Boyanowski v. Commissioner of Social Security
OPINION AND ORDER. The decision of the Commissioner of Social Security is AFFIRMED. Signed by Judge William C Lee on 10/5/15. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
MARSHA K. BOYANOWSKI,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CIVIL NO. 1:14cv295
OPINION AND ORDER
This matter is before the court for judicial review of a final decision of the defendant
Commissioner of Social Security Administration denying Plaintiff's application for Disability
Insurance Benefits, 42 U.S.C. § 401 et seq. Section 205(g) of the Act provides, inter alia, "[a]s
part of his answer, the [Commissioner] shall file a certified copy of the transcript of the record
including the evidence upon which the findings and decision complained of are based. The court
shall have 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 case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to
any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g).The
law provides that an applicant for disability insurance benefits must establish 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); 42 U.S.C. §423(d)(1)(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). It is not enough for a plaintiff to establish that an impairment exists. It
must be shown that the impairment is severe enough to preclude the plaintiff from engaging in
substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372
U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that
the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds
v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record
as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.
Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786
(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,
552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,
42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also
Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after consideration of the entire record, the Administrative Law
Judge (“ALJ”) made the following findings:
The claimant last met the insured status requirements of the Social
Security Act on June 30, 2009.
The claimant did not engage in substantial gainful activity during the period from
her alleged onset date of May 31, 2008 through her date last insured of June 30,
2009 (20 CFR 404.1571 et seq.).
Through the date last insured, the claimant had the following severe impairments:
obesity; fibromyalgia; obstructive sleep apnea; headaches; and diabetes (20 CFR
Through the date last insured, the claimant did not have an impairment or
combination of impairments that meets or medically equaled the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d) , 404.1525, and 404.1526).
After careful consideration of the entire record, the undersigned finds that,
through the date last insured, the claimant had the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except the claimant cannot
lift more than 15 pounds and she can only occasionally climb, balance, stoop,
kneel, crouch, and crawl.
Through the date last insured, the claimant was capable of performing past
relevant work as a deaf interpreter. This work did not require the performance of
work-related activities precluded by the claimant’s residual functional capacity
(20 CFR 404.1565).
The claimant was not under a disability, as defined in the Social Security Act, at
any time from May 31, 2008, the alleged onset date, through June 30, 2009, the
date last insured (20 CFR 404.1520(f)).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability
insurance benefits. The ALJ’s decision became the final agency decision when the Appeals
Council denied review. This appeal followed.
Plaintiff filed her opening brief on April 28, 2015. On August 4, 2015, the defendant
filed a memorandum in support of the Commissioner’s decision, and on August 18, 2015,
Plaintiff filed her reply. Upon full review of the record in this cause, this court is of the view that
the Commissioner’s decision should be affirmed.
A five step test has been established to determine whether a claimant is disabled. See
Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287,
2290-91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized
that test as follows:
The following steps are addressed in order: (1) Is the claimant
presently unemployed? (2) Is the claimant's impairment "severe"?
(3) Does the impairment meet or exceed one of a list of specific
impairments? (4) Is the claimant unable to perform his or her
former occupation? (5) Is the claimant unable to perform any other
work within the economy? An affirmative answer leads either to
the next step or, on steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than step 3, stops
the inquiry and leads to a determination that the claimant is not
Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162
n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature
of the ALJ's decision to deny benefits, it is clear that step four was the determinative inquiry.
Plaintiff filed an application for Disability Insurance Benefits (DIB) on March 19, 2009,
and originally alleged disability since January 1, 2004 (Tr. 135). The claim was denied initially
and upon reconsideration. On July 19, 2010, ALJ John Pope convened a hearing at which
Plaintiff amended her alleged onset date to May 31, 2008 (Tr. 1094). On November 19, 2010,
ALJ Pope issued a decision finding that Plaintiff was not disabled (Tr. 1097). On March 2, 2012,
the Appeals Council affirmed Judge Pope’s finding that Plaintiff was not disabled (Tr. 1).
Plaintiff sought timely review of the Commissioner’s decision, and on July 3, 2013, this Court
remanded the matter to the Agency for further consideration (Tr. 1140).
Meanwhile, as the first claim was pending upon appeal, Plaintiff applied again for Title II
disability benefits on March 12, 2012, and this claim was denied initially and upon
reconsideration (Tr. 1016). On August 29, 2013, Administrative Law Judge Steven Neary found
that Plaintiff was not disabled during the period encompassed by this second claim, and further
noted that because of Plaintiff’s continued work activity, her date last insured advanced to June
30, 2012 (Tr. 168). ALJ Neary’s decision encompassed the period from November 20, 2010, the
day after ALJ Pope’s decision, through August 29, 2013, the day of ALJ Neary’s decision.
On September 16, 2013, upon receipt of the District Court remand order of the first claim
at issue, the Appeals Council remanded that claim to ALJ William Pierson. The Appeals Council
further noted that the ALJ could consider ALJ Neary’s decision concerning the second claim
consistent with applicable reopening regulations when deciding the remanded first claim (Tr.
1187). The ALJ exercised his discretion to reopen the second claim. Thus, the ALJ’s decision at
issue before this Court encompasses the period first adjudicated by ALJ Pope and the period
adjudicated by ALJ Neary.
Plaintiff appeared with counsel before the ALJ at a hearing on January 14, 2014 (Tr.
1038). On May 27, 2014, the ALJ applied the sequential five-step analysis and found that Plaintiff
was not disabled (Tr. 1012-1030). The Appeals Council did not review the ALJ’s decision within
60 days of the ALJ’s decision, making the ALJ’s decision the Commissioner’s final decision (Tr.
1013). Plaintiff timely filed this civil action, pursuant to 42 U.S.C. § 405(g), for review of the
Plaintiff was 44 years old as of the alleged onset date. Plaintiff is a high school graduate
with four years of college and training as a deaf interpreter. In the 15 year look back period,
Plaintiff worked as an interpreter for the deaf. The exertional level of this job qualified as light
and its skill level was semi-skilled.
Plaintiff suffers from gastrointestinal and urinary system problems. She has been
diagnosed with pseudomembranous trigonitis, inflammatory pseudopolyps of the bladder neck
and proximal urethra, gout, recurrent kidney stones, vesicoureteral reflux, recurrent
pyelonephritis, urethral cysts,and frequent and/or chronic urinary tract infections. Over the years,
she has been treated with medications, and she has endured multiple cystoscopies and
uteroscopies, a urethral cystectomy, and multiple ureteral stent placements and removals.
Plaintiff has also been treated for irritable bowel syndrome, gastrointestinal bleeding,
diverticulosis, and recurrent diverticulitis.
On August 5, 2006, Plaintiff was hospitalized with pyelonephritis. By early 2009, her
physician prescribed Allopurinol for hyperuricemia (gout). On July 3, 2009, her urologist noted
voiding difficulty. On August 30, 2008, A CT scan revealed scattered colonic diverticulosis. On
September 25, 2008, a colonoscopy confirmed the CT scan results. Diverticula are small pouches
in the lining of the colon that bulge outward through weak spots. A single pouch is called a
diverticulum. The condition of having diverticula is called diverticulosis. Diverticulitis consists
of inflammation of a diverticulum, which can result in phlegmon of the bowel wall, peritonitis,
perforation, fistula, or abscess. In the midst of two episodes of diverticulitis, Plaintiff experienced
painful urinary tract infections due to a colonic fistula that had invaded her urinary system. On
August 28, 2009, Plaintiff underwent a cystoscopy which revealed inflammatory change of
bladder and a possible colovesical fistula.
Plaintiff’s diverticulitis, chronic urinary tract infections, and other accompanying
problems had become so bad that on January 13, 2010, she underwent several procedures and
surgeries: an exploratory cystoscopy, a complex placement of bilateral ureteral catheters, a
sigmoid colectomy, and a small bowel resection to repair a mesenteric hematoma. In relation to
the sigmoid colectomy, her surgeon initially pursued a laparoscopic surgical approach; however,
due to the complex nature of her colon’s interaction with the ureter, the laparoscopic instruments
were withdrawn and the surgery was converted to the more invasive open approach. The
postoperative diagnoses were: recurrent diverticulitis and colovesical fistula.
Plaintiff indicated that she continued to suffer from kidney stones and from twice weekly
bouts of kidney swelling and pain, which she addressed by lying in bed with a heating pad. She
further indicated that she experienced about three to four urinary tract infections a year, each of
which lasted about “three or four days before the medicine kicks in.”
On May 6, 2011, Plaintiff was back in the operating room to address problems relating to
renal colic, sepsis, stones, and removal of a ureteral stent, thereby objectively confirming that her
medical situation had not resolved.
Because of her multiple medical impairments and for reasons not entirely understood,
Plaintiff has been suffering from long-term chronic pain. Early on, the pain condition was
diagnosed as myofascial pain. Later, her condition was thought to be fibromyalgia. After the
critical round of surgeries on January 10, 2010, her physicians settled upon the diagnosis of
chronic regional pain syndrome. Her physicians have tried numerous medications to address her
pain issues, including Vicodin, Neurontin, Lyrica, and Zanaflex. Plaintiff experienced
drowsiness side effects with both Lyrica and Neurontin.
Plaintiff underwent multiple pelvic surgeries or treatments, including three caesarian
sections, a bilateral tubal ligation, an aspiration and cautery of a right ovarian cyst, Lupron
therapy for endometriosis, a total abdominal hysterectomy, and a bilateral salpingooophorectomy for chronic pain and adhesions.
Plaintiff suffers from migraine headaches. For several years, Topamax was her primary
migraine medication; however, it was discontinued because of concerns related to side effects.
Maxalt then became her main migraine medication. Plaintiff reported that Maxalt is only partially
effective and that she suffered from a couple of migraine headaches a week. A neurologist warned
about the use of prophylactic migraine headache medications because of her elevated hepatic
transaminases. Plaintiff has incurred liver damage and elevated liver enzymes have been an
ongoing concern of her physicians. Some of her symptoms included sonophobia and
photosensitivity and she testified that loud noises and bright lights bothered her.
Plaintiff has been diagnosed with Metabolic Syndrome, which is the name given to a
group of risk factors that occur together and increase the risk for coronary artery disease, stroke,
and Type II Diabetes. She has had Diabetes Mellitus since approximately 2007. This condition
has been treated with Avandamet. Plaintiff has been diagnosed with hypertension that has been
treated variously with Lisinopril and Verapamil. She also has hyperlipidemia with marked
hypertriglyceridemia that has been treated variously with Trilipix; Crestor, Tricor, Welchol, Zetia,
Plaintiff also suffers from long-term gout which has primarily been treated with
Allopurinol. Additionally, Plaintiff has suffered from edema that has been treated variously with
Lasix and Indapamide. Her hands, ankles, and feet swell a couple of times a month. She is
obese at 5’5" and 254 pounds.
On April 15, 2005, Pulmonologist Thomandram Sekar, M.D. diagnosed Plaintiff with
severe obstructive sleep apnea syndrome and excessive daytime somnolence and prescribed a
nasal CPAP. A nocturnal polysomnogram and a CPAP Titration Sleep Study supported the
Plaintiff also has balance issues described as positional vertigo and intermittent dizziness,
and her physicians have noted that her hands shake and have described it as essential tremor. Her
hands trembled at the hearing. Dr. Bacchus, a consultative examiner, confirmed that she required
a cane and that the use of the cane was medically necessary.
Additionally, Plaintiff had ganglion cysts removed from both wrists. Her lumbar spine
exhibited mild curvature, concave to the right, with slight decreased disc height and mild
spondylosis at L5-S1. She also suffered from mild cervical spondylosis.
In support of remand or reversal, Plaintiff first argues that the ALJ erred by not
incorporating the limiting effects related to urinary system problems, gastrointestinal problems,
other severe and non-severe impairments, and the combination thereof, into the RFC analysis.
An ALJ must evaluate all relevant evidence when determining an applicant's
RFC, including evidence of impairments that are not severe. 20 C.F.R. § 404.1545(a). Moreover,
an ALJ may not ignore entire lines of evidence. See Zurawski v. Halter, 245 F.3d 881, 888 (7th
Cir. 2001); Craft v. Astrue, 539 F.3d 668, 676 (7th Cir.2008). In explaining why in assessing
RFC, the ALJ “must consider limitations and restrictions imposed by all of an individual’s
impairments, even those that are not ‘severe,’” SSR 96-8p explains:
While a “not severe” impairment(s) standing alone may not significantly
limit an individual's ability to do basic work activities, it may-when considered with limitations or restrictions due to other
impairments--be critical to the outcome of a claim.
SSR 96-8p, 1996 WL374184 at *5.
Plaintiff argues that the migraine headaches support limitations in relation to bright lights
and loud noises but that no such limitations are contained in the RFC. Plaintiff contends that the
migraine headaches generated symptoms that exceeded the tolerance for absenteeism and breaks.
Plaintiff also argues that she has fatigue issues due to her sleep apnea, hypertension,
diabetes and gout, and that she often needs to nap. Plaintiff claims that the ALJ’s failure to
include her need for rest breaks beyond employer tolerances in the RFC requires remand. Also,
Plaintiff argues that the ALJ failed to consider the gastrointestinal and urinary system problems in
conjunction with each other, and that the limiting effects of these combined impairments were not
included in the RFC.
In response, the Commissioner points out that the ALJ noted that there was an extensive
record concerning Plaintiff’s medical treatment history, but the medical records did not contain
ongoing reports and findings concerning severe migraines or other medical impairments
consistent with the limitations she reported (Tr. 1024). The ALJ noted that the medical records
did not reflect either significant ongoing impairments or consistent uncontrollable side effects of
medication (Tr. 1024).
The ALJ discussed Plaintiff’s reported migraine headaches at length (Tr. 1024, 1027). The
ALJ noted that Plaintiff had a negative head computed tomography scan in August 2006, and
Plaintiff’s headaches were “great” with medication in September 2006 (Tr. 1027, 282, 332).
Plaintiff’s headaches further improved with medication in June 2009 (Tr. 1027, 405). Plaintiff did
not report significant headaches in 2008 or 2009, and reported having “some” headaches in May
2010, but also reported “doing a lot better” when taking Vyvance for them (Tr. 1027, 615).
Plaintiff reported that taking Maxalt relieved her headache pain in August 2010 (Tr. 1027, 957).
As the ALJ’s decision reflects, he analyzed the relevant medical evidence and reasonably
determined that Plaintiff’s migraines were not as debilitating as she claimed, and her own doctors
noted that they could be treated with medication.
The ALJ further addressed Plaintiff’s complaints about urinary and gastrointestinal
difficulties (Tr. 1024-25, 1027-28). The ALJ analyzed Plaintiff’s diverticulitis, and noted that
radiographs revealed no acute diverticulosis; scattered colonic diverticulitis; and unremarkable
liver, gallbladder, kidneys, and urinary bladder in August 2008 (Tr. 1027, 328). The ALJ noted
that moderate diverticulosis was present per scope in September 2008 (Tr. 1027, 326), but was
not mentioned again until September 2009, when Kelly Klinker, M.D., noted that Plaintiff had
never been hospitalized for her diverticulitis and had never taken medications for colon disease,
suggesting that Plaintiff’s diverticulosis quickly resolved in 2008 (Tr. 1027, 573-74). Plaintiff had
a small bowel resection for mesenteric bleeding in 2009, but was doing well by January 2010 (Tr.
1028, 579). The ALJ noted that the medical treatment records reflected ongoing observation, by
treating physicians, that Plaintiff’s gastrointestinal conditions were amenable to successful
treatment by dietary restrictions and medication (Tr. 1027).
As for Plaintiff’s urinary tract infections (UTIs), the ALJ noted that Dr. Anderson’s notes
from 2007 and 2008 did not reflect ongoing and frequent complaints of UTIs until October 2008,
and then UTIs were not mentioned again thereafter in 2009 or 2010 (Tr. 1028, 267). Plaintiff’s
records from Parkview North Hospital records reflected a UTI in August 2008 (Tr. 1028, 447-48),
but her records from Fort Wayne Urology did not reflect ongoing treatment for urinary issues
until a right UTI was diagnosed in July and August 2009, accompanied by findings of an inflamed
bladder (Tr. 1028, 530). At that time, the claimant reported having a UTI only two or three times
a year, and had not had a UTI for the past six to eight months (Tr. 1028, 573-74).
The ALJ further noted that Plaintiff’s medical treatment records did not document
ongoing and frequent UTIs in 2010 or 2011 or ongoing complaints of frequent kidney stones in
2010 until kidney stones were noted in April 2011 (Tr. 1028). Plaintiff underwent stenting, and
by May 2011 her stone was gone (Tr. 998-99). The ALJ noted that Plaintiff’s medical treatment
records from 2012 and 2013 did not document ongoing complaints of, or frequent treatment for,
UTIs (Tr. 1028).
Plaintiff asks how the ALJ could find no additional restrictions from these impairments
when she required surgery in May 2011 (Pl. Br. at 22-23). The ALJ acknowledged Plaintiff’s
uretral stenting in May 2011, but recognized that the stenting was successful in removing
Plaintiff’s uretral stone, and she did not require further medical attention for this problem (Tr.
Plaintiff disagrees with the ALJ’s RFC finding, but she does not point to any evidence
concerning her migraines, gastrointestinal issues, or urinary issues that suggest she could not
perform a restricted range of sedentary work. This court concludes that substantial evidence
supports the ALJ’s RFC finding.
Next, Plaintiff contends that the ALJ erred in failing to award at least a “period of
disability”. Disability benefits under the Social Security Act are not an “all or nothing”
proposition. Lovette v. Astrue, 2008 WL 62507 *3 (W.D. Ark). A “claimant who is not entitled to
continuing benefits may well be eligible to receive benefits for a specific period of time.” Id.
What is required for an award of temporary benefits is a claimant who meets the Act's definition
of "disability" for a time lasting 12 months or longer, even if she later recovers sufficient health to
return to full-time work on a long term basis. When considering whether a claimant has
experienced a "period of disability," the effects of all of the Plaintiff’s impairments in
combination must be considered. See 20 C.F.R. § 404.1523. And for benefits to be properly
denied, the "individual must have some reasonable chance in the real world of being hired and,
once hired, of keeping the job." Wingo v. Bowen, 852 F.2d 827,831 (5th Cir. 1988). She must be
able to meet job demands "day in and day out, in the sometimes competitive and stressful
conditions in which real people work in the real world." Talbot v. Heckler, 814 F.2d 1456, 1464
(10th Cir. 1987) citing McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (en banc). And
she must have sufficient RFC to do so "on a regular and continuing basis" of 40 hours per week
or an equivalent work schedule. SSR 96-8p, 1996 WL 374184, at *1.
Plaintiff argues that, with her myriad impairments, it was impossible for the ALJ to have
concluded that there was no 12-month period in which Plaintiff did not meet the definition of
In response, the Commissioner points out that Plaintiff’s argument is confusing and
undeveloped because she does not identify a particular 12-month period when the medical and
other evidence in the record would support a finding that she was unable to work. Plaintiff asks
“on what plausible basis could the ALJ possibly have concluded there has been no period lasting
12 months or more in which she did not meet the definition of disability under the regulations?”
(Pl. Br. at 24). Plaintiff’s own argument begs the question of when this 12-month period would
be. To be found disabled under the Act, Plaintiff bears the burden of showing that she has been
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 ALJ reasonably concluded on this record that Plaintiff did not show any 12-month period of
There is no question that the ALJ thoroughly addressed evidence from before Plaintiff’s
alleged onset date of May 31, 2008, and after her date last insured of June 30, 2012 (Tr. 1021-29).
In assessing this evidence, the ALJ observed that Plaintiff presented regularly to her physicians,
who noted that her conditions were traditionally stable and controllable with medication. Id. The
ALJ further noted that Plaintiff did undergo various procedures, such as uretral stenting in May
2011, but she recovered from her procedures and treatments in less than 12 months (Tr. 1028).
Thus, for the entirety of the period in question, the ALJ reasonably determined that Plaintiff
remained able to perform work at a restricted range of sedentary work, and there were jobs that
she could perform at that exertional level (Tr. 1020-21-1030).
The ALJ did not carve out any specific continuous 12-month period when Plaintiff could
not work at this functional level and noted that separate short-term impairments could not be
piggybacked together to make one 12-month period of impairment (Tr. 1028). On this record,
Plaintiff cannot point to any continuous 12-month period for which substantial evidence does not
support the ALJ’s determination. Accordingly, the ALJ’s determination will be affirmed.
Next, Plaintiff argues that the ALJ failed to adequately develop the record by not
considering the medical evidence and hearing transcript already in the record of her March 12,
2012 application. However, as the Commissioner argues, it is clear that the ALJ properly
reopened and decided the period previously adjudicated by ALJ Neary. The ALJ adjudicated
Plaintiff’s disability for the entire period from her alleged May 31, 2008 onset date to her June 30,
2012 date last insured. The ALJ did so by adjudicating the two time periods encompassed by two
separate claims that were pending before him. The first period before the ALJ ran from Plaintiff’s
May 31, 2008 alleged onset date through November 19, 2010, the date on which a prior ALJ
denied Plaintiff’s first claim for benefits (Tr. 1015). The second period before the ALJ was
encompassed by Plaintiff’s second claim for benefits, which ran from November 20, 2010
through her June 30, 2012 date last insured (Tr. 1016). The ALJ recognized the “complicated
procedural history” of Plaintiff’s two claims, but they were both before him and he properly
decided the entire period.
As the ALJ explained, the period encompassed by Plaintiff’s first claim was assigned to
him on September 16, 2013, after a remand from this Court (and after the original administrative
decision in this case had been issued by a different ALJ) (Tr. 1015-16, 1185). However, the
period encompassed by Plaintiff’s second claim was also referred to the ALJ by the Appeals
Council; ALJ Neary had found that Plaintiff was not disabled for the period at issue in the second
application, and she appealed that determination to the Appeals Council (Tr. 1185). The Appeals
Council recognized that two separate but contiguous periods of disability were pending before it,
one of which required further adjudication by an ALJ. In an exercise of judicial economy, the
Appeals Council gave the ALJ hearing the first matter on remand the option of hearing the
entirety of Plaintiff’s pending claims (Tr. 1185). The ALJ expressly reopened the second claim
(Tr. 1016), held a hearing on both claims without objection by Plaintiff (Tr. 1042-43), and issued
a decision encompassing the periods at issue in both claims (Tr. 1015-16). As the ALJ decided
the periods encompassed by both claims, they are both before this Court on judicial review.
Plaintiff appears troubled because the Appeals Council did not “order” the ALJ to reopen
the period from the second claim, but instead stated that the ALJ would “consider that [second]
hearing decision if necessary, consistent with applicable reopening regulations, when deciding the
[first] claim remanded by the court” (Pl. Br. at 26; Tr. 1187). Plaintiff believes that the Appeals
Council did not relinquish jurisdiction over the decision concerning the second claim to benefits
because it did not expressly state that it was vacating the second decision. Plaintiff
overcomplicates this analysis. The Agency decision may be reopened within 12 months of the
date of notice of the initial determination “for any reason.” 20 C.F.R. § 404.988(a). Under this
framework, the Appeals Council gave the ALJ the discretion to reopen ALJ Neary’s denial of the
second claim period, and the ALJ reasonably acted to do so and hear both matters at the same
Plaintiff also contends that the ALJ did not consider all of the evidence because he did not
mention all of it in his decision (Pl. Br. at 27). This argument is unavailing, as the ALJ discussed
admitting all of the prior evidence with Plaintiff’s counsel at the January 14, 2014 hearing (Tr.
1044-45). Moreover, contrary to Plaintiff’s assertions, the ALJ did discuss the evidence that she
claims he did not consider. See, e.g., Tr. 1021 (citing Plaintiff’s testimony at July 3, 2013
hearing). The ALJ was not required to discuss every piece of evidence in this lengthy transcript,
Jones v. Astrue, 623 F.3d 1155, 1162 (7th Cir. 2010), and there is no basis to believe that the ALJ
did not consider all the evidence in this matter.
The ALJ acted within his discretion in reopening ALJ Neary’s denial of Plaintiff’s second
claim for benefits as suggested by the Appeals Council. Plaintiff suffered no detriment from this
action, and the ALJ’s action resulted in one, rather than two, decisions concerning Plaintiff’s
request for disability benefits. Plaintiff cannot and does not identify any error in the ALJ
proceeding in this manner.
Lastly, Plaintiff argues that the ALJ improperly weighed Dr. Bacchus’ opinion.
However, the record shows that the ALJ properly rejected the opinion of Dr. Bacchus. In his
written report, Dr. Bacchus noted Plaintiff’s self-reported history, and then observed her to be
essentially normal under testing except for some trigger point tenderness, bilateral hip tenderness,
a slightly antalgic and slow gait, cane use (although not always necessary for ambulation), some
unsteadiness in heel/toe and tandem walk, an inability to hop, restricted squatting, some restricted
range of motion, 4/5 strength on the left extremities and 5/5 strength on the right extremities, and
4/5 grip strength and slower fine finger manipulability (Tr. 1029, 1278-79). Based on his
observations and Plaintiff’s reported symptoms, Dr. Bacchus opined that Plaintiff could
occasionally lift and carry up to 10 pounds; sit for two hours at one time and four hours total in an
eight-hour workday; stand/walk for 30 minutes; required a cane; could occasionally climb stairs
and ramps and balance but never climb ladders, ropes or scaffolds; and could never stoop, kneel,
crouch or crawl (Tr. 1029, 1278-85). The ALJ gave little weight to Dr. Bacchus’ opinion (Tr.
Plaintiff argues that the ALJ should have given greater weight to Dr. Bacchus’ opinion
(Pl. Br. at 28-30). Specifically, Plaintiff accuses the ALJ of “picking and choosing the portions of
Dr. Bacchus’ opinion that he considered, and should have adopted his opinion that Plaintiff was
limited to 4 hours of sitting, 30 minutes of standing, and 30 minutes of walking in an 8-hour day,”
which would effectively preclude Plaintiff from performing any work (Pl. Br. at 29). However,
the ALJ provided sufficient reasons for discounting this opinion.
The ALJ noted that Dr. Bacchus’ November 2013 examination occurred well after
Plaintiff’s June 2013 date last insured, and that Dr. Bacchus had never observed Plaintiff prior to
her date last insured (Tr. 1022, 1029). An ALJ may correctly reject a retrospective opinion about
functionality before a date last insured if it is not corroborated by evidence contemporaneous with
the eligible period. Estok v. Apfel, 152 F.2d 636, 640 (7th Cir. 1998). In this case, Dr. Bacchus’
own notes could not provide such corroboration, as he never examined Plaintiff before her date
last insured, and he could only speculate on her condition during the relevant time based upon
what Plaintiff reported to him.
Moreover, the ALJ thoroughly analyzed the treatment notes of Dr. Garlan Anderson and
other physicians who observed Plaintiff from 2007 through 2010, and did not find support in
them for Dr. Bacchus’ extreme restrictions (Tr. 1023-26), nor does Plaintiff herself identify such
support. In fact, the ALJ identified medical evidence rendered before Plaintiff’s date last insured
that did not support Dr. Bacchus’ restrictive opinions. For example, on August 30, 2010, Ajay
Gupta, M.D., examined Plaintiff for complaints of tremor, and found her sensation, strength and
reflexes to be largely normal, and in no way consistent with a limitation that she could only sit for
four hours in a day (Tr. 1026, 958). In the absence of corroborating evidence from before
Plaintiff’s date last insured, the ALJ reasonably rejected Dr. Bacchus’ opinion of extreme
Plaintiff also accuses the ALJ of engaging in “backward analysis” because he assigned Dr.
Bacchus’ opinion “little weight . . . other than to the extent it suggested that the claimant could
not do more than what is stated in the residual functional capacity above.” (Pl. Br. at 30; Tr.
1029). Plaintiff’s complaint is misplaced. The ALJ’s decision makes clear that he derived his
RFC finding from the medical opinion evidence, appropriately weighed the conflicting opinion
evidence, and explained that he rejected Dr. Bacchus’ opinion because it was issued after the date
last insured and not corroborated by medical evidence from before the date last insured. Plaintiff
ignores the ALJ’s actual analysis in her complaints against the ALJ’s decision-making. As
substantial evidence supports the ALJ’s RFC finding, this finding will be affirmed.
On the basis of the foregoing, the decision of the Commissioner is hereby AFFIRMED.
Entered: October 5, 2015.
s/ William C. Lee
William C. Lee, Judge
United States District Court
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