Smith v. Commissioner of Social Security

Filing 16

OPINION AND ORDER: The Decision of the Commissioner is AFFIRMED. Signed by Judge William C Lee on 11/17/22. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
CHRISTINA S.1,
Plaintiff,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant.

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CIVIL NO. 2:22cv97

OPINION AND ORDER
This matter is before the court for judicial review of a final decision of the defendant
Commissioner of Social Security Administration denying Plaintiff's application for Disability
Insurance Benefits under Title II of the Social Security Act. Section 405(g) of the Act provides,
inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript
of the record including the evidence upon which the findings and decision complained of are
based. The court shall have the power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without
remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to
any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g).
The law provides that an applicant for disability benefits must establish an "inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to last for a continuous period of no less than 12
months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment
is "an impairment that results from anatomical, physiological, or psychological abnormalities
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For privacy purposes, Plaintiff’s full name will not be used in this Order.

which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques."
42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an impairment exists. It
must be shown that the impairment is severe enough to preclude the plaintiff from engaging in
substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372
U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that
the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds
v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record
as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.
Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786
(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,
552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,
42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also
Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after a hearing, the Administrative Law Judge ("ALJ") made the
following findings:
1.

The claimant meets the insured status requirements of the Social Security Act
through June 30, 2022.

2.

The claimant has not engaged in substantial gainful activity since January 3, 2020,
the alleged onset date (20 CFR 404.1571 et seq.).
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3.

The claimant has the following severe impairments: bilateral carpal tunnel
syndrome (CTS) status post bilateral releases, history of lumbar spine disorder,
history of inflammatory arthritis, bilateral shoulder tendinitis, and obesity (20
CFR 404.1520(c)).

4.

The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to lift, carry, push, and/or pull up to
fifty (50) pounds occasionally and up to twenty-five (25) pounds frequently; stand
and/or walk for up to six (6) hours of an eight-hour workday and to sit for up to
six (6) hours of an eight-hour workday with normal breaks; can occasionally
climb ladders, ropes, or scaffolds; can frequently climb ramps and stairs, balance,
stoop, kneel, crouch, and crawl; and can frequently handle or finger, bilaterally.

6.

The claimant is capable of performing past relevant work as a production
assembler. This work does not require the performance of work-related activities
precluded by the claimant’s residual functional capacity (20 CFR 404.1565).

7.

The claimant has not been under a disability, as defined in the Social Security Act,
from January 3, 2020, through the date of this decision (20 CFR 404.1520(f)).

(Tr. 18-26).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to benefits,
leading to the present appeal.
Plaintiff filed her opening brief on August 29, 2022. On October 5, 2022 the defendant
filed a memorandum in support of the Commissioner’s decision, to which Plaintiff replied on
November 1, 2022. Upon full review of the record in this cause, this court is of the view that the
Commissioner’s decision should be affirmed.
A five step test has been established to determine whether a claimant is disabled. See
Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 229091 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test
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as follows:
The following steps are addressed in order: (1) Is the claimant
presently unemployed? (2) Is the claimant's impairment "severe"?
(3) Does the impairment meet or exceed one of a list of specific
impairments? (4) Is the claimant unable to perform his or her
former occupation? (5) Is the claimant unable to perform any other
work within the economy? An affirmative answer leads either to
the next step or, on steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than step 3, stops
the inquiry and leads to a determination that the claimant is not
disabled.

Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162
n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). In the present
case, Step 4 was the determinative inquiry.
In support of remand, Plaintiff argues that the RFC assessment is erroneous. Specifically,
Plaintiff contends that the ALJ improperly evaluated the opinions of Dr. Villareal and Dr. Kelly.
Pursuant to Social Security Ruling (“SSR”) 96-8p, an “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. Additionally, an RFC “does not represent the least an
individual can do despite her limitations or restrictions, but the most.” SSR 96-8p; see also 20
C.F.R. § 404.1545(a)(1) (residual functional capacity is the most someone can do despite their
mental and physical limitations). In order to determine an RFC, the ALJ is instructed to base the
assessment on “all of the relevant medical and other evidence.” 20 C.F.R § 404.1545(a)(3).
Here, the ALJ found that evidence demonstrated that notwithstanding Plaintiff’s alleged
back and hand pain, objective evidence did not support the degree of pain and limitation she
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claimed. (Tr. 20-24). Additionally, the ALJ recognized that other evidence, including Plaintiff’s
reports to other government agencies, undermined her claim that she could not work. (Tr. 21).
At the hearing, Plaintiff testified that she had significant throbbing and burning back pain
with frequent muscle spasms to the degree that she could not move when they occurred. (Tr. 20,
52-53). The ALJ found that Plaintiff’s medical records did not support the degree of limitation
she alleged. In particular, the ALJ observed that Plaintiff’s physical examinations with her care
providers were essentially normal as to her back—as her records reflected normal
musculoskeletal exams and did not note any limitations in lumbar range of motion, and no
stiffness, tenderness, or weakness. (Tr. 21, citing 427-33, 452-57,547).
Additionally, the ALJ noted that when Plaintiff received X-rays due to her complaints of
excruciating back pain the imaging showed no acute fracture, grossly normal alignment, and
maintained disc space. (Tr. 23, citing Tr. 413, 414). The ALJ also observed that during the
consultative examination with O. Villareal, M.D., Plaintiff was in no distress and though she had
some tenderness in her lumbar spine she had negative straight leg testing bilaterally, had full
range of motion in her legs and full strength in all of her major muscle groups. (Tr. 22, 358-59).
Likewise, at the consultative examination Plaintiff demonstrated that she could stoop and squat
without difficulty, heel and toe walk and tandem walk without difficulty, get on and off the exam
table without difficulty or assistance, and stand from a seated position without difficulty. (Tr.
23,359). Although Plaintiff had some functional limitations due to her reported back pain, the
ALJ found Plaintiff capable of medium work with additional postural limitations.
The ALJ also considered Plaintiff’s medical records when assessing Plaintiff’s reports of
hand pain and arthritis. (Tr. 21-24). Plaintiff testified that she had problems with her hands,
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including issues holding things but, as the ALJ discussed, her medical records generally reflected
successful carpal tunnel surgery and otherwise minimal abnormal findings. (Tr. 20-23). For
example, while Plaintiff complained of numbness and tingling in her shoulders, wrists, and hands,
objective exams showed no tenderness, and normal tone, strength, and range of motion in her
upper extremities. (Tr. 21 citing 3F at 21-23). As the ALJ discussed, Plaintiff underwent carpal
tunnel release surgery in March 2020 on her right wrist. Although Plaintiff had an infection
following surgery, by April 2020 her infection had cleared and by June 2020 her doctor indicated
she was doing well. (Tr. 22 citing Tr. 510-11). The ALJ noted that while Plaintiff reported to
consultative examiner Dr. Villareal in September 2020 that her wrists were worse, Dr. Villareal’s
objective exam findings showed Plaintiff maintained full grip strength in both hands and good
fine finger manipulative abilities including buttoning, zipping, and picking up coins. (Tr. 22
citing Tr. 359).
Likewise, Plaintiff’s orthopedist noted Plaintiff’s symptoms had improved since her
surgery. Despite some limitation in her shoulder range of motion, she had full grip strength and
normal range of motion in her left wrist. (Tr. 23 citing Tr. 502-04). As the ALJ discussed,
although Plaintiff’s doctor recommended occupational therapy, she attended only the initial
evaluation despite a plan recommending six weeks of sessions. (Tr. 23 citing Tr. 372). Moreover,
the two remaining examinations in the record both revealed normal musculoskeletal exams
despite Plaintiff’s complaints of arm, shoulder, and hand pain. (Tr. 23 citing Tr. 453-57, 547,
565). Plaintiff’s medical records reflected largely normal findings as to Plaintiff’s back, minimal
abnormal findings as to her shoulders, a notable failure by Plaintiff to follow up with the
conservative treatment recommended, and successful carpal tunnel surgery.
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Additionally, the ALJ considered other evidence that tended to undermine Plaintiff’s
reports that she could not work. For example, although at first Plaintiff testified that she stopped
working due to back pain, the ALJ noted that Plaintiff ultimately conceded that her job ended
because her department was shut down and moved out of the country. (Tr. 21 citing Tr. 46). Also,
the ALJ also considered that Plaintiff received unemployment through 2020, which required her
to represent that she was ready, willing, and able to work and that she was actively seeking
employment. (Tr. 21 citing Tr. 157; see also Tr. 50).
The prior administrative medical findings of the state agency medical consultants,
B. Whitley, M.D., and Joshua Eskonen, D.O., further support the ALJ’s RFC assessment. (Tr. 8082, 90-91). Both Dr. Whitley and Dr. Eskonen found that Plaintiff could perform medium work
with additional postural and manipulative limitations (frequently climbing ramps and stairs,
balancing, stooping, kneeling, crouching, and crawling; occasionally climbing ladders, ropes, and
scaffold; and frequent fingering). (Tr. 24, 80-82, 90-91). The ALJ found these prior
administrative medical findings persuasive because they were supported by the evidence the
doctors relied on, including Plaintiff’s history of carpal tunnel release surgeries on both hands,
normal lumbar spine x-rays, and the objective findings at Plaintiff’s consultative exam, which
showed Plaintiff had normal gait, used no assistive device, could heel-toe walk and squat without
difficulty, demonstrated negative straight leg raise testing, and exhibited full strength including
full grip strength. (Tr. 24, 8-82, 90-91); 20 C.F.R. § 404.1520c(c)(1) (“The more relevant the
objective medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) . . . the more persuasive the medical opinions . . . will be.”).
The ALJ determined these findings were consistent with the broader record which demonstrated
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largely normal objective findings and imaging and successful carpal tunnel release surgery. (Tr.
24). This evidence substantially supports the ALJ’s finding that Plaintiff’s impairments were not
disabling.
The ALJ also considered the medical opinion from consultative examiner Dr.
Villareal and Plaintiff’s care provider, John Kelly, M.D. Under the new regulations, “the opinions
of treating physicians no longer receive controlling weight.” Albert v. Kijakazi, 34 F.4th 611, 614
(7th Cir. 2022) (citing 20 C.F.R. § 416.920c); see 20 C.F.R. § 404.1520c(a) (“We will not defer
or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or
prior administrative medical finding(s), including those from your medical sources.”). Rather, the
ALJ determines how persuasive the medical opinions are, with the most important factors being
the “supportability” and “consistency” of the opinion. 20 C.F.R. § 404.1520c(b)(2). An ALJ need
only “minimally articulate” her rationale for how persuasive she finds a medical opinion or prior
administrative medical finding. Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008).
Here, the ALJ thoroughly considered Dr. Villareal’s exam findings and his medical
opinion. (Tr. 22, 24). Specifically, the ALJ recognized that Dr. Villareal opined that Plaintiff was
“unable to do work related activities such a sitting, standing, walking or, lifting, due to pain” but
that she could handle and carry small objects, and could understand with normal concentration,
memory, and social interactions.” (Tr. 24 citing Tr. 360). As the ALJ discussed, this opinion was
not persuasive, as the only apparent support was Plaintiff’s subjective reports, and the opinion
was inconsistent with Dr. Villareal’s own exam findings. (Tr. 24). At the consultative
examination, Plaintiff reported her wrists were worse than before her carpal tunnel surgeries and
she had “excruciating pain” in her lower back and lower extremities. (Tr. 24 citing Tr. 357).
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Plaintiff reported to Dr. Villareal that she had difficulty lying down, walking, standing, stooping,
and performing her daily activities due to pain in her spine. (Tr. 357). As the ALJ found, it
appears this was the sole support for Dr. Villareal’s opinion, because his exam actually
undermined such difficulties. (Tr. 24). As the ALJ discussed, Plaintiff had no issues at her
examination with Dr. Villareal with sitting, standing, walking, or lifting— rather she had a
normal gait without any assistive device, and she could stoop, squat, heel to toe walk, and tandem
walk, get on and off the examination table, and stand from a seated position “without difficulty.”
(Tr. 20 citing Tr. 359). Thus the ALJ found Dr. Villareal’s opinion unpersuasive as it was directly
contradicted by his objective exam findings, which were supported only by Plaintiff’s subjective
reports, which were themselves undermined by the record. Grotts v. Kijakazi, 27 F.4th 1273,
1278 (7th Cir. 2022) (Courts “do not review medical opinions independently but rather review the
ALJ’s weighing of those opinions for substantial evidence, and [ ] only overturn that weighing if
no reasonable mind could accept the ALJ’s conclusion.”).
Plaintiff disagrees with the ALJ’s consideration of Dr. Villareal’s opinion and argues it
was supported, but notably the support she points to is largely based on her own subjective
reports and minimal objective evidence that the ALJ explicitly considered. The ALJ found Dr.
Villareal’s opinion was not supported because it was based on Plaintiff’s subjective reports and
Plaintiff’s reference to those same subjective reports only bolsters the ALJ’s point. (Tr. 24); see,
e.g., Prill v. Kijakazi, 23 F.4th 738 (7th Cir. 2022)(“[W]hen a physician’s opinion is based
primarily upon a patient’s subjective complaints, the ALJ may discount that opinion.”).
Next, Plaintiff points to the limited abnormal findings from Dr. Villareal’s exam, claiming
they supported Dr. Villareal’s opinion that she could not sit, stand, walk, or lift at all. However,
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the ALJ considered this evidence as well as evidence Plaintiff ignores, i.e., the overwhelmingly
normal findings at this exam including demonstrated functional abilities doing the precise
activities Dr. Villareal opined she could not do. (Tr. 20, 24). As the ALJ properly considered Dr.
Villareal’s opinion in accordance with the controlling regulations, and Plaintiff’s arguments do
not show otherwise, there is no basis for remand here.
Plaintiff next contests the ALJ’s consideration of Dr. Kelly’s opinion. In addressing Dr.
Kelly’s opinion, the ALJ first outlined some of the extreme limitations that Dr. Kelly opined: that
Plaintiff had virtually no capacity to maintain concentration or attention, she could lift effectively
almost no weight, and she could not walk even enough to perform activities of daily living. (Tr.
25 citing Tr. 530-33). The ALJ then went on to address the two requisite regulatory factors,
finding both that the opinion was not supported by Dr. Kelly’s own objective findings and that it
was inconsistent with the record as a whole. (Tr. 25). As with Dr. Villareal’s opinion, the ALJ
specifically referenced her prior discussion of the evidence, which shows the lack of support and
inconsistency the ALJ assessed. For example, the ALJ considered Dr. Kelly’s own treatment
notes which reflected an entirely normal physical exam. Likewise, the ALJ’s broader discussion
of the medical record demonstrates the inconsistency she found between that record and Dr.
Kelly’s opinion. As discussed above, Plaintiff’s medical records reflected normal findings,
successful carpal tunnel surgery, and her own failure to follow through with conservative
treatment for her alleged shoulder pain.
Plaintiff cites to Tammy M. v. Comm’r of Soc. Sec., No. 2:20-CV-285, 2021 WL 2451907,
(N.D. Ind. June 16, 2021) and Johnson v. Saul, No. 3:20-CV-285-HAB, 2021 WL 1625149,
(N.D. Ind. Apr. 27, 2021), suggesting they require more than the ALJ did here to explain why the
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evidence was inconsistent with Dr. Kelly’s opinion--however neither case requires remand here.
First, in Tammy M., the ALJ did not identify evidence that was inconsistent with the opinion, and
the evidence contained a mixture of findings many of which supported the opined limitations.
2021 WL 2451907, at *8. Here, there is no such issue, as the ALJ specifically referenced her prior
discussion of the record evidence, which was notably devoid of findings consistent with the
extreme limitations Dr. Kelly opined, but rather demonstrated largely normal functioning.
Similarly, in Johnson, the error was not that the ALJ did not explain how the evidence
undermined the opinions but rather that the ALJ did not seem to consider the opinions at all—as
the doctor had issued at least three different opinions which included varying opined limitations,
and yet the decision found them unpersuasive. 2021 WL 1625149, at *3-4. Here, Dr. Kelly issued
only one opinion, and the ALJ summarized it’s extreme nature and limitations. (Tr. 25).
The ALJ’s discussion sufficiently explains why the medical evidence was not consistent
with Dr. Villareal’s and Dr. Kelly’s opinions, and substantial evidence supports both that
determination and the ALJ’s decision as a whole. Thus, as there is no basis for remand, the
decision will be affirmed.
Conclusion
On the basis of the foregoing, the Decision of the Commissioner is hereby AFFIRMED.

Entered: November 17, 2022.

s/ William C. Lee
William C. Lee, Judge
United States District Court
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