Lewis v. Commissioner of Social Security

Filing 16

OPINION AND ORDER: the final decision of the Commissioner of Social Security denying plaintiffs application for disability insurance benefits under Title II of the Social Security Act is AFFIRMED re 1 Complaint. Signed by Chief Judge Philip P Simon on 8/30/2013. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DENISE LEWIS,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Cause No. 2:12-cv-241-PPS

OPINION AND ORDER
It’s a fundamental tenet of social security judicial review cases that the ALJs determine
the facts, and I can only reverse them on that issue if they commit manifest error. They’re the
ones who listen to the testimony, observe the demeanor of witnesses, and assemble the record in
the first instance. Because they are intimately familiar with the nitty-gritty details, in almost all
cases, I must defer to their understanding of the facts of the case.
The matter now before me invokes this basic principle. Denise Lewis objects to the
agency decision denying her application for social security benefits on a number of grounds, but
they mostly amount to one main contention – that the ALJ found the wrong facts. More
specifically, she raises a number of arguments involving the opinion of a single physician, which
(she says) undercuts the ALJ’s decision to such a degree that I must reverse. The problem with
this assertion is that the ALJ specifically addressed that doctor’s opinion and explained quite
well why it didn’t deserve much weight. That’s good enough for my purposes. And her
remaining assertions fare no better. I understand that Lewis quibbles with several other of the

1

ALJ’s factual determinations, especially regarding what (and who) the ALJ thought was
credible, and what he didn’t. But that’s not grounds for reversal.
Therefore, and for the reasons explained below, the Social Security Administration’s
final decision is AFFIRMED.
Background
The facts and circumstances surrounding Lewis’s social security appeal are described
sufficiently in the ALJ decision, so only a brief summary of the relevant highlights is warranted.
Lewis was born in 1956, which makes her 54 years old at the time of the ALJ’s decision. (R. at
41.) She was diagnosed with multiple sclerosis in 2002, which had caused problems with her
vision and balance, and which has resulted in difficulty using her right arm and leg. (Id. at 4142.) Her last flare-up was in February 2009. (Id. at 42.) She also reports a host of other
problems including nausea, vertigo, memory lapses and depression. (Id. at 48-54.)
Lewis worked as a customer service representative until 2007, when she got married and
moved from Ohio to Illinois. (Id. at 41.) She was offered a job in Chicago in 2008 but turned it
down because she didn’t think that it was feasible due to her health problems. (Id. at 51.)
There’s nothing in the record suggesting that her condition deteriorated between 2007 and 2008
to such a degree that she couldn’t work in the new job.
In his opinion denying Lewis’ appeal, the ALJ undertook the traditional five step analysis
governing social security disability appeals. See 20 C.F.R. §§ 404.1520. At Step Two, he
determined that Lewis has the following severe impairments: MS, a history of fracture of the left
shoulder and wrist, anemia and obesity. (Id. at 25.) Notably, he didn’t find that fatigue was an
impairment (either severe or non-severe). At Step Three, the ALJ acknowledged that MS can be

2

one of the impairments that will result in an automatic finding of disability (Id. at 26), but only if
it causes one of the following:
A. Disorganization of motor function as described in 11.04B; or
B. Visual or mental impairment as described under the criteria in 2.02, 2.03, 2.04,
or 12.02; or
C. Significant, reproducible fatigue of motor function with substantial muscle
weakness on repetitive activity, demonstrated on physical examination, resulting
from neurological dysfunction in areas of the central nervous system known to be
pathologically involved by the multiple sclerosis process.
20 C.F.R. Part 404, Subpart P, Appx. 1, Listing 11.09. Because the ALJ concluded that Lewis’s
MS didn’t cause any of these 11.09 symptoms, he found that she was not automatically disabled
under the Step Three analysis. (R. at 26.)
At Step Four, the ALJ determined that Lewis had the RFC to perform sedentary work.
(Id.) He did impose several limitations, including never climbing ladders, ropes or scaffolds,
only occasionally climbing ramps and stairs, and occasionally kneeling, crouching, crawling,
balancing and stooping. (Id.) During this analysis, the ALJ discussed a number of medical
providers and their opinions. Most relevant to this case, he specifically addressed the opinion of
Dr. James Connors, M.D., who treated Lewis on three occasions and opined (on her last visit)
that she had significant and persistent disorganization of motor function in two extremities. (Id.
at 29-30.) Notably, the full extent of Dr. Connor’s opinion in this regard is in two-pages1 of a
four-page questionnaire and a two page letter that mostly recounts Lewis’s self-reported
symptoms. (Id. at 554-57.) The ALJ explained that he was giving Dr. Connors’s opinion little

1

Lewis also argues that the SSA erred when it failed to consider O’Connor’s full report
on reconsideration. (DE 13 at 24-25.) As I’ll discuss below, I don’t think that it did, but even if
so, it wouldn’t matter with respect to the ultimate outcome in the case.
3

weight because (a) his last report indicated only modest exacerbation of symptoms from her first
visits, (b) his opinion was inconsistent with his treatment notes, and (c) he relied heavily on her
own subjective reports with little independent verification of whether they were accurate. (Id. at
30.)
The ALJ noted that Lewis described a number of significant symptoms, specifically
including an inability to sit or stand for more than ten or fifteen minutes at a time, but after a
detailed discussion of these alleged symptoms, he ultimately concluded that her reported severity
wasn’t credible. (Id. at 29.) He specifically based this finding on the fact that Lewis didn’t show
any exacerbation in her symptoms since February 2009, nor did she demonstrate any difficulties
with sitting, standing or speaking during her numerous treatment visits. (Id. at 29.) The ALJ
also took notice of the fact that Lewis quit her job in 2007 because of marriage and not health
reasons. (Id.) Finally, he cited her ability to engage in a number of daily activities without the
use of a cane or walker as further support that her account of her impairments and symptoms was
overstated. (Id.)
At the Step Five analysis, the ALJ determined that given Lewis’s RFC and resulting
limitations, she was qualified to perform her past work as a customer service representative and
systems programmer. (Id. at 31.) Therefore, he concluded she was not disabled, and her DIB
application was denied. (Id. at 32.)
Discussion
If an ALJ’s findings of fact are supported by “substantial evidence” then they must be
sustained. See 42 U.S.C. § 405(g). Substantial evidence consists of “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Nelms v. Astrue, 553 F.3d

4

1093, 1097 (7th Cir. 2009) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Review
of the ALJ’s findings is deferential. See Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008).
In making a substantial evidence determination, I must review the record as a whole, but I can’t
re-weigh the evidence or substitute my judgment for that of the ALJ. Id.
“Although this standard is generous, it is not entirely uncritical.” Id. at 462 (quoting
Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)). I must ensure that the ALJ has built a
“logical bridge” between the evidence and the result. See Getch v. Astrue, 539 F.3d 473, 481
(7th Cir. 2008). However, if reasonable minds could differ on whether a claimant is disabled, I
should affirm the decision denying benefits. See Elder v. Astrue, 529 F.3d 408, 413 (7th Cir.
2008).
Dr. Connor’s Opinion
Lewis asserts five principal arguments as to why I should reverse or remand. Three of
them fundamentally involve the opinion of Dr. Connor. First, she says, the ALJ erred in his Step
Three analysis when he (essentially) disregarded Dr. Connor’s opinion that she was suffering
from severe and persistent disorganization of motor functions in two extremities and concluded
that the 11.09 criteria were not met. (DE 13 at 17-18.) Second, Lewis argues that the ALJ
improperly rejected Dr. Connor’s opinion at the Step Four analysis despite the fact that he was
(she claims) her treating physician.2 (Id. at 17-22.) Third, Lewis contends that the SSA erred
when it failed to consider new evidence on reconsideration, which consisted of two pages of a

2

The question of whether or not Dr. Connor was a treating physician is important
because if he was, then his opinion must be given controlling weight if it “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence.” 20 C.F.R. § 404.1527(c)(2); accord White v. Barnhart, 415 F.3d
654, 658 (7th Cir. 2005).
5

report by Dr. Connors detailing Lewis’s specific alleged functional limitations that were
inadvertently omitted during the administrative hearing. (Id. at 24-25.)
These arguments fail for a number of reasons. First and foremost, it’s not entirely clear
to me that Dr. Connor was, in fact, a treating physician. The record before me indicates that he
saw her precisely three times from September 2009 to March 2010, and the main purpose of the
last of these visits seems to have been for Dr. Connor to fill out a report to the SSA concerning
her potential disability. There’s no indication that she saw him again in the year between the
March 2010 visit and her March 2011 hearing before the ALJ.
Federal regulations set forth the factors that the SSA will consider when determining
whether a particular doctor is a treating physician:
Generally, we will consider that [an applicant] ha[s] an ongoing treatment
relationship with an acceptable medical source when the medical evidence
establishes that [the applicant] see[s], or ha[s] seen, the source with a frequency
consistent with accepted medical practice for the type of treatment and/or
evaluation required for [the applicant’s] medical condition(s). We may consider an
acceptable medical source who has treated or evaluated [the applicant] only a few
times or only after long intervals (e.g., twice a year) to be [the applicant’s] treating
source if the nature and frequency of the treatment or evaluation is typical for [the
applicant’s] condition(s).
20 C.F.R. § 404.1502. In other words, the main question that the ALJ – and ultimately I – must
confront when addressing whether a particular doctor is a treating physician is the ongoing nature
of his or her relationship with the applicant.

Now, it’s certainly true that seeing a doctor a couple of times a year can constitute a
treating relationship if the patient intends to keep visiting the physician on an ongoing basis. See,
e.g., Simila v. Astrue, 573 F.3d 503, 514 (7th Cir. 2009) (noting that the ongoing nature of a
doctor-patient relationship is critical to the treating physician analysis); White, 415 F.3d at 658

6

(same). But courts generally hold that a doctor who merely provides an opinion in connection
with a social security disability application isn’t a treating physician. See, e.g., Simila, 573 F.3d
at 514; Snell v. Apfel, 177 F.3d 128, 133 (2nd Cir. 1999). And given the timing of Lewis’s visits
to Dr. Conner and her DIB application – i.e., she saw him twice within two months of applying,
and then returned three months later to have him fill out his report – it looks to me like that’s
basically what was going on here. It certainly doesn’t seem like she intended to establish an
ongoing treating relationship with Dr. Connor.
In any event, my conclusion would not change even if Dr. Connor was Lewis’s treating
physician. The general rule that treating physicians’ opinions should be given controlling weight
isn’t absolute. Indeed, the federal regulation governing the issue itself acknowledges that a
treating physician’s opinion may be trumped if it is “inconsistent with the other substantial

evidence.” 20 C.F.R. § 404.1527(c)(2). At the end of the day, that’s what the ALJ found in this
case. He specifically addressed Dr. Connor’s March 2010 opinion (the only one supporting
Lewis’s claim of MS-related disability) in some detail in his decision, noting that despite its
cursory findings of significant fatigue and impaired motor functions, Dr. Connor didn’t report
any exacerbation of symptoms since her earlier visits. (R. at 29-30.) The ALJ also pointed to
Dr. Connor’s treatment notes from prior visits, which substantially undercut his topline findings.
(Id. at 30.) Finally, the ALJ surmised that Dr. Connor seemed to be relying very heavily on
Lewis’s self-reported symptoms and limitations, and not confirming them or otherwise assessing
her condition through an independent examination. (Id.) Based on all of this, he elected to give
Dr. Connor’s opinion very little weight. (Id. at 29.)

7

That’s good enough for me, regardless of whether or not Dr. Connor was Lewis’s treating
physician (though again, I don’t think he was). As noted above, my job when reviewing an ALJ
and agency decision is not to let the parties relitigate the facts of the case. Instead, it’s simply to
make sure that the ALJ has acknowledged and incorporated all relevant evidence and limitations
into his analysis. See, e.g., Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir. 2003); Begley v.
Astrue, No. 1:10-cv-01113-SEB-TAB, 2011 WL 3739339, at *4 (S.D. Ind. Aug. 23, 2011)
(explaining the point of Kasarsky and similar cases). If he or she has done that, then I generally

must affirm the decision.
It seems clear to me that in this case the ALJ adequately addressed and acknowledged Dr.
Connor’s opinion about the severity of Lewis’s MS symptoms. He recognized that a portion of
the opinion – at least arguably – contradicted his conclusions at the Step Three and Step Four
stages of the analysis, but he explained why he didn’t think it deserved much weight. He gave
several reasons why he took that route, each of which seems more or less plausible and
supported in the record. I certainly can’t say that this factual determination was “patently
wrong,” which I would be required to do in order to reverse or remand the matter. See Eichstadt
v. Astrue, 534 F.3d 663, 668 (7th Cir. 2008).
This conclusion necessarily resolves Lewis’s second argument – that the ALJ erred when
he determined that the 11.09 listed impairment criteria weren’t met during his Step Three
analysis. That’s because the only evidence that the severity of Lewis’s MS was sufficient to
meet this requirement comes from Dr. Connor’s opinion. And because the ALJ concluded that
Dr. Connor’s report is entitled to little weight, there is nothing left to the Step Three argument.

8

That takes me to the argument that the SSA improperly disregarded “new” evidence
when it failed to consider two pages of Dr. Connor’s report dated March 4, 2010. The first thing
to say is that it seems unlikely to me that these documents would have altered the decision by the
ALJ to minimize Dr. Connor’s opinion. Nothing in them explains an exacerbation of symptoms
from Lewis’s earlier visits, nothing explains the deviation from Dr. Connor’s prior treatment
notes, and they convey the same self-reported character as does the portion of the report that was
presented at the hearing. (R. at 131-32.) So I see no reason why these two pages would make
any difference in the ALJ’s ultimate conclusion.
Furthermore, I’m fundamentally unconvinced that these documents are new, at least as
that term is used in this context. In general, evidence that wasn’t submitted to the ALJ (or other
factfinder) may not be considered during a subsequent review of his or her decision. See Eads v.
Sec’y of Dep’t of Health and Human Servs., 983 F.2d 815, 816-18 (7th Cir. 1993). That said,
there is a limited exception to this rule that allows “new and material” evidence, which may be
introduced at the agency reconsideration stage of the administrative review process. Id. at 81617; 20 C.F.R. § 404.970(b). However, this evidence must actually be new – in other words, it
must have been “not in existence or available to the claimant at the time of the administrative
proceeding.” Sample v. Shalala, 999 F.2d 1138, 1144 (7th Cir.1993); accord Perkins v. Chater,
107 F.3d 1290, 1296 (7th Cir. 1997). The problem in this case should be self-evident. How
could the missing pages of the report in question be “not in existence” at the time in question
when the rest of the report was, in fact, submitted?

Obviously, they couldn’t.

I’m certainly sympathetic to the fact that mistakes happen, especially in cases like these
involving hundreds of pages of dense and oftentimes confusing medical reports. And I’m

9

generally hesitant to penalize a social security applicant for a clerical snafu. If I thought that the
missing pages of Dr. Connor’s report would have made a difference in this case, I might be more
inclined to remand the matter so that the ALJ could consider them. But as I explained above, my
general impression is that these are just more of the same opinion that the ALJ emphatically
rejected, seemingly for a convincing reason. Therefore, this argument has no merit either.
Fatigue, Vision and Memory/Concentration Problems; Lewis’s Credibility
Lewis’s final two arguments are closely related. She first claims that the ALJ failed to
consider three impairments or symptoms – her purported fatigue, vision problems and
concentration/memory issues – when determining her RFC during the Step Four analysis. (DE
13 at 15-19.) Her second argument is that the ALJ generally erred when assessing the credibility
of Lewis’s self-reported severity of her impairments, especially including the fatigue that she
claimed to be experiencing. Neither one of these arguments warrants reversal or remand.
I don’t need to spend much time on the first of these. Perhaps the best thing to say about
it is that it’s belied by the ALJ decision itself. Indeed, in his Step Four analysis, the ALJ
repeatedly acknowledged that all of these symptoms or impairments were reported by Lewis or –
in some cases – observed by her doctors. (R. at 27-29.) It’s not that he didn’t consider them;
it’s just that he thought that their alleged severity was inconsistent with the other evidence in the
record.
For example, with respect to Lewis’s purported fatigue, the ALJ acknowledged on
multiple occasions that she claimed to only be able to sit or stand for ten or fifteen minutes at a
time. (Id. at 27, 29.) However, he went on to note that this self-reported severity was
inconsistent with both her doctors’ treatment notes (which fail to indicate that level of difficulty

10

standing or sitting) and her daily activities report (which indicates that Lewis doesn’t need a cane
or walker, and that she engages in numerous daily tasks requiring standing or sitting). (Id. at
29.) As for her purported vision problems, the ALJ decision explains that she either reported
that they had improved (Id. at 27), or to the extent she reported they hadn’t, that purported
impairment was mostly addressed by Dr. Connor’s report, which – as discussed extensively
above – the ALJ gave little weight. (Id. at 29-30.)
As for Lewis’s second and more general claim that the ALJ erred when assessing the
credibility of her self-reported symptoms, a similar result applies, though it probably requires a
little more discussion. (DE 13 at 22-24.) Lewis first argues that the fact that her doctors didn’t
specify that she could only sit or stand for ten minutes or so at a time doesn’t mean that they
think she could do so for longer. This line of reasoning is a non sequitur because it misconstrues
the ALJ’s decision. The ALJ didn’t interpret the doctors’ silence on how long Lewis could stand
or sit to mean that she had no limitations in that regard; to the contrary, he relied on specific
opinions from two medical providers affirmatively indicating that she could sit or stand for a
much more extended period of time (e.g., up to six hours in an eight hour day). (R. at 30.)
Lewis goes on to assert a more serious objection when she attacks the ALJ’s reliance on
her ability to perform various activities of daily living to conclude that her self-reports of severe
fatigue and other similar symptoms were less than credible. As she correctly notes, the Seventh
Circuit generally disfavors the argument – frequently made by ALJs – that a social security
disability applicant is not disabled because he or she can perform various mundane day-to-day
domestic tasks. See, e.g., Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); accord Hughes

11

v. Astrue, 705 F.3d 276, 278-79 (7th Cir. 2013). But that glosses over a subtle distinction
between two seemingly similar lines of reasoning.
The point of Bjornson and the other similar Seventh Circuit decisions is that the
workplace is a fundamentally different environment than a household. See Bjornson, 671 F.3d at
647. The fact that someone can do their laundry or cook dinner on their own schedule and at
their own leisure, without any deadlines or job-related time pressures, doesn’t mean that they
would be able to hold a much more inflexible paid job. Id. Here, in contrast, the ALJ didn’t cite
Lewis’s ability to perform daily tasks as proof she was de facto not disabled and could hold a
job. Instead, he merely pointed to those activities as evidence that she wasn’t physically limited
to standing or sitting for a handful of minutes at a time. That should make perfect sense because,
after all, she almost certainly would need to be able to sit and/or stand for much longer to do
them. That’s a crucial difference between the two scenarios, and one that separates this case
from cases like Bjornson and Hughes.
Reading between the lines, Lewis’s main problem with the ALJ decision isn’t so much
that he failed to consider her self-reported symptoms of fatigue, vision problems and
concentration/memory impairment. Rather, it’s that he acknowledged that these symptoms
existed to some degree but ultimately concluded that they just weren’t as debilitating as Lewis
claimed (or as she reported to some of her doctors). I understand and empathize that Lewis
thinks that the ALJ blew this particular call. But this sort of credibility-based determination and
weighing of the evidence is a job for the ALJ, and not me. See Overman, 546 F.3d at 462.

12

CONCLUSION
Therefore, and for all of the foregoing reasons, the final decision of the Commissioner of
Social Security denying plaintiff’s application for disability insurance benefits under Title II of
the Social Security Act is AFFIRMED.
The Clerk shall enter judgment accordingly.
SO ORDERED.
ENTERED: August 30, 2013.

/s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

13