614, 621 (7th Cir. 2010), to support her
argument. In Stewart, the Seventh Circuit rejected the Commissioner's argument that the ALJ
accounted for the claimant's mental impairments by restricting the hypothetical to the VE to
simple routine tasks. Stewart, 561 F.3d at 684–85. Similarly, in O'Connor–Spinner, the Seventh
Circuit reversed and remanded the district court's decision denying benefits, finding that it was
unclear from the ALJ's restriction to “routine, repetitive tasks with simple instructions” whether
the VE properly was informed of and accounted for limitations in “concentration, persistence
and pace.” O'Connor–Spinner, 627 F.3d at 620–21.
The cases relied upon by Suthers are not on point as neither of them holds that a lapse on
the part of the ALJ in framing the hypothetical must result in a remand. Noteworthy, in
O'Connor-Spinner, the Seventh Circuit explained that it does not insist on a per se requirement
that the specific terminology “concentration, persistence and pace” be used in the ALJ's
hypothetical to the VE in all cases. O'Connor–Spinner, 627 F.3d at 619. Additionally, the

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instant facts are distinguishable from the cases relied upon by Suthers. Here, the medical
consultant who reported Suthers’ limitations in concentration, persistence, and pace effectively
translated his opinion regarding those limitations into an RFC assessment. The ALJ then adopted
the RFC of that consultant and incorporated that RFC into his hypothetical to the VE.
Accordingly, this case is more akin to those cases relied upon by the Commissioner. In
Johansen v. Barnhart, 314 F.3d 283 (7th Cir. 2002), the Seventh Circuit let stand a hypothetical
that omitted the terms “concentration, persistence and pace” when the ALJ relied on a
consultative doctor's findings that had been translated into a specific RFC assessment. Johansen,
314 F.3d at 289. Similarly, in Milliken v. Astrue, 397 Fed.Appx. 218 (7th Cir. 2010), the
Seventh Circuit found that the ALJ adequately accounted for the claimant's limitations in
concentration, persistence, and pace in his hypothetical to the VE because it incorporated the
state's testifying expert's assessment that the claimant could perform unskilled work despite her
mental limitations. Milliken, 397 Fed.Appx. at 222.
Here, in formulating the hypothetical to the VE, the ALJ incorporated all of the
restrictions contained in his RFC for Suthers. In developing his RFC, the ALJ relied upon
consulting physician, Dr. Gange’s opinion. Dr. Gange completed a mental residual functional
capacity assessment of Suthers and translated his findings of Suthers’ limitations into a specific
RFC that concluded she could perform simple, repetitive tasks. The ALJ adopted Dr. Gange’s
conclusion in formulating his RFC and included all of the restrictions contained in his RFC in
the hypothetical to the VE.
Suthers complains that in doing so the ALJ failed to account for the distinction between
the ability to learn how to do a task of a given complexity and the ability to stick with the task

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over a sustained period of time. However, Dr. Gange acknowledged that Suthers had moderate
limitations in her ability to maintain attention and concentration for extended periods, yet he
determined that she could “carry out” simple instructions. Suthers argues that this limitation
reflects that she could learn tasks but does not account for her ability to sustain these tasks. She
overlooks that Dr. Gange further concluded that Suthers could “attend to task for sufficient
periods of time to complete tasks.” (Tr. 327) The ALJ adopted this opinion, which reflected that
Suthers had the ability both to carry out instructions and to complete tasks in their entirety. The
court finds that this accounts for both Suthers’ ability to learn and to sustain tasks until
completion.
The ALJ supported his RFC finding with medical evidence of record, and Suthers has
failed to show that this reliance was misplaced as it accounted for both the ability to learn and
sustain tasks. The ALJ adopted the opinion of Dr. Gange, which acknowledged Suthers’
moderate limitations and converted them into an RFC finding. Suthers has not succeeded at
showing that the RFC finding should have incorporated greater limitations. The ALJ proceeded
to pose hypothetical questions to the VE that accounted for all of the supported RFC limitations.
Because Suthers has not shown that the ALJ’s RFC finding was flawed and the ALJ incorporated
all of Suthers’ limitations into the hypothetical he posed to the VE, unlike the ALJ O’ConnorSpinner, the court finds that the ALJ did not err.
Based on the foregoing reasons, the decision of the Commissioner is AFFIRMED.
ENTERED this 25th day of February, 2014
/s/ Andrew P. Rodovich
United States Magistrate Judge

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