Roberts v. Commissioner of Social Security
Filing
26
OPINION AND ORDER: The Defendant's Decision is AFFIRMED. The Clerk is directed to enter judgment in favor of Defendant and against Plaintiff. Signed by Judge Gretchen S Lund on 5/13/2024. (mrm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
DUSTIN ROBERTS,
Plaintiff,
v.
MARTIN J. O’MALLEY,
Commissioner of Social Security,
Defendant.
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Case No. 1:23-CV-363-GSL
OPINION AND ORDER
This matter comes before the Court on Plaintiff Dustin Roberts’ (“Roberts”) appeal of the
Social Security Administration’s Decision dated February 6, 2023 (the “Decision”) which found
that Roberts was not disabled and not entitled to disability benefits. The parties have briefed the
appeal. After considering the briefing and the administrative record, the Court finds, for the
following reasons, that the Decision must be affirmed.
ANALYSIS
A.
Standard of Review
A claimant who is found to be “not disabled” may challenge the Commissioner’s final
decision in federal court. This Court must affirm the ALJ’s decision if it is supported by
substantial evidence and free from legal error. 42 U.S.C. § 405(g); Steele v. Barnhart, 290 F.3d
936, 940 (7th Cir. 2002). Substantial evidence is “more than a mere scintilla of proof.” Kepple v.
Massanari, 268 F.3d 513, 516 (7th Cir. 2001). It means “evidence a reasonable person would
accept as adequate to support the decision.” Murphy v. Astrue, 496 F.3d 630, 633 (7th Cir. 2007);
see also Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995) (substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”) (citation and
quotations omitted). In determining whether there is substantial evidence, the Court reviews the
entire record. Kepple, 268 F.3d at 516. However, review is deferential. Skinner v. Astrue, 478 F.3d
836, 841 (7th Cir. 2007). A reviewing court will not “reweigh evidence, resolve conflicts, decide
questions of credibility, or substitute [its] own judgment for that of the Commissioner.” Lopez v.
Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (quoting Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.
2000)). Nonetheless, if, after a “critical review of the evidence,” the ALJ’s decision “lacks
evidentiary support or an adequate discussion of the issues,” this Court will not affirm it. Lopez,
336 F.3d at 539 (citations omitted).
While the ALJ need not discuss every piece of evidence in the record, he “must build an
accurate and logical bridge from the evidence to [the] conclusion.” Dixon v. Massanari, 270 F.3d
1171, 1176 (7th Cir. 2001). Further, the ALJ “may not select and discuss only that evidence that
favors his ultimate conclusion,” Diaz, 55 F.3d at 308, but “must confront the evidence that does not
support his conclusion and explain why it was rejected,” Indoranto v. Barnhart, 374 F.3d 470, 474
(7th Cir. 2004). Ultimately, 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 the ALJ’s reasoning.” Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (quoting
Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985) (internal quotation marks omitted)).
B.
Procedural Background
Roberts filed an application for benefits on August 30, 2021, alleging disability beginning
on April 30, 2019. The claim was denied initially and on reconsideration. On January 13, 2023, the
parties participated in a telephone hearing before an ALJ. The ALJ issued an unfavorable decision
on February 6, 2023. (R. 17-27). This appeal followed.
C.
The ALJ’s Decision
A person suffering from a disability that renders him unable to work may apply to the
Social Security Administration for disability benefits. See 42 U.S.C. § 423(d)(1)(A) (defining
disability 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”). To be found
disabled, a claimant must demonstrate that his physical or mental limitations prevent him from
doing not only his previous work, but also any other kind of gainful employment that exists in the
national economy, considering his age, education, and work experience. § 423(d)(2)(A). If a
claimant’s application is denied initially and on reconsideration, he may request a hearing before an
ALJ. See 42 U.S.C. § 405(b)(1).
An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits: (1)
whether the claimant is currently employed, (2) whether the claimant has a severe impairment, (3)
whether the claimant’s impairment is one that the Commissioner considers conclusively disabling,
(4) if the claimant does not have a conclusively disabling impairment, whether he has the residual
functional capacity to perform his past relevant work, and (5) whether the claimant is capable of
performing any work in the national economy. See 20 C.F.R. § 404.1520(a); Zurawski v. Halter,
245 F.3d 881, 885 (7th Cir. 2001). If step four is answered in the affirmative, the inquiry stops and
the claimant is found to be not disabled. If step four is answered in the negative, the ALJ proceeds
to step five.
Here, at step one, the ALJ found that Roberts did not engage in substantial gainful activity
since April 30, 2019, the alleged onset date. At step two, the ALJ determined that Roberts had the
following severe impairments: spine disorders and neuropathy of the left leg. (R. 19).
At step three, the ALJ found that Roberts did not have “an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526)". (R. 19).
At step four, the ALJ found that Roberts had the residual functional capacity ("RFC") to:
perform sedentary work as defined in 20 CFR 404.1567(a) except he
can occasionally climb ramps and stairs; never climb ladders, ropes,
or scaffolds; and occasionally stoop, kneel, crouch, and crawl. The
claimant should avoid concentrated exposure to unprotected heights,
moving mechanical parts, humidity, and wetness. If required to sit for
30 to 45 minutes at one time, the claimant will need to stand and
stretch at the workstation for approximately 90 seconds during hours
wherein there are no regular breaks scheduled.
(R. 20).
Also at step four, the ALJ found that Roberts is unable to perform any past relevant work.
(R. 27). However, at step five, the ALJ found that there are jobs that exist in significant numbers in
the national economy that Roberts can perform. (R. 27). Thus, the ALJ ruled that Roberts was not
disabled, as defined in the Social Security Act. (R. 28).
1.
The ALJ’s Assessment of Roberts’ Subjective Symptoms
With respect to Roberts’ allegations of continuing neuropathy pain in his left leg and foot,
the ALJ held that:
As for the claimant’s statements about the intensity, persistence, and
limiting effects of his symptoms, they are inconsistent because a
review of the claimant’s course and pattern of care shows that he
showed improvement in pain and other symptoms with treatment. He
also testified that currently, he is only receiving chiropractic
treatment monthly without the use of any prescribed pain
medications. Examinations were also essentially unremarkable, and a
Functional Capacity Evaluation conducted on April 16, 2020, only
limited the claimant to light work, just one year out from the alleged
onset date. In addition, the claimant’s characterization of his pain and
other symptoms, and the extent to which they limited him is
generally inconsistent with the medical evidence contained in the
record. Furthermore, throughout the period that the claimant alleged
disability, he was able to engage in some activities of daily living.
While no one factor cited above is dispositive, and each perhaps on
its own does not establish anything conclusively, the totality of the
facts and circumstances cited above made it difficult to rely heavily
on the claimant’s subjective complaints. Consequently, the
undersigned relied greatly on the available objective medical
evidence of record and the persuasive medical opinion statements.
(R. 21-22).
The ALJ then discussed the medical evidence noting that on April 23, 2020, Dr. Kevin A.
Rahn of Fort Wayne Orthopedics opined that Roberts was capable of light duty work and that his
ankle foot orthosis was helping quite a bit. (R. 23). The ALJ also noted that Roberts was seen for a
consultative examination by Dr. Abdali Shakoor Jan on October 25, 2021. Roberts complained of
pain in his pelvic and waist area which he rated a 9/10 in severity. Roberts also reported chronic
back pain and left leg numbness and tingling. Roberts informed Dr. Jan that he is able to climb
stairs as long as he has a handrail, can sit for 30 minutes, stand for 30 minutes, and walk for one
block before stopping due to back pain. During the exam, Roberts’ sensation was abnormal to the
left lower extremity, lumbar forward flexion and extension range of motion was abnormal, ankle
dorsiflexion was abnormal, and straight leg raise was abnormal. (R. 23, citing Ex. 7F). The ALJ
further noted that on July 29, 2022, Roberts was seen by Dr. Ahmer Ghori at Orthopaedics
Northeast for a follow-up appointment. Roberts was doing well and stated that he had 100%
improvement in his symptoms, that he was not in pain and that his symptoms did not radiate. (R.
24, citing Ex. 12F). The ALJ also discussed a Functional Capacity Evaluation (FCE) performed by
Indiana Physical Therapy on April 16, 2020. During that evaluation Roberts demonstrated the
ability to perform light physical work. The ALJ found the FCE to be consistent with the medical
evidence but crafted the RFC to further limit him to work at the sedentary level, out of an
abundance of caution. (R. 25-26, citing Ex. 4F). Additionally, the ALJ found the opinion of Dr.
Abdali Shakoor Jan to be persuasive. As noted above, Dr. Jan evaluated Roberts on October 25,
2021 and, upon examination, Roberts was not in acute distress, displayed normal posture, had a
slight limp in his left leg, and had good strength with the ability to perform fine and gross
movements on a limited basis. (R. 26, citing Ex 7F).
The ALJ held that:
As discussed above, the medical evidence fails to reveal any
significant findings to indicate any greater limitations than those
provided in the residual functional capacity which incorporates the
claimant’s alleged limitations that are reasonably supported by the
evidence. The claimant’s complaints of back and left leg pain and
numbness, tingling, and weakness in the left leg were considered in
reducing him to sedentary work with additional postural limitations.
The undersigned reduced the claimant to sedentary work using an
abundance of caution even though the Functional Capacity
Evaluation conducted on April 16, 2020 (a year out from the AOD),
found a capability for light work, due to the number of procedures
over this period of time. The claimant’s symptoms were further
considered in finding that he should avoid concentrated exposure to
unprotected heights and moving mechanical parts. The undersigned
also considered the claimant’s testimony regarding increased severity
in symptoms with wet and damp weather and finds that he should
also avoid concentrated exposure to humidity and wetness.
Moreover, if required to sit for 30 to 45 minutes at one time, the
claimant will need to stand and stretch at the workstation for
approximately 90 seconds during hours wherein there are no regular
breaks scheduled. The undersigned also notes that the vocational
expert testified that the limitation to sitting for 30 to 45 minutes
before needing to stand and stretch at the workstation for
approximately 90 seconds during hours wherein there are no regular
breaks scheduled is well within time off task limitations.
(R. 24).
Roberts contends that the ALJ’s assessment of his symptoms is not supported by substantial
evidence and also that it contains legal errors. Roberts points out that he explained at the hearing
that even though he had 100% improvement from his back pain, he still had lingering neuropathy
pain from nerve damage. (R. 46-48). However, there is no medical evidence to back up Roberts’
assertion.
Roberts relies on Murphy v. Colvin, 759 F.3d 811, 818-19 (7th Cir. 2014) and Scott v.
Astrue, 647 F.3d 734, 739-40 (7th Cir. 2011), to support his position that the ALJ erred in relying
on the medical evidence showing improvement. However, as the Commissioner points out, both
cases are distinguishable. In Murphy, there was no medical evidence to contradict the claimant’s
assertion that he could not perform work at the light level. 759 F.3d at 818. Here, in contrast, there
was evidence contradicting Roberts’ claim of excruciating neuropathy pain which he claimed he
developed after his May 2022 surgery. That is, the post-surgical medical treatment records from
June through November 2022 show that Roberts fairly consistently rated his pain to be a 1 out of
10. (R. 47, 853, 854, 855). In Scott, the Seventh Circuit rejected the ALJ’s reliance on the evidence
of improvement of the claimant’s mental symptoms because other medical evidence continued to
show that the claimant experienced frequent bouts of crying and feelings of paranoia despite
reports of improvement. 64 F.3d at 739-40. Here, there are no medical records supporting Roberts’
claim that he had excruciating neuropathy pain after his May 2022 surgery. Rather, all of the postsurgery records show that Roberts reported 100% improvement following surgery and had minimal
pain. (R. 853, 854, 855). Although Roberts’ repeatedly claims in his briefs that the ALJ did not
address contrary evidence, he fails to cite any such evidence. Rather, Roberts apparently hopes that
the Court will assume that he had neuropathy because he had several back surgeries and his claim
of neuropathy “aligns with medical literature regarding his post-surgical symptoms.” (Opening
Brief at 12). This is insufficient.
Roberts also claims that it was error to discount his alleged pain on the basis of lack of
medical evidence, citing to Hall v. Colvin, 778 F.3d 688 (7th Cir. 2015). However, Hall does not
stand for the proposition that an ALJ has to accept a claimant’s allegations of pain that are
unsupported by medical evidence. Rather, the Seventh Circuit in Hall noted that pain is often not
confirmed by diagnostic tests, and thus it is error for an ALJ to find that complaints of pain are not
credible unless thus supported. Id. at 691. Here, the ALJ did not find Roberts’ complaints of pain
to be not credible due to the lack of diagnostic tests. Rather she found him not credible because he
did not complain of pain to his doctors in the months after his successful surgery. The ALJ then
further noted that Roberts was not taking pain medication and was able to perform some daily
activities, which support her conclusions that his pain was not as debilitating as he claimed.
Roberts argues that the ALJ erred in considering that he didn’t take pain medication
because she didn’t explore why he wasn’t taking the medicine. He asserted at the hearing that he
does not want to take narcotic pain medications and that he was weaned off of Gabapentin (a nonnarcotic nerve pain medication) to avoid addiction. (R. 49, 56, 61). At the hearing, the ALJ did, in
fact, explore why Roberts didn’t take pain medication. (R. 49-50). She queried how was he going
to get himself to the point where he could function without pain medicine and he responded that he
went for a walk if he started feeling “really miserable”. (R. 50). With respect to his daily activities,
Roberts claims that the ALJ failed to consider that he did not do much by himself. For example, he
would sometimes put his kayak on his truck and go down to the water and float around a bit, but his
wife helped him load the kayak on the truck. (R. 51). Clearly, however, the ALJ considered the
limitations of Roberts’ daily activities as she noted he could walk a mile, but rested every so often,
and that he had help with his kayak. (R. 21). The ALJ also specifically explained that no one factor
was dispositive but that the totality of the facts and circumstances made her unable to rely on
Roberts’ subjective complaints. (R. 22).
The ALJ’s findings regarding Roberts’ subjective complaints are entitled to great deference.
Summers v. Colvin, 864 F.3d 523, 528 (7th Cir. 2017) (“We give the ALJ’s credibility finding
‘special deference’ and will overturn it only if it is ‘patently wrong.’”) (quoting Eichstadt v. Astrue,
534 F.3d 663, 667-68 (7th Cir. 2008)). Clearly, in the present case, the ALJ’s credibility finding is
far from “patently wrong” and, thus, does not provide a basis for remand.
2.
The ALJ’s Finding that Roberts Could Perform Sedentary Work
As noted earlier, the ALJ found that Roberts had the RFC to perform a reduced range of
sedentary work provided he was able to stand and stretch at the workstation for approximately 90
seconds after sitting 30 to 45 minutes. Roberts requests remand, arguing that the ALJ failed to
explain the stand and stretch limitation. However, the Decision is clear that the ALJ included the
stand and stretch limitation “out of an abundance of caution”. (R. 25). That is, there was no
medical evidence explicitly suggesting that Roberts needed a stand and stretch limitation, but the
ALJ felt it prudent to include this limitation due to Roberts’ impairments. There is no error here.
Roberts also claims that the record establishes that he can sit for only 30 minutes at a time,
not 45 minutes. (Reply at 9). However, Roberts only cites to his own testimony and his reports to
medical providers. There is no medical evidence supporting the contention that Roberts cannot sit
for 45 minutes at a time and, in fact, Dr. Rahn opined that Roberts can sit constantly. (R. 26, citing
Ex. 3F/151). Thus, there is no error. Warnell v. O’Malley, 97 F. 4th 1050, 1053 (ALJs are subject to
only the most minimal of articulation requirements). As there is no basis for remand, the Decision
must be affirmed.
CONCLUSION
For the reasons set forth above, the Defendant’s Decision is AFFIRMED. The Clerk is
directed to enter judgment in favor of Defendant and against Plaintiff.
SO ORDERED on May 13, 2024
/s/ Gretchen S. Lund
GRETCHEN S. LUND, JUDGE
UNITED STATES DISTRICT COURT
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