Hensley v. Commissioner of Social Security
Filing
17
OPINION AND ORDER: The Commissioner of Social Security's final decision is AFFIRMED. Signed by Judge Rudy Lozano on 9/9/2015. (lhc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GLENDA RENEA HENSLEY,
)
)
)
)
) NO. 2:14–CV-0208
)
)
)
)
)
)
Plaintiff,
vs.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
This matter is before the Court for review of the Commissioner
of
Social
Security’s
decision
denying
Disability
Insurance
Benefits and Supplemental Security Income to Plaintiff Glenda
Renea Hensley.
For the reasons set forth below, the decision of
the Commissioner is AFFIRMED.
BACKGROUND
On March 29, 2011, Glenda Renea Hensley (“Hensley”) filed an
application for Social Security Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C.
section 401, et seq., and Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act, 42 U.S.C. section 1381,
et. seq.
2010.
Hensley alleges that her disability began on January 29,
The Social Security Administration (“SSA”) denied her
1
initial
applications
and
also
denied
her
claims
upon
reconsideration.
Hensley requested a hearing, and on January 15, 2013, Hensley
appeared with a non-attorney representative, Bryan Woodruff, at an
administration hearing before Administrative Law Judge (“ALJ”)
David R. Bruce.
Testimony was provided by Hensley and vocational
expert Thomas A. Grzesik.
decision
denying
On February 20, 2013, the ALJ issued a
Hensley’s
claims,
finding
her
not
disabled
because she is capable of making a successful adjustment to other
work that exists in significant numbers in the national economy.
(Tr. 28.)
Hensley requested that the Appeals Council review the ALJ’s
decision, but that request was denied.
Accordingly, the ALJ’s
decision became the Commissioner’s final decision.
§ 422.210(a).
See 20 C.F.R.
Hensley initiated the instant action for judicial
review of the Commissioner’s final decision pursuant to 42 U.S.C.
section 405(g).
DISCUSSION1
Facts
Hensley was born in 1974, and was 35 years old at the onset
of her alleged disability.
(Tr. 43.)
She has a high school
1
These facts have been borrowed liberally from parties’ briefs.
2
education.
(Tr. 44.)
Hensley’s past relevant work was as a film
developer operator and a deli cutter/slicer.
(Tr. 65.)
In 2010, Hensley met with doctors regarding her back pain.
In
April
2010,
Shanu
Kondamuri,
M.D.,
diagnosed
lumbar
degenerative disc disease, lumbar radiculitis and annular tears at
L4-L5
and
L5-S1,
and
recommended
physical
steroid injections, and medications.
therapy,
(Tr. 280.)
epidural
Dr. Kondamuri
opined that Hensley’s “disease is not that severe and I would not
support
the
use
of
Norco
or
other
short
acting
addictive opioid medications on a long term basis.”
potentially
(Id.)
On May 13, 2010, Hensley was hospitalized after the police
found her inhaling aerosol.
(Tr. 295.)
Hensley claimed she was
“getting high but was not trying to kill herself.”
(Id.)
She
exhibited poor insight and judgment, reported some anxiety, and
was depressed, but not suicidal.
with
major
depression
and
(Id.)
substance
Hensley was diagnosed
abuse.
(Id.)
She
was
prescribed Cymbalta and directed to follow-up with an outpatient
substance abuse program.
(Tr. 296.)
On May 22, 2010, Hensley was hospitalized after the police
found her unresponsive with two empty cans of aerosol.
(Tr. 290.)
She indicated that she was trying to commit suicide due to numerous
stressors in her life.
(Id.)
Hensley was informed that because
of her multiple hospitalizations secondary to her depression and
substance abuse, they would “try to court commit her to treatment.”
3
(Id.)
Treatment notes indicate that she was not compliant on an
outpatient basis, in that she did not follow up or take her
medication.
(Id.)
They found an inpatient treatment program for
her, and on June 2, 2010, Hensley “stated she was doing much
better, not depressed, not suicidal, not homicidal.
No anxiety.”
(Id.)
and
She
was
diagnosed
with
major
depression
bipolar
disorder, and was prescribed Cymbalta, Risperdal, and Soma.
(Tr.
291.)
On July 16, 2010, Hensley was hospitalized on an emergency
detention
order
secondary
ideation.
(Tr. 284.)
to
major
depression
with
suicidal
At the time of admission, she appeared very
depressed and claimed to be hearing voices.
She had symptoms of
racing thoughts, decreased sleep, tearfulness, and anxiety.
(Id.)
Treatment notes state that “[o]n past admission [Hensley] stated
that she was just getting high and to avoid going to jail she
stated she was suicidal,” but admitted to being suicidal on this
occasion.
(Id.)
A court ordered outpatient compliance with
medications and outpatient follow-up.
(Id.)
Hensley was informed
that if she did not comply with treatment “she will most likely be
taken back to court for state commitment to the hospital.”
285.)
(Tr.
On August 10, 2010, Hensley indicated that she was feeling
well, had no depression, suicidal thoughts, hallucinations, or
delusions.
(Id.)
She was diagnosed with bipolar disorder with
psychotic features and polysubstance abuse.
4
(Id.)
On August 17, 2010, Hensley was hospitalized for a possible
medication overdose after her boyfriend had a difficult time waking
her.
(Tr. 870.)
She denied taking too many medications or
intentionally overdosing.
of
narcotics
and
(Id.)
She was diagnosed with overdose
benzodiazepines,
fatigue,
drug
dependency,
bipolar disorder, lumbar disc displacement, and chronic pain.
(Id.)
She was prescribed medications and discharged after two
days.
(Tr. 871.)
On September 16, 2010, Mathew Castelino, M.D., performed a
mental
status
examination
(“MSE”)
of
Hensley,
which
problems with her mood, sleep, anxiety, and anger.
revealed
(Tr. 380.)
Dr. Castelino prescribed Risperdal, Depakote, and Cymbalta, and
subsequently, Seoquel.
(Id., Tr. 384.)
On November 11, 2010, Darryl L. Fortson, M.D., replaced
Hensley’s previous primary care physician.
reported
a
diagnosis
of
juvenile
(Tr. 312.)
rheumatoid
Hensley
arthritis
and
complained of back pain and right hip and knee pain. (Id.) Hensley
had tenderness in the low back, painful range of motion in the
knees, and positive straight leg raising.
(Id.)
Dr. Fortson
diagnosed rheumatoid arthritis and low back pain, and prescribed
Percocet, and Valium, among other medications.
(Id.)
On January 5, 2011, Hensley met with Manjari Malkani, M.D.
(Tr. 317.)
Hensley reported multiple joint pains, including knee
and back pain.
(Id.)
Dr. Malkani reviewed an MRI from 2009, which
5
revealed
mild
associated
disc
mild
degeneration
broad-based
at
disc
L3-4,
L4-5,
protrusions
marginal fissuring of L4-5 and L5-S1 disc space.
and
and
L5-S1,
posterior
(Tr. 318.)
Dr.
Malkani diagnosed chronic low back pain, chronic bilateral knee
pain, and weight gain, and requested blood tests.
(Id.)
On
January 19, 2011, Hensley met with Dr. Malkani again, and was
diagnosed with fibromyalgia, vitamin D deficiency, low back pain,
and depression.
(Tr. 315.) Dr. Malkani recommended treatment with
Cymbalta and follow-up with a pain clinic.
(Id.)
On January 20, 2011, Hensley told Dr. Fortson that she was
feeling worse, and was having severe muscle spasms even after
taking medications.
Soma, and Xanax.
(Tr. 445.)
(Id.)
Dr. Fortson prescribed Percocet,
On February 18, 2011, Hensley complained
to Dr. Fortson about back pain, despite starting physical therapy.
(Tr. 444.)
pain
was
On April 6, 2011, Hensley told Dr. Fortson that her
such
that
she
medication.
(Tr. 442.)
herniation.
could
“hardly
walk”
despite
taking
Dr. Fortson diagnosed acute lumbar disc
(Id.)
On April 7, 2011, an MRI of her lumbar spine revealed normal
alignment of the lumbar spine, no compression fracture, an L3-4
broad-based disc bulge, broad-based disc bulges with annular disc
tears at L4-5 and L5-S1, multilevel spondylosis, with no central
canal stenosis and no neural foraminal compromise.
6
(Tr. 360.)
On
April
13,
2011,
Psychiatric/Psychological
Hensley.2
(Tr.
Dr.
Castelino
Impairment
244-51.)
schizoaffective disorder.
completed
Questionnaire
Hensley
(Tr. 244.)
was
a
regarding
diagnosed
with
The clinical findings
supporting this diagnosis included poor memory, social withdrawal,
emotional
lability,
inappropriate
affect,
delusions
or
hallucinations, decreased energy, manic syndrome, recurrent panic
attacks,
psychomotor
suspiciousness,
retardation,
generalized
paranoia
persistent
or
inappropriate
anxiety,
difficulty
thinking or concentrating, suicidal ideation or attempts, and
disturbances
with
perception,
sleep,
and
mood.
(Tr.
245.)
Hensley’s primary symptoms were found to be mood swings ranging
from depression to mania, very low energy, and low self-esteem.
(Tr. 246.)
abilities
understand,
Hensley was found to be “markedly limited” in her
to:
remember
remember,
locations
and
carry
and
out
work-like
detailed
procedures;
instructions;
maintain attention and concentration for extended periods; perform
activities within a schedule, maintain regular attendance, and be
punctual within customary tolerance; sustain ordinary routine
The ALJ’s decision addresses this questionnaire, identifying it
as “the assessment of Dr. Castnuo.”
(Tr. 25.)
While the
questionnaire was directed to “John Castnuo, M.D.,” the signature
of the doctor who completed the questionnaire is unclear. (Tr.
244, 251.) Both parties represent that the questionnaire was in
fact completed by Dr. Castelino. (DE## 11 at 21 & n.55, 16 at 9
& n.2.)
2
7
without
supervision;
interact
appropriately
with
the
general
public; maintain socially appropriate behavior and adhere to basic
standards of neatness and cleanliness; respond appropriately to
changes in the work setting; travel to unfamiliar places or take
public transportation; and set realistic goals or make plans
independently.
(Tr. 246-249.)
Hensley was “moderately limited”
in her abilities to understand and remember one or two-step
instructions; ask simple questions or request assistance; and be
aware of normal hazards and take appropriate precautions.
(Id.)
Dr. Castelino opined that Hensley was incapable of handling “even
low stress” work.
(Tr. 250.)
On April 15, 2011, Hensley asked Dr. Fortson to increase her
pain medication because she could not get out of bed without taking
medication and waiting for it to “kick in.”
(Tr. 441.)
Dr.
Fortson diagnosed lumbar disc disease and prescribed Percocet,
among other medications.
(Id.)
In April and May 2011, Hensley met with Randolph Chang, M.D.,
complaining of chronic low back pain.
(Tr. 473-74.)
Dr. Chang
recommended, and Hensley received, two epidural steroid injections
during that time. (Tr. 469-72.) In June 2011, Dr. Chang performed
a
right
hip
bursa
injection
(Tr.
476),
and
a
right
lumbar
paraspinous muscle multiple trigger point injection on Hensley.
(Tr. 519.)
8
On June 3, 2011, Teofilo Bautista, M.D., performed a physical
evaluation of Hensley at the request of the SSA.
(Tr. 423.)
Hensley claimed to have auditory and visual hallucinations.
(Id.)
She refused to do range of motion testing of the back due to low
back pain.
(Tr. 425.)
An examination revealed pain, tenderness,
and muscle spasms in the lumbosacral area, and pain and tenderness
in the right hip area and right knee.
(Id.)
right lower extremity measured at 4/5.
The weakness in the
(Id.)
Dr. Bautista
diagnosed chronic low back pain with degenerative disc disease at
L3-4, L4-5, and L5-S1, with mild disc protrusion and right hip
pain,
right
knee
fibromyalgia.
On
June
pain,
mild
scoliosis,
and
a
history
of
performed
a
(Id.)
8,
2011,
Raymond
Bucur,
Ph.D.,
psychological evaluation of Hensley at the request of the SSA.
(Tr. 430-36.)
disorder
with
Dr. Bucur diagnosed schizoaffective disorder, panic
agoraphobia,
mood
disorder,
and
ruled
out
polysubstance disorder (presumably based on Hensley’s denial of
substance abuse).
(Tr. 431-32, 436.)
Dr. Bucur indicated that
Hensley did not appear to be able to manage her own funds, and
gave her a GAF score of 40.
(Id.)
On June 9 and 14, 2011, Hensley met with Dr. Castelino, and
an MSE revealed anxiety and disturbed mood and sleep.
614.)
Latuda.
Hensley was prescribed Seroquel, Cymbalta, Ambien, and
(Tr. 610.)
9
(Tr. 610,
On June 26 and July 6, 2011, state agency medical consultant
J. Sands, M.D., reviewed Hensley’s file and completed a Physical
Residual Functional Capacity Assessment.
(Tr. 538-46.)
Dr. Sands
opined that Hensley could lift twenty pounds occasionally and ten
pounds frequently, sit, stand and walk for about six hours in an
eight-hour workday, and had some postural limitations.
40.)
(Tr. 539-
Dr. Sands noted Hensley’s slight limping gait due to right
hip and knee pain, and a limitation in her knees.
(Tr. 539.)
He
opined that Hensley’s medically determinable impairments could
reasonably be expected to produce the alleged symptoms, but the
intensity of the symptoms and their impact on functioning were not
consistent with the totality of the evidence.
(Tr. 543.)
State
agency medical consultant J. Eskonen, D.O., reviewed the file and
affirmed Dr. Sands’ opinion without comment on September 16, 2011.
(Tr. 566.)
On July 12, 2011, state agency medical consultant Donna
Onversaw, Ph.D., completed a Mental Residual Functional Capacity
Assessment of Hensley.
(Tr. 547-64.)
Dr. Onversaw found that
Hensley was either “not significantly limited” or “moderately
limited” in understanding, memory, sustained concentration and
persistence, social interaction, and adaption.
(Tr. 547-48.)
She
opined that while Hensley may have difficulty with more complex
tasks, she retains the ability to perform and complete tasks
without special considerations or accommodations.
10
(Tr. 550.)
Dr.
Onversaw remarked that progress notes did not reveal ongoing
hallucinations or delusions as claimed by Hensley, and that the
severity suggested in Dr. Castelino’s April 2011 opinion “is not
consistent with the numerous progress notes from mid ’10 up to
current.”
(Tr. 549-550.)
Dr. Onversaw opined that Hensley’s
functional limitations were only mild or moderate.
(Tr. 561.)
State agency reviewing consultant Joelle Larsen, Ph.D., affirmed
Dr. Unversaw’s opinion on September 14, 2011.
(Tr. 565.)
On July 19, 2011, Hensley told Dr. Chang that her prior
injections helped, but she still had a very tender area in her
lumbar spine.
(Tr. 579.)
Dr. Chang performed a right lumbar
paraspinous muscle trigger point injection.
(Id.)
On July 28, 2011, Hensley complained to Dr. Fortson that her
medications were not working; she was having a lot of pain in her
back
and
hip.
(Tr.
570.)
Dr.
Fortson
diagnosed
spondyloarthropathy and major depression, and prescribed Percocet
and other medications.
(Id.)
On August 11, 2011, Marc Levin, M.D., examined Hensley to
determine if she was a candidate for a spinal cord stimulator.
(Tr. 577.)
Hensley described chronic low back pain radiating into
the right leg, and had begun using a cane.
(Id.)
An examination
revealed an antalgic gait, an inability to elevate herself on her
heels
or
toes,
blunted
deep
tendon
extremities, and patchy motor strength.
11
reflexes
in
(Tr. 578.)
the
lower
Dr. Levin
reviewed the 2011 MRI of her spine and found “some mild changes
without any significant foraminal or central stenosis and no loss
of disc height.”
(Id.)
Dr. Levin diagnosed fibromyalgia and
chronic pain, and opined that her pain was not being generated
from her spine.
(Id.)
On August 12, 2011, Hensley complained to Dr. Fortson of
shoulder pain, restless extremities, and pain that was a “15” out
of ten, for which Dr. Fortson prescribed medication.
(Tr. 569.)
On September 27, 2011, Hensley reported to Dr. Fortson that she
had been involved in a motor vehicle accident.
Fortson
diagnosed
fibromyalgia,
excessive
(Tr. 716.)
use
of
Dr.
sedating
medications, and motor vehicle accident trauma, and prescribed
several medications.
(Id.)
On October 7, 2011, Hensley was admitted to Methodist Hospital
after a drug overdose.
(Tr. 772.)
She denied trying to kill
herself; she stated she took one extra sleeping pill and her
boyfriend could not awaken her.
(Id.)
Her diagnoses were major
depression, drug overdose, and suicide attempt.
(Id.)
On October 16, 2012, Hensley underwent a hysterectomy.
1027.)
(Tr.
Her physical examination for this surgery found a normal
spine, no CVA tenderness, and extremities within normal limits.
(Tr. 1029-30.)
12
On October 24, 2011, Dr. Castelino’s MSE of Hensley revealed
anxiety
and
mood
and
sleep
medications were refilled.
disturbances.
(Tr.
616.)
Her
(Id.)
On November 1, 2011, Hensley reported to Dr. Chang that the
most recent trigger point injection gave her only a few weeks of
relief.
(Tr. 651.)
An examination revealed “a lot” of myofascial
trigger points in the lumbar region and bursitis in the hips.
(Id.)
On November 29, 2011, Hensley informed Dr. Chang that her
pain had returned to the level she had six months before, and was
radiating down to her ankle with foot numbness.
(Tr. 649.)
An
examination revealed some mild antalgic gait, sacroiliac joint
tenderness,
and
diffuse
paraspinous
lumbar and thoracic area.
(Id.)
muscle
tenderness
in
the
Dr. Chang prescribed medication
and recommended additional injections.
(Id.)
In December 2011
and January 2012, Hensley received additional epidural steroid
injections.
told
Dr.
(Tr. 644-45, 647-648.)
Chang
injection.
she
was
about
50%
In February 2012, Hensley
improved
after
the
latest
(Tr. 642.)
On January 13, 2012, Hensley complained to Dr. Fortson of not
feeling well, and that she had not had access to her medications.
(Tr.
741.)
Dr.
Fortson
observed
that
she
was
having
mild
withdrawal symptoms, and noted that Hensley “has not been truthful
with me in the past concerning her meds.”
(Id.)
Dr. Fortson found
that Hensley had no focal deficits and a normal gait, and diagnosed
13
lumbago, major depressive disorder, and opioid type dependence.
(Id.)
On January 19, 2012, Hensley told Dr. Fortson that the pain
in her hip and back was an eight on a ten-point scale.
(Tr. 742.)
On February 16, 2012, Dr. Fortson completed a functional capacity
form, checking boxes indicating that Hensley had “significant”
limitations with standing, walking, lifting, pushing, pulling,
bending, squatting, reaching above her shoulders, and performing
other activities.
(Tr. 719.)
On March 7, 2012, an MRI of Hensley’s lumbar spine revealed
small broad based posterior herniation of L5-S1 disc, with annular
fissure causing mild narrowing of the central canal and neural
foramina bilaterally, diffuse bulge of the L3-4 and L4-5 discs,
causing mild narrowing of the central canal and neural foramina
bilaterally, mild facet arthropathy at L4-5 and L5-S1, and minimal
retrolisthesis of L3 vertebra over L4 and L4 over L5. (Tr. 67273.)
On May 17, 2012, Hensley met with Candice Hunter, M.D.,
complaining of hallucinations and disturbed sleep, despite trying
various medications for insomnia.
anxious
affect,
difficulties
(Tr. 1074.)
expressing
An MSE revealed an
her
judgment, fair insight, and a GAF score of 50.
thoughts,
fair
(Tr. 1076.)
Dr.
Hunter diagnosed bipolar disorder and polysubstance dependence,
and prescribed medications.
(Tr. 1076-77.)
14
On May 22, 2012, Hensley complained to Dr. Chang of severe
back pain radiating to the right lower extremity, which had
worsened over the previous month.
(Tr. 1053.)
An examination
revealed a slight antalgic gait and a 50% range of motion of the
lumbar spine, 100% range of motion of lower extremities, and a
lack of documented focal, neurological, or motor deficits.
1053-55.)
the
Dr. Chang diagnosed low back pain with radiculopathy in
right
severe
(Tr.
lower
extremity;
stenosis,
multiple
degeneration,
and
lumbar
disc
spondylosis;
protrusions,
chronic
pain
syndrome; myofascial pain syndrome; and a history of depression
and anxiety. (Id.) Dr. Chang recommended another epidural steroid
injection and continued medications.
(Tr. 1054.)
On July 11, 2012, Hensley told Dr. Hunter that she had not
slept for several days and she was having auditory hallucinations
of music playing.
(Tr. 1073.)
An MSE revealed a tired mood,
blunted affect, difficulty expressing thoughts, fair insight, and
intact judgment.
(Tr. 1072.)
Dr. Hunter prescribed medications.
(Id.) On August 10, 2012, Hensley told Dr. Hunter that she thought
she was sleep walking, so Dr. Hunter substituted one of her
prescription medications.
(Tr. 1070-71.)
but she had a blunted affect.
On
August
12,
2012,
Her mood was better,
(Id.)
Dr.
Fortson
completed
a
Impairment Questionnaire supplied by Hensley’s counsel.
88.)
(Tr. 681-
He diagnosed lumbosacral spondylosis, major depression,
15
Multiple
opioid dependence, and juvenile rheumatoid arthritis.
(Tr. 681.)
Hensley’s primary symptoms were back pain with radiculopathy,
depression, and drug-seeking behavior with multiple accidental
drug overdoses.
(Tr. 682.)
She had constant severe radicular
pain in the back, legs, right hip, and both knees.
(Tr. 682-83.)
Hensley’s pain was moderately severe, and her fatigue was severe.
(Tr. 683.)
Dr. Fortson opined Hensley was able to sit for four
hours, and stand or walk for one hour, in an eight-hour workday.
(Id.)
When sitting, she needed to move around once or twice per
hour for fifteen to twenty minutes.
(Tr. 683-84.)
He opined that
Hensley could occasionally lift ten pounds and carry five pounds,
had
significant
limitations
performing
repetitive
reaching,
handling, fingering, and lifting, and had moderate limitations
using arms for reaching.
(Tr. 684-85.)
Dr. Fortson opined that
Hensley is “severely disabled” (Tr. 687), and that her pain,
fatigue,
or
other
symptoms
were
constantly
severe
interfere with her attention and concentration.
enough
(Tr. 686.)
to
He
noted that Hensley is bipolar and exhibits dependency and selfdestructive behavior.
(Id.)
Dr. Fortson found Hensley is not a
malingerer, and was incapable of tolerating “even ‘low stress’”
work.
(Id.)
He estimated Hensley would be absent from work, on
the average, more than three times a month as a result of her
impairments or treatment.
(Tr. 687.)
16
On
September
14,
Psychiatric/Psychological
Hensley.
(Tr. 796-803.)
disorder.
(Tr. 796.)
2012,
Dr.
Impairment
Hunter
completed
Questionnaire
a
regarding
She diagnosed Hensley with bipolar
The clinical findings supporting this
diagnosis included sleep disturbance, mood disturbance, delusions
or
hallucinations,
difficulty
suicidal ideation or attempts.
thinking
(Tr. 797.)
or
concentrating,
and
Dr. Hunter opined that
Hensley was “moderately” limited in the ability to: carry out
detailed instructions; maintain attention and concentration for
extended periods; work in coordination with or proximity to others
without being distracted; make simple work related decisions;
complete
a
normal
workweek
without
interruptions
from
psychologically based symptoms and perform at a consistent pace
without an unreasonable number and length of rest periods; interact
appropriately with the general public; and, accept instructions
and respond appropriately to criticism from supervisors.
798-800.)
(Tr.
Dr. Hunter opined that Hensley was “mildly” limited in
understanding and memory, adaption, and sustained concentration
and persistence.
(Tr. 799-800.)
According to Dr. Hunter, Hensley
was incapable of tolerating “even ‘low stress’” work.
(Tr. 802.)
Dr. Hunter estimated that Hensley would be absent from work, on
the average, more than three times a month as a result of her
impairments or treatment.
(Tr. 803.)
17
On November 2, 2012, Hensley reported to Dr. Hunter increased
depression since her hysterectomy and hypersomnia.
(Tr. 1066.)
An MSE revealed a down mood, a blunted affect, slow speech, intact
judgment and fair insight.
(Tr. 1067.)
Dr. Hunter increased her
Cymbalta and continued with other medications.
(Id.)
On December
14, 2012, Dr. Hunter observed Hensley was somewhat tremulous. (Tr.
1063.)
An MSE revealed an anxious mood and affect, slow speech,
intact
judgment
and
fair
insight.
(Tr.
1064.)
Dr.
Hunter
prescribed Xanax and Ritalin, and continued her other medications.
(Tr. 1065.)
Hearing Testimony
At the hearing, Hensley testified that she stopped working
because she was having back pain and mental issues.
(Tr. 47.)
She had difficulty waiting on customers because of her social
anxiety.
(Id.)
She described her back, hip and knee pain as
constant.
(Tr. 52-53.)
Hensley testified that she could not work
because “can’t even hardly move,” requires “medication just to be
able to get out of bed,” and rarely leaves her house due to panic
attacks.
(Tr. 48.)
She explained that injections dulled her pain
for a couple of months, physical therapy did not work, and she
“cannot find a doctor that will do surgery.”
several
medications
for
pain,
medications just dull the pain.
depression
(Tr. 49.)
and
(Tr. 50-51, 53.)
She takes
anxiety,
She testified
that she uses a cane to walk due to her hip and knee pain.
18
and
(Tr.
50, 60.)
Hensley estimated she can sit for fifteen minutes at a
time, stand for fifteen minutes, walk about half-a-block, and lift
a gallon of milk.
due to hip pain.
(Tr. 53-54.)
She had not driven in six months
(Tr. 44.)
Hensley testified that sometimes she does not sleep, and has
difficulties with her memory.
(Tr. 54.)
She described auditory
and visual hallucinations, but her medication helps.
(Tr. 55.)
She maintained that, at the time of the hearing, she was not using
any drugs not prescribed by a doctor.
(Tr. 51.)
not improve when she was not using substances.
Her symptoms did
(Tr. 52.)
Hensley
testified that she had abused poly-substances in attempt to commit
suicide multiple times in the past.
(Tr. 62.)
Hensley noted that she recently broke up with her boyfriend,
but he still lives with her and helps her.
(Tr. 58.)
Her ex-
boyfriend cleans the house, and lifts the groceries when they go
shopping.
(Tr. 57.)
In a typical day, she spends a lot of time
in bed watching TV or using a laptop to play games and Facebook.
(Tr. 56-57.)
She takes care of her own personal needs, such as
dressing and eating.
(Tr. 57.)
The ALJ asked the vocational expert (“VE”) to assume an
individual of Hensley’s age, education, and work history who was
limited to light work except she could only occasionally climb
ramps and stairs, never climb ladders, ropes, or scaffolding,
occasionally balance, stoop, kneel, crouch, and crawl, and limited
19
to
simple,
routine,
repetitive
tasks
and
simple
work-related
decisions, frequent contact with supervisors and co-workers, no
more than occasional interaction with the public on a superficial
basis where public contact was not an integral part of the job,
and the use of a cane in the right hand.
testified
that
such
an
individual
Hensley’s past relevant work.
could
(Id.)
(Tr. 65.)
not
perform
The VE
any
of
Such an individual could
work as a production assembler, a small parts assembler, and an
electronics worker.
(Tr. 66.)
According to the VE, if the
individual were also limited to a low stress job that was not done
at a production-rate pace such as assembly line work, but was more
goal-oriented work, she could work as a cleaner or housecleaner,
a cafeteria room attendant, and a dishwasher.3
(Tr. 66-67.)
An
individual who was also required to stand for five minutes after
every fifteen minutes of sitting would be unable to work at the
light or sedentary level.
(Tr. 67-68.)
The VE testified that an
individual who misses work three times a month could not do any of
the jobs discussed.
(Tr. 69.)
Review of Commissioner’s Decision
This
Court
has
authority
to
review
decision to deny social security benefits.
the
Commissioner’s
42 U.S.C. § 405(g).
The VE later noted that if the hypothetical individual was limited
by the use of a cane, the housecleaner position would be
eliminated. (Tr. 68.)
3
20
“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.”
Id.
a
Substantial evidence is defined as “such relevant evidence as
reasonable
conclusion.”
mind
might
accept
as
adequate
to
support
a
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 28 L. Ed. 2d 842 (1971) (citation omitted); see Moon v.
Colvin,
763
F.3d
718,
721
(7th
Cir.
2014)
(noting
“[t]his
deferential standard of review is weighted in favor of upholding
the ALJ’s decision”).
In determining whether substantial evidence
exists, the Court shall examine the record in its entirety, but
shall not substitute its own opinion for the ALJ’s by reconsidering
the facts or reweighing the evidence.
F.3d 209, 212 (7th Cir. 2003).
See Jens v. Barnhart, 347
While a decision denying benefits
need not address every piece of evidence, the ALJ must provide “an
accurate
and
logical
bridge”
between
the
evidence
and
his
conclusion that the claimant is not disabled. Schreiber v. Colvin,
519 Fed. App’x 951, 957-58 (7th Cir. 2013).
As a threshold matter, for a claimant to be eligible for DIB
or SSI benefits under the Social Security Act, the claimant must
establish that she is disabled.
1382(a)(1).
42 U.S.C. § 423(d)(1)(A) and
To qualify as being disabled, the claimant must be
unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
21
expected to last for a continuous period of not less than 12
months.”
42 U.S.C. § 423(d)(1)(A).
To determine whether a
claimant has satisfied this statutory definition, the ALJ performs
a five-step evaluation:
Step 1:
Is the claimant performing substantially
gainful activity?
If yes, the claim is
disallowed; if no, the inquiry proceeds to
Step 2.
Step 2:
Is the claimant’s impairment or combination
impairments “severe” and expected to last
least twelve months? If not, the claim
disallowed; if yes, the inquiry proceeds
Step 3.
Step 3:
Does the claimant have an impairment or
combination of impairments that meets or
equals the severity of an impairment in the
SSA’s Listing of Impairments, as described in
20 C.F.R. § 404, Subpt. P, App. 1? If yes,
then claimant is automatically disabled; if
not, then the inquiry proceeds to Step 4.
Step 4:
Is the claimant able to perform his past
relevant work? If yes, the claim is denied;
if no, the inquiry proceeds to Step 5, where
the
burden
of
proof
shifts
to
the
Commissioner.
Step 5:
Is the claimant able to perform any other work
within his residual functional capacity in the
national economy?
If yes, the claim is
denied; if no, the claimant is disabled.
of
at
is
to
See 20 C.F.R. §§ 404.1520(a)(4)(i)–(v) and 416.920 (a)(4)(i)-(v);
see also Herron v. Shalala, 19 F.3d 329, 333 n.8 (7th Cir. 1994).
In this case, the ALJ found that Hensley had not engaged in
substantial gainful activity since January 29, 2010, her alleged
onset date.
(Tr. 15.)
The ALJ found that Hensley suffered from
22
the following severe impairments:
degenerative
joint
disease;
degenerative disc disease;
obesity;
depressive
disorder;
schizoaffective disorder; bipolar disorder; anxiety disorder; and
a history of poly-substance abuse (20 C.F.R. § 404.1520(c) and
416.920(c)).
(Id.)
The ALJ further found that Hensley did not
have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in
20
C.F.R.
Part
404,
Subpart
P,
Appendix
1
(20
C.F.R.
§§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
(Tr. 16.)
The
ALJ
made
the
following
Residual
Functional
Capacity
(“RFC”) determination:
[T]he claimant has the [RFC] to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except the
claimant is able to occasionally climb ramps and stairs
but never climb ladders, ropes, or scaffolds; the
claimant is able to occasionally balance, stoop, kneel,
crouch, and crawl. The claimant is limited to simple
routine repetitive tasks, simple work related decisions
(identified as SVP 1 and 2 type jobs), and low stress
jobs (work that is not done at production pace but more
goal oriented). The claimant is able to have frequent
contact with supervisors and coworkers and no more than
occasional interaction with the public on a superficial
basis. The claimant must be allowed the use of a cane
when ambulating.
(Tr. 18.)
Based upon Hensley’s RFC, the ALJ found that Hensley is
unable to perform her past relevant work as a photo shop manager
and deli worker. (Tr. 26-27.) However, the ALJ found that Hensley
was capable of performing other work that exists in significant
23
numbers
in
the
national
economy,
attendant, cleaner, and dishwasher.
including
cafeteria
room
(Tr. 28.)
Hensley believes that the ALJ committed two errors requiring
reversal.
First, Hensley asserts that the ALJ failed to follow
the treating physician’s rule by giving little weight to Hensley’s
treating physicians.
Second, Hensley argues that the ALJ failed
to properly evaluate her credibility.
ALJ’s Evaluation of Treating Physicians’ Opinion Evidence
Plaintiff argues that the ALJ failed to consider the factors
set forth in 20 C.F.R. section 404.1527(c) when weighing the
opinions of the treating physicians in this case.
Pursuant to
Section 404.1527(c)(1), the opinions of treating physicians are
entitled to greater weight than those of examining and nonexamining physicians.
While an ALJ generally affords “more weight
to the opinion of a source who has examined a claimant than to the
opinion of a source who has not, the weight ultimately given to
that opinion depends on its consistency with and objective medical
support in the record; the quality of the explanation the source
gave for the opinion; and the source’s specialization.”
Givens v.
Colvin, 551 Fed. App’x 855, 860 (7th Cir. 2013) (internal quotation
omitted).
An ALJ may discount a treating physician’s opinion if
it is inconsistent with the medical record.
404.1527(c)(2), (4).
24
See 20 C.F.R. §
Treating Physician Dr. Fortson
The ALJ gave “little weight” to Dr. Fortson’s opinion that
Hensley has significant exertional and functional limitations and
that she is “totally” and “severely disabled.”
(Tr. 26.)
An ALJ
may “discount a treating physician’s medical opinion if the opinion
is inconsistent with the opinion of a consulting physician or when
the treating physician’s opinion is internally inconsistent, as
long as he minimally articulates his reasons for revising or
reflecting evidence of disability.”
833, 842 (7th Cir. 2007).
Schmidt v. Astrue, 496 F.3d
Here, the ALJ discounted Dr. Fortson’s
opinions because they were inconsistent with his treatment notes
from January 2012, Dr. Chang’s findings from May 2012, and a
clinical examination in October 2012.
(Tr. 26.)
Dr. Fortson’s
January 2012 examination found that Hensley had no focal deficits
and a normal gait. (Tr. 26, 741.) Dr. Chang’s May 2012 examination
found a lack of documented focal, neurological, or motor deficits.
(Tr. 26, 1053-55.)
Hensley’s October 2012 examination found that
Hensley had a normal spine, no CVA tenderness, and extremities
within normal limits.
(Tr. 26, 1028-30.
Hensley argues that the ALJ erred by relying on only these
three clinical examinations.
An ALJ should not use a “‘sound-
bite’ approach to record evaluation,” choosing only the findings
that
support
his
conclusion,
and
ignoring
other
evidence
consistent with the treating doctor’s reports. Scrogham v. Colvin,
25
765 F.3d 685, 698 (7th Cir. 2014) (citation omitted).
maintains
that
Dr.
Fortson’s
opinions
regarding
her
Hensley
physical
limitations were supported by clinical and diagnostic findings,
and that the ALJ failed to identify any other substantial evidence
contradicting his opinions.
See 20 C.F.R. §§ 404.1527(c)(2) and
416.927(c)(2) (giving controlling weight to a treating physician’s
opinion that is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in your case record”).
The decision reflects that the ALJ considered Dr. Fortson’s
records.
(See, e.g., Tr. 20 (citing Dr. Fortson’s treatment notes
at Ex. 33F/9), 21 (citing Dr. Fortson’s treatment notes at Ex.
38F/140), 26 (citing Dr. Fortson’s opinions and treatment notes).)
He
also
considered
other
diagnostic
and
clinical
findings,
including: diagnostic testing and the 2012 MRI showing only mild
or minimal abnormalities in her lumbar spine (Tr. 21 (citing Tr.
690, 909, 1060)), diagnostic testing showing minimal degenerative
changes to her knee (id. (citing Tr. 813)); clinical examinations
showing tenderness, decreased range of motion of the spine, and
crepitus of the knees (Tr. 21 (citing Tr. 278-81)); an August 2011
visit with a spinal specialist noting abnormalities to her deep
tendon
reflexes
and
motor,
but
a
subsequent
September
2011
examination finding no focal deficits (id. (citing Tr. 577-78,
943)); examinations showing normal straight leg raise testing,
26
normal sensory, lack of joint abnormalities, no sacroiliac joint
tenderness, fair range of spinal motion, and no focal deficits
(id. (citing Tr. 280, 508)); January 2012 notes indicating no focal
deficits and normal gait (id.); March 2012 notes indicating she
was neurologically normal as to strength and coordination (id.
(citing Tr. 734)); and May 2012 notes showing no abnormalities in
her extremities, intact sensations in her lower extremities, only
a “slight” antalgic gait, the ability to walk on heels and toes,
good
motor
strength,
and
full
range
of
motion
in
her
lower
extremities (id. (citing Tr. 1053)).
Hensley also argues that the ALJ failed to consider the
factors provided in 20 C.F.R. sections 404.1527 and 416.927 in
weighing Dr. Fortson’s opinion.
See SSR 96-2p (treating source
medical opinions “must be weighed using all of the factors provided
in 20 CFR 404.1527 and 416.927”).
If a treating opinion is not
entitled to controlling weight, the ALJ must determine what weight
to assign it by considering “the length, nature, and extent of the
treatment relationship; frequency of examination; the physician’s
specialty; the types of tests performed; and the consistency and
support for the physician’s opinion.”
Larson v. Astrue, 615 F.3d
744, 751 (7th Cir. 2010) (citations omitted); see 20 C.F.R. §
404.1527(c)(2).
Depending on how these factors apply, an opinion
from a non-examining source may be entitled to more weight than an
opinion from a treating source. See, e.g., Polchow v. Astrue, No.
27
10 CV 6525, 2011 WL 1900065, at *13 (N.D. Ill. May 19, 2011)
(citing Hofslien v. Barnhart, 439 F.3d 375, 376–77 (7th Cir. 2006))
(finding the decision to afford greater weight to non-examining
physicians’ opinions than those of the treating psychologist was
supported by substantial evidence)).
has
criticized
decisions
that
“said
While the Seventh Circuit
nothing
regarding
this
required checklist of factors,” Larson, 615 F.3d at 751, it has
“made clear that an ALJ need not explicitly weigh every relevant
factor to conclude that a treating physician’s opinion should be
discounted, as long as the ALJ otherwise articulates why it is
inconsistent with the record.”
Greathouse v. Colvin, No. 1:14–
CV–00805–JMS–DKL, 2015 WL 506276, at *7 (S.D. Ind. Feb. 6, 2015)
(citing Schreiber, 519 Fed. App’x at 959).
Here, while the ALJ did not explicitly weigh each factor in
discussing Dr. Fortson’s opinion, his decision makes clear that he
considered many of the factors, including Dr. Fortson’s treatment
relationship with Hensley, the consistency of his opinion with the
record as a whole, and the supportability of his opinion.4
See
Hensley insists that Dr. Fortson’s opinions are “consistent with
examining neurosurgeon, Dr. Levin, who opined that Ms. Hensley’s
description of her pain was ‘truly being generated from the spine,’
based on the MRI findings (Tr. 578).” (DE# 11 at 25.) A review
of the record reveals that this was not Dr. Levin’s opinion;
indeed, it was the opposite: “It is not our impression at this
time that the pain that she is describing in her back and leg is
truly being generated from her spine, especially with the
appearance of her MRI.” (Tr. 578 (emphasis added).) Moreover,
the ALJ relied on Dr. Levin’s opinion in issuing this decision,
4
28
Schreiber, 519 Fed. App’x at 959.
The Court finds that the ALJ
built an “accurate and logical bridge” between the evidence and
his conclusion, id., and sufficiently articulated reasons for
affording little weight to Dr. Fortson’s opinion. Elder v. Astrue,
529 F.3d 408, 415 (7th Cir. 2008) (citation omitted) (noting the
“very deferential standard” that the Seventh Circuit has deemed
“lax,” under which an ALJ need only “minimally articulate” reasons
for considering evidence).
Non-Examining Medical Consultants
Hensley argues that the ALJ erred by affording “great weight”
to the opinions of non-examining state agency medical consultants
Dr. J. Sands and Dr. Eskonen.
(DE# 11 at 22-23.)
She insists
that the opinions of these non-treating, non-examining sources who
reviewed an “unknown portion of the complete medical file” should
not supplant Dr. Fortson’s opinions.
(DE# 11 at 24.)
Courts
expect “a sound explanation for the weight assigned to the medical
opinions” where a “treating physician’s opinion was given only
some weight while the opinion of a non-examining State agency
physician, who did not review the entire record, was given great
weight.”
Pennington v. Colvin, No. 3:14–CV–1628, 2015 WL 4093345,
at *5 (N.D. Ind. July 7, 2015); see Beardsley v. Colvin, 758 F.3d
noting that “upon seeking treatment from specialists, it was
reported that the claimant is not a candidate for surgical
intervention or the insertion of a spinal stimulator.” (Tr. 21
(citing Dr. Levin’s opinion).)
29
834, 839 (7th Cir. 2014) (courts “await a good explanation” when
an ALJ rejects an examining source’s opinion in favor of a nonexamining source’s opinion).
“An ALJ can reject an examining
physician’s opinion only for reasons supported by substantial
evidence in the record; a contradictory opinion of a non-examining
physician does not, by itself, suffice.”
Gudgel v. Barnhart, 345
F.3d 467, 470 (7th Cir. 2003).
The ALJ gave great weight to Dr. Sands’ and Dr. Eskonenon’s
opinions that Hensley is capable of less than the full range of
light exertional activity, with similar postural limitations found
in the RFC.
alone.
(Tr. 25.)
But the ALJ did not rely on these opinions
Rather, he found that these opinions were supported by
“the lack of significant focal, motor or neurological deficits, as
well as the conservative nature of treatment.”
21-22 (describing this evidence in detail).)
(Tr. 25; see Tr.
The ALJ considered
these opinions in his analysis of the entire record, including
treatment notes showing few abnormalities, conservative treatment,
inconsistencies, non-compliance and mild test results.
25.)
(Tr. 19-
The Court finds that this evidence supports the ALJ’s
conclusion that Hensley’s severe impairments do not cause an
inability
to
limitations.
work
at
a
light
level
additional
work
See Schofield v. Colvin, No. 1:14-CV-1197, 2015 WL
4724920, at *9 (S.D. Ind. Aug. 10, 2015).
30
with
Treating Physicians Dr. Castelino and Dr. Hunter
Hensley argues that the ALJ erred by giving “little weight”
to the opinions of treating physicians Dr. Castelino and Dr.
Hunter.
(See Tr. 25-26.)
In April 2011, Dr. Castelino diagnosed
Hensley with schizoaffective disorder and opined that she had
“moderate”
to
“marked”
limitations
with
concentration,
persistence, social interactions, and adaptation, and was unable
to tolerate “even low stress” work.
September
2012,
Dr.
Hunter
diagnosed
(Tr. 25, 244-51.)
Hensley
with
In
bipolar
disorder, and opined that she had “mild” to “moderate” limitations
with understanding, memory, concentration, persistence, and social
interactions, and was unable to tolerate “even low stress” work.
(Tr. 25, 796-803.)
The ALJ afforded little weight to Dr. Castelino’s opinions
because they were inconsistent with Hensley’s MSEs and her capacity
to maintain a relationship with a significant other.
(Tr. 25.)
Hensley insists that Dr. Castelino provided appropriate medical
support for his opinions, and thus, his opinions were entitled to
controlling weight.
Hensley points to the clinical findings in
Dr. Castelino’s opinion indicating that she had poor memory,
perceptual disturbance, mood and sleep disturbances, emotional
lability, blunt, flat or inappropriate affect, social withdrawal
or isolation, delusions or hallucinations, decreased energy, manic
syndrome, recurrent panic attacks, anhedonia or pervasive loss of
31
interests,
psychomotor
retardation,
paranoia,
generalized
persistent anxiety, feelings of guilt or worthlessness, difficulty
thinking or concentrating, and suicidal ideation or attempts. (Tr.
245.)
In her brief, Hensley cites several MSEs to support Dr.
Castelino’s
clinical
findings.
While
these
MSEs
indicate
disturbed mood and sleep, anxiety, and anger, they do not support
Dr. Castelino’s other findings.
(See DE# 11 at 26 (citing Tr. 380
(noting issues with mood, sleep, anger, and anxiety), 382 (same),
610 (noting issues with mood and sleep), 614 (noting issues with
mood, sleep, and anxiety)).)
The ALJ considered a series of
Hensley’s MSEs and found them without significant psychiatric
symptomology, despite some abnormality as to mood, sleep and
anxiety.
(Tr. 23-24.)
As the ALJ noted, the MSEs documented
Hensley as within normal limits as to orientation, appearance,
affect,
identify
memory,
concentration,
significant
difficulties.
and
and
concentration
memory,
cognition,
or
failed
to
cognition
(Tr. 24 (citing Hensley’s nearly monthly MSEs from
late 2010 through 2012).)
Hensley
asserts
that
the
ALJ
erred
by
discounting
Dr.
Castelino’s opinion of “marked social limitations” based on her
relationship with her boyfriend.
(Tr. 25.)
While Hensley asserts
that her relationship with her boyfriend did not work out, at the
time of the hearing, he was still living with and helping her.
32
(Tr. 44.)
Courts have found evidence of such relationships to be
persuasive.
See Williams v. Colvin, No. 12-cv-802, 2013 WL
4501049, at *12 (W.D. Wis. Aug. 22, 2013) (affirming ALJ’s finding
of no marked difficulties with social functioning where claimant
had a girlfriend); Sutherland v. Astrue, No. 2:11-cv-24, 2012 WL
911898, at *10 (N.D. Ind. Mar. 15, 2012) (affirming ALJ’s rejection
of doctor’s opinion of “marked limitation” based in part on
claimant’s relationship with her boyfriend and daughter).
The
Court finds that the ALJ did not err in considering evidence
regarding Hensley’s relationship with her ex-boyfriend, and notes
that the ALJ afforded her some limitation regarding her ability to
socially
interact
by
including
“no
more
than
occasional
interaction with the public on a superficial basis” in the RFC.
(Tr. 18.)
Hensley argues that the ALJ also erred by giving little weight
to Dr. Hunter’s opinions.
(Tr. 25.)
Dr. Hunter opined that
Hensley was “incapable of even low stress” work and that she would
miss work more than three times a month due to her impairments.
(Tr. 802-03.)
The ALJ found these opinions to be inconsistent
with Dr. Hunter’s clinical findings that Hensley had no more than
moderate limitations in any area of mental functioning.
799-801.)
(Tr. 25,
Hensley maintains that there is “no reason why moderate
limitations . . . in multiple areas of daily mental functioning
cannot preclude an individual from handling even low stress work
33
or resulting multiple absences from work each month.”
27.)
(DE# 11 at
But Dr. Hunter found only mild limitations with several
functions relating to the workplace, such as abilities to carry
out simple instructions, perform activities within a schedule,
“maintain regular attendance,” sustain an ordinary routine without
supervision, “get along with co-workers or peers,” and respond
appropriately to changes in the work setting.
(Tr. 799-801.)
These findings adequately support the ALJ’s conclusion that there
is
“little
correlation
between
[Hensley’s]
mild
to
moderate
limitations and her inability as to even low stress work and
multiple absences from work.”
(Tr. 25.)
The ALJ also found Dr. Hunter’s opinions to be inconsistent
with Dr. Chang’s May 2012 assessment that Hensley was oriented,
with
a
normal
mood
and
affect,
without
signs
agitation, and displayed a good and normal memory.
43.)
of
anxiety
or
(Tr. 25, 1053-
The ALJ concluded that Dr. Chang’s assessment was consistent
with the totality of Hensley’s individualized treatment, which was
without significant psychiatric symptomology.
24.)
(Tr. 25-26; see Tr.
Furthermore, the ALJ found that Dr. Hunter’s opinions were
inconsistent with her December 2012 treatment notes that Hensley
was “alert, oriented, cooperative, without psychomotor agitation,
coherent in thought process and without delusion or hallucination,
displaying normal cognition, intact memory, average intelligence,
intact
judgment,
fair
insight,
34
and
intact
concentration
and
attention.”
(Tr. 26 (citing Tr. 1064).)
Hensley claims that
treatment records confirm Dr. Hunter’s clinical findings of sleep
and mood disturbance, delusions or hallucinations, difficulty
thinking or concentrating, and suicidal ideation or attempts. (DE#
11 at 27.)
The records cited by Hensley support findings of sleep
and mood disturbance, and some difficulty expressing thoughts, but
do not support other findings.
(See id. (citing Tr. 1063-64 (MSE
finding Hensley without delusions or hallucinations, alert, with
normal
(same),
cognition,
1070-71
and
not
(same);
suicidal),
1072-73
1066-67
(without
(same),
delusions,
1068-69
normal
cognition, not suicidal); 1074-77 (same).)
Finally, Hensley argues that the ALJ failed to address the
factors of Section 404.1527 in considering the opinions of Dr.
Castelino and Dr. Hunter.
As discussed above, an ALJ is not
required to “explicitly weigh every relevant factor to conclude
that a treating physician’s opinion should be discounted,” as long
as he articulates why that opinion is inconsistent with the record.
Greathouse, 2015 WL 506276, at *7.
Here, the ALJ noted that both
doctors were treating physicians and explained why their opinions
were neither supported by nor consistent with the rest of the
record.
(Tr. 25-26.)
This is sufficient.
See Henke v. Astrue,
498 F. App’x 636, 640 n.3 (7th Cir. 2012) (finding it “is enough”
for an ALJ to note a lack of medical evidence supporting an opinion
35
and its inconsistency with the rest of the record, where the ALJ
did not explicitly weigh every factor).
ALJ’s Credibility Determination
Hensley
statements
claims
regarding
that
the
the
ALJ
erred
intensity,
in
finding
persistence
that
and
her
limiting
effects of her symptoms were not fully credible to the extent they
are inconsistent with the RFC assessment.
(Tr. 19.)
Because the
ALJ is best positioned to judge a claimant’s truthfulness, this
Court will overturn an ALJ’s credibility determination only if it
is “patently wrong.”
Cir. 2004).
Skarbek v. Barnhart, 390 F.3d 500, 504 (7th
However, the ALJ must articulate specific reasons for
discounting a claimant’s testimony as being less than credible,
and cannot merely ignore the testimony or rely solely on a conflict
between
the
objective
medical
evidence
and
the
claimant’s
testimony as a basis for a negative credibility determination.
See Schmidt v. Barnhart, 395 F.3d 737, 746-47 (7th Cir. 2005); SSR
96-7p (requiring ALJs to articulate “specific reasons” behind
credibility evaluations; the ALJ cannot merely state that “the
individual’s
allegations
have
been
considered”
allegations are (or are not) credible.”).
or
that
“the
The ALJ must make a
credibility determination supported by record evidence and be
sufficiently specific to make clear to the claimant and to any
subsequent reviewers the weight given to the claimant’s statements
36
and the reasons for that weight.
Lopez ex rel Lopez v. Barnhart,
336 F.3d 535, 539-40 (7th Cir. 2003).
Here, the ALJ provided sufficient support for his credibility
finding.
He considered Hensley’s daily activities, which included
doing laundry, preparing simple meals, and spending time with her
ex-boyfriend.
(Tr. 17, 19.)
The ALJ also noted “inconsistencies
in the record as to reports made by [Hensley], which indicates
that the information obtained from [her] may not be entirely
reliable.”
showing
(Tr. 19.)
that
Hensley
For example, the ALJ addressed records
had
reported
paranoia
and
audio
hallucinations while hospitalized, but upon learning that she
would be taken to court for possible State commitment, she suddenly
improved and reported that she felt well, and was without audio or
visual hallucinations, paranoid thoughts, depression, suicidal
thoughts, or manic symptomology.
(Tr. 23, 285.)
The ALJ also
considered Dr. Fortson’s notes that Hensley “has not been truthful
with me in the past.”
(Tr. 20, 741.)
Hensley does not contest
these findings.
In assessing Hensley’s credibility, the ALJ also found that:
(1) “objective diagnostic testing” did not support the intensity,
persistence and limiting effects of Hensley’s alleged symptomology
(Tr. 19-20); (2) Hensley’s physical and mental treatments were
conservative in nature (Tr. 20); (3) Hensley made inconsistent
statements about using aerosol cans to “get high” or commit suicide
37
(id.);
and
(4)
she
was
non-compliant
with
medications between hospitalizations (Tr. 23).
her
psychotropic
Hensley objects to
each of these findings.
Hensley argues that the ALJ erred by concluding that the
clinical
and
diagnostic
evidence
do
not
support
her
alleged
limitations. In support of her position, Hensley refers in cursory
fashion to the opinions of “three separate treating doctors,” and
“the fact that numerous treating and examining physicians found
otherwise.”
(DE# 11 at 29.)
Because Hensley failed to cite to
the record for these assertions, the Court can only presume she
intends to refer to the opinions of Drs. Fortson, Castelino and
Hunter.
Because the Court has found that the ALJ did not err in
assigning little weight to these opinions, the Court finds this
argument to be unpersuasive.
Hensley also asserts that a credibility determination cannot
be made solely on the basis of objective medical evidence.
SSR 96-7p.
See
However, an ALJ is entitled to consider the objective
medical evidence, or lack thereof, as a factor in assessing
credibility, and “may properly discount portions of a claimant’s
testimony
based
on
discrepancies
between
allegations and objective medical evidence.”
[the
c]laimant’s
Crawford v. Astrue,
633 F. Supp. 2d 618, 633 (N.D. Ill. 2009); see Arnold v. Barnhart,
473 F.3d 816, 823 (7th Cir. 2007) (“[S]ubjective complaints need
not be accepted insofar as they clash with other, objective medical
38
evidence in the record.”).
While the ALJ articulated reasons for
considering clinical and diagnostic evidence, he did not rely
solely on this evidence in assessing Hensley’s credibility.
(Tr.
20-21.)
He considered several other factors, including Hensley’s
medical
treatment,
medications
taken,
daily
activities,
work
history, opinions, allegations of pain, and inconsistencies in her
statements and complaints.
(Tr. 19-26.)
Hensley asserts that the ALJ erred by characterizing her
physical and mental treatment as “conservative.”
(Tr. 20.)
She
insists that her treatment of spinal injections and narcotic pain
medications should have been considered more than conservative.
But see Olsen v. Colvin, 551 Fed. App’x 868, 875 (7th Cir. 2014)
(characterizing
epidural
treatment”
supported
omitted).
stating
was
steroid
by
injections
substantial
as
“conservative
evidence)
(citation
The ALJ addressed Hensley’s injections and medications,
that
physicians
do
“there
not
is
specific
consider
her
to
evidence
be
a
that
[Hensley’s]
candidate
for
more
aggressive treatment (such [as an] insertion of a spinal stimulator
or the undertaking of surgical intervention).”
21.)
(Tr. 20; see Tr.
The ALJ also noted Dr. Kondamuri’s opinion that Hensley’s
spinal disease “was ‘not that severe’ and that the use of addictive
opioid-based medications was not supported.”
(Tr. 21.)
Regarding
Hensley’s mental treatment, the ALJ relied upon records indicating
“more or less normal” MSEs and a lack of significant psychiatric
39
symptomology. (Tr. 22.) Hensley’s MSEs were consistently “without
significant
abnormality”
upon
discharge
from
hospitalization,
though the ALJ acknowledged that records from Hensley’s most recent
hospitalization indicate that she had some memory and cognitive
deficits with decrease insight and judgment.
ALJ
considered
these
abnormalities,
concentration, persistence and pace.
and
(Tr. 22-23.)
thus
(Tr. 23.)
limited
The
her
Hensley’s MSEs
from her individualized treatment fail to indicate significant
memory, concentration or cognition difficulties.
(Tr. 24.)
Given
the deference that courts show to an ALJ’s factual determination,
the Court will not question the ALJ’s finding that Hensley’s
physical and mental treatments were conservative.
Simila v.
Astrue, 573 F.3d 503, 519 (7th Cir. 2009).
Finally, Hensley takes issue with the ALJ’s findings that
Hensley made inconsistent statements about using aerosol cans to
attempt suicide or to “get high,” and that she was sometimes noncompliant with taking medication.
(Tr. 23-24.)
She maintains
that there is no evidence that she engaged in ongoing substance
abuse or that non-compliance contributed to her disability, and
argues that the ALJ failed consider evidence that her severe mental
impairments resulted in “impaired insight and judgment.”5
(DE# 11
The Court notes that while Hensley asserts that her insight and
judgment were impaired, the records she cites mostly indicate that
her judgement was “intact” and her insight was “fair.” (DE# 11 at
30 (citing Tr. 1064 (“Judgement: Intact” and “Insight: Fair”),
5
40
at 30); see, e.g., Jelinek v. Astrue, 662 F.3d 805, 814 (7th Cir.
2011) (noting ALJs should consider alternative explanations for
non-compliance
with
treatment
when
dealing
with
claimants
suffering from severe mental conditions before concluding that
non-compliance supports an adverse credibility inference).
While
the ALJ cited Hensley’s non-compliance with treatment, it was but
one of many factors considered in assessing her credibility.
See
Griggs v. Astrue, No. 1:12–CV–00056, 2013 WL 1976078, at *8 (N.D.
Ind. May 13, 2013) (affirming ALJ’s decision where “sporadic
compliance with treatment was just one of several factors that the
ALJ considered when assessing her credibility”).
Even if the ALJ
misconstrued the evidence of Hensley’s non-compliance, the other
evidence
on
which
he
relied
was
sufficient
to
support
the
conclusion that Hensley’s complaints were not entirely credible.
The ALJ’s credibility determination was supported by evidence
in the record and this Court cannot say that the credibility
determination was “patently wrong.”
See Skarbek, 390 F.3d at 504;
Berger v. Astrue, 516 F.3d 539, 546 (7th Cir. 2008) (“an ALJ’s
credibility assessment will stand as long as there is some support
in the record”) (quotation and brackets omitted).
Therefore, the
1067 (same), 1069 (same), 1072 (same), 1076 (same), and 295
(Hensley had “poor insight and judgment [upon hospitalization]. .
. . She began to have better insight and judgment.”); see Tr. 296
(“Insight and judgment improved.”).)
41
ALJ’s credibility determination, which is entitled to special
deference, is affirmed.
CONCLUSION
For the reasons set forth above, the Commissioner of Social
Security’s final decision is AFFIRMED.
DATED:
September 9, 2015
/s/ RUDY LOZANO, Judge
United States District Court
42
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