Norris v. Commissioner of the Social Security Administration
Filing
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OPINION AND ORDER: Finding that Plaintiff received a full and fair review of her claims, the Court hereby DENIES the relief sought in Plaintiffs Brief 17 and AFFIRMS the final decision of the Commissioner of Social Security. Signed by Magistrate Judge Paul R Cherry on 11/19/2014. (rmn)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
PATRICIA A. NORRIS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
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CAUSE NO.: 2:13-CV-259-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Patricia A. Norris
on July 30, 2013, and Plaintiff’s Brief [DE 17], filed on January 15, 2014. Plaintiff requests that the
December 4, 2013 decision of the Administrative Law Judge denying her claims for disability
insurance benefits and supplemental security income be reversed for an award of benefits or
remanded for further proceedings. On April 23, 2014, the Commissioner filed a response, and
Plaintiff filed a reply on May 5, 2014. For the following reasons, the Court denies Plaintiff’s request
for remand.
PROCEDURAL BACKGROUND
On March 29, 2011, Plaintiff filed applications for disability insurance benefits and
supplemental security income, alleging an onset date of January 1, 2011. The applications were both
denied initially on June 29, 2011, and upon reconsideration on October 13, 2011. Plaintiff filed a
timely request for a hearing on November 11, 2011, which was held on June 22, 2012, before
Administrative Law Judge (“ALJ”) David Skidmore. In appearance were Plaintiff, her attorney, and
a vocational expert. The ALJ issued a written decision denying benefits on December 4, 2013,
making the following findings:
1.
The claimant meets the insured status requirements of the Social Security Act
through June 30, 2011.
2.
The claimant has not engaged in substantial gainful activity since January 1,
2011, the alleged onset date.
3.
The claimant has the following severe impairments: lumbar disc disease,
arthritis, depression, and anxiety disorder.
4.
The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1.
5.
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b). She can lift and carry 10 pounds frequently and
20 pounds occasionally; she can walk, stand, and sit for up to six hours each
in an eight-hour workday; she can perform simple, routine tasks such that she
can understand, remember and carry out simple work instructions, tolerate
occasional changes in the work setting in terms of processes and products,
and exercise no more than simple work place judgments.
6.
The claimant is capable of performing her past relevant work as a
housekeeper. This work does not require the performance of work related
activities precluded by the claimant’s residual functional capacity.
7.
The claimant has not been under a disability, as defined in the Social Security
Act, from January 1, 2011, through the date of this decision.
(AR 24-30).
On May 31, 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. §§ 404.981 and 416.1481. On
July 30, 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.
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Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
FACTUAL BACKGROUND
A. Background
Plaintiff Patricia A. Norris, was 56 years old on her onset date. She has an eleventh grade
education. Plaintiff’s past relevant work was as a housekeeper manager and a laborer.
B. Relevant Medical Evidence
1.
Patel Medical Associates, P.C.
Plaintiff was treated by Kantilal Patel, M.D., between May 2009 and January 2011 for
degenerative joint disease, arthritis, and anxiety, for which Dr. Patel prescribed Xanax and Vicodin.
An MRI of the lumbar spine dated December 27, 2010, showed a large herniation at L4-5 to the
right of the midline with narrowing of the right neural foramina and deformity of the thecal sac and
degenerative disease at L5-S1 with bulging disc with mild neuroforaminal narrowing bilaterally. On
January 31, 2011, Plaintiff was seen for a routine follow-up for her arthritis, COPD, hypertension,
and degenerative joint disease; her medications were refilled.
Sometime after the January 31, 2011 visit but before June 21, 2011, Dr. Patel completed a
“Multiple Impairment Questionnaire” form provided by Plaintiff’s attorney. On the undated form,
Dr. Patel opined that Plaintiff was able to sit three hours total and stand/walk less than one hour total
in an eight-hour workday. She also needed to get up and move around every twenty to thirty minutes
when sitting. According to Dr. Patel, Plaintiff could occasionally lift ten pounds. Dr. Patel further
opined that Plaintiff was limited in her use of her upper extremities for grasping, turning, and
twisting objects. Dr. Patel noted that Plaintiff would have good days and bad days, but would be
absent from work more than three times a month as a result of her impairments or treatment. Further,
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Dr. Patel opined that Plaintiff’s condition interfered with her ability to keep her neck in a constant
position.
2.
Alexander Panagos, M.D.
On June 13, 2011, Plaintiff underwent a consultative examination by Alexander Panagos,
M.D. Dr. Panagos was provided with outpatient progress notes dated October 2010, May 2010,
March 2010, February 2010, January 2010, December 2009, November 2009, October 2009,
September 2009, and August 2009. In his examination of her back, Dr. Panagos noted no deformity
or trauma and normal lumbar curvature but recorded bilateral lower lumbar vertebral and
paravertebral tenderness. Dr. Panagos made findings of range of motion within normal limits,
flexion of 90 degrees, extension of 30 degrees, and lateral flexion on the right and left of 25 degrees.
The straight leg raise test was negative bilaterally. The musculoskeletal examination revealed full
range of motion in all joints. Dr. Panagos noted no redness, swelling, or thickening. He wrote that
Plaintiff was able to bear her own weight, her gait was normal, she could tandem walk, and she did
not use an assisting device to walk. Plaintiff had no trouble getting on and off of the examination
table, rising from her chair, performing heel and toe walking, or squatting. Her finger grasps and
grip strength were both unimpaired bilaterally. Dr. Panagos’ relevant clinical impression was
chronic lower lumbar pain, arthritis, and herniated disk.
C. Plaintiff’s Hearing Testimony
At the hearing, Plaintiff testified that she is unable to work due to back pain in her lower
back that radiated into her neck and down her legs. She claims that her medications “dull the pain”
when she first takes them, but that the dulling does not last long. She claims that the pain improves
when she lies down. While working as a house keeper, Plaintiff was required to lift fifty pounds, but,
due to her back pain, she estimates that she can no longer carry any more then ten pounds. She
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testified that she can stand for thirty to forty-five minutes. Plaintiff also has panic attacks every day
that are not precipitated by anything. She began having panic attacks before she stopped working,
and at times would have to lie down at work until they stopped. Plaintiff lives with her aunt. She
stated that she is able to help with the household chores, but “what used to take a couple hours to
do will take me all day to do now.” (AR 47). Plaintiff and her aunt take their clothes to the
laundromat, where they wash, dry, and fold the clothes; she testified that she is “really hurting” by
the time they are finished. (AR 49). Her aunt usually drives her anywhere she needs to go, but when
her aunt can not drive her, Plaintiff takes public transportation. Her aunt handles all their finances.
Plaintiff only socializes with her cousins who live down the street; on occasion they go out to dinner.
Plaintiff testified that she has not seen a psychiatrist because she has no health insurance or money
to pay for one.
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
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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)).
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 [a 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.”).
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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. §§ 404.1520(e)-(f),
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. §§ 404.1520(a)(4), 416.920(a)(4).
The steps are: (1) 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
residual functional capacity (“RFC”), age, education, and experience? If yes, then the claimant is
7
not disabled, and the claim is denied; if no, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(i)(v), 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 consider an assessment of the claimant’s 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
Plaintiff seeks reversal of the ALJ’s decision, arguing that, in finding Plaintiff not disabled,
the ALJ improperly weighed the opinion of Dr. Patel and improperly assessed Plaintiff’s credibility.
The Commissioner contends that the ALJ considered the record under the appropriate regulatory
framework and that substantial evidence supports his decision. The Court considers each of
Plaintiff’s arguments in turn.
A. Weight Given to Treating Physician’s Opinion
Plaintiff first argues that the ALJ improperly weighed the opinion of her treating physician,
Dr. Patel. An ALJ must give the medical opinion of a treating doctor controlling weight as long as
the
treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s]
impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in
[a claimant’s] case record . . . . When we do not give the treating source’s opinion
controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii)
of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this
8
section in determining the weight to give the opinion. We will always give good
reasons . . . for the weight we give to your treating source’s opinion.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.
2010); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008); Hofslien v. Barnhart, 439 F.3d 375, 376
(7th Cir. 2006); SSR 96-8p; SSR 96-2p, 1996 WL 374188 (Jul. 2, 1996). In other words, the ALJ
must give a treating physician’s opinion controlling weight only if (1) the opinion is supported by
“medically acceptable clinical and laboratory diagnostic techniques” and (2) it is “not inconsistent”
with substantial evidence of record. Schaaf, 602 F.3d at 875.
The factors listed in paragraphs (c)(2)(i) through (c)(6) are the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment relationship,
supportability, consistency, specialization, and other factors such as the familiarity of a medical
source with the case. 20 C.F.R. §§ 404.1527(c), 416.927(c). “[I]f the treating source’s opinion passes
muster under [§ 404.1527(c)(2)], then there is no basis on which the administrative law judge, who
is not a physician, could refuse to accept it.” Punzio v. Astrue, 630 F.3d 704, 713 (7th Cir. 2011)
(internal quotation marks omitted) (quoting Hofslien, 439 F.3d at 376). Courts have acknowledged
that a treating physician is likely to develop a rapport with his or her patient and may be more likely
to assist that patient in obtaining benefits. Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007). An
ALJ is entitled to discount the medical opinion of a treating physician if it is inconsistent with the
opinion of a consulting physician or when the treating physician’s opinion is internally inconsistent,
as long as the ALJ gives good reasons. Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010);
Schaaf, 602 F.3d at 875; Skarbek, 390 F.3d at 503. The ALJ cannot pick and choose the evidence
that favors his final decision; rather, the ALJ must articulate his analysis well enough for an
appellate court to follow and review his reasoning. Diaz, 55 F.3d at 307.
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In this case, the ALJ discounted Dr. Patel’s opinion because it is inconsistent with the
examination findings of Dr. Panagos, the consultative examiner. Dr. Patel’s opinion was given on
a “Multiple Impairment Questionnaire,” an undated form provided by Plaintiff’s attorney that was
completed and returned to Plaintiff’s attorney sometime after January 31, 2011, but before June 21,
2011, the date of the accompanying cover letter sent by Plaintiff’s attorney to the social security
administration. Based on Dr. Patel’s opinion, Plaintiff cannot perform even sedentary work, the
lowest level of exertional work recognized by the Commissioner. See C.F.R. §§ 404.1567(a),
416.967(a). Dr. Patel stated that his opinions were based on clinical findings of lower back pain with
lower extremity pain and objective MRI imaging of the lumbar spine. Dr. Patel treated Plaintiff
throughout the relevant time period for the pain-related impairments at issue in this case.
In giving little weight to the opinion of Dr. Patel, the ALJ found that Dr. Patel’s opinion
regarding the severity of Plaintiff’s pain was inconsistent with his own treatment notes, which the
ALJ described as sparse and as not detailing the objective signs and symptoms supporting the
diagnoses of lumbar radiculopathy and sciatic nerve pain. The ALJ noted that a specialist had not
corroborated Dr. Patel’s diagnoses. The ALJ noted the absence of any documented evidence of the
degree of functional limitation opined by Dr. Patel and that there is no evidence in the record that
Plaintiff would be limited in the use of her arms and hands if her disease is limited to the lumbar
spine. The ALJ noted the lack of any laboratory findings confirming Dr. Patel’s diagnosis of
rheumatoid arthritis. See 20 C.F.R. §§ 404.1529(a), 416.929(a) (“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 . . . .”).
The ALJ then contrasted Dr. Patel’s “severe assessment” with the largely normal
examination findings of Dr. Panagos, the consultative examiner, during the same time period. See
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(AR 28). The ALJ noted that Dr. Panagos reported only lumbar tenderness and that Plaintiff had no
difficulty “performing any special maneuvers, which would not be the case if the claimant’s pain
were as severe as she and Dr. Patel described.” (AR 28). The ALJ continued by contrasting Dr.
Patel’s functional assessment with his own treatment notes, finding the assessment to be “grossly
out of proportion to [his] own notes and the clinical findings of Dr. Panagos.” Id. The ALJ
concluded by surmising that Dr. Patel recorded Plaintiff’s subjective statements and crafted a
sympathetic opinion to assist Plaintiff in her application for disability benefits.
Nevertheless, the ALJ did not question that Plaintiff’s back impairment caused some pain
and functional loss. The ALJ rejected the opinions of the state agency reviewing physicians who
found that Plaintiff did not have any severe impairment, finding instead that the evidence of record
support severe impairments. Rather, the ALJ questioned the severity of Plaintiff’s pain, noting that
the medical evidence was so mild that it had led the state agency reviewing physicians to find no
severe impairment. The ALJ went on to review the MRI results from December 2010 that showed
an L4-5 disc herniation with narrowing of the right neural fomina and deformity of the thecal sac
and mild L5-S1 disc bulging with mild neuroforaminal narrowing bilaterally. The ALJ found that
Dr. Patel did not provide a great deal of treatment overall and that the treatment provided was
conservative in nature, consisting of exercise and pain medication. The ALJ then reviewed
Plaintiff’s activities of daily living and found that they were inconsistent with the level of incapacity
she alleged.
First, Plaintiff argues that the ALJ erred by rejecting Dr. Patel’s opinion in favor of his own
interpretation of the medical evidence and by finding that Dr. Patel’s opinions were not supported
by sufficient clinical and diagnostic findings. The ALJ did not “play doctor” or make any
independent medical findings. Rather, as set out above, the ALJ considered all of the relevant
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factors, including the detailed examination findings of Dr. Panagos, which are discussed in detail
below. Although Plaintiff is correct that, generally, Dr. Patel’s treatment notes consistently noted
lumbar spine tenderness and muscle spasms, Plaintiff does not identify any indication in the
treatment notes as to the degree of those symptoms or that Plaintiff has any limitations as a result.
Plaintiff does not identify any clinical or diagnostic findings in the record that support the extreme
limitations in Dr. Patel’s opinion.
Second, Plaintiff argues that the ALJ improperly considered that Plaintiff had not seen a
specialist, noting that Dr. Patel recommended an evaluation for physical therapy and for pain
management, that Plaintiff did not have health insurance, and that Plaintiff could not afford to treat
with a specialist. First, nowhere in the progress notes completed over the course of the treating
relationship did Dr. Patel indicate that more aggressive treatment was needed or that, but for
financial limitations, such treatment would have been pursued. Dr. Patel only suggested evaluation
for physical therapy and pain management for the first time on the questionnaire provided by
Plaintiff’s attorney sometime after January 31, 2011. Next, nowhere in the record did Plaintiff
contend that she was unable to get treatment for her physical impairments due to a lack of health
insurance. And, her hearing testimony was that she was unable to afford mental health treatment;
she did not testify that Dr. Patel proposed treatment for her back that she did not pursue because of
a lack of funds.
Third, Plaintiff argues that the ALJ erred by concluding that Plaintiff’s lumbar spine
impairment could not cause problems with her arms; Plaintiff notes that Dr. Patel wrote that these
limitations were caused by Plaintiff’s “arthritis and degenerative disc disease.” (Pl. Br. 7). The ALJ
correctly noted that there is no evidence in the treatment record that Plaintiff had any limitations in
her arms resulting from her degenerative disc disease. The record’s notations are consistently to
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lumbar back pain. Moreover, Plaintiff misstates Dr. Patel’s explanation on the form provided by
counsel, which provides that Plaintiff has “degenerative joint disease.” All of the references to
degenerative joint disease on the form are in relation to her lumbar pain. There is no evidence in the
record that Plaintiff’s degenerative joint disease affects her arms and hands. Notably, Dr. Panagos’
examination of Plaintiff was entirely normal in relation to the upper extremities.
Fourth, Plaintiff contests the ALJ’s reliance on Dr. Panagos’ examination findings, arguing
that, like Dr. Patel, Dr. Panagos found that Plaintiff had lower lumbar tenderness. Plaintiff reasons
that it was wrong for the ALJ to treat Dr. Panagos’ findings as contradictory to those of Dr. Patel.
Plaintiff wholly fails to acknowledge Dr. Panagos’ otherwise normal examination findings.
Although Dr. Panagos noted lumbar tenderness, he found normal lumbar curvature, no deformity
of the back, no trauma, range of motion within normal limits, and negative straight leg raises
bilaterally. Dr. Panagos found full range of motion in all joints with no redness, swelling, or
thickening of any joints noted. Plaintiff was able to bear her own weight, and her gait was normal.
Dr. Panagos noted that Plaintiff had no difficulty getting on and off the examination table and no
difficulty getting up from the chair. She was able to heel and toe walk, to squat, and walk with a
tandem gait. Dr. Panagos found that Plaintiff’s finger grasp and hand grip were unimpaired
bilaterally. Dr. Panagos noted that Plaintiff did not appear to be in any acute distress at the time of
the examination.
Plaintiff also seems to suggest that, because Dr. Panagos did not give a direct opinion on
Plaintiff’s work-related functioning, the ALJ erred by relying on his findings, citing inapposite, outof-circuit opinions. In Hutsell v. Massanari, 259 F.3d 707, 217 (8th Cir. 2001), the court found that
a “treating doctor’s silence on the claimant’s work capacity does not constitute substantial evidence
supporting an ALJ’s functional capacity determination when the doctor was not asked to express an
13
opinion on the matter and did not do so, particularly when that doctor did not discharge the claimant
from treatment.” The ALJ in this case did not rely on the treating doctor’s silence. In Rosa v.
Callahan, 168 F.3d 72, 81 (2d Cir. 1999), the court recognized its prior holding that “an ALJ’s
decision to reject a treating physician’s diagnosis merely on the basis that other examining doctors
reported no similar findings” when those examining doctors “were never asked what work or
activity, such as sedentary employment, [the claimant] could perform and hence expressed no
opinion on that subject.” Plaintiff is correct that Dr. Panagos did not give an RFC opinion. However,
the ALJ did not rely on Dr. Panagos’ failure to report limitations similar to Dr. Patel’s. Rather, the
ALJ relied on Dr. Panagos’ examination findings and Dr. Patel’s own unremarkable treatment
records to discount Dr. Patel. Finally, in Allen v. Bowen, 881 F.2d 37, 41 (3d Cir. 1989), the court
reaffirmed the principle, like that in the Seventh Circuit Court of Appeals, that “where a report of
a treating physician conflicts with that of a consulting physician, the ALJ must explain on the record
the reasons for rejecting the opinion of the treating physician.” The court further found that there
was no conflict in that case just because the consultative physician was silent on the issue of the
claimant’s limitations. Id. at 41-42. Again, the ALJ in this case did not rely on Dr. Panagos’ silence
on the issue of limitations but rather on the evidence in Dr. Panagos’ records of his physical
examination of Plaintiff regarding the lack of limitation resulting from her back impairment and the
silence in Dr. Patel’s own treatment notes.
Next, Plaintiff argues that the ALJ failed to point to any specific evidence to justify his
conclusion that Dr. Patel was biased in Plaintiff’s favor by finding Plaintiff unable to work. Courts
recognize that doctors “will often bend over backwards to assist a patient in obtaining benefits.”
Hofslien, 439 F.3d at 377. As set forth above, the ALJ only came to the conclusion that Dr. Patel
gave a sympathetic opinion after fully discussing the lack of support in Dr. Patel’s own treatment
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records and the examination findings of Dr. Panagos. The ALJ properly supported his suspicion
regarding Dr. Patel’s motivations.
Thus, contrary to Plaintiff’s assertions, Dr. Patel’s opinion was not based on appropriate
clinical and diagnostic evidence and his opinion was contradicted by other substantial evidence in
the record. See SSR 96-2p. The ALJ properly considered the length of Dr. Patel’s treating
relationship with Plaintiff. The ALJ did not err in finding Dr. Patel’s functional assessment to be out
of proportion with his own progress notes and the clinical finding of Dr. Panagos. These
inconsistencies support the ALJ’s decision not to give controlling weight to Dr. Patel’s opinion.
Clifford, 227 F.3d at 871. And, the ALJ sufficiently articulated his reasons for giving Dr. Patel’s
opinion less weight. Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008). Notably, Plaintiff does not
identify any medical evidence of record or any portions of Dr. Patel’s treatment notes that support
the extreme position in the opinion. Plaintiff’s argument is largely formal without support from the
record.
Finally, in the concluding paragraph of this section, Plaintiff contends that the ALJ erred in
his determination of Plaintiff’s RFC by “failing to cite to any specific medical facts or nonmedical
evidence that supports the RFC finding.” (Pl. Br. 10). The RFC is a measure of what an individual
can do despite the limitations imposed by her impairments. Young v. Barnhart, 362 F.3d 995, 1000
(7th Cir. 2004); 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of a claimant’s RFC is a
legal, rather than a medical, decision reserved to the ALJ who need not rely solely on the opinions
of physicians. See 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(2); Diaz, 55 F.3d at 306 n.2; Anderson
v. Colvin, No. 13 C 0788, 2014 WL 5430275, at *31 (E.D. Wis. Oct. 25, 2014) (citing Aguilera v.
Colvin, No. 13 C 1248, 2014 WL 3530763, at *24 (E.D. Wis. July 15, 2014) (“[T]he ALJ need not
15
in determining RFC rely on any particular doctor’s opinion; rather, he must consider the entire
record.”)).
The ALJ determined that Plaintiff had the RFC to perform light work, which
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight may be very little, a job
is in this category when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work,
you must have the ability to do substantially all of these activities. If someone can
do light work, we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or inability to sit for long
periods of time.
20 C.F.R. §§ 404.1567(b), 416.967(b).
Plaintiff argues specifically that the ALJ “superimposed” his layman’s interpretation of the
MRI and examination findings, failed to consider the fact that Plaintiff could not afford treatment
with a specialist, and rejected all medical opinions in the record. (Pl. Br. 10) (citing Eakin v. Astrue,
432 F. App’x 607 (7th Cir. 2011); Suide v. Astrue, 371 F. App’x 684 (7th Cir. 2010)). Plaintiff
mischaracterizes the ALJ’s analysis. The ALJ provided a lengthy discussion of Plaintiff’s testimony
regarding all her impairments and the information in the medical records. The ALJ recognized that
the MRI from December 2010 showed a herniated disc, but, as discussed above, found that Dr.
Panagos’ subsequent examination on June 13, 2011, demonstrated that Plaintiff was not as limited
by her back condition as she contended. The ALJ recognized that Plaintiff testified she could not
afford mental health treatment; there is no evidence in the record that she did not pursue
recommended treatment for her back because of a lack of funds or insurance. Finally, although the
ALJ rejected Dr. Patel’s opinion as unsupported by the record, he based his decision largely on the
mild examination findings of Dr. Panagos that were not contradicted by Dr. Patel’s treating records.
16
Thus, there is no “evidentiary deficit” or “paucity of analysis.” See Suide, 371 F. App’x at 690;
Eakin, 432 F. App’x at 611.
Overall, the ALJ described Plaintiff’s lumbar disc disease, lower back pain, motor loss,
neurological deficits, and activities of daily living. After doing so, he concluded that Plaintiff could
perform light work despite each of the impairments. This is consistent with the Seventh Circuit
Court of Appeals’ repeated assertion that “an ALJ’s ‘adequate discussion’ of the issues need not
contain ‘a complete written evaluation of every piece of evidence.’” McKinzey v. Astrue, 641 F.3d
884, 891 (7th Cir. 2011) (quoting Schmidt, 395 F.3d at 744). The ALJ’s discussion here was more
than adequate. Notably, Plaintiff offers no specific analysis of the medical evidence to show that a
more restrictive RFC is supported by the record. The ALJ did not err in the weight he gave to the
treating physician’s opinion.
B. Plaintiff’s Credibility
Plaintiff contends that remand is required because the ALJ made several errors in assessing
her credibility. 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. §§
404.1529(a), 416.929(a). Subjective allegations of disabling symptoms alone cannot support a
finding of disability. Id. In determining whether statements of symptoms contribute to a finding of
disability, the regulations set forth a two-part test: (1) the claimant must provide objective medical
evidence of a medically determinable impairment or combination of impairments that reasonably
could be expected to produce the alleged symptoms; and (2) once an ALJ has found an impairment
that reasonably could cause the symptoms alleged, the ALJ must consider the intensity and
persistence of these symptoms. Id.
17
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.
See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also SSR 96-7p, 1996 WL 374186 (Jul. 2,
1996). 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, Ruling 96-7p provides that 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, at *6. “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)).
As an initial matter, Plaintiff notes that the ALJ used “boilerplate” language in the credibility
determination by stating that “the claimant’s statements concerning the intensity, persistence[,] and
limiting effects of [her] symptoms are not credible to the extent they are inconsistent with the above
residual functional capacity assessment.” (AR 27); see Bjornson v. Astrue, 671 F.3d 640, 645 (7th
18
Cir. 2012).1 However, an ALJ’s use of the boilerplate language does not amount to reversible error
if he “otherwise points to information that justifies his credibility determination.” Pepper, 712 F.3d
at 367-68. In this case, the use of “boilerplate” language does not require remand. The ALJ
considered the required factors in assessing Plaintiff’s credibility and analyzed the evidence to
explain his credibility determination while assessing the severity of Plaintiff’s impairment. See Filus
v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012). Plaintiff also contends that use of the boilerplate
language is cause for remand because the ALJ weighed Plaintiff's credibility against an RFC that
is not supported by any medical evidence. However, as stated above, the ALJ provided an adequate
discussion of all impairments and medical records in his RFC determination.
In addition, Plaintiff argues that the ALJ’s credibility determination was insufficient to find
Plaintiff not credible. First, Plaintiff asserts that, because the findings of Dr. Panagos mirror those
of her treating physician, Dr. Patel, the ALJ erred in finding that Dr. Panagos’ report revealed only
mild abnormalities. However, as discussed in the previous section, the ALJ did not err in the weight
given to Dr. Patel’s opinion, Plaintiff fails to acknowledge the largely normal findings from Dr.
Panagos’ physical examination of her, and Plaintiff has not identified any findings from Dr. Patel’s
treatment records that support the extent of her claimed limitations. Thus, the ALJ properly relied
on Dr. Panagos’ examination findings in determining Plaintiff’s credibility. See Donahue v.
Barnhart, 279 F.3d 441, 444 (7th Cir. 2002) (citing 20 C.F.R. § 416.929(c)(2); SSR 96-7p).
1
Recently, the Seventh Circuit Court of Appeals has rekindled its criticism of the boilerplate language because
the language’s “implication . . . is that residual functional capacity (ability to engage in gainful employment) is
determined before all the evidence relating to the claimed disability assessed, whereas in truth all that evidence is
material to determining the claimant’s residual functional capacity.” Browning v. Colvin, 766 F.3d 702, 707 (7th Cir.
2014); see also Goins v. Colvin, 764F.3d 677, 681 (7th Cir. 2014).
19
Second, Plaintiff contends that the ALJ improperly used “debilitating pain and functional
loss” as a standard to determine that Plaintiff is not disabled. (Pl. Br. 13). Plaintiff misunderstands
the ALJ’s use of those words. After discussing the medical records from Dr. Patel in relation to
Plaintiff’s allegations of severe chronic back pain, the ALJ concluded, “However, there is no
indication in these records that the claimant suffered from debilitating pain and functional loss.” (AR
27). The ALJ did not use “debilitating pain and function loss” as a disability standard; rather, the
ALJ used the expression to describe the level of pain from which Plaintiff herself claims to be
suffering.
Third, Plaintiff argues that she gave detailed testimony on her symptoms and resulting
limitations, her limited activities of daily living, and her lack of response to treatment and that all
of this testimony is consistent with the underlying record. However, Plaintiff offers no analysis of
which statements are consistent with which portions of the underlying record. Plaintiff then contends
that the ALJ failed to consider Plaintiff’s testimony under the factors set out in SSR 96-7p. Plaintiff
is incorrect. The ALJ sufficiently discussed the various factors that support the credibility
determination, including the nature and alleged severity of Plaintiffs’s symptoms; the exacerbating
and alleviating factors; the absence of diagnostic or clinical evidence to support Plaintiff’s alleged
severity of back pain; normal gait; conservative treatment; and evidence of Plaintiff’s activities,
which included washing dishes, mopping the floor, doing laundry, and caring for her personal needs.
The ALJ considered Plaintiff’s alleged debilitating pain but found that her statements were
not supported by the record. “Although a claimant can establish the severity of [her] symptoms by
[her] own testimony, [her] subjective complaints need not be accepted insofar as they clash with
other, objective medical evidence in the record.” Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir.
20
2007) (citing Carradine v. Barnhart, 360 F.3d 751, 764 (7th Cir. 2004)). “[D]iscrepancies between
the objective evidence and self-reports may suggest symptom exaggeration.” Getch v. Astrue, 539
F.3d 473, 483 (7th Cir. 2008) (citing Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th Cir. 2005)).
Almost every citation to the record in Plaintiff’s brief is to either her own testimony or the opinion
given by Dr. Patel, which as discussed above, the ALJ properly found to be not supported by
medical evidence in the record. Substantial evidence supports the ALJ’s credibility finding, and the
Court finds that it is not patently wrong.
CONCLUSION
Finding that Plaintiff received a full and fair review of her claims, the Court hereby DENIES
the relief sought in Plaintiff’s Brief [DE 17] and AFFIRMS the final decision of the Commissioner
of Social Security.
So ORDERED this 19th day of November, 2014.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:
All counsel of record
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