Horr v. Commissioner of Social Security

Filing 22

OPINION AND ORDER: AFFIRMING the decision of the Commissioner of Social Security. Signed by Chief Judge Theresa L Springmann on 9/6/2017. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SHARON HORR,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

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CAUSE NO.: 1:16-CV-226-TLS

OPINION AND ORDER
The Plaintiff, Sharon Horr (pronounced “Harr”), seeks review of the final decision of the
Commissioner of the Social Security Administration denying her application for Disability
Insurance Benefits (DIB) and Supplemental Security Income. The Plaintiff claims that she would
be unable to maintain substantial gainful employment due to limitations brought about by
various physical impairments.

PROCEDURAL HISTORY
The Plaintiff applied for Social Security Disability Insurance and Supplemental Income
benefits in June 2011, alleging she became disabled on May 20, 2008. The Plaintiff’s application
was denied initially and upon reconsideration. In August 2012, an administrative law judge
(ALJ) held a hearing on the Plaintiff’s application, finding that the Plaintiff was not entitled to
benefits. The Appeals Council denied review on October 22, 2013, making the ALJ’s decision
the final decision of the Commissioner. The Plaintiff then filed this action for administrative
review before the Court. On March 12, 2015, Judge Philip P. Simon entered an Opinion and
Order (R. 717, ECF No. 4) remanding this matter to the Commissioner for further consideration,

because the administrative law judge did not consider the opinion of the Plaintiff’s treating
physician, Dr. Daniel Roth. On February 1, 2016, a second ALJ presided over a new hearing, in
which the Plaintiff and a vocational expert testified. (R. 635–71.) The new ALJ issued a decision
on February 23, 2016, finding that the Plaintiff did not meet the regulatory definition of
disability and was not entitled to disability benefits. (R. 566.) The Plaintiff now seeks review of
this second decision under 42 U.S.C. § 405(g) and § 1383(c)(3).
THE ALJ’s HOLDING
Disability is defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A). To be found disabled, a claimant must demonstrate
that his physical or mental limitations prevent him from doing not only his previous work, but
any other kind of gainful employment which exists in the national economy, considering his age,
education, and work experience. § 423(d)(2)(A).
An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits.
20 C.F.R. § 404.1520. The first step is to determine whether the claimant no longer engages in
substantial gainful activity (SGA). Id. In the case at hand, the Plaintiff has not engaged in SGA
since the alleged onset of disability, on May 20, 2008, through September 30, 2011, the date she
was last insured. (R. at 548.) In step two, the ALJ determines whether the claimant has a severe
impairment limiting the ability to do basic work activities under § 404.1520(c). Here, the ALJ
determined that the Plaintiff had been diagnosed with and treated for cervical and lumbar
degenerative disc disease, status post cervical and lumbar surgical fusion, chronic pain
syndrome, fibromyalgia, headaches and migraines, obesity, post-traumatic stress disorder,
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depression, hernia repair with mesh, and left hammertoe surgery. (R. at 549.) Step three requires
the ALJ to “consider the medical severity of [the] impairment” to determine whether the
impairment “meets or equals one of [the] listings in appendix 1 . . . .” § 404.1520(a)(4)(iii). If a
claimant’s impairment(s), considered singly or in combination with other impairments, rise to
this level, she earns a presumption of disability “without considering [her] age, education, and
work experience.” § 404.1520(d). But, if the impairments, either singly or in combination, fall
short, an ALJ must move to step four and examine the claimant’s “residual functional capacity”
(RFC)—the types of things she can still do physically, despite her limitations—to determine
whether she can perform this “past relevant work,” § 404.1520(a)(4)(iv), or whether the claimant
can “make an adjustment to other work” given the claimant’s “age, education, and work
experience.” § 404.1520(a)(4)(v).
Here, the ALJ determined that the Plaintiff’s impairments do not meet or equal any of the
listings in Appendix 1 and that she has the RFC to perform light work, as defined by
§ 404.1567(b). The ALJ determined that the Plaintiff had the physical residual functional
capacity to perform sedentary work as defined in 20 C.F.R. 404.1567(a), except that she could
stand and walk, in combination, for two hours and sit for six hours during an eight-hour
workday; she could lift, carry, push and pull up to ten pounds; and she could occasionally climb
ramps and stairs, balance, stoop, kneel, crouch and crawl, but she could never climb ladders,
ropes, or scaffolds. The ALJ also determined that the Plaintiff retained the mental RFC to
understand, remember, and carry out simple, routine, repetitive tasks, to make simple, work
related decisions, she could tolerate few, if any, changes in the workplace, and could not perform
fast production work.

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In reaching her decision, the ALJ went through an analysis of Dr. Roth’s opinion in the
record. In the prior appeal, Judge Simon remanded the case back to the ALJ because Dr. Roth’s
opinion was not given any consideration. (R. 722.) First, the ALJ found Dr. Roth’s opinion was
not entitled to controlling weight because the documents were treatment notes and not medical
opinions. (R. 557.) In reaching this decision, the ALJ observed that Dr. Roth’s treatment notes
were well supported by clinical and laboratory diagnostic techniques, but that Dr. Roth did not
order any diagnostic testing of the Plaintiff’s neck or back, and proceeded with treatment without
them. (Id.) The ALJ noted that orthopedic surgeon Dr. McGee ordered diagnostic testing of the
Plaintiff's neck and mid-back in January 2012 and that the imaging demonstrated no significant
neck or back abnormalities and there was no evidence of disc herniation or significant stenosis.
(Id.)
The ALJ also noted the imaging ordered by orthopedic surgeon Dr. Shugart from August
2014, demonstrated a mild and stable ridge bulge complex at the L1-2 level. (Id. at 557–58.) The
ALJ noted that the L2-3 disc was unremarkable other than for left facet arthropathy. (Id.) The
L3-4 disc was also unremarkable with no significant disc bulge at the L4-5 level. The ALJ noted
that the ridge bulge complex at the L5-S1 level appeared improved, and there was no central
stenosis. (Id.) The ALJ noted that Dr. Shugart advised the Plaintiff that the study indicated that
she did not need surgery. The ALJ suspected that the Plaintiff’s pain was inflammatory,
prescribed Voltaren, and recommended continued physical therapy. (Id. at 558.) The ALJ noted
that subsequent diagnostic testing in August 2015 is relevant to the Plaintiff’s complaint of back
pain as well as her complaint of debilitating headaches. (Id.) The tests of the thoracic spine
showed only mild degenerative disc disease with normal vertebrae heights. The ALJ noted that a
CT scan of the head was negative for acute intracranial abnormality. (Id.)

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The ALJ also noted that Dr. Roth’s treatment notes were generally consistent with the
substantial evidence on the record. (Id.) The ALJ observed that Dr. Campbell’s exam showed
trigger points, knee crepitation, negative straight leg raise, and normal ranges of motion of the
shoulders, wrists, hips, ankles, and feet. The exam by physical medicine specialist Dr. Lazoff
noted tender points, limited range of motion of the back, normal strength, intact gait and
upper/lower muscle strength. (Id.) The ALJ observed that the exams by orthopedic surgeons Dr.
McGee and Dr. Hoffman showed normal range of motion of the neck, no tenderness to palpation
of the neck/para-scapular region, and normal strength. (Id.) The ALJ also noted that the exam by
Dr. Posner noted significantly reduced range of motion of the neck. (Id.)
Through her analysis, the ALJ summarized that Dr. Roth’s findings upon physical
examination were generally consistent with those of the other treating and examining sources
“other than findings that were particularly unique to him.” (Id.) The ALJ noted as an example
that Dr. Roth noted cervical and lumbar facet loading. (Id.) The ALJ observed that regardless of
the particularly unique findings, all of the physical examinations noted normal and abnormal
findings that were within range of another. (Id.) The ALJ noted that though Dr. Posner noted
severely limited neck range of motion, none of the other physicians did and that the degree of
limitation is unsupported by the results of the diagnostic tests. (Id.)
The ALJ considered other factors in determining whether Dr. Roth’s treatment notes
were entitled to great weight, noting that except for Dr. Shugart, the other physicians had brief or
no treatment relationships with the Plaintiff and examined her no more than once or twice. The

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ALJ noted that the doctors who examined and treated the Plaintiff were familiar with the other
information in the case and were specialists.1
In evaluating all of the factors considered in determining whether a medical opinion is
entitled to controlling, great, significant, little or no weight, the ALJ concluded that Dr. Roth's
opinion is entitled to no weight as a medical opinion because the ALJ concluded that it is not a
medical opinion. The ALJ concluded that Dr. Roth's opinion is a treatment note, made
contemporaneously with the relevant period under consideration. The ALJ again noted that Dr.
Roth's clinical findings and observations are generally consistent with the observations of the
Plaintiff's other treating healthcare providers. (Id. at 559.) Ultimately, the ALJ gave Dr. Roth’s
observations and clinical findings significant weight, just like the observations made at the
consultative examination. (Id.)
The ALJ gave greater weight to the records of Dr. McGee and Dr. Hoffman who, in
addition to their examinations and treatment recommendations, ordered and reviewed diagnostic
studies of the Plaintiff’s cervical and thoracic spines. (Id.) Finally, the ALJ gave Dr. Shugart’s
records greatest weight because of the "longitudinal treatment relationship with" the Plaintiff as a
surgeon beginning before January 2007 and continuing through August 2014. (Id.)
The ALJ noted that Dr. Shugart saw the Plaintiff in January 2007 for post L5-S1 fusion
follow-up, noting that the Plaintiff was doing well (Id.) The ALJ noted that the Plaintiff’s
surgical instrumentation looked good on x-ray and that Dr. Shugart released the Plaintiff to
regular activities. (Id.) The ALJ noted that the Plaintiff returned in June 2011, complaining of
constant sharp and deep neck and bilateral shoulder pain. (Id.) The ALJ noted that in response to

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The ALJ went on to note that Dr. Campbell specialized in rheumatology, Dr. Lazoff in physical
medicine, Dr. Roth and Dr. Posner in pain management, and Dr. Shugart, Dr. McGee, and Dr. Hoffman in
orthopedic surgery. (R. 558.)

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the Plaintiff’s complaints, Dr. Shugart ordered an MRI evaluation and, based on its results, Dr.
Shugart operated on her neck in July 2011 (Id.) The ALJ noted that post-surgical x-rays taken in
September 2012 again showed that the plate and graft were in good position and that Dr. Shugart
ordered physical therapy for shoulder tightness. (Id.)
The ALJ noted that when the Plaintiff returned in May 2012 and complained of increased
neck, and right arm pain, Dr. Shugart ordered a CT scan, and after reviewing it, assessed that the
Plaintiff did not have pseudo-arthrosis and her issues were probably inflammatory. (Id.) The ALJ
noted that at follow-up in September 2012, the Plaintiff still had myofascial pain likely due to
fibromyalgia, but overall was doing fairly well and her x-rays showed her instrumentation was in
good position. (Id.)
The ALJ further noted that Dr. McGee ordered diagnostic testing of the Plaintiff’s
cervical and thoracic spines, which failed to show disc herniation or significant stenosis at any
level. (Id.) The ALJ noted that in response to the Plaintiff’s complaints of back and bilateral leg
pain in August 2014, Dr. Shugart ordered an MRI study of the Plaintiff’s back, which did not
show any disabling condition. (Id.)

STANDARD OF REVIEW
The decision of the ALJ is the final decision of the Commissioner when the Appeals
Council denies a request for review. Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir. 2009). A
court will affirm the Commissioner’s findings of fact and denial of disability benefits if they are
supported by substantial evidence. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

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It is the duty of the ALJ to weigh the evidence, resolve material conflicts, make
independent findings of fact, and dispose of the case accordingly. Richardson, 402 U.S. at 399–
400. In a substantial-evidence determination, the Court considers the entire administrative record
but does not reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute
the court's judgment for that of the Commissioner. Lopez ex rel. Lopez v. Barnhart, 336 F.3d
535, 539 (7th Cir. 2003). In other words, the Court conducts a “critical review of the evidence”
before affirming the Commissioner’s decision, and the decision cannot stand if it lacks
evidentiary support or an inadequate discussion of the issues. Id.
When an ALJ recommends that the Agency deny benefits, the ALJ must first “provide a
logical bridge between the evidence and [her] conclusions.” Terry v. Astrue, 580 F.3d 471, 475
(7th Cir. 2009) (internal quotation marks and citation omitted). Though the ALJ is not required
to address every piece of evidence or testimony presented, “as with any well-reasoned decision,
the ALJ must rest its denial of benefits on adequate evidence contained in the record and must
explain why contrary evidence does not persuade.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir.
2008). Where conflicting evidence would allow reasonable minds to differ as to whether the
claimant is disabled, it is the ALJ’s responsibility to resolve those conflicts. Elder v. Astrue, 529
F.3d 408, 414 (7th Cir. 2008). Conclusions of law are not entitled to such deference, however, so
where the ALJ commits an error of law, the court must reverse the decision regardless of the
volume of evidence supporting the factual findings. Binion v. Chater, 108 F.3d 780, 782 (7th Cir.
1997).

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ANALYSIS
I.

The ALJ’s Evaluation of Medical Opinions
The Plaintiff argues that the ALJ improperly determined that the Plaintiff can perform

light work because the ALJ declined to give adequate weight to that of two of his treating
physicians: Dr. Roth and Dr. Shugart. “The ALJ must give substantial weight to the medical
evidence and opinions submitted, unless specific, legitimate reasons constituting good cause are
shown for rejecting it.” Knight v. Chater, 55 F.3d 309, 314 (7th Cir. 1995) (first citing 20 C.F.R.
§§ 404.1527(c)–(d); then citing Washington v. Shalala, 37 F.3d 1437, 1440 (10th Cir. 1994); and
then citing Edwards v. Sullivan, 985 F.2d 334, 337 (7th Cir. 1993)). “Medical evidence may be
discounted if it is internally inconsistent or inconsistent with other evidence.” Id. (first citing 20
C.F.R. § 404.1527(c); then citing Luna v. Shalala, 22 F.3d 687, 690 (7th Cir. 1994)). A court on
review must uphold “all but the most patently erroneous reasons for discounting a treating
physician’s assessment.” Luster v. Astrue, 358 F. App’x 738, 740 (7th Cir. 2010) (citing Dixon v.
Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001)).

A.

Dr. Roth’s Opinion
As a result of the Plaintiff’s first appeal, Judge Simon remanded the matter to the

Commissioner because the ALJ erred by “ignoring [Dr. Roth’s] opinion without any
explanation.” (R. 722.) Judge Simon explained that “the ALJ simply didn’t address [Dr.] Roth’s
opinion at all, much less determine how much weight to afford it.” (Id. at 723)
The Plaintiff argues that the ALJ’s reasons for not giving weight to Dr. Roth’s opinion
“fails to make sense in context.” (Pl.’s Br. 12, ECF No. 12.) The Plaintiff argues that the ALJ
“wants to set Roth’s November 2011 and January 2012 opinions aside for being formed as little

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as 40-some days after the Date Last Insured.” (Id.) The Plaintiff also takes issue with how the
ALJ weighted and “prioritized” Dr. Roth’s opinion.
In turn, the Defendant argues that the ALJ complied with Judge Simon’s prior remand
instructions. The Defendant argues that Judge Simon did not require the ALJ to give Dr. Roth’s
opinions any particular weight; instead, Judge Simon instructed the ALJ to consider Dr. Roth’s
opinions and explain what weight she accorded them. The Defendant points specifically to Judge
Simon’s comment, “Maybe Dr. Roth’s impressions will do nothing to change the final outcome
here, but the ALJ must at least explain why that’s the case.” (Id. at 722.)
Whatever mischaracterization the Plaintiff argues the ALJ made on remand, the
Plaintiff’s argument misses the thrust of the ALJ’s weight determination. Back on remand, the
ALJ acknowledged that the Court and the Appeals Council had directed her to “evaluate[] Dr.
Daniel Roth’s opinion and if not given controlling weight, explain the reasons for not doing so.”
(Id. at 546.) The ALJ then summarized Dr. Roth’s November 9, 2011, treatment note. The ALJ
noted that Dr. Roth’s impressions and diagnoses consisted of failed neck and lower back surgery,
chronic headaches, pain syndrome, cervical and lumbar radiculopathy, bilateral cervical/lumbar
facet arthropathy, sacroiliitis, and fibromyalgia. (Id. at 526, 553, 555.) The ALJ also noted that
Dr. Roth prescribed pain medications, injections, and a sleep aid. (Id. at 526, 555.) The ALJ
acknowledged that at a subsequent visit on January 4, 2012, the Plaintiff reported that the
injections resulted in an 80% improvement in her pain and that Dr. Roth prescribed Percocet and
increased her sleep medication to help with other pain. (Id. at 521–23, 555.)
The ALJ, over three pages in her decision, explained why she gave Dr. Roth’s
observations and clinical findings “significant weight” but his medical opinion “no weight.”
(Id. 557–59.) The ALJ noted that Dr. Roth made certain medical observations during the course

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of his examinations, such as tenderness in the Plaintiff’s neck, shoulders and back, reduced range
of motion, positive Hoffman’s sign on the right of the neck, intact sensation, and intact gait and
muscle strength (Id. at 521–22, 525–26, 555.) The ALJ acknowledged that these observations
were relevant medical evidence. Applying the factors set forth in 20 C.F.R. 404.1527(c), the ALJ
gave these observations “great weight.” The ALJ reasoned that, although Dr. Roth only
examined the Plaintiff twice and did not establish a long-term treatment relationship with her, his
observations were consistent with those made by the Plaintiff’s other healthcare providers.
(R. 557–59.)
But the ALJ also explained that Dr. Roth’s observations did not include opinions on the
Plaintiff’s functional abilities like sitting, standing, walking, lifting, pushing, pulling, as well as
environmental or postural limitations. (R. 559.) “Medical opinions are statements from
physicians and psychologists or other acceptable medical sources that reflect judgments about
the nature and severity of [the claimant’s] impairment[s], including [the claimant’s] symptoms,
diagnosis and prognosis, what [the claimant] can still do despite impairment[s], and [the
claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Because Dr. Roth’s
treatment records did not include those opinions, the ALJ determined that Dr. Roth’s opinion did
not qualify as a medical opinion under the regulations. See Books v. Chater, 91 F.3d 972, 978
(7th Cir. 1996) (“Given that [the physician] failed to venture an opinion as to the extent of [the
claimant’s] limitations or as to his residual functional capabilities, the evidentiary usefulness of
his findings is slight, at best.”).
Accordingly, the ALJ properly evaluated Dr. Roth’s treatment notes and observations in
accordance with the Court’s prior Opinion and Order and the regulations.

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B.

Dr. Shugart’s Opinion
Although the ALJ properly analyzed the record with respect to Dr. Roth, the Court must

also look at the remainder of the ALJ’s opinion. The Defendant argues that the ALJ complied
with the Court’s remand instructions. But Judge Simon’s Opinion and Order did not solely focus
on whether Dr. Roth’s opinion was given proper analysis. His instructions went further:
“Because this issue [was] enough for remand, there [was] no need to discuss the other issues
raised by [the Plaintiff] at [that] time. The ALJ should address [the Plaintiff’s] other arguments
as appropriate.” (R. 723.) The ALJ’s compliance with respect to Dr. Roth’s opinion does not
preclude the possibility that the ALJ improperly adjudged the remainder of the record.
The Plaintiff argues that the ALJ did not sufficiently account for Dr. Shugart’s opinions.
On July 29, 2011, Dr. Shugart performed surgery on the Plaintiff, placing a pin through her C6
and C5 neck vertebra, implanting a graft of a bone into her vertebra, preparing endplates for
insertion into her vertebral space, removing bony outgrowths from remaining original bone, and
placing an artificial front plate with screws drilled into vertebras C4, C5, and C6. At a postsurgical follow-up in September 2011, the Plaintiff reported she was feeling better but was still
"tight" through her shoulders. (Id. at 555.) X-rays showed her plate and graft were in good
position. (Id.) Dr. Shugart noted that the Plaintiff was doing well, and advised her to start
physical therapy twice a week and return to in eight weeks for a final x-ray. (Id.) The Plaintiff
did not return to see Dr. Shugart until May 2012, and instead went to see Dr. Roth in November
2011, six weeks after her date last insured ended. (Id.)
The Plaintiff argues that the ALJ mischaracterized the scope and impact of this surgery,
and instead, focused on minor details of the Plaintiff’s recovery that, as a result, improperly
characterized the Plaintiff’s full record. (Pl.’s Br. 13.) The Plaintiff argues that her full record

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indicates that surgical intervention was “worthwhile,” as well as the length of time it takes for
someone like the Plaintiff to recover back to “working health.” (Id.)
An ALJ “may not selectively discuss portions of a physician’s report that support a
finding of non-disability while ignoring other portions that suggest a disability.” Campbell v.
Astrue, 627 F.3d 299, 306 (7th Cir. 2009). But Dr. Shugart never suggested any functional
restrictions greater than those that the ALJ imposed. The Plaintiff does not identify those
functional restrictions, but instead, notes that the ALJ relied on “minor details” in Dr. Shugart’s
treatment notes to suggest that the Plaintiff functions at a higher level than she actually does.
The Court finds that the ALJ sufficiently reviewed the record and set forth that review in
her opinion. For instance, the ALJ acknowledged that the Plaintiff returned to see Dr. Shugart in
May 2012, and reported increased neck and right arm pain. (R. 559.) The ALJ also
acknowledged that Dr. Shugart noted that, at this visit, the Plaintiff still reported “a lot of
myofascial pain.” (Id.) Even if the ALJ failed to include other treatment observations that Dr.
Shugart reported, that is not fatal. The Seventh Circuit has established that an “ALJ is not
required to discuss every piece of evidence but is instead required to build a logical bridge from
the evidence to her conclusion.” Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009).
Furthermore, the ALJ gave “greatest weight” to Dr. Shugart’s records (R. 559.) The Plaintiff’s
argument improperly assumes that an ALJ must adopt all aspects of a medical opinion to which
she accords great weight. The Seventh Circuit has explained that in determining a claimant’s
RFC, “the ALJ is not required to rely entirely on a particular physician’s opinion or choose
between the opinions of any of the claimant’s physicians.” Schmidt v. Astrue, 496 F.3d 833, 845
(7th Cir. 2007).

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Accordingly, the ALJ properly analyzed the record with respect to Dr. Shugart’s expert
medical opinion.

II.

Proper Combination of Impairments in RFC
The Plaintiff argues that the ALJ erred by failing to incorporate into her RFC the

impairments in the combination that the Plaintiff faces, both as to those that predominated during
the period between the alleged onset date and the date last insured, and as to those directed on
the “first go-round to be given real consideration.” (Pl.’s Br. 19.) But substantial evidence
supports the ALJ’s finding that the Plaintiff could perform a reduced range of sedentary work
that the vocational expert identified. Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like files, ledgers, and small tools, and only
standing or walking for two hours each workday. 20 C.F.R. § 416.967(a); Social Security Ruling
83-10.
Here the Plaintiff was 40 years old as of her date last insured (Id. at 565.) The restrictions
on sedentary work alone account for the limiting effects of the Plaintiff's weakness and pain,
surgeries, hernia repair, fibromyalgia, and obesity. The ALJ limited the Plaintiff to standing and
walking for only two hours in an eight hour work day. (Id. at 552.) The ALJ prevented the
Plaintiff from climbing ladders, ropes, and scaffolds, and limited her to only occasionally
climbing ramps and stairs, balancing, stooping, kneeling, crouching, and crawling. (Id.) The ALJ
accounted for the limitations resulting from the Plaintiff’s migraines and mental impairments by

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restricting the Plaintiff to simple, routine, repetitive tasks and to work that entailed few changes
in the workplace and no fast production work. (Id.)
The ALJ noted that no medical professional stated that the Plaintiff had greater functional
limitations than the ALJ found:
The only actual opinion that addresses the claimant’s functional
limitations is that of a medical consultant for the State agency, Dr.
Jerry Smartt. He opined that the claimant was capable of light work
activities that included, but were not limited to sitting or
standing/walking for six hours during an eight-hour workday;
lifting, carrying, pushing and pulling up to twenty pounds
occasionally; and engaging in occasional postural changes.
(Id. at 559–60.) Dr. Smartt reviewed the Plaintiff's records one month before the Plaintiff’s date
last insured. (Id. at 416–23.) In determining the Plaintiff’s abilities, Dr. Smartt noted the
Plaintiff’s history of cervical disc disease, surgeries, fibromyalgia, neck and shoulder pain, and
headaches. (Id. at 417.) The ALJ also reviewed the medical findings of the Plaintiff's treating and
examining physicians. None of those physicians offered an opinion on the Plaintiff's functional
limitations and noted that routine examinations findings were largely consistent with the
restriction of a reduced range of sedentary work. (Id. at 554–64.)
The ALJ noted that reviewing psychologist Joelle J. Larsen, Ph.D., acknowledged the
Plaintiff’s affective and somatoform disorders, but determined that she had only mild restrictions
in activities of daily living; mild difficulties maintaining social functioning; and mild difficulties
maintaining concentration, persistence, or pace; and experienced no episodes of decompensation
of extended duration. (Id. at 375, 385, 551–52.) The ALJ correctly noted that another reviewing
psychologist, William A. Shipley, Ph.D., affirmed Dr. Larsen’s findings. (Id. at 424, 551–52.)
Nonetheless, the ALJ acknowledged that the prior administrative law judge found the Plaintiff to
be moderately limited in her abilities to perform mental tasks. Thus, despite the reviewing

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psychologists’ findings, the ALJ restricted the Plaintiff to simple, routine, repetitive tasks. This
work does not involve more than a few if any workplace changes and no more than simple workrelated decisions, and no fast paced production work (R. 564.)
Accordingly, substantial evidence supports the ALJ’s RFC Finding.

III.

Remaining Arguments
The Plaintiff raises a variety of other issues throughout her briefing that the Court now

addresses in turn. First, the Plaintiff suggests that the ALJ failed to account for the Plaintiff’s
stress for having “survived traumatic abuse during her formative years.” (Pl.’s Br. 11.) The
single progress note from Dr. Rutten that the Plaintiff cites in support of this argument does not
say what the Plaintiff suggests. Dr. Rutten’s note from May 18, 2012, was written almost eight
months after the expiration of the Plaintiff’s date last insured status. (R. 498.) The note indicates
that the Plaintiff reported “mood ‘depressed’ still crying stress & physical pain for fibromyalgia
& neck pain makes it worse. Memories from childhood also impact mood, bad dreams &
nightmares.” (Id.) However, the Plaintiff cites no mental-health professional’s opinion that the
Plaintiff’s past abuse prevented her from performing the limited work-related tasks that the ALJ
identified.
Second, the Plaintiff claims that the ALJ did not sufficiently account for her obesity.
(Pl.’s Br. 14–15.) But the Plaintiff cites no evidence to show that obesity diminished her
capabilities beyond what the ALJ found. All the Plaintiff notes is that her cardiologist
determined that while her heart was “ok,” she lacked “conditioning.” (Id.) The Plaintiff does not
elaborate any further. She does not explain what the cardiologist meant by "conditioning" or
specifies any restrictions the doctor recommended in light of her lack of conditioning. The
Plaintiff argues that obesity triggers shortness of breath. (Id.) But the Plaintiff cites no medical
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source for this assertion or explain why this would prevent the Plaintiff from performing a
limited range of sedentary work. Her claim that her obesity results in additional, unaccounted
limitations rest on improper speculation. See Prochaska v. Barnhart, 454 F.3d 731, 736–37 (7th
Cir. 2006) (speculation that obesity exacerbated impairments is insufficient); Skarbek v.
Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (same); Rutherford v. Barnhart, 399 F.3d 546,553
(3d Cir. 2005) (generalized claim that obesity exacerbates impairments is insufficient without
medical evidence specifying how or in what way it does so).
But contrary to the Plaintiff’s argument, the ALJ adequately considered the Plaintiff’s
obesity. The ALJ determined that obesity was a severe impairment and specifically accounted for
it when discussing her step three findings. (R. 549, 550). When crediting Dr. Smartt’s opinion of
the Plaintiff’s functional capacity, the ALJ made an explicit note that Dr. Smartt considered the
Plaintiff’s obesity. (Id. at 560.) Dr. Smartt recorded the Plaintiff’s height, weight, and body mass
index on the same form on which he expressed his opinion that the Plaintiff could perform a
range of, not sedentary, but light work. (Id. at 417.) See Prochaska, 454 F.3d at 736–67; Skarbek,
390 F.3d at 504 (ALJ’s failure to mention obesity not reversible error because the ALJ relied on
the opinions of doctors who were aware of the claimant’s obesity). The Plaintiff does not cite
medical evidence or medical opinions contradicting Dr. Smartt’s opinion, which the ALJ
reasonably credited.
Accordingly, upon review of the record, the Court does not find a basis in the Plaintiff’s
remaining arguments to remand the ALJ’s opinion.

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CONCLUSION
For the reasons stated above, the Court AFFIRMS the Commissioner’s decision.

SO ORDERED on September 6, 2017
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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