Taylor v. Commissioner of Social Security

Filing 13

OPINION AND ORDER: The decision of the ALJ is AFFIRMED re 1 Complaint. Signed by Chief Judge Philip P Simon on 9/26/2013. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KEVIN P. TAYLOR,

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Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

CAUSE NO. 3:12-CV-228

OPINION AND ORDER
Plaintiff Kevin Taylor appeals the Social Security Administration’s decision to deny his
application for disability insurance benefits.

An administrative law judge denied Taylor’s

request for benefits and found that Taylor was not disabled within the meaning of the Social
Security Act. Taylor raises a number of challenges to the ALJ’s determination, but for the
reasons below, I conclude that the ALJ’s decision was supported by substantial evidence.
Therefore, I affirm the decision of the ALJ.
BACKGROUND
Those looking for a detailed discussion of Taylor’s medical records are directed to the
extensive summaries in the ALJ’s decision [R. 12-20] and in Taylor’s opening brief [DE 10 at 218]. Rather than simply reiterating those summaries, I will give a brief overview of Taylor’s
history of health issues.
Taylor applied for disability benefits on August 24, 2009, alleging an onset date of June
1, 2008.

The claims were denied initially on December 21, 2009, and then again upon

reconsideration on February 8, 2010. Subsequently, Taylor filed a written request for a hearing,
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which was held on December 6, 2010. Taylor testified at the hearing, as did his wife, Michelle
Taylor, and a vocational expert. At the hearing, Taylor’s counsel outlined his medical problems
as follows:
The most severe [impairments] are his, his back and the pain from which he
suffers; the breathing issues are the most significant conditions. Depression is
also an issue . . . the back problems are the most severe. . . [t]he breathing’s
secondary, the depression, quite frankly, probably secondary to the first two, in
that if Mr. Taylor was well and able to work, he probably wouldn’t be suffering
from the depression he is.
[R. 44-45]. In addition to the chief concerns outlined by Taylor’s counsel, the ALJ went on to
find that Taylor’s “degenerative disc disease, asthma, non-insulin-dependent diabetes mellitus,
hypertension, anthralgia of the knees, major depression, and morbid obesity” were all “severe”
impairments [R. 12]. He also considered Taylor’s non-severe impairments, including his recent
foot surgery and neuropathy in his arm [Id.], and Taylor’s allegation of “anxiety,” which the ALJ
found was without a diagnosis in the record and therefore “non-medically determinable.” [Id.].
Taylor’s testimony at the hearing before the ALJ reflected his health difficulties. He
testified to having trouble standing, sitting, walking (though he testified that his pain is worst
when he is standing), and excessive drowsiness from pain medication. He testified that he
watches his and his wife’s children when his wife, Michelle, is at work, and that his mother
watches the children from time to time. Taylor’s wife, Michelle, testified that she generally has
to have someone come to their home to watch the couple’s children because Taylor cannot. A
vocational expert also testified as to the various jobs available when the ALJ asked him about
different hypotheticals.

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The ALJ issued a decision denying benefits [R. 9-23]. At Step One, the ALJ found that
Taylor met the insured status requirements of the Social Security Act, and that he has not
engaged in substantial gainful activity since June 1, 2008, the alleged onset date. At Step Two,
the ALJ concluded that Taylor had the following severe impairments: degenerative disc disease
of the lumbar spine with radiculopathy, asthma, non-insulin-dependent diabetes mellitus,
hypertension, arthralgia of the knees, major depression, and morbid obesity. The ALJ found
Taylor’s post 4th metatarsal osteotomy, and left ulnar neuropathy to be non-severe impairments,
and determined that Taylor’s anxiety was a non-medically determinable impairment.
At Step Three, the ALJ concluded that Taylor does not have an impairment or
combination of impairments meeting or medically equaling one of the listed impairments. At
Step Four, the ALJ found that Taylor could perform light work with the following qualifications:
he is limited to occasionally climbing stairs and ramps, balancing, stooping, kneeling, crouching,
and crawling; never climbing ladders, ropes, and scaffolds; avoiding concentrated exposure to
extreme cold, heat, wetness, humidity, unprotected heights, and ambulation on slick/uneven
surfaces; avoiding even moderate exposure to fumes, odors, dusts, gases, and poor ventilation;
and he is limited to unskilled work tasks that require no more than occasional interaction with
the general public, no team oriented tasks, and no close proximity to others. At Step Five, the
ALJ found that Taylor could not perform any past relevant work but that there was a sufficiently
significant number of jobs in the national economy that he could perform.
The Appeals Council denied review, making the ALJ’s decision the final decision of the
Commissioner. Taylor timely sought review of that decision by filing this case.

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DISCUSSION
My review of an ALJ’s decision to deny social security benefits is limited to determining
whether the decision is supported by substantial evidence. Young v. Barnhart, 362 F.3d 995,
1001 (7th Cir. 2004). “Evidence is substantial if a reasonable person would accept it as adequate
to support the conclusion.” Id. The question before me is not whether or not Taylor is disabled,
but whether there is substantial evidence in the record supporting the ALJ’s decision of not
disabled. Books v. Chater, 91 F.3d 972, 977 (7th Cir. 1996). In other words, the ALJ’s decision,
if supported by substantial evidence and reached under the correct legal standard, will be upheld
even if reasonable minds could differ as to the appropriate conclusion. See Schmidt v. Apfel, 201
F.3d 970, 972 (7th Cir. 2000). It is not my job to re-weigh evidence, choose among conflicting
versions of events, decide questions of credibility, or substitute my own judgment for the ALJ’s.
Young, 362 F.3d at 1001.
To receive disability benefits under the Social Security Act, a claimant must be
“disabled” as defined by the Act. 42 U.S.C. § 423(a)(1)(E). A claimant is deemed to be disabled
if she is 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 expected to last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). Moreover, a claimant’s physical or mental impairment or impairments
must be of such severity that he is not only unable to do his previous work but cannot,
considering his age, education and work experience, engage in any other kind of substantial
gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).

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Taylor contends that the ALJ erred in four ways: (1) at Step Two, by failing to classify
his COPD as a severe impairment; (2) at Step Four, by improperly basing his opinion on an
unsigned RFC; (3) at Step Four, by improperly rejecting treating physician Dr. Borhan’s opinion
because it is an “issue reserved to the commissioner;” and (4) at Step Four, by improperly
evaluating the severity of Taylor’s personality disorder. I’ll address his arguments in turn.
1.

Chronic Obstructive Pulmonary Disease
Taylor first contends that the ALJ erred by failing to conclude that Taylor’s COPD was a

severe condition. He argues that this was an error because 1) the ALJ didn’t consider the effects
of Taylor’s shortness of breath and chest pain on his ability to work, and 2) because he
mischaracterized the evidence in regard to the severity of Taylor’s COPD [DE 10 at 18].
Taylor’s first argument in this regard is a non-starter: because the ALJ determined that
Taylor had numerous severe impairments, he went on to consider the totality of Taylor’s severe
and non-severe impairments in Steps Three through Five. In such a situation, a Step Two
challenge is unwarranted.

See Henke v. Astrue, 2012 WL 6644201, at *4 (7th Cir. Dec. 21,

2012) (“Because the ALJ proceeded beyond Step 2, and considered Henke’s severe and
non-severe impairments at Step 4, any purported error in the Step–2 severity determination was
harmless.”); Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012) (“Deciding whether impairments
are severe at Step 2 is a threshold issue only; an ALJ must continue on to the remaining steps of
the evaluation process as long as there exists even one severe impairment. Here, the ALJ
categorized two impairments as severe, and so any error of omission was harmless.”); Castile v.
Astrue, 617 F.3d 923, 926-27 (7th Cir. 2010) (failure to conclude that condition was severe at

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Step Two rendered harmless where ALJ determined that other conditions were severe and
proceeded with analysis).
Taylor’s second contention, that the ALJ mischaracterized the evidence with regard to
COPD, is similarly flawed. Taylor argues that the ALJ disregarded test results that show that he
had severe COPD, misconstrued Taylor’s statements to his doctors, and failed to give controlling
weight to the opinion of the treating physician [DE 10 at 18-19].
First, the ALJ did not mischaracterize the evidence of Taylor’s COPD.

The ALJ

concluded that Taylor did not meet the listing for COPD. [R. at 13], a conclusion that Taylor has
not challenged [DE 10 at 19].

Instead, Taylor argues, when he is not using prescribed

medication, his pulmonary function test resulted in an FEV1 level of 1.48–2.21(which would
meet the listing for COPD), and that this is evidence that he suffered from COPD that the ALJ
ignored. However, Taylor fails to mention that when he used his prescribed inhaler, his FEV1
level was between 1.98 and 2.27, which does not meet the listing. Conditions that are controlled
with medication “do not entitle one to benefits or boost one’s entitlement by aggravating another
medical condtion.” Prochaska v. Barnhart, 454 F.3d 731, 737 (7th Cir. 2006). The ALJ properly
evaluated this evidence, and the results of his tests without medication are not alone sufficient to
demonstrate that the ALJ did not properly consider his COPD.
Next, Taylor claims that the ALJ misconstrued his statements to his doctor in 2009 and
takes issue with the ALJ’s determination that when Taylor was exercising and losing weight, “he
told his doctor in 2009 that he was no longer getting short of breath” [R. 19], because what the
medical records actually show is that Taylor told his doctor that “he does not get as short of
breath when he exerts himself” [R. 320]. But this type of nitpicking is insufficient to reverse the
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ALJ’s reasoned decision. See Castile, 617 F.3d at 929 (“In analyzing an ALJ’s opinion for such
fatal gaps or contradictions, we give the opinion a commonsensical reading rather than
nitpicking at it.”). Moreover, this argument is particularly unavailing because there is substantial
evidence to support the ALJ’s reasoned determination that Taylor’s COPD was not severe.
The ALJ fully considered the objective medical evidence pertaining to Taylor’s “asthma,
including complaints of shortness of breath and increased respiratory problems” [R. 19]. In
reviewing the medical evidence, he determined that Taylor treated his shortness of breath with
an inhaler; he had a noticeable improvement with his breathing in 2009 and 2010 when he began
exercising and losing weight; and that Taylor had a heavy smoking habit and had no intention of
quitting [R. 19].

He then crafted an RFC that only permitted Taylor to work in certain

conditions that would not exacerbate his breathing difficulties [R. 16]. In other words, though
the ALJ did not directly include COPD as a severe impairment, he reasonably considered all of
Taylor’s complaints regarding his respiratory troubles, and factored those impairments into his
RFC by reasonably accommodating Taylor’s respiratory impairments.
The ALJ also specifically found that Taylor’s refusal to follow his doctor’s orders to quit
smoking and his lack of willingness to quit smoking to improve his health were indications that
Taylor’s medical conditions were not as severe as he claimed at the hearing [R. 19].
Additionally, the ALJ found Taylor’s statements as to the limiting effects of his COPD not
credible as they were inconsistent with his medical records and because he refused to quit
smoking. [R. 19]. Credibility determinations by the ALJ will only be reversed if the claimant
can show that it was patently wrong. Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003).
Taylor has not presented that the ALJ’s opinion was patently wrong; therefore, his findings as to
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Taylor’s credibility concerning the effect of his breathing difficulties is sound. In conjunction
with the objective medical evidence, therefore, the ALJ’s findings as to Taylor’s respiratory
difficulties should not be remanded.
2.

ALJ’s reliance on ‘unsigned’ RFC
The second issue Taylor raises is the ALJ’s reliance on an ‘unsigned’ RFC [DE 10 at

19–20]. Taylor argues that because the opinions of non-examining state agency physicians M.
Ruiz, M.D. and Montoya Fernando, M.D. were unsigned, the ALJ’s reliance on them was in
error. Taylor is correct that in order to deny benefits, an ALJ cannot rely on an unsigned,
undated medical opinion. Terry v. Astrue, 580 F.3d 471, 475–76 (7th Cir. 2009); 20 C.F.R.
§ 404.1519o.

However, Dr. Ruiz and Dr. Montoya both signed their medical forms

electronically [R. 390-91], which is permissible. See Social Security Administration’s Program
Operations

Manual

System

(POMS)

DI

26510.089,

available

at

https://secure.ssa.gov/apps10/poms.nsf/lnx/0426510089 (last accessed on September 23, 2013)
(requiring that medical records be either physically signed, or contain an approved electronic
signature).
Taylor argues that POMS lacks legal force, but district courts in this circuit have relied
on cases where reports were signed using electronic signatures. See Borth v. Comm’r of Soc.
Sec., No. 08-cv-1352, 2010 WL 786007, at *6 (C.D. Ill. Mar. 4, 2010) (affirming the ALJ’s
opinion relying upon an electronically signed report in making his decision); Guthrie v. Astrue,
No. 10-cv-03180, 2011 WL 3041365, at *22 (N.D. Ill. July 22, 2011) (noting that while
electronic signatures were unacceptable prior to POMS amendment, electronic signatures were
acceptable following June 8, 2009). Additionally, Terry is inapposite: that case presented a
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wholly unsigned medical opinion, as opposed to an electronic signature. 580 F.3d at 474.
Accordingly, the ALJ properly relied upon the opinions of Drs. Ruiz and Montoya, and remand
is not warranted.
3.

ALJ’s rejection of Dr. Borhan’s opinion
Taylor’s third argument in favor of remand is that the ALJ improperly rejected the

opinion of the treating physician who managed Taylor’s back pain, Dr. Borhan, that Taylor
could not work due to his back pain [DE 10 at 20]. The ALJ rejected Dr. Borhan’s opinion on
two bases: first, that it was conclusory and unsupported by the medical evidence, and second,
that whether or not the claimant was able to perform gainful employment was “an issue reserved
to the Commissioner” [R. 20]. Taylor argues that this was in error because the ALJ did not give
proper weight to his treating physician [DE 10 at 21]. However, because the ALJ’s opinion
outlined sufficient evidence to support rejecting Dr. Borhan’s opinion, I find no error.
First of all, a treating physician’s opinion receives controlling weight only if it is well
supported by “medical findings and not inconsistent with other substantial evidence in the
record.” Clifford v. Apfel, 227 F.3d. 863, 870 (7th Cir. 2000). Moreover, “[a]n ALJ is not
required to accept a doctor’s opinion if it is brief, conclusory, and inadequately supported by
clinical findings.” Gildon v. Astrue, 260 Fed. App’x 927, 929 (7th Cir. 2008) (citations and
quotations omitted).
In this case, the ALJ discounted Dr. Borhan’s opinion because it was inconsistent with
the record as a whole [R. 20], a conclusion that is supported by substantial evidence: the record
reveals that Taylor’s back pain was alleviated to some extent with steroid injections [R. 18], that
Taylor and his wife reported to his doctors that his back and knee pain felt a “lot better”
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following an exercise program and weight loss [Id.]; that Taylor and his wife gave conflicting
information about how long he could sit or lie down [Id.]; that the consulting examiner noted
that it would be difficult for someone with true radiculopathy to be have the flexibility,
ambulation, and range of motion that Taylor had [Id.]; and that Taylor himself reported that he
cared for his children and performed activities of daily living [R. 20].
Second, the ALJ is correct that “[w]hether [Taylor] was disabled during that time is an
issue reserved to the Commissioner and she is not entitled to disability benefits simply because
[his] physician states that [he] is disabled” and a claimant is not entitled to benefits just because
a physician finds him “disabled” or “unable to work.” Gildon, 260 Fed. App’x. at 929. In fact,
opinions by a physician, treating or otherwise, that a claimant is “unable to work” are not
considered medical opinions at all, and “are, instead, opinions on issues reserved to the
Commissioner because they are administrative findings that are dispositive of a case.” 20 C.F.R.
§ 404.1527(d)(1-2). In other words, Dr. Borhan’s statement that Taylor is unable to work is not
to be considered a medical opinion at all. Accordingly, the ALJ’s discounting of Dr. Borhan’s
opinion was appropriate.
At the very least, where an ALJ discounts a treating physician’s opinion after considering
the extent to which the opinion is supporting by medical findings and is consistent with
substantial evidence in the record, the ALJ need only “minimally articulate” his reasons for
doing so. Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008). In light of Dr. Borhan’s conclusory
opinion that Taylor is “unable to work,” and the ALJ’s review of the medical evidence, he has
clearly met that standard and remand is unwarranted.

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4.

The ALJ properly assessed Taylor’s personality disorder
Taylor’s final argument is that the ALJ improperly evaluated the severity of Taylor’s

mental disorders, specifically his depression, uncontrollable frustration with people, and inability
to handle stressful situations [DE 20 at 22]. He argues that the ALJ mischaracterized the
evidence as to the severity and improvement of Taylor’s mental condition following treatment
[DE 10 at 22]. I disagree. In his opinion, the ALJ agreed that the Plaintiff had severe mental
impairments [R. 20]. To that end, he “afforded little evidentiary weight” to the opinions of two
non-examining state agency phsychologists, Dr. F. Kladder, Ph.D. and Dr. Donna Unversahw,
Ph.D., both of which found that Taylor’s mental impairments were “non-severe” [Id.]. The ALJ
rejected these opinions, finding that “evidence indicates that the claimant requires ongoing
medication and counseling” [Id.].
The ALJ specifically addressed Taylor’s allegations of symptom severity and found that
they were not entirely credible because they were not supported by the medical evidence [R. 1920]. In September 2009, Taylor was prescribed Cymbalta for depression, which helped him, and
there was further improvement in his condition once he began psychiatric treatment in March
2010 [R. 19]. According to his medical records, he was responsive to and continued to improve
with treatment, reported that his medications helped him to calm down, and no longer reported
suicidal ideation [Id.]. Taylor’s treating social worker found that he was stable and did not
indicate any significant findings or limitations [Id.]. This evidence shows that the ALJ fully
considered the record in making his determination, and his credibility determination will thus not
be disturbed.

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Taylor counters that the ALJ’s assessment of the record is incorrect, because the need for
ongoing treatment was an indication that, contrary to the ALJ’s opinion, there was not “a record
reflective of the type of improvement suggested by the ALJ in his opinion” [DE 10 at 22-23] and
that Taylor was “not a man who is doing well” [DE 12 at 4-5]. Taylor also argues that one of the
doctors who treated him assigned him a “Global Assessment of Functioning,” or “GAF” score of
45, which indicated a serious impairment in social, occupational functioning with an inability to
keep a job [DE 10 at 22]. The Commissioner responds by pointing out that an examining
psychologist assigned Taylor a GAF of 60, and Taylor has failed to establish why one score
versus the other controls [DE 11 at 12]. Ultimately, though, “nowhere do the Social Security
regulations or case law require an ALJ to determine an individual’s disability based entirely on
his GAF score.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). Rather than rely on these
competing GAF scores that are largely without context, the ALJ’s ultimate finding that Taylor
suffered from severe mental issues that needed to be controlled by ongoing medication and
counseling is supported by the record of improvement with treatment.
Finally, the ALJ factored in Taylor’s mental conditions in restricting his RFC to
unskilled work and only minimal interaction with the public. [R. 16]. Specifically, the ALJ
“limited [Taylor] to unskilled work tasks that require no more than occasional interaction with
the general public, no team oriented tasks, and no close proximity to others.” [Id.]. There is no
evidence that these restrictions fail to reasonably accommodate Taylor’s mental limitations. See
Outlaw v. Astrue, 412 Fed. App’x. 894, 897 (7th Cir. 2011) (finding that limiting the claimant’s
RFC to include only unskilled work, with no public contact, did provide reasonable
accommodations for the claimant’s mental limitations). These restrictions are supported by
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Taylor’s medical records and treatment history. Accordingly, the ALJ’s determination as to
Taylor’s mental impairments is appropriate, and his decision is affirmed.
CONCLUSION
The ALJ provided legitimate reasons for his opinion. While reasonable minds could
differ, the only issue is whether the conclusion reached by the ALJ was supported by substantial
evidence, and it was. Accordingly, the decision of the ALJ is AFFIRMED.
SO ORDERED.
ENTERED: September 26, 2013.

s/ Philip P. Simon
PHILIP P. SIMON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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