Johnson v. Commissioner of Social Security
Filing
27
OPINION AND ORDER: The Court DENIES the relief sought in Plaintiff's 16 Brief in support of reversing the decision of the Commissioner of Social Security and AFFIRMS the decision of the Commissioner. Signed by Magistrate Judge Paul R Cherry on 9/22/2014. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GAYLE JOHNSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
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CAUSE NO.: 2:13-CV-138-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Gayle Johnson on
April 24, 2013, and Plaintiff’s Brief in Support of Reversing the Decision of the Commissioner of
Social Security [DE 16], filed on October 4, 2013. Plaintiff requests that the March 8, 2012 decision
of the Administrative Law Judge denying her claim for supplemental security income be reversed
and remanded for further proceedings. On November 21, 2013, the Commissioner filed a response,
and Plaintiff filed a reply on December 18, 2013. For the following reasons, the Court denies
Plaintiff’s request for remand.
BACKGROUND
On June 1, 2010, Plaintiff Gayle Johnson filed an application for supplemental security
income due to diabetes, restless leg syndrome, and vision problems, alleging an onset date of
October 1, 2008. The application was denied initially on September 8, 2010, and upon
reconsideration on February 14, 2011. Plaintiff filed a timely request for a hearing on March 23,
2011, which was held on March 1, 2012, before Administrative Law Judge (“ALJ”) Jonathan
Stanley. In appearance were Plaintiff, her attorney, and vocational expert Richard T. Fisher. At the
hearing, Plaintiff alleged disability due to chest pain, diabetes, “constant headaches,” trouble
breathing, leg cramps, back pain, depression, high blood pressure, blurry vision, and numbness in
her left hand. She estimated that she could sit for sixty to ninety minutes at a time.
The ALJ issued a written decision denying benefits on March 8, 2012, making the following
findings:
1.
The claimant has not engaged in substantial gainful activity since
June 1, 2010, the application date (20 CFR 416.971 et seq.).
2.
The claimant has the following medically determinable impairments:
diabetes mellitus, hypertension (HTN), hyperlipidemia, a
polysubstance abuse disorder (20 CFR 416.921 et seq.).
3.
The claimant does not have an impairment or combination of
impairments that has significantly limited (or is expected to
significantly limit) the ability to perform basic work-related activities
for 12 consecutive months; therefore, the claimant does not have a
severe impairment or combination of impairments (20 CFR and
416.921 et seq.).
4.
The claimant has not been under a disability, as defined in the Social
Security Act, since June 1, 2010, the date the application was filed
(20 CRF 416.920(c)).
(AR 11-19).
On March 4, 2013, the Appeals Council denied Plaintiff’s request for review, leaving the
ALJ’s decision the final decision of the Commissioner. See 20 C.F.R. § 416.1481. On April 24,
2013, Plaintiff filed this civil action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of
the Agency’s decision.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
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STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will reverse
only if the findings are not supported by substantial evidence or if the ALJ has applied an erroneous
legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial evidence
consists of “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) (quoting Gudgel v. Barnhart,
345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment
for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the
question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning
of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ “uses
the correct legal standards and the decision is supported by substantial evidence.” Roddy v. Astrue,
705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir.
2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d
664, 668 (7th Cir. 2004)). “[I]f the Commissioner commits an error of law,” the Court may reverse
the decision “without regard to the volume of evidence in support of the factual findings.” White v.
Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir.
1997)).
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At a minimum, an ALJ must articulate his analysis of the evidence in order to allow the
reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that [a reviewing
court] may assess the validity of the agency’s final decision and afford [the claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski
v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that she suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as
an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent her from
doing her previous work, but considering her age, education, and work experience, it must also
prevent her from engaging in any other type of substantial gainful activity that exists in significant
numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. § 416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. § 416.920(a)(4). The steps are: (1)
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Is the claimant engaged in substantial gainful activity? If yes, the claimant is not disabled, and the
claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have an impairment
or combination of impairments that are severe? If not, the claimant is not disabled, and the claim is
denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet or equal a listed
impairment in the appendix to the regulations? If yes, the claimant is automatically considered
disabled; if not, then the inquiry proceeds to step four; (4) Can the claimant do the claimant’s past
relevant work? If yes, the claimant is not disabled, and the claim is denied; if no, then the inquiry
proceeds to step five; (5) Can the claimant perform other work given the claimant’s RFC, age,
education, and experience? If yes, then the claimant is not disabled, and the claim is denied; if no,
the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(i)-(v); see also Scheck v. Barnhart, 357 F.3d 697,
699-700 (7th Cir. 2004).
At steps four and five, the ALJ must determine the claimant’s residual functional capacity
(“RFC”). The RFC “is an administrative assessment of what work-related activities an individual
can perform despite her limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). The
RFC should be based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008)
(citing 20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of proving steps one through
four, whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d at 886; see also Knight v.
Chater, 55 F.3d 309, 313 (7th Cir. 1995).
ANALYSIS
At step two of the sequential analysis, the ALJ found that Plaintiff does not suffer from any
impairments that significantly limit her ability to perform basic work activities. See 20 C.F.R. §
416.921(a) (“An impairment or combination of impairments is not severe if it does not significantly
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limit your physical or mental ability to do basic work activities.”). Basic work activities are “the
abilities and aptitudes necessary to do most jobs,” examples of which include:
(1)
(2)
(3)
(4)
(5)
(6)
Physical functions such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling;
Capacities for seeing, hearing, and speaking;
Understanding, carrying out, and remembering simple instructions;
Use of judgment;
Responding appropriately to supervision, co-workers[,] and usual work
situations; and
Dealing with changes in a routine work setting.
20 C.F.R. § 416.921(b). In other words, an impairment is “not severe” if the medical evidence
establishes only “a slight abnormality (or a combination of slight abnormalities) that have no more
than a minimal effect on an individual’s ability to do basic work activities.” SSR 96-3p, 1996 WL
374181 (Jul. 2, 1996); SSR 85-28, 1985 WL 56856 (Jan. 1, 1985). At this step, the burden on the
claimant is de minimis. See Johnson v. Sullivan, 922 F.2d 346, 347 (7th Cir. 1990) (citing Bowen
v. Johnson, 482 U.S. 922 (1987)). The mere diagnosis of an impairment does not establish that the
impairment affects the individual’s ability to perform basic work activities. Estok v. Apfel, 152 F.3d
636, 639 (7th Cir. 1998); see also Philpott v. Colvin, 1:13-CV-01708-JMS, 2014 WL 4244299, at
*4 (S.D. Ind. Aug. 26, 2014); Flint v. Astrue, 1:11cv1480, 2013 WL 30104, *5 (S.D. Ind. Jan. 2,
2013); Stanley v. Astrue, 1:11cv248, 2012 WL 1158630, *8 n. 8 (N.D. Ind. Apr. 6, 2012).
The ALJ found that Plaintiff had medically determinable impairments of diabetes mellitus,
hypertension, hyperlipidemia, and polysubstance abuse disorder but that they were not severe, either
singly or in combination. The ALJ then found that Plaintiff had the “non-medically determinable”
impairments of carpal tunnel syndrome and/or peripheral neuropathy, vision loss, restless leg
syndrome, hepatitis C, migraine headaches, a low back disorder, and mitral valve prolapse. (AR 17).
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Plaintiff argues that the ALJ erred in finding her not disabled because he did not properly
assess her credibility, improperly dismissed the state agency medical consultants’ opinions,
mischaracterized the evidence, improperly found that none of her impairments were severe, and
improperly found that several of her conditions were not medically determinable impairments. For
all the reasons set forth below, the Court finds that substantial evidence support the ALJ’s decision
and the ALJ did not make any errors of law requiring remand.
A. Credibility
In making a disability determination, the ALJ must consider a claimant’s statements about
her symptoms, such as pain, and how the claimant’s symptoms affect her daily life and ability to
work. See 20 C.F.R. § 416.929(a). Subjective allegations of disabling symptoms alone cannot
support a finding of disability. Id. “There must be medical signs and laboratory findings which show
that [the claimant has] a medical impairment which could reasonably be expected to produce the
pain or other symptoms alleged” and the alleged symptoms must “reasonably be accepted as
consistent with the medical signs and laboratory finding” and other evidence of record. Id. The ALJ
must weigh the claimant’s subjective complaints, the relevant objective medical evidence, and any
other evidence of the following factors:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
The individual’s daily activities;
Location, duration, frequency, and intensity of pain or other symptoms;
Precipitating and aggravating factors;
Type, dosage, effectiveness, and side effects of any medication;
Treatment, other than medication, for relief of pain or other symptoms;
Other measures taken to relieve pain or other symptoms;
Other factors concerning functional limitations due to pain or other
symptoms.
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See 20 C.F.R. § 416.929(c)(3). An ALJ is not required to give full credit to every statement of pain
made by the claimant or to find a disability each time a claimant states she is unable to work. See
Rucker v. Chater, 92 F.3d 492, 496 (7th Cir. 1996).
However, a claimant’s statements regarding symptoms or the effect of symptoms on her
ability to work “may not be disregarded solely because they are not substantiated by objective
evidence.” SSR 96-7p, 1996 WL 374186, at *6 (Jul. 2, 1996). “Because the ALJ is ‘in the best
position to determine a witness’s truthfulness and forthrightness . . . this court will not overturn an
ALJ’s credibility determination unless it is ‘patently wrong.’” Shideler v. Astrue, 688 F.3d 306, 31011 (7th Cir. 2012) (quoting Skarbek v. Barnhart, 390 F.3d 500, 504-05 (7th Cir. 2004)); see also
Prochaska, 454 F.3d at 738. Nevertheless, “an ALJ must adequately explain his credibility finding
by discussing specific reasons supported by the record.” Pepper v. Colvin, 712 F.3d 351, 367 (7th
Cir. 2013) (citing Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009)). “[I]f the determination rests
on objective factors or fundamental implausibilities rather than subjective considerations like
demeanor, [the court has] greater freedom in reviewing the decision. Schomas v. Colvin, 732 F.3d
702, 708 (7th Cir. 2013) (internal quotation marks and citation omitted) (citing Indoranto v.
Barnhart, 374 F.3d 470, 474 (7th Cir. 2004)). Nevertheless, the Court may not reweigh the facts or
reconsider the evidence. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
In this case, the ALJ found Plaintiff to be less than fully credible, in part, because of
inconsistent information she gave on various occasions. Social Security Ruling 96-7p provides that
“the lack of consistency between an individual’s statement and other statements that he or she has
made at other times does not necessarily mean that the individual’s statements are not credible.”
SSR 96-7p, at *5. The ruling notes that symptoms may vary in intensity, persistence, and functional
effects and that they may worsen or improve with time. Id. Thus, an ALJ must “review the case
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record to determine whether there are any explanations for any variations in the individual’s
statements about symptoms.” Id.
Plaintiff points to three of the several inconsistencies that the ALJ identified to argue that
the ALJ did not inquire into the reasons for the inconsistencies and that these inconsistencies “could
easily be the result of normal changes in [Plaintiff’s] condition effected[sic] by treatment or the
diseases worsening or improving, and hardly are indicative of [Plaintiff’s] credibility.” (Pl. Br. 9).
These inconsistencies are that (1) Plaintiff reported cramping and pain in her lower left extremity
when she had previously denied any history of cramping; (2) the ALJ cited ongoing, periodic
treatment notes from February 2011 onward, which he found inconsistent due to “random
complaints of headaches, grip problems, and radiating lower back pain;” and (3) the ALJ pointed
to Plaintiff’s allegations in June 2010 that she suffered “occasional” headaches, while in the August
2010 Headache Questionnaire she wrote that she was experiencing three to four migraines a week.
(AR 15-16). Of these three inconsistencies, Plaintiff correctly notes that the ALJ misstated the
record concerning the frequency of headaches, as she actually wrote that she experienced headaches
three to four times a “month” on the Headache Questionnaire, which is not necessarily inconsistent
with “occasional” headaches. However, Plaintiff does not dispute the inconsistencies regarding her
leg. And, as for the “random complaints” in 2011, Plaintiff fails to note the ALJ’s full concern,
which was that “no diagnostic testing was ordered by the claimant’s physician” for these complaints.
(AR 16). Tellingly, Plaintiff offers no citation to the evidence of record to show that the ALJ
improperly identified these inconsistencies. Other than the headaches, the ALJ did not err in noting
the other two inconsistencies.
Plaintiff also argues that the ALJ erred in finding Plaintiff’s statements inconsistent
regarding her illegal drug use. On June 26, 2010, Plaintiff presented at St. Catherine Hospital with
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complaints of chest pain. The ALJ found Plaintiff’s credibility damaged because she denied drug
use during intake at the hospital on June 26, 2010, yet objective drug tests during the hospitalization
were positive for cocaine and cannabis. (AR 15). This is an accurate statement of the record. The
June 26, 2010 intake record provides: “The patient denies depression and anxiety, denies use of
recreational drugs and alcohol.” (AR 186). The objective testing was positive the following day,
June 27, 2010, for cocaine and cannibis. (AR 194). Plaintiff is correct that, on June 27, 2010, she
admitted illegal drug use to the consulting physician during her hospitalization, with the record
noting that “[s]he smokes marijuana routinely and smokes cocaine, the last time was 2 days ago and
that is when she said the chest pain started getting really bad.” (AR 180). But the fact that she told
the truth on the day that she underwent drug testing does not cure the fact that the day before she
denied drug use. Later in the credibility determination, the ALJ notes that Plaintiff also denied the
use of alcohol and drugs to the consultative examiner, J. Smejkal, M.D., less than two months after
hospitalization, on August 2, 2010. (AR 228). The ALJ was correct that Plaintiff gave inconsistent
statements regarding her illicit drug use.
The ALJ also found inconsistent Plaintiff’s statements regarding her use of medication to
relieve headaches: “She . . . told the examiner that she used over-the-counter pain relievers for her
headaches, which is also very inconsistent with the claimant’s Headache Questionnaire that
indicated the claimant utilized her friend’s pain medications without prior physician approval.” (AR
15). Notwithstanding Plaintiff’s attempt to reason otherwise, the ALJ accurately summarized the
record, and the statements are inconsistent. On August 2, 2010, Plaintiff told consultative examiner
Dr. Smejkal that she takes over-the-counter medication for her headaches. (AR 227). In contrast, on
the Headache Questionnaire on August 10, 2010, Plaintiff responded to the question regarding how
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she treats her pain with the statement: “Dark, no noise and what ever pain pill I can find. (Usually
a friends[sic] prescription).” (AR 147).
Next, Plaintiff criticizes the ALJ’s statement that “the objective record outlined above
included numerous office visit notes that indicated the claimant did not specify any particular
complaint, which contrasts with the current claim of ongoing, disabling symptoms since the alleged
onset date.” (AR 16).1 Plaintiff’s argument is that the ALJ did not cite any specific evidence to
substantiate this finding, and Plaintiff points to several records where she made specific complaints.
(Pl. Br. 10 (citing (AR 180, 181, 183, 185, 209, 227, 228, 245, 252, 272, 274, 299, 302, 314, 316330))).
Pages 180, 181, 183, 185, and 209 all relate to Plaintiff’s June 2010 hospitalization. Pages
227 and 228 are the record of her August 2010 consultative examination with Dr. Smejkal. Page 245
(and a copy at page 299) is a December 21, 2010 follow up visit with her treating physician for her
diabetes and hypertension. At that visit, she complained of back pain after moving furniture, which
the ALJ discussed: “[I]n December, the claimant did report lower back pain after ‘moving furniture’
but her exam was benign aside from her subjective complaints.” (AR 16). Page 252 is a routine
check up for diabetes in June 2010, before her hospitalization; she also complained of blurred vision
for one year and pain in her left knee. The physical examination at that visit showed a “gait stable
and station mid position and normal.” (AR 252). On neurological exam, her deep tendon reflexes
were normal and sensations were intact bilaterally. The doctor’s impression was controlled diabetes.
Pages 272 and 274 are from the January 2012 initial mental health examination that Plaintiff
underwent at which Plaintiff reported a history of diabetes, high blood pressure, high cholesterol,
1
Plaintiff incorrectly cites page 17 of the administrative record for this quotation.
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leg pain with weakness, migraine headaches, hot flashes, and chest pain. Page 302 is a February 12,
2011 treatment note showing that she presented for check up on hypertension, diabetes, and hot
flashes. Notably, she did not indicate any other complaints. Page 314 is a January 18, 2012 progress
note. Under “problems” it appears to be written that she complained of weight loss and low blood
pressure.
Pages 316-30 are treatment notes from January 2011, when Plaintiff began treating with Dr.
Patel, through October 2011. In January 2011, her complaint was lower back pain from moving the
furniture. However, the records in February and March 2011 simply list “follow up” as the reason
for the visit and do not list any complaints. (AR 324-25). Similarly, the June 15, 2011 progress note
shows only a complaint of hot flashes and that she could not afford her medications. (AR 321). On
June 29, 2011, Plaintiff had a follow up visit and complained of headaches. (AR 320). On July 29,
2011, Plaintiff complained of headaches and back pain and asked for a refill of Vicodin. (AR 319).
The doctor told her he would not prescribe Vicodin and added Ultram. On August 29, 2011, Plaintiff
had a follow up visit and complained of headaches and hand numbness. (AR 318). On September
19, 2011, Plaintiff complained of chest pain and hot flashes. (AR 317). And, on October 17, 2011,
Plaintiff complained of lower back pain radiating to her lower left extremity. (AR 316).
Plaintiff does not include the record at page 315, which is the subsequent visit in December
2011, which was a follow up on her diabetes and at which she did not complain of leg pain, although
she did complain of left wrist pain. (AR 315). The January 25, 2012 treatment record was for follow
up on her diabetes mellitus. (AR 313). Thus, the ALJ was not incorrect when he wrote that several
of these records did not include any particular complaint and were just for follow up.
Next, the ALJ found that his own observations of Plaintiff at the hearing detracted from her
credibility regarding the severity of her impairments. He wrote,
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First, the [undersigned] notes that the claimant betrayed no evidence of pain or
discomfort while testifying at the hearing. While the hearing was short-lived and
cannot be considered a conclusive indicator of the claimant’s overall level of pain
on a day-to-day basis, the apparent lack of discomfort during the hearing is given
some slight weight in reaching the conclusion regarding the credibility of the
claimant’s allegations with regard to the severity of her impairments.
(AR 16). Plaintiff notes that Social Security Ruling 96-7p provides: “In instances in which the
adjudicator has observed the individual, the adjudicator is not free to accept or reject the individual’s
complaints solely on the basis of such personal observations.” SSR 96-7p, at * 8 (emphasis added).
The ALJ in no way relied “solely” on his personal observations. Rather, the slight weight he gave
this finding in combination with the remainder of his credibility determination was proper.
Finally, Plaintiff contends that the ALJ erred when he found that Plaintiff’s failure to follow
her prescribed regimen detracts from her allegations regarding the severity and limiting nature of
her impairments. (AR 17). A claimant’s failure to follow a prescribed treatment plan, absent a good
reason, is a factor in the credibility. See 20 C.F.R. § 416.930; Craft, 539 F.3d at 679 (noting that the
medical records showed that the plaintiff had been noncompliant for financial reasons and that the
ALJ entirely ignored this evidence and did not question the plaintiff on noncompliance). In this case,
there are some notations in the treatment record that Plaintiff could not afford her medications. See
(AR 15, 270-71, 282, 316). In his recitation of the medical facts, the ALJ noted one of these
instances. (AR 15) (citing Ex. 4F). However, the ALJ erred by not discussing Plaintiff’s ability to
pay for medications when he noted her noncompliance in the credibility determination.
Nevertheless, this error was harmless because the ALJ explicitly stated that he did not make the
decision based on noncompliance but only noted that her non-compliance detracted from her
allegations. (AR 17). Noncompliance was only one of many reasons articulated by the ALJ in his
decision. An ALJ’s credibility determination need not be flawless. Simila, 573 F.3d at 517. Only
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when it is “lack[ing] any explanation or support,” will it be deemed “patently wrong.” Elder v.
Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008); Berger v. Astrue, 516 F.3d 539, 546 (7th Cir. 2008).
The ALJ’s credibility determination was not patently wrong, and the Court will not disturb it.
B. Weight to Consultative Reviewer
On August 2, 2010, Dr. Smejkal conducted a detailed physical consultative examination of
Plaintiff. The findings were entirely unremarkable. Subsequently, state agency medical and
psychological consultants reviewed the record and offered opinions. In his decision, the ALJ noted
that the record contained these reviewing opinions. (AR 17 (citing Exs. 1A, 6F, and 7F)). The
document at Exhibit 1A is the “Disability Determination Explanation.” At the outset of the
document, under the heading “Medically Determinable Impairments and Severity,” are listed
“diabetes mellitus” and “migraine” as “severe” impairments. (AR 53). Under the section titled
“Psychiatric Review Technique,” B. Randal Horton, Psy.D. opined on June 28, 2010, that there are
“no medically determinable impairments.” (AR 53). In the explanation section, he noted that
Plaintiff was not seeing a mental health treater, that she was not taking any medications for a
psychological impairment, and that she stated that her “ability to perform daily activities, such as
cooking, cleaning, and laundry, are only effected[sic] by her physical problems.” Id. Plaintiff
reported that, with or without the physical problems, there were no psychological impairments that
would be disabling.
Later in Exhibit 1A, under the heading “Residual Functional Capacity,” dated September 6,
2010, Dr. Corcoran limited Plaintiff to a limited range of medium level work. Dr. Corcoran found
Plaintiff only partially credible. In support, he noted the medical findings that her lungs were
normal; her first and second heart sounds were normal with no gallops, murmurs, or clicks; muscle
strength was 5/5; grip strength was 5/5 bilaterally; she had good fine finger manipulative abilities,
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including the ability to button, zip, and pick up coins; vibration sense was normal but slightly
diminished on the left; she had a normal gait, walked with a straight posture, could stoop, squat,
walk heel to toe, and could tandem walk without difficulty; she could get on and off the exam table
without difficulty and could stand from a sitting position without difficulty; and her range of motion
for the spine, bilateral upper extremities, and bilateral lower extremities was within normal limits.
Dr. Corcoran noted that Plaintiff reported headaches three to four times a month but that she was
not being treated for headaches and had not been seen at an emergency room or hospital for
headaches within the previous twelve months. (AR 55).
Exhibit 6F is the February 3, 2011 “Case Analysis” by consultative reviewer Joseph A.
Pressner, Ph.D., which affirmed the June 28, 2010 psychological opinion of Dr. Horton. (AR 256).
Exhibit 7F is the February 14, 2011 “Case Analysis” by consultative reviewer J. Sands, M.D.
affirming the September 7, 2010 opinion of Dr. Corcoran. (AR 257).
Regarding these documents, the ALJ reasoned: “The State agency consultants’ physical
assessments, which deemed the claimant capable of performing less than a full range of medium
work, were given little weight, as the claimant was not found to have an impairment or combination
of impairments that significantly limits her ability to perform basic work activities.” (AR 17) (citing
Exs. 1A and 7F). The ALJ reasoned that, because he did not need to conduct a residual functional
capacity assessment in this case, little weight was given to the opinions.
An ALJ may not ignore the opinions of state agency medical consultants and must explain
the weight given to them. 20 C.F.R. § 416.927(e)(2)(ii); SSR 96-6p, 1996 WL 374180, *1 (July 2,
1996). In this case, the ALJ did not ignore these opinions and he explained the weight given to them.
Nevertheless, Plaintiff argues that the ALJ erred by failing to discuss Dr. Corcoran’s specific
assessments and by not explaining any conflicts between the results of Dr. Corcoran’s assessments
15
and his ultimate finding. Plaintiff accuses the ALJ of giving priority to his lay opinion over the
expert medical opinion of Dr. Corcoran. The problem with Plaintiff’s argument is that the ALJ did
not make any medical determinations in discussing Dr. Corcoran’s opinion; rather, he made the
administrative decision at step two that Plaintiff did not suffer from a severe impairment based on
his review of the entire record. Moreover, other than citing law and making sweeping arguments,
Plaintiff does not identify any aspects of Dr. Corcoran’s assessments, which the Court listed above,
that are at odds with the ALJ’s findings. The ALJ is not bound by the state agency consultant’s
opinion, and the ALJ properly considered Dr. Corcoran’s assessment in light of the entire record.
SSR 96-6p, at *1. Remand is not required.
C. Medical Evidence
Plaintiff next contends that the ALJ erred in finding that her impairments were not severe
by mischaracterizing evidence or failing to mention significant relevant evidence. A medically
determinable impairment is severe when it significantly limits physical or mental abilities to do basic
work activities, as set out above. 20 C.F.R. § 416.920(c).
First, Plaintiff criticizes the ALJ for finding that her allegations of symptoms consistent with
her medically determinable impairments of diabetes mellitus, hypertension, hyperlipidemia, and
polysubstance abuse disorder were not consistent with the available objective medical evidence. (AR
15). As noted above, Social Security Ruling 96-7p provides that “[a]n individual’s statements about
the intensity and persistence of pain or other symptoms or about the effect the symptoms have on
his or her ability to work may not be disregarded solely because they are not substantiated by
objective medical evidence.” SSR 96-7p, at *8. If the symptoms of a medically determinable
impairment cause more than a minimal effect on the ability to do basic work activities, a finding of
16
severe impairment must be entered “even if the objective medical evidence would not itself establish
that the impairment is severe.” SSR 96-3p.
Plaintiff argues that several objective tests included “relevant anomalies” that the ALJ failed
to mention. Regarding her liver, the ALJ noted that during her hospital stay in June 2010, physical
examination of her liver “was consistent with a slightly enlarged, but normal liver.” (AR 16 (citing
Ex. 3F)). Plaintiff argues that she was admitted to the hospital in June 2010 in part for elevated liver
enzymes, that she was diagnosed with elevated liver enzymes, and that later blood tests confirmed
the existence of elevated liver enzymes. (Pl. Br. 15 (citing (AR 183, 185, 192, 196, and 242))).
Plaintiff presented to the emergency room because of chest pain and was admitted due to chest pain,
diabetes mellitus, hypertension, dyslipidemia, and elevated liver enzymes. (AR 185). Blood tests
run at the hospital on June 27, 2010, showed elevated AST, ALT, and Amylase. (AR 192, 196). On
July 1, 2010, blood test results showed elevated AST and ALT. However, Plaintiff does not explain
how, much less assert, that any of these tests suggest that Plaintiff’s liver condition affected her
ability to do basic work activities. The ALJ did not err by not specifically discussing these tests,
which do not conflict with the evidence of record that the ALJ discussed regarding Plaintiff’s liver.
As for her diabetes, Plaintiff notes that the ALJ mentioned that Plaintiff’s diabetes was
controlled, which it was in certain medical records, without discussing evidence in the record that
her diabetes was later assessed as uncontrolled. See (AR 313 (1/25/2012), 314 (1/18/2012), 315
(12/21/2011), 316 (10/17/2011), 317 (9/19/2011), 320 (6/29/2011), 321 (6/15/2011)). Plaintiff notes
this in one sentence without discussion. These records simply note that her diabetes is uncontrolled
on some occasions; these records also show that Plaintiff was not taking her medications as
prescribed due to financial reasons. See (AR 316, 318, 321). Other evidence of record shows that
Plaintiff’s diabetes was controlled when she was following prescribed treatment. (AR 171
17
(7/9/2010), 227-32 (8/2/2010), 237 (6/17/2010), 249 (9/16/2010)). Again, Plaintiff does not point
to any evidence that she has limitations that affect her ability to do basic work activities as a result
of her diabetes.
Plaintiff also points to evidence of cardiovascular and pulmonary problems. She contends
that the ALJ dismissed evidence of lower left lobe scarring and bradycardia because “the majority
of the test results” were normal and that the ALJ stated that Plaintiff’s cardiovascular and pulmonary
exams in 2011 and 2012 “remained unremarkable.” (AR 15, 16). Plaintiff argues that the ALJ failed
to discuss record evidence of “further anomalies” revealed by the echocardiogram during her
hospitalization in June 2010, including ventricular hypertrophy, trace mitral regurgitation, mild
tricuspid regurgitation, and trace pulmonic valvular regurgitation. (AR 240-41, 306-07). She also
notes that Dr. Corcoran commented that Plaintiff’s June 28, 2010 stress test showed changes
consistent with coronary artery disease. (AR 55). Plaintiff argues that the ALJ’s failure to mention
these objective findings by deeming them “unremarkable” is an improper finding for an ALJ to
make, citing Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). However, in Steele, the ALJ
identified EEGs showing seizure episodes as “unremarkable.” Id. In this case, Plaintiff again fails
to show, much less argue, how these findings from June 2010 show that any cardiac or pulmonary
condition affects her ongoing ability to do basic work activities.
In his decision, the ALJ noted that, in his summary of the August 2, 2010 consultative
examination, which was less than two months after the objective tests cited by Plaintiff, Dr. Smejkal
noted that despite complaints of chest pain and shortness of breath there were no respiratory or
cardiovascular abnormalities. This is accurate. Under “cardiovascular,” Dr. Smejkal noted, “There
is chest pain and shortness of breath on exertion.” (AR 228). This is a recitation of Plaintiff’s
18
subjective complaints. He then wrote, “No irregular heartbeat, tachycardia, and edema associated
with dyspnea.” Id. Later in the report, under the heading “physical examination” and the subheading
“lungs,” Dr. Smejkal wrote: “Normal chest wall movement with normal percussion in all lung fields.
Normal vascular breath sounds without wheezing, rhonchi or rales noted. There is no increased A/P
diameter and accessory muscle tone.” (AR 229). Under the subheading “heart,” Dr. Corcoran wrote,
“Apex beat is not displaced and is normal in character. No parasternal heave or thrill. 1st and 2nd
heart sounds are normal. No S3 or S4. No gallops, murmurs, or clicks heard. No pedal edema noted.
Peripheral pulses are palpable, equal on both sides and normal in character.” Id. Thus, the ALJ
correctly described Dr. Smejkal’s examination notes.
Plaintiff also points to “another examination” showing that Plaintiff presented with
“tachypneic respirations.” (Pl. Br. 16 (citing (AR 180))). This record is Plaintiff’s admission to the
hospital for chest pain on June 26, 2010, and it provides that her “[r]espirations were slightly
tachypneic at 22.” (AR 180). There are no other instances in the record of shortness of breath. The
ALJ’s failure to note this symptom upon Plaintiff’s admission to the hospital, which the ALJ
otherwise fully discussed, was not an error.
Regarding her back pain, Plaintiff argues that the ALJ mischaracterized the evidence when
he noted that at a routine visit in December 2010, she reported back pain after moving furniture “but
her exam was benign aside from her subjective complaints.” (AR 16 (citing (AR 246))). To counter
this finding, Plaintiff notes that the doctor’s impression that date included low back pain. (AR 246).
Plaintiff misses the point. The ALJ correctly noted that the physical exam by the doctor was benign.
The doctor made the notation under “musculoskeletal” of “gait stable and station mid position and
normal” and made the notation under “neuro” that deep tendon reflexes and sensations are normal.
19
(AR 246). All other physical findings were normal as well. Plaintiff does not identify any physical
findings that were not normal. Thus, the impression of lower back pain appears to be based on
Plaintiff’s subjective complaints only. The ALJ did not mischaracterize the evidence.
Next, Plaintiff attacks the ALJ for using the expression “totally disabled” when commenting
that, in check ups following February 2011 no diagnostic testing was ordered, “which is not the type
of medical care one would expect an allegedly ‘totally disabled’ individual to be subjected to.” (AR
16 (citing Ex. 10F)). Plaintiff argues that “totally disabled” is not the standard for determining
whether an impairment is severe at step two. Again, Plaintiff misunderstands the ALJ’s reasoning
and takes a phrase out of context. The ALJ was not making a finding of disability past step two, but
rather was referencing Plaintiff’s claim that she was “totally disabled.” Plaintiff’s application for
benefits claimed that she was “totally disabled,” not simply that she had severe impairments at step
two; thus, it was not incorrect for the ALJ to analyze the evidence in light of her claim of total
disability.
Next Plaintiff argues that there is “some indication on[sic] the record that during that period,
MRI testing and blood work was ordered.” (Pl. Br. 16-17 (citing (AR 313))). The treatment record
for January 25, 2012, referenced by Plaintiff, notes that she had blood work done at some point,
although there is no contemporaneous record of blood work in the record. The document also
contains what appear to be the words “MRI lumbar [illegible].” (AR 313). There is no order for an
MRI, and there is no record of an MRI.
Apparently conceding that this notation carries no weight, Plaintiff argues instead that the
ALJ failed to consider her medications when commenting that she was not receiving the type of
treatment a “totally disabled” person would be expected to receive. She notes prescriptions for
20
Vicodin and Vicoprofen. (Pl. Br. (citing (AR 313, 319, 322, 324, 326))). The Court does not see a
prescription for pain medication on AR 313, 322, or 326, and Plaintiff does not clarify what pain
medication she believes is prescribed on each of those pages. On February 22, 2011, Plaintiff was
prescribed Vicodin. (AR 325). On March 8, 2011, there is a prescription for Vicoprofen. (AR 324).
On July 29, 2011, Plaintiff presented stating that she “needed” Vicodin, but the doctor explained that
he would not give her Vicodin because it contains Tylenol. (AR 319). Instead, he prescribed Ultram.
She notes a prescription for Aminophylline for chest pain and Flexeril as a muscle relaxant. (AR
209-211, 246-47). There are also notations of Vicoprofen on October 17, 2011, December 21, 2011,
and Janaury 18, 2012 (AR 317, 316, 315).
Plaintiff cites Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004), which is
distinguishable. In Carradine, the plaintiff had undergone pain treatment procedures that included
not only “heavy doses” of Vicodin, Toradol, Demerol, and morphine but also the surgical
implantation in her spine of a catheter and a spinal-cord stimulator. Id. On this basis, the court found
that it was unlikely that she had fooled doctors into believing that she suffered “extreme pain.” Id.
Similarly, in Goble v. Astrue, 385 F. App’x 588, 591 (7th Cir. 2010), also cited by Plaintiff, the
plaintiff had been prescribed methadone and other medications and her doctors had ordered batteries
of tests in response to her complaints of pain. Although the ALJ’s decision would have been more
complete had he discussed her medications, the overall record, which the ALJ fully discussed, does
not support the severity of Plaintiff’s subjective complaints of pain.
In her reply brief, Plaintiff cites Parker v. Astrue, 597 F.3d 920, 922-23 (7th Cir. 2010), as
a case in which the ALJ improperly relied upon a lack of verifying objective medical evidence.
Parker is distinguishable in that the ALJ relied solely on the lack of objective medical evidence to
21
find that the plaintiff’s allegations were not true, and the plaintiff in Parker suffered from extreme
pain with an unknown etiology. Notably, the court in Parker acknowledged that the absence of
verifiable medical evidence of pain is not an inadmissible consideration in a disability proceeding.
Id. at 922. In this case, Plaintiff does not suffer from extreme pain of an unknown etiology; rather,
Plaintiff’s alleged pain comes from various impairments for which objective tests are available but
which were not ordered by Plaintiff’s treating physicians.
Although the burden on Plaintiff is not high, substantial evidence supports the ALJ’s
conclusion that Plaintiff’s medically determinable impairments do not significantly limit her
physical or mental ability to do basic work activities. Nearly every physical examination was
entirely normal, other than a single observation of muscle spasm in January 2011, following an
injury to Plaintiff’s back when she was moving furniture. Diagnostic testing was consistently normal
and failed to account for Plaintiff’s alleged symptoms. None of Plaintiff’s concerns regarding the
ALJ’s treatment of the medical evidence requires remand.
D. Non-Medically Determinable Impairments
Plaintiff argues that the ALJ erred by finding that her carpal tunnel syndrome, peripheral
neuropathy, vision loss, restless leg syndrome, hepatitis C, migraine headaches, lower back disorder,
and mitral valve prolapse were not medically determinable impairments. A plaintiff’s “statements
(or those of another person) alone . . . are not enough to establish that there is a physical or mental
impairment.” By themselves, symptoms, which are the plaintiff’s own description of her
impairments, do not overcome the burdens of step two. See Swanson v. Colvin, No. 1:13-cv-1194,
2014 WL 4162363, at *6 (S.D. Ind. Aug. 19, 2014) (citing 20 C.F.R. § 404.1528(b) (“Signs are
anatomical, physiological, or psychological abnormalities which can be observed, apart from your
22
statements (symptoms).”)); 20 C.F.R. § 416.928(b). Rather, signs, symptoms, and laboratory
findings are required to establish a medically determinable impairment. SSR 96-4p, 1996 WL
374187, at *1 (July 2, 1996). More specifically, the Ruling provides:
Although the regulations provide that the existence of a medically determinable
physical or mental impairment must be established by medical evidence consisting
of signs, symptoms, and laboratory findings, the regulations further provide that
under no circumstances may the existence of an impairment be established on the
basis of symptoms alone. Thus, regardless of how many symptoms an individual
alleges, or how genuine the individual’s complaints may appear to be, the existence
of a medically determinable physical or mental impairment cannot be established in
the absence of objective medical abnormalities; i.e., medical signs and laboratory
findings.
Id. (emphasis added).
Plaintiff argues that the ALJ found these impairments not to be medically determinable
because there were no diagnoses of record, and then Plaintiff cites pages where various of these
impairments were diagnosed in the treatment records. Plaintiff again misunderstands the ALJ’s
analysis. The ALJ made the statement in the context of the law the Court has just set out that there
must be medical evidence consisting of signs, symptoms, and laboratory findings. The ALJ then
went on to consider each of these non-medically determinable impairments and discussed how each
did not meet this standard. (AR 17-18). The Court will not recount all of that evidence here as the
ALJ’s decision was thorough.
Plaintiff makes specific arguments only as to her headaches, hepatitis C, and mitral valve
prolapse. First, Plaintiff argues that Dr. Corcoran diagnosed Plaintiff with migraine headaches
during his consultative review of the record. (AR 53). She argues that the ALJ erred when he stated
that there was no testing or symptomology consistent with migraine headaches. (AR 18). During her
hospitalization in June 2010, the treating doctor noted that her headaches were “migraine in
23
character” based on Plaintiff’s representations. (AR 181). There is no evidence that Plaintiff was
suffering a migraine headache during her hospitalization. Plaintiff argues that there is no objective
medical test that confirms the existence of migraines, as they “do not stem from a physical or
chemical abnormality that can be detected by imaging techniques, laboratory tests, or physical
examination.” Pl. Br. 19 (citing Stebbins v. Barnhart, NO. 03-C-0117-C, 2003 WL 23200371, at *10
(W.D. Wis. Oct. 21, 2003); Tysonv. Astrue, No. 08-CV-383, 2009 WL 772880, at *9 (W.D. Wis.
Mar. 20, 2009); Longerman v. Astrue, No. 11 CV 383, 2011 WL 5190319, at *8-9 (N.D. Ill. Oct.
28, 2011)). Plaintiff goes on to argue that “symptoms consistent with migraine headaches, when
documented by a physician in a clinical setting ‘are, in fact, medical signs which are associated with
severe migraine headaches’ and are often the only way to prove the existence of migraines.” (Pl. Br.
19 (citing Ortega v. Chater, 933 F. Supp. 1071, 1075 (S.D. Fla. 1996)). This is exactly the ALJ’s
reasoning in this case, as he found “no testing or symptomology consistent with migraine
headaches.” (AR 18). There is no documentation by a physician in a clinical setting of the medical
signs associated with migraine headaches.
Regarding her hepatitis C, the ALJ found that, although there are sporadic references to a
history of hepatitis, “all testing was unremarkable.” (AR 18 (citing Ex. 3F)). The ALJ noted that the
laboratory work indicated slightly elevated liver enzymes but a computerized CT scan of the
abdomen was unremarkable other than some enlargement. Plaintiff argues that, based on these tests,
the ALJ should have found that she had the medically determinable impairment of hepatitis C.
However, there is no evidence in the record of a hepatitis C antibody test. See
http://www.cdc.gov/hepatitis/hcv/pdfs/hepctesting-diagnosis.pdf (last visited Sept. 22, 2014). Even
24
if Plaintiff’s hepatitis C was a medically determinable impairment, Plaintiff has not argued that it
affects her ability to do basic work activities.
Finally, Plaintiff argues that the ALJ should have found that she had the medically
determinable impairment of mitral valve prolapse. The ALJ noted in his decision that mitral valve
prolapse was not substantiated by “an echocardiogram, color flow doppler, or chest x-ray/magnetic
resonance imagining (MRI)/or computerized tomography (CT) scan” resulting in a diagnosis. (AR
18). Plaintiff argues that the ALJ ignored several objective tests that showed some “medical
abnormalities,” (Pl. Br. 16), including findings of bradycardia (slow heart beat) and significant
rhythm changes during her June 2010 hospitalization for chest pain.2 She also notes that an
echocardiogram during that hospitalization showed mild concentric left ventricular hypertrophy,
trace mitral regurgitation, mild tricuspid regurgitation, and trace pulmonic valvular regurgitation.
(AR 240-42, 306-07). Plaintiff fails to note that the “interpretive summary” from that test was that
the left ventricle was normal in size, that there was normal overall left ventricular systolic function,
that there was mild concentric left ventricular hypertrophy, and that the left ventricular wall motion
was normal. (AR 240). While hospitalized in June 2010, a physical examination showed that
Plaintiff experienced mild to moderate tenderness in her chest when palpitated. (AR 186). Dr.
Corcoran noted that results of Plaintiff’s stress test were consistent with coronary artery disease.
(AR 55). “Mitral valve prolapse occurs when the valve between [the] heart’s left upper chamber (left
atrium)
and
the
left
lower
chamber
(left
ventricle)
doesn’t
close
properly.”
http://www.mayoclinic.org/diseases-conditions/mitral-valve-prolapse/basics/definition/con-2002
2
She also points to a reference in her June 2010 testing that it was compared to 2009, when she had scarring
in the lower left lobe of her lungs (AR 166-67). Plaintiff does not explain how this objective finding related to her lungs
supports a diagnosis of mitral valve prolapse.
25
4748 (last visited Sept. 22, 2014). There is no diagnosis of mitral valve prolapse in the record, and
Plaintiff fails to demonstrate that these findings establish the medically determinable impairment
of mitral valve prolapse.
CONCLUSION
The standard for disability claims under the Social Security Act is stringent. “Even claimants
with substantial impairments are not necessarily entitled to benefits, which are paid for by taxes,
including taxes paid by those who work despite serious physical or mental impairments and for
whom working is difficult and painful.” Williams-Overstreet v. Astrue, 364 F. App’x 271, 274 (7th
Cir. 2010). Furthermore, the standard of review of the Commissioner’s denial of benefits is narrow.
Id. Finding that Plaintiff received a full and fair review of her claims, the Court hereby DENIES the
relief sought in Plaintiff’s Brief in Support of Reversing the Decision of the Commissioner of Social
Security [DE 16] and AFFIRMS the decision of the Commissioner.
So ORDERED this 22nd day of September, 2014.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:
All counsel of record
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