Ritchie v. Commissioner of Social Security

Filing 26

OPINION AND ORDER: The decision of the Commissioner of Social Security is AFFIRMED. Signed by Judge William C Lee on 6/14/2017. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ALAN LEE RITCHIE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL NO. 1:16cv246

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 Supplemental
Security Income (SSI) as provided for in the Social Security Act. 42 U.S.C. §416(I). 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:
1.

The claimant has not engaged in substantial gainful activity since January 12,
2015, the application date (20 CFR 416.971 et seq.)(Exhibits B-6-D through B-8D).
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2.

The claimant has the following severe impairments: degenerative disc disease of
the lumbar spine, obesity, bipolar disorder, depression, anxiety and obsessivecompulsive disorder (20 CFR 416.920(c)).

3.

The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform the full range of light
work as defined in 20 CFR 416.967(b), except that he cannot climb ladders, ropes,
and scaffolds or engage in frequent postural changes. However, the claimant is
capable of balancing on a frequent basis and of occasional stooping, kneeling,
crouching, crawling, simple instructions, make judgments on simple work related
decisions, respond appropriately to unusual work situations and deal with changes
in a routine work setting. As to social interactions, he can respond appropriately
to occasional interactions with supervisors, co-workers, and the general public.

5.

The claimant is unable to perform any past relevant work (20 CFR 416.965).

6.

The claimant was born on November 17, 1971, and was 43 years old, which is
defined as a younger individual age 18-44, on the date the application was filed
(20 CFR 416.963).

7.

The claimant has at least a high school education and is able to communicate in
English (20 CFR 416.964).

8.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the claimant has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

9.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).

10.

The claimant has not been under a disability, as defined in the Social Security Act,
since January 12, 2015, the date the application was filed (20 CFR 416.920(g)).

(Tr. 18- 33)
Based upon these findings, the ALJ determined that Plaintiff was not entitled to SSI

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benefits. The ALJ’s decision became the final agency decision when the Appeals Council denied
review. This appeal followed.
Plaintiff filed his opening brief on December 30, 2016. On March 30, 2017, the
defendant filed a memorandum in support of the Commissioner’s decision. Plaintiff has declined
to file a reply. Upon full review of the record in this cause, this court is of the view that the
ALJ’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, 229091 (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
disabled.
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 five was the determinative inquiry.
Plaintiff’s sole argument is that the ALJ erred when she discounted the opinions of
Plaintiff’s treating physician, Ajit Pai, M.D. Accordingly, Plaintiff has waived any other basis on
which to challenge the decision. See Hernandez v. Cook Cnty. Sheriff's Office, 634 F.3d 906, 913

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(7th Cir. 2011) (“It is well established in our precedents that ‘skeletal’ arguments may be properly
treated as waived, as may arguments made for the first time in reply briefs.”) (citations omitted);
Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001) (“‘We have held time and again that
perfunctory and undeveloped arguments (even constitutional ones) are waived.’”) (quoting United
States v. Andreas, 150 F.3d 766, 769 (7th Cir. 1998)).
In response to Plaintiff’s argument, Defendant contends that the ALJ reasonably found
that Dr. Pai’s records and opinions were not consistent with those of a number of other medical
providers and, as such, were due little weight.
The pertinent medical history is as follows. A March 20, 2014, MRI study of Plaintiff’s
back showed very mild bilateral foraminal narrowing at the L5-Sl disc level secondary to minimal
anterolisthesis of L5 on S1. AR 20; AR 916. On April 2, 2014, Braden McKinley, N.P.C., wrote
that Plaintiff had a stable gait, and no musculoskeletal pain or weakness with normal joint
movement. AR 870, 1026. However, on April 30, 2014, Dr. Pai wrote that Plaintiff had an
antalgic gait, moderate musculoskeletal tenderness and a positive straight leg raising test in the
right leg with leg strength 5/5 in both legs. AR 1082.
On May 7, 2014, Braden McKinley, N.P.C., wrote that Plaintiff had a stable gait, and no
musculoskeletal pain or weakness with normal joint movement. AR 866, 1022. However, on
June 25, 2014, Dr. Pai wrote that Plaintiff had an antalgic gait, moderate musculoskeletal
tenderness and a positive straight leg raising test in the right leg with leg strength 5/5 in both legs.
AR 1086, 1190. On August 20, 2014, Dr. Pai wrote that Plaintiff had an antalgic gait, moderate
musculoskeletal tenderness and a positive straight leg raising test in the right leg with leg strength
5/5 in both legs. AR 1088-89, 1193.
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On August 28, 2014, Shelia Blakely, M.D. wrote that Plaintiff had no musculoskeletal
tenderness and had normal range of motion. AR 951. On September 3, 2014, Abdali Jan, M.D.,
wrote that Plaintiff had a stable gait and no musculoskeletal pain or weakness with normal joint
movement. AR 1018. On September 9, 2014, Laura Silver, N.P. wrote that Plaintiff had an
unsteady gait (he stated he had been drinking) and no musculoskeletal pain or weakness with
normal joint movement. AR 1012-13. On September 23, 2014, Laura Silver, N.P., wrote that
Plaintiff had a stable gait and no musculoskeletal pain or weakness with normal joint movement.
AR 1010. However, on October 22, 2014, Dr. Pai wrote that Plaintiff had an antalgic gait,
moderate musculoskeletal tenderness and a positive straight leg raising test in both legs with leg
strength 5/5 in both legs. AR 1091, AR 1195-96.
Yet, on October 28, 2014, Abdali Jan, M.D., wrote that Plaintiff had a stable gait and no
musculoskeletal pain or weakness with normal joint movement. AR 1005. Then, on December
17, 2014, Dr. Pai wrote that Plaintiff had an antalgic gait, moderate musculoskeletal tenderness
and a positive straight leg raising test in the left with leg strength 5/5 in both legs. AR 1095, 1199.
On January 20, 2015, Stephanie Shire, F.N.P.C., wrote that Plaintiff had a stable gait and
no musculoskeletal pain or weakness with normal joint movement. AR 1001. However, on
February 4, 2015, Dr. Pai wrote that Plaintiff had an antalgic gait, moderate musculoskeletal
tenderness and a positive straight leg test in the right leg with leg strength 5/5 in both legs. AR
1098, 1048, 1203. Yet, on February 10, 2015, Shashank Kashyap, M.D., wrote that Plaintiff had a
stable gait and no musculoskeletal pain or weakness with normal joint movement. AR 1116.
On March 10, 2015, Shashank Kashyap, M.D., wrote the Plaintiff had a stable gait and no
musculoskeletal pain or weakness with normal joint movement. AR 1113. However, on April 1,
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2015, Dr. Pai wrote that Plaintiff had an antalgic gait, moderate musculoskeletal tenderness, and a
positive straight leg raising test in the left with leg strength 5/5 in both legs. AR 1151, 1207.
On May 8, 2015, Abdali Shakoor Jan, M.D., wrote that Plaintiff had no back/
musculoskeletal tenderness and normal range of motion in his extremities. AR1119. However,
on May 27, 2015, Dr. Pai wrote that Plaintiff had an antalgic gait, moderate musculoskeletal
tenderness and a positive straight leg raising test in the right leg with leg strength 5/5 equally in
both legs. AR 1155, 1211. On July 22, 2015, Dr. Pai wrote that Plaintiff had an antalgic gait,
moderate musculoskeletal tenderness and a positive straight leg raising test in both legs with leg
strength 5/5 in both legs. AR 1215. Yet, on July 25, 2015, Heather Sickafoose, P.A., wrote that
Plaintiff had no musculoskeletal tenderness and had normal range of motion. AR 1342.
On August 10, 2015, Braden McKinley, N.P., wrote that Plaintiff had no back/
musculoskeletal tenderness, normal range of motion in his extremities and normal motor
function. AR 1183. On September 21, 2015, Braden McKinley, N.P., wrote that Plaintiff had no
back/musculoskeletal tenderness, normal range of motion in his extremities and normal motor
function. AR 1176.
On October 14, 2015, Dr. Pai wrote a prescription for a walking support cane. AR 1186.
In an undated letter, Dr. Pai wrote that he did not think Plaintiff would be able to function in an
eight-hour job which requires standing, sitting, bending, or lifting. AR 1313.
As noted, the only issue before the court is whether substantial evidence supports the
ALJ’s conclusion that Dr. Pai’s opinions were entitled to little weight. The record shows that Dr.
Pai prescribed Plaintiff a cane and offered an opinion that Plaintiff could not do an eight-hour job
that required him to stand, sit, bend and lift due to back and leg pain. AR 1186, 1313. The ALJ
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found that Dr. Pai’s opinion was entitled to little weight. AR 26. In reaching this conclusion, the
ALJ noted that Dr. Pai’s examination findings contrasted with the findings made with other
medical providers. AR 25-26. Plaintiff, however, contends that the inconsistency between Dr.
Pai’s notes and the observations of other medical personnel is not a valid basis on which to
discount Dr. Pai’s opinions. Plaintiff Br. 8-9.
The regulations specifically note that an ALJ can give less weight to an opinion if it is not
consistent with the other records on whole. 20 C.F.R. § 416.927(c)(2)(4); see also 20 C.F.R. §
404.1527(c)(2)(4). In the present case, the ALJ specifically noted that “physical examinations by
various healthcare providers at the primary care physician's office (Dr. Abdali Jan) have just as
routinely shown the claimant to have a stable gait, no pain/tenderness, normal joint movement,
and no muscle weakness.” AR 25 (citing Exhibits 9-F, B-3-F, B-7-F, B-13-F and B-18-F (AR
864-904, 999-1032, 1112-1120, 1174-1185, 1314-1330)). In addition, the ALJ noted that
observations from Dr. Pai’s notes contrasted with notations from a hospital admission. AR 25
(comparing B15F with B20F (AR 1187-1220 with AR 1340-1384)).
The record clearly and vividly shows that Plaintiff presented in one manner with general
practitioners, but suddenly became worse every time he saw Dr. Pai, his pain specialist. Thus, the
ALJ correctly concluded that the information received by Dr. Pai was not entirely accurate and, as
such, neither were his opinions. This was a proper conclusion for the ALJ to make. See Shideler
v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012) (“We do not reweigh the evidence or substitute our
own judgment for that of the ALJ; if reasonable minds can differ over whether the applicant is
disabled, we must uphold the decision under review.”); Donahue v. Barnhart, 279 F.3d 441, 444
(7th Cir. 2002) (“resolution of competing arguments based on the record is for the ALJ, not the
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court”).
The ALJ acknowledged that Dr. Pai was a specialist and had a history of treating Plaintiff.
AR 26. While the ALJ concluded that it was reasonable that Plaintiff had some limitations, Dr.
Pai’s specialty or treatment history was not enough to outweigh the inconsistencies in Plaintiff’s
presentation.
Plaintiff contends that it was wrong for the ALJ to rely on a March 2014 MRI in
discounting Dr. Pai’s opinion. Plaintiff Br. 9-10; AR 916 (March 20, 2014 MRI report). However,
the ALJ did not specifically rely on that MRI in discounting Dr. Pai’s opinions. See AR 25-26,
26-27. In any event, to the extent that Plaintiff contends that the ALJ “played doctor” in
interpreting the MRI report, the record shows that the MRI was reviewed and considered by state
agency reviewing physicians Richard Wenzler, M.D. (AR 173) and J. Sands, M.D. (AR 188) both
of whom the ALJ gave substantial weight (AR 27), and both of whom found that Plaintiff could
do light work with some postural limitations (AR 172-74, 187-89), as did the ALJ (AR 24). Thus,
the ALJ properly discounted Dr. Pai’s opinion pursuant to the regulations.
Accordingly, as substantial evidence supports the ALJ’s decision, the decision will be
affirmed.

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Conclusion
On the basis of the foregoing, the ALJ’s decision is hereby AFFIRMED.

Entered: June 14, 2017.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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