Hernandez v. Commissioner of Social Security

Filing 32

OPINION AND ORDER: The decision of the Commissioner is AFFIRMED. The Clerk is directed to enter a judgment in favor of the Commissioner and against Hernandez. Signed by Magistrate Judge Susan L Collins on 8/22/2018. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
PATRICIA LEEANN HERNANDEZ,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY, sued as Nancy A. Berryhill,
Acting Commissioner of SSA,1
Defendant.

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CAUSE NO. 1:16-cv-00323-SLC

OPINION AND ORDER
Plaintiff Patricia Leeann Hernandez appeals to the district court from a final decision of
the Commissioner of Social Security (“Commissioner”) denying her application under the Social
Security Act (the “Act”) for Supplemental Security Income (“SSI”).2 (DE 1). For the following
reasons, the Commissioner’s decision will be AFFIRMED.
I. FACTUAL AND PROCEDURAL HISTORY
Hernandez applied for SSI in March 2013, alleging disability as of June 1, 2012. (DE 8
Administrative Record (“AR”) 155-63). The Commissioner denied Hernandez’s application
initially and upon reconsideration. (AR 92-95, 101-07). A hearing was held on December 9,
2014, before Administrative Law Judge Maryann Bright (the “ALJ”), at which Hernandez, who
was represented by counsel, and a vocational expert, Sharon Ringenberg (the “VE”), appeared.
(AR 31-72). On February 20, 2015, the ALJ rendered an unfavorable decision to Hernandez,
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security, see Casey v. Berryhill, 853 F.3d
322 (7th Cir. 2017), and thus, she is automatically substituted for Carolyn W. Colvin in this case, see Fed. R. Civ. P.
25(d).
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All parties have consented to the Magistrate Judge. (DE 13); see 28 U.S.C. § 636(c).

concluding that she was not disabled because she could perform a significant number of
sedentary jobs in the economy despite the limitations caused by her impairments. (AR 14-24).
The Appeals Council denied Hernandez’s request for review (AR 1-10), at which point the
ALJ’s decision became the final decision of the Commissioner. See 20 C.F.R. § 416.1481.
Hernandez filed a complaint with this Court on September 2, 2016, seeking relief from
the Commissioner’s decision. (DE 1). Hernandez advances just one argument in this appeal:
that the ALJ improperly evaluated the opinion of her treating specialist, Dr. Brandon Hardesty.
(DE 20 at 5-6).
At the time of the ALJ’s decision, Hernandez was 28 years old (AR 24, 155); had
completed the 10th grade (AR 186); and had past work experience as a cashier, a waitress, and a
production assembler (AR 186, 216). At the time of the hearing, Hernandez was five feet, eight
inches tall, and weighed 250 pounds. (AR 185). Hernandez alleges disability due to
antiphospholipid antibody syndrome, history of deep venous thrombosis (“DVT”), torn meniscus
in the left knee, obesity, and lumbar degenerative disc disease. (DE 20 at 2).
II. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42
U.S.C. § 405(g); see 42 U.S.C. § 1383(c)(3). The Court’s task is limited to determining whether
the ALJ’s factual findings are supported by substantial evidence, which means “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Schmidt v.
Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (citation omitted). The decision will be reversed

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only if it is not supported by substantial evidence or if the ALJ applied an erroneous legal
standard. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
To determine if substantial evidence exists, the Court reviews the entire administrative
record but does not re-weigh the evidence, resolve conflicts, decide questions of credibility, or
substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner
are supported by substantial evidence, they are conclusive. Id. Nonetheless, “substantial
evidence” review should not be a simple rubber-stamp of the Commissioner’s decision. Id.
III. ANALYSIS
A. The Law
Under the Act, a plaintiff is entitled to SSI if she “is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
. . . has lasted or can be expected to last for a continuous period of not less than twelve months.”
42 U.S.C. § 1382c(a)(3)(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. §
1382c(a)(3)(D).
In determining whether Hernandez is disabled as defined by the Act, the ALJ conducted
the familiar five-step analytical process, which required her to assess the following issues in
sequence: (1) whether the claimant is currently unemployed; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment or combination of impairments meets
or equals one of the impairments listed by the Commissioner, see 20 C.F.R. § 404, Subpt. P,
App’x 1; (4) whether the claimant is unable to perform her past work; and (5) whether the

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claimant is incapable of performing work in the national economy.3 See Dixon v. Massanari,
270 F.3d 1171, 1176 (7th Cir. 2001); 20 C.F.R. § 416.920. An affirmative answer leads either to
the next step or, on steps three and five, to a finding that the claimant is disabled. Zurawski v.
Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative answer at any point other than step three
stops the inquiry and leads to a finding that the claimant is not disabled. Id. The burden of proof
lies with the claimant at every step except the fifth, where it shifts to the Commissioner. Id. at
885-86.
B. The ALJ’s Decision
On February 20, 2015, the ALJ issued the decision that ultimately became the
Commissioner’s final decision. (AR 14-24). She found at step one of the five-step analysis that
Hernandez had not engaged in substantial gainful activity after her application date of March 21,
2013. (AR 16). At step two, the ALJ determined that Hernandez had the following severe
impairments: antiphospholipid antibody syndrome, history of DVT, torn meniscus left knee,
obesity, and lumbar degenerative disc disease. (AR 16). At step three, the ALJ found that
Hernandez’s impairment or combination of impairments were not severe enough to meet a
listing. (AR 18).
Before proceeding to step four, the ALJ concluded that Hernandez’s symptom testimony
was not entirely credible (AR 20) and assigned the following RFC:
[T]he claimant has the [RFC] to perform less than the full range of
sedentary work . . . . She can engage in lifting, carrying, pushing
and pulling up to 10 pounds occasionally; standing or walking for
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Before performing steps four and five, the ALJ must determine the claimant’s residual functional capacity
(“RFC”) or what tasks the claimant can do despite her limitations. 20 C.F.R §§ 416.920(e), 416.945. The RFC is
then used during steps four and five to help determine what, if any, employment the claimant is capable of. 20
C.F.R. §§ 416.920(e), 416.945(a)(5).

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approximately 2 hours per 8-hour work day, and sitting for
approximately 6 hours per 8[-]hour work day, with normal breaks
and with the option to sit or stand alternatively at will provided
that she is not off task more than 10% of the work period;
occasional[ly] climbing ramps and stairs, balancing, stooping,
crouching, kneeling, and crawling; never climbing ladders, ropes,
and scaffolds. The claimant must avoid concentrated exposure to
hazards such as operating dangerous vehicles and machinery and
working around unprotected heights. The claimant should avoid
concentrated exposure to extreme heat, extreme cold, wetness, and
excessive vibration.
(AR 19). At step four, the ALJ concluded that Hernandez could not perform any of her past
relevant work. (AR 22). At step five, based on the assigned RFC and the VE’s testimony, the
ALJ concluded that a hypothetical individual with Hernandez’s RFC, experience, and education
could perform a significant number of unskilled, sedentary occupations in the economy,
including a charge account clerk, a telephone order clerk, and an addresser. (AR 23). Therefore,
Hernandez’s claim for SSI was denied. (AR 24).
C. Dr. Hardesty’s Opinion and the Assigned RFC
Hernandez argues that the RFC assigned by the ALJ is not supported by substantial
evidence. Specifically, Hernandez faults the ALJ for not fully adopting the medical statement
issued after the hearing by Dr. Hardesty, her treating specialist, in which Dr. Hardesty opined
that Hernandez needs to elevate her legs above the waist for two to three hours during an eighthour workday. (AR 834). Contrary to Hernandez’s assertion, the assigned RFC is supported by
substantial evidence.
The RFC is “the individual’s maximum remaining ability to do sustained work activities
in an ordinary work setting on a regular and continuing basis,” meaning eight hours a day, for
five days a week. SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996). That is, the “RFC is not

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the least an individual can do despite his or her limitations or restrictions, but the most.” SSR
96-8p, 1996 WL 374284, at *1; see 20 C.F.R. § 416.945(a)(1) (“Your [RFC] is the most you can
still do despite your limitations.”); see also Young v. Barnhart, 362 F.3d 995, 1000-02 (7th Cir.
2004) (citations omitted). The RFC assessment “is based upon consideration of all relevant
evidence in the case record, including medical evidence and relevant nonmedical evidence, such
as observations of lay witnesses of an individual’s apparent symptomology, an individual’s own
statement of what he or she is able or unable to do, and many other factors that could help the
adjudicator determine the most reasonable findings in light of all the evidence.” SSR 96-5p,
1996 WL 374183, at *5 (July 2, 1996); see 20 C.F.R. § 416.945. Therefore, when determining
the RFC, the ALJ must consider all medically determinable impairments, mental and physical,
even those that are non-severe. 20 C.F.R. § 416.945(a)(2); see also Craft v. Astrue, 539 F.3d
668, 676 (7th Cir. 2008).
The Seventh Circuit Court of Appeals has stated that “more weight is generally given to
the opinion of a treating physician because of his greater familiarity with the claimant’s
conditions and circumstances.” Clifford, 227 F.3d at 870 (citations omitted); see 20 C.F.R. §
416.927(c)(2). However, this principle is not absolute, as “a treating physician’s opinion
regarding the nature and severity of a medical condition is [only] entitled to controlling weight if
it is well supported by medical findings and not inconsistent with other substantial evidence in
the record.”4 Clifford, 227 F.3d at 870 (citing 20 C.F.R. 404.1527(d)(2)); see Johansen v.

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In the event the treating physician’s opinion is not well supported or is inconsistent with other substantial
evidence, the Commissioner must apply the following factors to determine the proper weight to give the opinion: (1)
the length of the treatment relationship and frequency of examination; (2) the nature and extent of the treatment
relationship; (3) how much supporting evidence is provided; (4) the consistency between the opinion and the record
as a whole; (5) whether the treating physician is a specialist; and (6) any other factors brought to the attention of the
Commissioner. See Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996); 20 C.F.R. § 416.927(c).

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Barnhart, 314 F.3d 283, 287 (7th Cir. 2002). The Commissioner must always give good reasons
for the weight ultimately applied to the treating source’s opinion. Clifford, 227 F.3d at 870; 20
C.F.R. § 416.927(c)(2).
Here, the record reveals that Hernandez saw Dr. Hardesty of the Indiana Hemophilia &
Thrombosis Center in November 2013, January 2014, and November 2014 for her
antiphospholipid antibody syndrome and recurrent thromboses. (AR 728-35, 819-21). At those
visits, Hernandez did not complain of lower extremity edema, and upon clinical examination, no
lower extremity edema was observed. (AR 728-35, 819-20). Nor did Dr. Hardesty’s treatment
notes mention any need for Hernandez to elevate her legs. (AR 728-35, 819-21). Similarly,
treatment notes from other providers of record did not reflect regular edema in Hernandez’s legs
or a need for Smith to elevate her legs. (See, e.g., 276 (no edema), 361 (same), 368 (same), 380
(same), 391 (same), 415 (“trace” edema), 417 (no edema), 440 (same), 443 (same), 494 (same),
513 (same), 533 (mild left leg edema), 580 (no edema), 591 (same), 612 (same), 652-54
(complained of edema after walking at the county fair, but no edema noted on exam), 658 (no
edema), 663-65 (same), 669-71 (same), 725 (same), 760 (same), 765 (same), 772 (same), 782
(same)). In fact, Hernandez does not dispute that the only mention in any treatment notes
concerning elevation of her legs was in an emergency room note in March 2013, in which she
was instructed to “rest, elevate the left leg, [and] wear the compression stocking in the day time
when up.” (AR 535).
At the hearing, however, Hernandez testified that her left leg “swells easily and very bad”
such that it has to be “propped up a lot,” and that every night when she goes to bed her legs are
swollen. (AR 50, 62). She stated that she typically elevates her left leg four to five hours during

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an eight-hour time period, and that the least amount she could elevate her left leg to avoid severe
swelling is two to two-and-a-half hours in an eight-hour time period. (AR 50-51, 55-57). In
order to elevate her left leg above her waist, she sits in a recliner or lies in bed and puts pillows
or a heavy blanket under her leg, commenting that “that’s what Jill [Berg, a cardiac practitioner,]
always tells me to get the swelling to go down.” (AR 51).
When posing hypotheticals to the VE, the ALJ asked the VE how high of elevation of
feet is tolerated in sedentary work. (AR 67-68). The VE responded that a person could still
perform sedentary work if she needed to elevate her feet up to 18 inches, but that all competitive
jobs would be eliminated if she needed to elevate her feet to waist height. (AR 67-68).
At the close of the hearing, the ALJ asked Hernandez’s attorney whether he had anything
further. (AR 69). The attorney added that he viewed Hernandez’s need to elevate her legs as
consistent with the evidence of a severe thrombosis and severe clotting disorder. (AR 69-70).
The ALJ inquired as to where in the medical record there was medical evidence supporting a
need for Hernandez to elevate her feet to waist height. (AR 70). Hernandez’s attorney then
conceded that this purported need was not documented in the record, but that Dr. Hardesty and
Ms. Berg had told Hernandez to do so; the attorney then asked the ALJ if he could “have some
time to try and get something.” (AR 70). The ALJ then asked Hernandez whether Dr. Hardesty
and Ms. Berg had instructed her to keep her legs up; Hernandez responded: “[Dr. Hardesty]
advised me, if . . . my legs begin to swell, to elevate them.” (AR 71).
The day after the hearing, Dr. Hardesty completed a one-page medical statement on
Hernandez’s behalf, answering three interrogatories posed by Hernandez’s counsel. (AR 834).
As to whether Hernandez needed to elevate her legs during the day, Dr. Hardesty circled “Yes,”

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and as to “how many hours in an eight hour day,” Dr. Hardesty circled “2” and “3.” (AR 834).
As to “how high,” Dr. Hardesty circle “Above the Waist.” (AR 834). In the Diagnoses and
Comments section, Dr. Hardesty wrote: “Antiphospholipid Antibody Syndrome, [history] of
DVT.” (AR 834).
In her decision, the ALJ considered Hernandez’s assertions of frequent leg edema, that
her compression stockings allegedly did not alleviate the edema, her purported need to elevate
her legs for two to five hours a day, and Dr. Hardesty’s medical statement indicating that
Hernandez needs to elevate her legs above her waist for two to three hours in an eight-hour
period. (AR 20-22). The ALJ concluded, however, that Hernandez’s symptom testimony was
not entirely credible, a finding that Hernandez does not challenge in this appeal. (AR 20). In
doing so, the ALJ observed that Hernandez’s examinations consistently revealed little to no
lower extremity edema and that medications appeared effective in managing this symptom. (AR
21-22). Additionally, the ALJ specifically addressed Dr. Hardesty’s medical statement as
follows:
Post-hearing, the claimant’s representative submitted a medical
statement from the claimant’s treating source, Dr. Hardesty, stating
that she needs to elevate her legs above the waist for 2-3 hours a
day (Ex. 32F). However, as his treatment notes at exhibits 22F and
30F do not reflect complaints or findings of lower extremity edema
and do not support a need to elevate her legs at waist level, the
undersigned gives only partial weight to this medical source
opinion (SSR 96-2p). Per testimony from the impartial vocational
expert, the above [RFC] would accommodate an individual
elevating her feet up to 18 inches.
(AR 22).
Hernandez argues that the ALJ erred in not fully crediting Dr. Hardesty’s opinion about
her need to elevate her legs above her waist for two to three hours in an eight-hour workday, and
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in failing to find her disabled as a result of this limitation. The Court is not persuaded. The ALJ
gave a “good reason” for not fully adopting Dr. Hardesty’s limitation. See Scott v. Astrue, 647
F.3d 734, 739 (7th Cir. 2011) (“An ALJ must offer ‘good reasons’ for discounting the opinion of
a treating physician.” (citations omitted)). The ALJ observed that Dr. Hardesty’s medical
statement was not supported by, or consistent with, his own treatment notes, in that his treatment
notes do not reveal complaints or findings of lower extremity edema or a need for Hernandez to
elevate her legs at waist level.5 (AR 22); see Richison v. Astrue, 462 F. App’x 622, 625 (7th Cir.
2012) (finding a treating specialist’s opinion that the claimant must elevate his legs all day as
internally inconsistent with the specialist’s own treatment notes, which made no mention of a
need for the claimant to elevate his feet); Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir.
2008) (noting that an ALJ can discount a physician’s opinion if it is internally inconsistent);
Clifford, 227 F.3d at 871 (explaining that medical evidence may be discounted if it is internally
inconsistent).
Hernandez, however, argues that the ALJ mischaracterized the evidence in that
Hernandez did complain of lower extremity swelling to Dr. Ami Rice, an examining physician.6
(DE 20 at 6 (citing AR 579)). But Hernandez’s argument is misplaced; the ALJ correctly
observed that Dr. Hardesty’s own treatment notes do not reveal any complaints or findings of
lower extremity edema. (AR 22). Thus, the ALJ did not mischaracterize the record in this
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Curiously, Hernandez contends in her reply brief that the Commissioner’s argument “that the treatment
notes say nothing about instructions to elevate her legs” is impermissible post hoc argument. (DE 31 at 1). But
Hernandez is wrong; the ALJ expressly listed this as a reason to discount Dr. Hardesty’s medical statement. (See
AR 22 (“However, as his treatment notes at exhibits 22F and 30F do not reflect complaints or findings of lower
extremity edema and do not support a need to elevate her legs at waist level, the undersigned gives only partial
weight to this medical source opinion (SSR 96-2p).” (emphasis added))).
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Although Hernandez complained of lower extremity edema to Dr. Rice, Dr. Rice’ clinical examination
documented an absence of any lower extremity edema. (AR 580).

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respect.
Hernandez also argues that her use of compression stockings and elevating her legs four
to five hours in the recliner at home are successful in controlling her edema, and that is why her
clinical examinations consistently revealed an absence of edema. (DE 20 at 6). But this
argument is at odds with Hernandez’s own testimony at the hearing. Hernandez testified that she
wears the compression stockings but they do not “help all that much” in keeping the swelling
down, that her legs and feet start to swell after standing just 15 to 20 minutes, and that every
night when she goes to sleep, her legs are swollen. (AR 45-46, 49, 62). This testimony
portraying constant edema sharply contrasts with the consistent findings of no or little lower
extremity edema during clinical examinations.
Finally, Hernandez argues that Dr. Hardesty’s instruction to elevate her legs above the
waist for two to three hours each workday was “not just for edema but to avoid clotting in the
first place.” (DE 20 at 6). But again this argument defies Hernandez’s own testimony at the
hearing. Hernandez testified that Dr. Hardesty advised her that “if . . . [her] legs begin to swell,
to elevate them.” (AR 71). The ALJ reasonably inferred that Dr. Hardesty would have included
a restriction for Smith to regularly elevate her legs above her waist in his treatment notes if it
was medically necessary for her diagnoses of antiphospholipid antibody syndrome and history of
DVT. (AR 22); see Stevenson v. Chater, 105 F.3d 1151, 1155 (7th Cir. 1997) (acknowledging
that an ALJ is entitled to make reasonable inferences from the evidence before him). As such,
the ALJ assigned partial weight to Dr. Hardesty’s medical statement and reasonably concluded,
per the VE’s testimony, that the assigned RFC would accommodate Hernandez elevating her feet
up to 18 inches during the workday. (AR 22, 67-68). Therefore, Hernandez’s final argument

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lacks traction.
In sum, “[a]n ALJ may discount a treating physician’s medical opinion if it is . . .
internally inconsistent, as long as [she] minimally articulate[s] his reasons for crediting or
rejecting evidence of disability.” Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004) (third
alteration in original) (citation omitted); see Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002)
(stating that the ALJ must sufficiently articulate his assessment of the evidence to assure the
court that he considered the important evidence and to enable the court to trace the path of his
reasoning). Here, the ALJ adequately explained why she assigned partial weight to Dr.
Hardesty’s opinion that Hernandez needed to elevate her legs at waist level two to three hours in
an eight-hour workday, and the ALJ’s rationale for doing so is supported by the record. See
Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007) (observing that in assigning an RFC, “an
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” (citation omitted)); 20 C.F.R. § 416.946(c); SSR
96-5p, 1996 WL 374183, at *4. Consequently, the ALJ’s consideration of Dr. Hardesty’s
opinion and the assigned RFC will be affirmed.
IV. CONCLUSION
For the foregoing reasons, the decision of the Commissioner is AFFIRMED. The Clerk
is directed to enter a judgment in favor of the Commissioner and against Hernandez.
SO ORDERED.
Entered this 22nd day of August 2018.
/s/ Susan Collins
Susan Collins
United States Magistrate Judge

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