Gagliardi v. Commissioner of Social Security

Filing 16

OPINION AND ORDER: The decision of the Commissioner of Social Security is AFFIRMED. Signed by Judge Joseph S Van Bokkelen on 9/4/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
KIMBERLY ANN GAGLIARDI
Plaintiff,
v.

Case No. 2:17-cv-169-JVB-JEM

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security Administration,
Defendant.
OPINION AND ORDER
Plaintiff Kimberly Ann Gagliardi seeks judicial review of the Social Security
Commissioner’s decision denying her disability benefits, and asks this Court to remand the case.
For the reasons below, this Court affirms the ALJ’s decision.

A.

Overview of the Case
Plaintiff alleges that she became disabled on October 21, 2012. (R. at 284.) Her date last

insured (“DLI”) is June 30, 2018. (R. at 297.) Plaintiff previously worked as a bartender, but has
not engaged in substantial gainful activity since 2012. (R. at 22.) After two hearings, the
Administrative Law Judge (“ALJ”) found that Plaintiff suffered from severe physical and mental
impairments. (R. at 23.) However, the ALJ concluded that she could perform jobs that existed in
significant numbers. (R. at 30.) Therefore, the ALJ denied her benefits. (R. at 32.) This decision
became final when the Appeals Council denied Plaintiff’s request for review. (R. at 1.)

B.

Standard of Review

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This Court has authority to review the Commissioner’s decision under 42 U.S.C.
§ 405(g). The Court will ensure that the ALJ built an “accurate and logical bridge” from
evidence to conclusion. Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). This requires the
ALJ to “confront the [plaintiff’s] evidence” and “explain why it was rejected.” Thomas v. Colvin,
826 F.3d 953, 961 (7th Cir. 2016). The Court will uphold decisions that apply the correct legal
standard and are supported by substantial evidence. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d
345, 351 (7th Cir. 2005). Evidence is substantial if “a reasonable mind might accept [it] as
adequate to support [the ALJ’s] conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).

C.

Disability Standard
The Commissioner follows a five-step inquiry in evaluating claims for disability benefits

under the Social Security Act:
(1) whether the claimant is currently employed; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment is one that the
Commissioner considers conclusively disabling; (4) if the claimant does not have
a conclusively disabling impairment, whether he can perform his past relevant
work; and (5) whether the claimant is capable of performing any work in the
national economy.
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012).
The claimant bears the burden of proof at every step except step five. Clifford v. Apfel,
227 F.3d 863, 868 (7th Cir. 2000).

D.

Analysis
Plaintiff argues that the ALJ erred in finding that she was not disabled. Specifically, she

argues that the ALJ: 1) ignored evidence of her left-elbow injury, 2) improperly discounted the
opinion of her treating physician, 3) misunderstood the testimony of the medical expert, and 4)
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ignored the report of a consultative examiner.

(1)

The ALJ Properly Considered the Effects of Plaintiff’s Left-Elbow Injury
Plaintiff injured her left elbow in 2015. (R. at 813.) An MRI revealed a possible calcific

tendinosis. (R. at 819.) Her doctor instructed her to “[u]se an elbow brace and apply ice as
needed.” (R. at 811.) Meanwhile, Plaintiff testified that her left elbow hurt constantly and
claimed that she could not lift anything without her other hand. (R. at 54.) Her left arm, in other
words, was practically unusable. The ALJ never specifically mentioned tendinosis, which
Plaintiff charges as error.
The Commissioner’s response is bizarre. She begins by assuring this Court that the ALJ
properly considered the impairments of people named Lowe and Lewis and then spends three
pages defending portions of the ALJ’s decision that Plaintiff did not attack. (Def.’s Resp. at 3–6.)
As to Plaintiff’s actual argument, the Commissioner brazenly asserts that “the administrative
record is devoid of evidence related to” the injury, despite Plaintiff citing to the aforementioned
doctor’s notes and MRI results. She also attacks Plaintiff’s failure to mention “elbow tendinitis”
in her disability application. (R. at 362–67.) Yes, when Plaintiff applied for disability in 2013,
she neglected to predict that she would injure her elbow two years later, but this Court will not
fault Plaintiff for a lack of clairvoyance. See also 20 C.F.R. § 404.1512(a)(1) (“We will consider
. . . impairment(s) . . . about which we receive evidence.”).
Lastly, the Commissioner points to a 2013 examination showing “normal elbow flexion
and rotation.” (Def.’s Resp. at 6.) First of all, this Court is unsurprised that a doctor would find
no evidence of an injury that had yet to occur. Second, the Commissioner actually cited a 2015
doctor’s visit that identified “Left elbow pain” as an active problem. (R. at 861.) Third, the ALJ

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never mentioned this report, so the Commissioner cannot use it to defend the decision. Stewart v.
Astrue, 561 F.3d 679, 684 (7th Cir. 2009).
Nevertheless, the question is whether the ALJ ignored the effect of the impairment, not
the impairment itself. Skinner v. Astrue, 478 F.3d 836, 845 (7th Cir. 2007). Here, Plaintiff
claimed that, because of the elbow injury, she was in constant pain and could not lift anything
with her left hand. (R. at 54.) But the ALJ addressed Plaintiff’s alleged “constant pain in her
arms” and her limited “ability to lift . . . and use her hands” by pointing to several unremarkable
observations. (R. at 26–27.) See Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014) (“the lack
of objective support from physical examinations and test results is still relevant”); Mueller v.
Astrue, 860 F. Supp. 2d 615, 634 (N.D. Ill. 2012) (affirming where an ALJ discounted pain
allegations by referring to unremarkable MRI results). In the end, an ALJ need only “minimally
articulate his reasons for . . . rejecting evidence of disability.” Scivally v. Sullivan, 966 F.2d
1070, 1076 (7th Cir. 1992). The ALJ did so here.
As for the objective evidence that Plaintiff cited, while it does show that Plaintiff has
elbow issues, the Commissioner correctly notes that “at no point in the record did she receive
instructions from her physicians to restrict activities.” (Def.’s Resp. at 6.) Rather, the doctor
simply instructed her to use an elbow brace, apply ice, and report for physical therapy. (R. at
811.) Furthermore, the examination merely reveals what the ALJ already considered: pain and
trouble lifting. (R. at 810.) Moreover, the doctor did not even find elbow pain in an examination
one month later. (R. at 865.) And in any event, “an ALJ need not mention every piece of
evidence.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). This Court finds no error here.

(2)

The ALJ Properly Discounted Dr. Hunter’s Opinion
Dr. Hunter provided a medical source statement in which she opined that Plaintiff
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suffered several severe mental limitations. (R. at 786–90.) The ALJ assigned it “little evidentiary
weight” because Dr. Hunter 1) had only seen Plaintiff one time prior to the opinion, 2) seemed to
base the opinion “primarily on [Plaintiff’s] subjective complaints,” and 3) went against the
record as a whole. (R. at 29.) In Butera v. Apfel, the ALJ discounted a medical opinion that was
based on a one-time evaluation that did not rely on “any evidence beyond [the doctor’s] own
examination and [the plaintiff’s] subjective complaints.” 173 F.3d 1049, 1056–57 (7th Cir. 1999)
(holding that the ALJ properly discredited the opinion). Here, the ALJ used that same logic and,
like in Butera, supported the analysis with substantial evidence.
Dr. Hunter wrote her opinion after a single “medication management” visit. (R. at 786.)
Plaintiff counters that Dr. Hunter would have had access to Plaintiff’s records of prior treatment,
since colleagues of the doctor had previously treated Plaintiff. (Pl.’s Brief at 13.) This could have
given Dr. Hunter a more complete picture of Plaintiff’s condition. But Dr. Hunter did not seem
to rely on any records: when asked to describe the evidence on which she based her opinion, she
simply repeated what Plaintiff told her about the panic attacks. (R. at 787.) Cf. Gonzalez v.
Colvin, 2016 U.S. Dist. LEXIS 131650, *22 (C.D. Cal., Sept. 26, 2016) (“Nor does anything in
the record indicate that Dr. Al-Wordi necessarily reviewed Plaintiff's medical records”). The
ALJ, on the other hand, cited to multiple doctors’ visits in which Plaintiff displayed appropriate
mood and affect, as well as intact concentration, insight, and thought processes. (R. at 29–30.)
Plaintiff, still unsatisfied, notes that an ALJ must discuss certain factors when weighing a
medical opinion. (Pl.’s Br. at 14.) This is true, but the only factor that the ALJ failed to discuss
was “whether the physician specializes in the medical conditions at issue.” Elder v. Astrue, 529
F.3d 408, 415 (7th Cir. 2008). This omission alone does not require a remand. Simila v. Astrue,
573 F.3d 503, 516 (7th Cir. 2009). See also Kirby v. Colvin, 2014 U.S. Dist. LEXIS 138163,

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*13–16 (S.D. Ind., Sept. 30, 2014) (holding that the ALJ adequately discussed the factors by
referencing a limited treatment history and inconsistencies with the record).
Plaintiff next argues that the ALJ failed to first determine whether Dr. Hunter’s opinion
was “well-supported” by objective medical tests and “not inconsistent” with the evidence as a
whole, which would entitle the opinion to “controlling weight.” 20 C.F.R. § 404.1527(c)(2). But
the ALJ did not need to do this, because Dr. Hunter was not a treating physician at the time. A
doctor becomes a treating physician when she establishes an “ongoing treatment relationship”
with the plaintiff. 20 C.F.R. § 404.1527(a)(2). Granted, a doctor need not see a patient every
day, but a single visit can hardly be considered an “ongoing treatment relationship.” White v.
Barnhart, 415 F.3d 654, 658 (7th Cir. 2005) (“Dr. Zondag, who examined White once, fits the
definition of a nontreating source.”); Kirby, 2014 U.S. Dist. LEXIS 138163 at *15 (finding that
when a doctor sees a plaintiff only once, “the presumption of favoring a treating physician’s
opinion . . . loses its force”); see also Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 506
(6th Cir. 2006) (“The question is whether [Dr.] Lian had the ongoing relationship . . . at the time
he rendered his opinion”) (emphasis in original). Even if Dr. Hunter were a treating physician at
the time, her opinion was inconsistent with the record as a whole. Thus, the ALJ did not need to
afford her opinion controlling weight.

(3)

The ALJ Properly Discussed Dr. Cremerius’ Testimony
Dr. Cremerius testified as an impartial medical expert at Plaintiff’s supplemental hearing.

(R. at 55–68). The ALJ afforded the doctor’s testimony “substantial evidentiary weight.” (R. at
29.) Dr. Cremerius reviewed Dr. Hunter’s opinion that Plaintiff “would have difficulty with
absenteeism” and testified that he had no “reason to take issue with that assessment.” (R. at 65.)
According to Plaintiff, this shows that Dr. Cremerius adopted Dr. Hunter’s opinion and that, if
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the ALJ truly gave Dr. Cremerius’ testimony substantial weight, then the ALJ should have found
Plaintiff to be disabled. (Pl.’s Br. at 17.) After all, the vocational expert testified that, if Dr.
Hunter were correct, then Plaintiff would be unemployable. (R. at 67.) Plaintiff, however, fails to
mention that Dr. Cremerius opined that there would be “no issue with absenteeism if the work
was within the restrictions that [he] outlined.” (R. at 66.) Thus, his testimony goes against Dr.
Hunter’s opinion, and the ALJ was entitled to rely on a medical expert’s testimony over a onetime examiner’s opinion. White, 415 F.3d at 659 (7th Cir. 2005).
Plaintiff additionally argues that the ALJ erred by failing to provide any specific quotes
from Dr. Cremerius’ testimony and by simply crediting the opinion “to the extent it is consistent
with the findings herein.” (Pl.’s Br. At 16.) However, the so-called harm of this alleged error
comes from Plaintiff’s flawed assertion that Dr. Cremerius blindly accepted Dr. Hunter’s opinion
on Plaintiff’s absenteeism. Thus, to the extent that the ALJ even erred, it was harmless error.

(4)

The ALJ’s Failure to Mention Dr. Nordstrom’s Report Was Harmless Error
Dr. Nordstrom examined Plaintiff’s mental status in 2013. (R. at 501–03.) He found that

Plaintiff had “moderate symptoms of anxiety and recurrent panic attacks” that usually occur in
“crowded or enclosed spaces,” as well as memory issues “that appear[] to be secondary to
anxiety.” (R. at 503.) Plaintiff correctly notes that the ALJ failed to mention this report. (Pl.’s Br.
at 15.) But an ALJ need not explicitly mention evidence if her opinion “strongly indicat[es]” that
she analyzed the evidence. Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995).
Here, the ALJ relied on a medical expert and an Agency examiner, both of whom read the
Nordstrom report. (R. at 57, 139.) See Bryant v. Colvin, 571 Fed. Appx. 186, 190 (4th Cir. 2014)
(“this error [was] harmless as well because Dr. Harkhani’s report was discussed by the two state
agency consultants and was consistent with the medical evidence in the record”). Moreover, the
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ALJ accounted for the anxiety and memory issues that Dr. Nordstrom found by limiting Plaintiff
to “no interaction with the general public” and “simple, routine, unskilled work.” (R. at 26.) The
ALJ furthermore specifically addressed Plaintiff’s issues with crowds (“She claims she has a
hard time being around people”) as well as her memory issues (“the claimant’s memory has
routinely been preserved”). (R. at 25, 28.) The Nordstrom report adds nothing that the ALJ did
not already consider, so any error here is harmless. See Meyerink v. Colvin, 2015 U.S. Dist.
LEXIS 21575, *18 (N.D. Ind., Feb. 24, 2015) (“The records cited by Plaintiff include similar
limitations to those the ALJ discussed, and not mentioning those records was therefore not
error”); Adams v. Astrue, 880 F. Supp. 2d 895, 911 (N.D. Ill. 2012) (“a remand for this reason
alone would be futile as the ALJ would likely come to the same RFC determination through
explicit mention of Drs. Tin and Heinrich”).

E.

Conclusion
The ALJ adequately discussed the effects of Plaintiff’s left-elbow injury, validly

discounted Dr. Hunter’s opinion, and properly evaluated Dr. Cremerius’ opinion. Although the
ALJ did not specifically reference Dr. Nordstrom’s report, any error here was harmless.
Accordingly, this Court affirms the ALJ’s decision.

SO ORDERED on September 4, 2018.

S/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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