Fancher v. Commissioner of Social Security
OPINION AND ORDER: Court DENIES the relief sought in the Memorandum in Opposition to Secretarys Decision Denying Plaintiffs Claim for Benefits and Request for Remand DE 15 and DIRECTS the Clerk of Court to enter judgment in favor of Defendant Commissioner of Society Security Administration and against Plaintiff James Anthony Fancher. Signed by Magistrate Judge Paul R Cherry on 3/15/15. (mc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JAMES ANTHONY FANCHER,
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
CAUSE NO.: 2:14-CV-59-PRC
OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff James Anthony
Fancher on February 25, 2014, and a Memorandum in Opposition to Secretary’s Decision Denying
Plaintiff’s Claim for Benefits and Request for Remand [DE 15], filed on July 3, 2014. Plaintiff
requests that the November 30, 2012 decision of the Administrative Law Judge denying his claim
for disability insurance benefits and supplemental security income be reversed for an award of
benefits or remanded for further proceedings. On October 14, 2014, the Commissioner filed a
response, and Plaintiff filed a reply on November 4, 2014. For the following reasons, the Court
denies Plaintiff’s request for remand.
Plaintiff filed applications for disability insurance benefits and supplemental security income
on December 28, 2010, alleging an onset date of November 30, 2009. His initial claim was denied
on May 12, 2011, and upon reconsideration on July 20, 2011. Plaintiff timely requested a hearing,
which was held on October 12, 2012. In attendance at the hearing were Plaintiff, his attorney, and
an impartial vocational expert. On November 30, 2012, Administrative Law Judge (“ALJ”) David
R. Bruce, issued a written decision denying benefits, making the following findings:
The claimant meets the insured status requirements of the Social Security Act
through September 30, 2014.
The claimant has not engaged in substantial gainful activity since November
30, 2009, the alleged onset date.
The claimant has the following severe impairments: hypertension, coronary
artery disease, obesity, sleep apnea, arthritis, degenerative disc disease of the
spine, and borderline intellectual functioning.
The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1.
After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to lift and carry up to 10 pounds
occasionally, lesser weights more frequently, stand and/or walk about 2 hours
in an 8-hour workday and sit about 6 hours in an 8-hour workday with
normal breaks. The claimant is limited to occasional overhead reaching with
the left upper extremity. As far as all other directions, bilaterally he can reach
constantly, including constant reaching overhead with the right upper
extremity. The claimant may occasionally climb ramps and stairs, balance,
stoop, kneel and crouch, but should never climb ladders, ropes, or scaffolding
or crawl. The claimant is to avoid unprotected heights, moving mechanical
parts, humidity and wetness, atmospheric conditions, weather, and extremes
of cold or heat. The claimant is capable of avoiding normal hazards such as
running into people or doorways, but he is to avoid heights and hazards.
Further, the claimant is limited to simple work related decisions and tasks,
defined as Specific Vocational Preparation (SVP) 1 to 2 type jobs. He may
frequently interact with coworkers, supervisors, and the public but on a
superficial basis, meaning that his interactions should not be an integral part
of the job but they can be around people.
The claimant is unable to perform any past relevant work.
The claimant was born [in 1964] and was 45 years old, which is defined as
a younger individual, age 45-49, on the alleged disability onset date.
The claimant has at least a high school education and is able to communicate
Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills.
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.
The claimant has not been under a disability, as defined in the Social Security
Act, from November 30, 2009, through the date of this decision (20 CFR
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, 416.1481. 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).
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.
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.”).
To be eligible for disability benefits, a claimant must establish that he 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 him from
doing his previous work, but considering his age, education, and work experience, it must also
prevent him 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),
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
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
[his] 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).
Plaintiff seeks reversal and remand for further proceedings, arguing that (1) the ALJ failed
to consider Plaintiff’s ankylosing spondylitis, (2) the ALJ failed to give clear and specific reasons
for rejecting the opinions of the treating physicians and failed to fulfill his duty to recontact the
treating physicians, and (3) the ALJ’s decision is inconsistent with the RFC finding as it relates to
Plaintiff’s right upper extremity. The Court considers each in turn.
A. Ankylosing Spondylitis
At step two of the disability analysis, the ALJ determined that Plaintiff had the severe
impairments of hypertension, coronary artery disease, obesity, sleep apnea, arthritis, degenerative
disc disease of the spine, and borderline intellectual functioning. Plaintiff faults the ALJ for failing
to consider whether his ankylosing spondylitis was a severe impairment at step two of the sequential
analysis and notes that the ALJ mentioned ankylosing spondylitis just one time later in the decision.
At a December 7, 2011 office visit, the impression of Plaintiff’s treating physician, Robert
Buynak, M.D., was “chronic low back pain, differential diagnoses would include lumbar
radiculopathy, lumbar internal disc disruption, lumbar facet syndrome, and sacroiliitis.” (AR 758).1
Dr. Buynak referred Plaintiff for a rheumatology consultation given the significant amount of
sacroiliitis on the x-ray results and the positive HLA-B27 factor. Id. On January 18, 2012, Heather
Gillespie, M.D., a rheumatologist, examined Plaintiff. She recommended x-rays of the hips and cspine and ordered an MRI. She believed that the “likelihood of ankylosing spondylitis is high” even
though she had not yet seen any of the imaging. (AR 802). A week earlier, on January 10, 2012, Dr.
Buynak wrote a letter stating that Plaintiff, who had been his patient for one year, suffered from
multiple medical conditions, including chronic pain as the result of osteoarthritis and ankylosing
spondylitis. (AR 858).
During the January 18, 2012 visit to Dr. Gillespie, Plaintiff reported that he had progressive
back pain for a year or more, as well as neck and shoulder pain. He had difficulty sleeping at night
and slept in a chair. He reported that he could not “stand, sit or lay for a period of time.” (AR 801).
Plaintiff reported that his pain was 9 out of 10 on a scale of 0 to 10 with 10 being the most pain. Dr.
Gillespie observed “very decreased range of motion on rotation” in the neck, “significantly
decreased range of motion in the right hip,” and “mildly decreased” range of motion in the right hip.
(AR 802). Dr. Gillespie reported that Plaintiff had difficulty with mobility.
The Court notes that Plaintiff incorrectly cites the pages in the record based on the Court’s electronic filing
date stamp in light blue at the top of each page. The proper citation to the administrative record is the stamped page
number in black in the bottom right hand corner of each page. Thus, Plaintiff’s page numbering is off by five additional
pages (e.g. page 858 in the administrative record is cited by Plaintiff as page 863 in his brief).
In February 2012, Dr. Gillespie examined Plaintiff, who reported that his back pain was 10
out of 10. Dr. Gillespie’s impressions were rule out ankylosing spondylitis, chronic pain, history of
prostatitis, and hypertension. (AR 800). In April 2012, Dr. Gillespie’s impressions were “suspect
ankylosing spondylitis,” chronic pain, history of prostatitis, and coronary artery disease. (AR 799).
The next record from Dr. Gillespie is dated August 29, 2012. Among the listed problems at
that time was ankylosing spondylitis. Plaintiff reported that he had been off of Enbrel (to treat the
ankylosing spondylitis) for one month following one month of therapy because of infections in the
mouth. Plaintiff reported continuing pain that narcotics did not relieve. He also reported a recent
diagnosis of sleep apnea. He reported persistent swelling and pain in his feet. On examination, Dr.
Gillespie noted swollen and tender joints in his hands, tenderness in his wrists, and decreased range
of motion in the hips and shoulders. Dr. Gillespie’s assessment was “ankylosing spondylitis in
setting of coronary artery disease [status post myocardial infarction] but no [congestive heart
failure].” (AR 797). Dr. Gillespie also suspected peripheral arthritis. Dr. Gillespie directed Plaintiff
to resume Enbrel in two weeks and advised that Plaintiff may need three to six months of therapy
to notice a benefit. Id.
Plaintiff argues that, while the ALJ cited some of Dr. Gillespie’s findings, the ALJ failed to
consider the diagnosis of ankylosing spondylitis either at step two or anywhere else in the sequential
analysis. At step two of the sequential analysis, the ALJ must determine whether the claimant has
an impairment or combination of impairments that is “severe.” 20 C.F.R. §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). “As long as the ALJ determines that the claimant has one severe impairment, the
ALJ will proceed to the remaining steps of the evaluation process.” Castile v. Astrue, 617 F.3d 923,
927 (7th Cir. 2010) (citing 20 C.F.R. § 404.1523; Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th
Cir. 2003)). Thus, the step two determination is “merely a threshold requirement.” Id. (quoting
Hickman v. Apfel, 187 F.3d 683, 688 (7th Cir. 1999)). In this case, the ALJ identified several severe
impairments at step two and proceeded through the sequential analysis. Therefore, any failure to
identify ankylosing spondylosis in particular as a severe impairment at step two is harmless.
Moreover, although the ALJ did not specifically discuss the diagnosis of ankylosing
spondylosis, the ALJ did consider and accommodate Plaintiff’s pain, the main symptom of
Plaintiff’s ankylosing spondylosis, in the RFC determination. (AR 18-29). In his reply brief, Plaintiff
argues that the ALJ could not have accounted for the ankylosing spondylosis because the ALJ did
not mention it by name; Plaintiff is being overly technical. The ALJ fully considered the actual
effects of and limitations caused by Plaintiff’s ankylosing spondylosis. If the ALJ had specifically
identified ankylosing spondylosis by name as a diagnosis but then failed to consider the limitations
caused by the ankylosing spondylosis, Plaintiff would justifiably cry foul. This is not the case here.
The ALJ discussed the reports, symptoms, and findings contained in the medical records that
relate to Plaintiff’s pain and to ankylosing spondylosis, from when it was initially suspected through
diagnosis and ongoing treatment. The ALJ discussed Plaintiff’s treatment with sacroiliac joint
injections beginning in September 2011. Next, the ALJ discussed the xrays taken of the cervical
spine on January 29, 2012, which led to a lumbar spine MRI done on January 27, 2012. The ALJ
noted that the January 27, 2012 MRI “showed lumbar spondylosis but without any evidence of
central canal stenosis or focal lumbar disc protrusion. There was a protrusion at T10-T11 but this
was suspected as costovertebral arthritis.” (AR 23). The ALJ noted that, “[u]pon learning that the
claimant was HLA B27 positive, a second review of the MRI was discussed and possible evidence
of a T1 endplate change was discussed, though this was not confirmed and could also have
represented subtle evidence of a spondylitis.” Id. Based on these objective findings, the ALJ
concluded that “the MRI clearly establishes some degeneration of the claimant’s spine, such as has
been accommodated in the residual functional capacity.” Id.
The ALJ then discussed Dr. Gillespie’s January 2012 report, contrasting Plaintiff’s assertions
of severe pain with Dr. Gillespie’s findings of only some difficulty with range of motion. The ALJ
followed with an analysis of Plaintiff’s treatment at the pain clinic with Dr. Novoseletsky in 2012,
Plaintiff’s minimal attendance at physical therapy, and his failure to continue physical therapy. The
ALJ then discussed Dr. Gillespie’s February, April, and August 2012 treatment records. Finally, the
ALJ addressed Plaintiff’s September 20, 2012 emergency room treatment, at which he was found
to have “normal extremities with adequate strength and full ROM” with “no lower extremity
swelling or edema.” (AR 25 (quoting (AR 887))).
Plaintiff does not identify any medical evidence demonstrating limitations from the
ankylosing spondylosis that the ALJ failed to consider. This is not a case in which the ALJ ignored
an enter line of evidence. See Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012). The ALJ did not
commit reversible error at step two or in incorporating limitations caused by ankylosing spondylosis.
B. Residual Functional Capacity
The RFC is a measure of what an individual can do despite the limitations imposed by his
impairments. Young, 362 F.3d at 1000; 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination
of a claimant’s RFC is a legal decision rather than a medical one. 20 C.F.R. §§ 404.1527(e)(1),
416.927(e)(1); Diaz, 55 F.3d at 306 n.2. The RFC is an issue at steps four and five of the sequential
evaluation process and must be supported by substantial evidence. SSR 96-8p, 1996 WL 374184,
*3 (July 2, 1996); Clifford, 227 F.3d at 870.
“RFC is an assessment of an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis. A ‘regular and continuing’
basis means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96-8p at *1.
“The RFC assessment is a function-by-function assessment based upon all of the relevant evidence
of an individual’s ability to do work-related activities.” SSR 96-8p, at *3. The relevant evidence
includes medical history; medical signs and laboratory findings; the effects of symptoms, including
pain, that are reasonably attributed to a medically determinable impairment; evidence from attempts
to work; need for a structured living environment; and work evaluations, if available. Id. at *5. In
arriving at an RFC, the ALJ “must consider all allegations of physical and mental limitations or
restrictions and make every reasonable effort to ensure that the file contains sufficient evidence to
assess RFC.” Id.
Plaintiff argues that the ALJ erred in formulating the RFC, first by improperly weighing the
opinions of his treating physicians and second by considering Plaintiff’s right upper extremity
limitations inconsistently. The Court considers each in turn.
Weight to Treating Physicians’ Opinions
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
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 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). 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.
Plaintiff argues that the ALJ did not properly weigh the opinions of treating physicians Dr.
Buynak and Dr. Popli because he did not apply the regulatory factors. Plaintiff also contends that
the ALJ was required to recontact both physicians to resolve any inconsistencies he felt were
reflected in the record.
Dr. Robert Buynak
Dr. Buynak provided a letter on January 10, 2012, and again on September 11, 2012,
regarding Plaintiff’s physical impairments. On January 10, 2012, Dr. Buynak indicated that Plaintiff
had been his patient for a year, that Plaintiff suffers from chronic pain as a result of osteoarthritis
and ankylosing spondylitis, that Plaintiff goes to a pain clinic and sees a rheumatology specialist,
that he is on multiple medications for pain, that he sees a cardiologist for active coronary artery
disease, and that he suffers from depression and COPD, all of which make him totally disabled from
In an August 7, 2012 Medical Source Statement, Dr. Buynak again opined that Plaintiff’s
restrictions would prevent him from sustaining work and indicated that Plaintiff had the residual
functional capacity to sit for two hours in an eight-hour workday and stand or walk for two hours
in an eight-hour workday and that Plaintiff would need to rest or lie down for four hours in an eighthour workday to relieve pain. Dr. Buynak also estimated that Plaintiff would be absent from work
more than three times a month.
On September 11, 2012, Dr. Buynak wrote a second letter similar to the January 10, 2012
letter, again opining that all of Plaintiff’s impairments “lead to total disability from work.” (AR
In giving Dr. Buynak’s opinion little weight, the ALJ first noted Dr. Buynak’s finding of
total disability based on osteoarthritis, ankylosing spondylitis, coronary artery disease, and COPD,
and the significant limitations on physical activities imposed by Dr. Buynak. As to Dr. Buynak’s
finding of total disability, the ALJ stated that, according to SSR 96-5p, the determination of
disability is reserved to the Commissioner. As to Dr. Buynak’s opinions on Plaintiff’s physical
limitations, the ALJ wrote the following:
While the records affirm that the claimant suffers from physical limitations arising
from these severe impairments, they do not support a finding of disability or the need
for greater restrictions than those already accommodated in the residual functional
capacity, as discussed above. Little weight is given to Dr. Buynak’s opinions as
objective physical findings document pain and some limitations in range of motion,
but there is no indication that the claimant could not perform restricted unskilled
work within the parameters of the residual functional capacity, which already
significantly reduces him to sedentary work with a number of postural,
environmental, and mental limitations.
Although these statements appear to be a generic conclusion, unlike the ALJ in Clifford v.
Apfel, 227 F.3d 863, 870 (7th Cir. 2000), who did not adequately explain his reasons for rejecting
the treating physician opinion, the ALJ in this case thoroughly and chronologically examined the
medical evidence of record before weighing Dr. Buynak’s opinions. (AR 20-26). With his
examination of each medical record, the ALJ drew conclusions, noted omissions, or observed
consistencies or inconsistencies with other evidence of record in the context of Plaintiff’s functional
For example, after a full page summarizing Plaintiff’s treatment records from August 13,
2009, through April 2011, and noting that those records were “void of any back pain complaints .
. . or severe clinical findings,” (AR 20-21), the ALJ detailed the May 4, 2011 examination findings
of the consultative examiner, Olabode Oladeinde, M.D. The ALJ recounted that Plaintiff had a
normal gait, normal vision, and no signs of swelling or tenderness in his neck. The ALJ noted Dr.
Oladeinde’s report that Plaintiff’s lungs showed good air entry without wheezing, his heart sounded
normal, and he retained full range of motion throughout his cervical, thoracic, and lumbar spine. The
ALJ included Dr. Oladeinde’s findings that there was no tenderness in the spine at all, there were
no signs of stiffness or swelling in either of the upper extremities, Plaintiff had full range of motion
in each joint in the upper extremities with full 5/5 muscle strength, Plaintiff had no difficulty using
his hands and fingers for manipulative tasks, the lower extremities were devoid of any abnormality,
and Plaintiff showed no dysfunction neurologically. The ALJ also noted Dr. Oladeinde’s feeling that
Plaintiff “displays very poor effort with the range of motion examination. He most likely does have
pain in his left shoulder, but I do not think it is to the extent that the patient may want me to
believe.” (AR 22 (quoting (AR 533))).
And, the ALJ did not stop with the consultative examination. The ALJ noted the mild to
moderate success of sacroiliac joint injections on September 26, 2011, and October 21, 2011. As
mentioned in the previous section, the ALJ discussed the January 19, 2012 cervical spine xray and
the January 27, 2012 lumbar spine MRI that showed lumbar spondylosis. Acknowledging the
evidence of some degeneration of Plaintiff’s spine consistent with Plaintiff’s complaints, the ALJ
made accommodations in the RFC for a limited range of sedentary work. However, the ALJ noted
that no further limitations were required as no significant evidence supported greater restrictions and
no treating physician had imposed physical restrictions. The ALJ noted that Plaintiff had begun
physical therapy as recommended by his pain specialist in September 2011, but that the records
show the therapy lasted only for a month, from December 2011 into January 2012.
The ALJ went on to discuss the records from Plaintiff’s rheumatologist, Heather Gillespie,
M.D. The ALJ noted inconsistencies between Plaintiff’s allegations at the hearing and his reports
to Dr. Gillespie of his ability to walk. The ALJ noted that Plaintiff reported pain of 9 out of 10 but
that Dr. Gillespie’s physical findings showed only some difficulty with range of motion. The ALJ
noted that Dr. Gillespie reported that Plaintiff’s ankles were not swollen but that he had no
sensitivity to light touch and that there was some swelling in the upper extremities.
After discussing records regarding treatment for chest pain, the ALJ reported that Plaintiff
returned to his pain specialist on May 30, 2012. The ALJ noted that Plaintiff admitted to taking pain
medications from providers other than Dr. Novoseletsky, breaking his opioid contract with the
practice. The ALJ noted that, even though Plaintiff reported back pain, Dr. Novoseletsky
documented that Plaintiff was not in any acute distress, he was able to rise from a seated position
easily, and he showed no impairment in ambulation. The ALJ noted that Dr. Novoseletsky
recommended further therapy but that Plaintiff did not seek further therapy treatment and did not
return for treatment from Dr. Novoseletsky.
Next, the ALJ discussed the treatment records from Dr. Gillespie from February, April, and
August 2012. He noted that, at each visit, Plaintiff reported back pain. The ALJ recognized that, at
the August 29, 2012 visit, Plaintiff exhibited decreased range of motion in his neck but that no
swelling was observed in either upper extremity. The ALJ noted that Plaintiff had reduced range of
motion in his shoulders, which the ALJ stated he was accommodating in the RFC. The ALJ noted
that Dr. Gillespie did not impose any physical exertional restrictions.
The ALJ then discussed Dr. Buynak’s August 2012 treatment notes that addressed issues
related to his blood pressure, a recent oral infection, a CPAP machine for his sleep apnea, and
Next, the ALJ discussed the emergency room record from September 20, 2012, when
Plaintiff presented with complaints of chest pain. The ALJ noted all of the essentially normal cardiac
test results, the notation that Plaintiff was not in any acute distress on physical examination, and the
findings that Plaintiff had no labored breathing or respiratory issues, his heart rate was normal, he
exhibited symmetric reflexes in his extremities, and he exhibited “‘normal extremities with adequate
strength and full ROM’ with ‘no lower extremity swelling or edema.’” (AR 25 (quoting (AR 887))).
Finally, the ALJ discussed records regarding Plaintiff’s vision and obesity and considered
Plaintiff’s activities of daily living. And, the ALJ weighed the opinions of state agency reviewing
physicians Dr. Ruiz and Dr. Montoya who opined that Plaintiff could perform work with light
exertional limits, which further contradicts Plaintiff’s assertion of disability. Yet, the ALJ gave the
opinions little weight because he found greater restrictions were supported by the medical evidence
In his brief, Plaintiff does not acknowledge the ALJ’s discussion of these medical records
in the context of formulating the RFC. Rather, Plaintiff makes two specific arguments as to how the
ALJ did not address the regulatory criteria in weighing Dr. Buynak’s opinion. First, Plaintiff notes
that the ALJ did not acknowledge that Dr. Buynak had been Plaintiff’s primary care physician for
two years when he completed the Medical Source Statement. Plaintiff then asserts generally that Dr.
Buynak’s “observations” were consistent with the all the evidence of record, including “progressive
low back pain, sacroiliitis, swollen and painful joints due to ankylosing spondylitis, uncontrolled
hypertension, obstructive sleep apnea, cervical spine spondylosis, and chronic obstructive
pulmonary disease with recurrent infections.” (Pl. Br. 15). But Plaintiff is only identifying
impairments; none of Plaintiff’s quoted list indicates any degree of limitation resulting from those
impairments. Plaintiff then string cites twenty-three sets of pages in the administrative record;
Plaintiff does not discuss, much less identify, the context of those pages. Plaintiff has not offered
any analysis of which medical records support the limitations imposed by Dr. Buynak or would
require greater restrictions than set forth in the RFC.
Plaintiff notes that, as Plaintiff’s primary care physician, Dr. Buynak received treatment
notes from hospitals and other physicians, including Plaintiff’s cardiologist, rheumatologist, and
pain management physician. (Pl. Br. 15-16). But again, Plaintiff does not identify any aspects of
those records, which Dr. Buynak may or may not have in fact reviewed, that support Dr. Buynak’s
opinion of greater limitations. Plaintiff asserts, without citation to examples in the record, that Dr.
Buynak’s “opinion was consistent with the findings of [Plaintiff’s] other treating physicians.” (Pl.
Second, Plaintiff argues that the ALJ did not discuss Dr. Buynak’s qualifications, namely
that he is board certified in Internal Medicine, attended Harvard Medical School, and completed an
internship and residency in Internal Medicine at the Mayo Clinic. Yet, Plaintiff offers no argument
as to why these qualifications, in light of the evidence of record, would alter the weight the ALJ
gave to Dr. Buynak’s opinions.
Plaintiff also contends that the ALJ should have given controlling weight to Dr. Buynak’s
opinions that Plaintiff’s impairments “lead to total disability from work.” (AR 869). However, the
determination of whether Plaintiff is disabled is an administrative decision reserved for the
Commissioner, and Dr. Buynak’s opinion on the ultimate issue of disability, while informative, is
not conclusive. See Denton v. Astrue, 596 F.3d 419, 424 (7th Cir. 2010); Johansen v. Barnhart, 314
F.3d 283, 288 (7th Cir. 2002).
Finally, Plaintiff asserted at the outset of this section of the brief that the ALJ erred by failing
to recontact Dr. Buynak to “resolve any inconsistencies” before rejecting his opinion. (Pl. Br. 13).
However, the regulations do not require the ALJ to recontact a treating physician; rather, it is one
option of many the ALJ has if there is an unresolved inconsistency or an insufficiency of evidence.
20 C.F.R. §§ 404.1520b(c); 416.920b(c). In this case, the ALJ had no need to recontact Dr. Buynak
because he addressed all the relevant evidence of record in assessing the weight of Dr. Buynak’s
The Court finds that the ALJ did not err in weighing or in explaining the weight he gave to
Dr. Buynak’s opinion, and the Court does not reweigh the evidence. Remand is not required.
Anand P. Popli, M.D., Plaintiff’s treating psychiatrist, submitted correspondence to
Plaintiff’s attorney dated September 24, 2012, discussing Plaintiff’s mental condition. In his
decision, the ALJ recognized Dr. Popli’s recommendation in that letter that Plaintiff pursue
disability and Dr. Popli’s belief that Plaintiff could not take care of himself based on his history of
depression, learning disabilities, and other physical ailments. However, the ALJ also recognized Dr.
Popli’s statement that he had only met with Plaintiff three times after the initial consultation on April
The ALJ gave Dr. Popli’s opinion little weight because of the conflicting evidence from
Plaintiff’s testimony and his Function Report that he retains the ability to engage in a great deal of
independent activities and because of Dr. Popli’s lack of evidence to support contributing factors
from Plaintiff’s severe physical ailments. The ALJ noted that he had incorporated mental restrictions
into the RFC to accommodate Plaintiff’s learning disability and moderate impairments in social
functioning and ability to maintain concentration, persistence, or pace. However, the ALJ found no
indications in the records that greater restrictions were warranted, even when compared with Dr.
Instead, the ALJ gave great weight to the opinions of the state agency consultants. On
February 28, 2011, Ken Lovko, Ph.D., completed a Psychiatric Review Technic Form as well as a
supportive Mental Residual Functional Capacity Assessment based on his review of the objective
medical evidence, finding that Plaintiff had mild limitations in his ability to perform activities of
daily living, moderate limitations in his ability to maintain concentration, persistence, or pace and
function socially, and that he had experienced no periods of decompensation. Dr. Lovko provided
a detailed discussion of Plaintiff’s statements regarding his daily activities in support of his opinion.
(AR 497). The ALJ found Dr. Lovko’s opinion to be supported by the objective medical evidence
and accommodated these limitations by restricting Plaintiff to simple work with only superficial
interaction with coworkers, supervisors, and the public.
As an initial matter, Plaintiff takes issue with the ALJ’s assessment of his credibility.
Specifically, Plaintiff argues that the ALJ mischaracterized his testimony about his abilities to read
and write, prepare and follow a grocery list, walk to the mailbox, and wash dishes. See (AR 19).
Plaintiff argues that, if the ALJ had properly characterized this testimony, it would be consistent
with Dr. Popli’s opinion. (Pl. Br. 17). However, the ALJ did not err in noting the contradiction
between Plaintiff’s statements that support an ability to live independently and Dr. Popli’s opinion
that Plaintiff could not care for himself as one ground for discounting the opinion. Although Plaintiff
testified that he could not write a grocery list, the ALJ noted that, in his Adult Function Report,
Plaintiff indicated that he was able to live alone, do his own laundry and dishes, and would do his
own grocery shopping without difficulty. Plaintiff testified that he got his GED through home study.
Plaintiff also testified that he can follow a grocery list. As for walking, Plaintiff testified that he
could “[p]robably [walk] to the end of the street and then stop and relax before I’d get out to it.” (AR
69). When the ALJ asked Plaintiff to clarify whether that distance was approximately 50 to 100 feet,
Plaintiff responded, “Right, because I can walk to my mailbox, be like that.” Id. Plaintiff is correct
that he then testified that after walking to the mailbox, he feels nauseated and dizzy; however, he
testified that was because of his high blood pressure and not because of pain. The ALJ cited
sufficient record evidence to support his conclusions about Plaintiff’s ability to perform daily
activities. The Court does not reweigh the evidence.
Next, as with Dr. Buynak, Plaintiff argues that the ALJ failed to discuss most of the
regulatory factors in assessing Dr. Popli’s opinion. As to the nature and extent of the treatment
relationship, which the ALJ found to be weak given that Dr. Popli had only treated Plaintiff three
times, Plaintiff argues that the ALJ misunderstood the nature of the mental health treatment
relationship. Plaintiff notes that he began mental health treatment at HealthLinc in June 2011 with
Dr. Buynak, and, in addition to treating with Dr. Popli, Plaintiff received medication management
from his primary care physician at HealthLinc and counseling for depression and anxiety by a
licensed clinical social worker at HealthLinc. Plaintiff reasons that, as his treating physician. Dr.
Popli had all of these records available when he authored his opinion.
However, the ALJ did not err in noting the short treatment relationship with Dr. Popli. The
regulations provide, “Generally, the longer a treating source has treated you and the more times you
have been seen by a treating source, the more weight we will give to the source’s medical opinion.”
20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i). Notably, Plaintiff does not cite any portion of Dr.
Popli’s treatment records themselves in support of Dr. Popli’s opinion. Perhaps this is because there
is very little in the administrative record from Dr. Popli. It appears that the original consultation
from April 2012 and the first follow up visit are not in the record. The July 19, 2012 consultation,
(AR 819-20), and the September 20, 2012 consultation, (AR 876-77), are in the record. But Plaintiff
cites no portion of them. Nor does Plaintiff identify any evidence showing that Dr. Popli actually
reviewed the other treatment records from HealthLinc before giving his opinion; indeed, Dr. Popli
did not make any such representation. There is no indication in the record that Dr. Popli relied on
anything other than the three sessions with Plaintiff to form his opinion.
Plaintiff also contends that Dr. Popli’s opinion was well-supported by other objective
evidence, pointing to the report of consultative examiner Victor Rini, Psy.D. Dr. Rini diagnosed
dysthymic disorder and borderline intellectual functioning. In administering the WAIS-IV, Dr. Rini
found Plaintiff’s verbal comprehension to be extremely low, perceptual reasoning to be borderline,
working memory to be low average, and processing speed to be borderline. Dr. Rini assigned a full
scale IQ of 70. Plaintiff also notes that he could not pass the test required to obtain a commercial
However, the ALJ considered Dr. Rini’s findings, concluding that they confirm borderline
to low-average mental aptitude but that they do not constitute a finding of disability. Rather, the ALJ
explained that he incorporated the limitation to unskilled work in the RFC to accommodate this
Also, Plaintiff does not contest the ALJ’s discounting of Dr. Popli’s opinion because it was
based in part on his assessment of Plaintiff’s physical condition: “Overall, looking at his physical
issues, work history, and neuropsychiatric problems, I do not feel that he can take care of himself,
and would recommend him pursuing disability.” (AR 873). Because Dr. Popli cited no evidence
relating to Plaintiff’s physical condition on which to make that assessment, the ALJ discounted his
opinion. (AR 27). Although Dr. Popli’s correspondence references an enclosure, no other document
was included with the letter in the administrative record; thus, there is no basis for Dr. Popli’s
opinions regarding Plaintiff’s physical condition.
Third, Plaintiff argues that the ALJ erred by giving great weight to the reviewing physicians
who never examined Plaintiff. Plaintiff reasons that it was illogical for the ALJ to discredit Dr. Popli
for only having treated Plaintiff three times when the state agency physicians had never examined
him. Plaintiff notes that the state physicians’ opinions were made on preprinted questionnaires with
check boxes, arguing that they cannot be considered substantial evidence in favor of giving Dr.
Popli’ s opinion less weight. But these opinions are consistent with the medical evidence of record
highlighted by the ALJ. In fact, the ALJ pointed out that Dr. Lovko had the opportunity to review
Dr. Rini’s report and the evidence of Plaintiff’s statements, whereas Dr. Popli only saw Plaintiff
three times. (AR 26). See Flener ex rel. Flener v. Barnhart, 361 F.3d 442, 448 (7th Cir. 2004) (“It
is appropriate for an ALJ to rely on the opinions of physicians and psychologists who are also
experts in social security disability evaluation.”).
Finally, with no citation to law, Plaintiff argues that the opinions of the state agency
consultants were not entitled to “controlling weight” because they were obsolete, as they were given
in February and June 2011, which was before the records from HealthLinc that included Dr. Popli’s
treatment notes or Dr. Popli’s opinion had been received into the medical file. But, the ALJ did not
rely solely on the reviewing physicians’ opinions, nor did the ALJ give them “controlling weight”
as asserted by Plaintiff; the ALJ gave the opinions “great weight” as consistent with the evidence
of record and relied on them as one aspect of his analysis of Plaintiff’s mental health record.
The ALJ sufficiently articulated reasons for discounting Dr. Popli’s opinion, and remand is
Right Upper Extremity
Finally, Plaintiff argues that the ALJ’s decision was inconsistent with regard to Plaintiff’s
right upper extremity limitations. In the RFC, the ALJ imposed reaching limitations with regard to
Plaintiff’s left arm because of pain in his left shoulder: “The claimant is limited to occasional
overhead reaching with the left upper extremity. As for all other directions, bilaterally he can reach
constantly, including constant reaching overhead with the right upper extremity.” (AR 18) (emphasis
added). This left arm limitation is supported by the record of Dr. Oladeinde’s consultative
examination, at which Plaintiff complained of left shoulder pain. The ALJ accurately discussed Dr.
Oladeinde’s report at length, including Dr. Oladeinde’s conclusion that Plaintiff “‘likely does have
pain in his left shoulder.’” (AR 22 (quoting (AR 533))) (emphasis added).2 Although not noted by
the ALJ, the range of motion chart completed by Dr. Oladeinde that same date identified decreased
range of motion in the left shoulder only. (AR 534).
However, in the same paragraph of his decision, as noted by Plaintiff, the ALJ subsequently
identified the right arm as painful: “While it is difficult to distinguish the validity of Dr. Oladeinde’s
opinions as to the claimant’s range of motion in his shoulder, I give the claimant the benefit of the
doubt that he has difficulty using his right upper extremity because of shoulder pain.” (AR 22)
(emphasis added). This is a scrivener’s error, as Dr. Oladeinde repeatedly identified Plaintiff’s pain
as in the left shoulder, the RFC crafted by the ALJ is consistent with Dr. Oladeinde’s report by
imposing limitations on overhead reaching with the left arm, and the hypothetical the ALJ posed to
the vocational expert properly incorporated an overhead reaching limitation regarding the left arm.
Throughout his report, Dr. Oladeinde refers to Plaintiff’s pain as in the left shoulder. (AR 531-33). On the
Range of Motion Chart, Dr. Oladeinde reports decreased range of motion in the left shoulder. However, on one occasion
in the background section, Dr. Oladeinde inaccurately describes the pain as being in the right shoulder. (AR 531).
It is logical that shoulder pain would lead to a limitation in the RFC on overhead reaching with that
arm. The scrivener’s error on page 22 of the record does not require remand.
Plaintiff also notes that the ALJ cited Plaintiff’s testimony that he has trouble with his right
hand, although the ALJ described the testimony as being about the “right hand and upper extremity.”
(AR 20). At the hearing, when questioned by his attorney about his hands, Plaintiff testified that he
drops things that are in his right hand; Plaintiff did not mention any problems with his right arm or
shoulder. (AR 76). The ALJ did not incorporate any limitations on fine or gross fingering in the
RFC. This is consistent with the medical evidence cited by the ALJ, which included Dr. Oladeinde’s
finding at the consultative examination that Plaintiff had no signs of stiffness or swelling in either
of the upper extremities, Plaintiff had full range of motion in each joint of the upper extremities with
full 5/5 muscle strength retention, and Plaintiff had no difficulty using his hands and fingers for
manipulative tasks including opening a jar or buttoning a shirt. (AR 22 (citing (AR 532))). The ALJ
also cited the emergency room records from September 20, 2012, noting the report of normal
extremities with adequate strength and full range of motion. Other substantial evidence of record
supports the ALJ’s RFC, such as Dr. Gillespie’s January 18, 2012 treatment note that, although
Plaintiff had some nodules on the extensor surface of the PIPs of the right hand there was no
swelling or tenderness of the joint, the MCPs were spared, and the wrists were spared.
Although Plaintiff notes that the ALJ recognized Plaintiff’s testimony about his right hand,
Plaintiff does not identify any medical records that would support the addition of right hand
limitations to the RFC. Moreover, the ALJ did not find Plaintiff fully credible, and Plaintiff does not
contest the credibility finding. Therefore, the ALJ did not err by not incorporating a right hand
limitation in the RFC. As a result, the testimony elicited from the vocational expert by Plaintiff’s
attorney regarding jobs available to someone limited to occasional gross and fine finger
manipulation of the dominant right hand is not applicable. (AR 95-96). Remand is not required on
Based on the foregoing, the Court hereby DENIES the relief sought in the Memorandum in
Opposition to Secretary’s Decision Denying Plaintiff’s Claim for Benefits and Request for Remand
[DE 15]. The Court DIRECTS the Clerk of Court to enter judgment in favor of Defendant
Commissioner of Society Security Administration and against Plaintiff James Anthony Fancher.
So ORDERED this 19th day of March, 2015.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
All counsel of record
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