Lemere-Jackson v. Commissioner of Social Security
Filing
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OPINION AND ORDER: DENYING 18 request for remand and AFFIRMING the decision of the Commissioner. Judgment entered in favor of the Commissioner. ***Civil Case Terminated. Signed by Magistrate Judge Christopher A Nuechterlein on 9/17/14. (jld)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KIMBERLEE LEMERE-JACKSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration
Defendant.
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CAUSE NO. 3:13-cv-912-CAN
OPINION AND ORDER
On September 3, 2013, Plaintiff Kimberlee Lemere-Jackson (“Lemere”) filed her
complaint in this Court. On February 13, 2014, Lemere filed her opening brief requesting that
this Court reverse and remand this matter to the Commissioner to properly address the evidence.
On May 22, 2014, Defendant Acting Commissioner of Social Security, Carolyn W. Colvin
(“Commissioner”) filed her response brief. Lemere filed her reply brief on June 11, 2014. This
Court may enter a ruling in this matter based on the parties’ consent, 28 U.S.C. § 636(c), and 42
U.S.C. § 405(g).
I.
PROCEDURE
On July 30, 2010, Lemere filed her application for Title II Disability Insurance Benefits
and Title XVI Supplemental Security Income pursuant to 42 U.S.C. §§ 416(i), 423 alleging
disability due to fractures and post traumatic arthritis in her left femur, left wrist, left hip, and a
slight brain injury arising out of an accident on June 4, 2004, with an alleged onset of disability
of June 4, 2010. Her claims were denied initially on October 29, 2010, and also upon
reconsideration on February 8, 2011. Lemere appeared at a hearing before an Administrative
Law Judge (“ALJ”) on March 29, 2012.
On May 22, 2012, the ALJ issued a decision holding that Lemere was not disabled. The
ALJ found that Lemere met the insured status requirements of the Social Security Act through
December 31, 2014. The ALJ also found that Lemere had not engaged in substantial gainful
activity since June 4, 2010, and her status post remote history of multiple lower left extremity
fractures and left wrist, and tendonitis of the right shoulder constituted severe impairments.
However, the ALJ found that Lemere did not have an impairment or combination of impairments
that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. The ALJ found that Lemere had the residual functional capacity
(“RFC”) to lift and/or carry 10 pounds occasionally and less than 10 pounds frequently, stand
and/or walk for brief periods totaling no more than 2 hours in an 8 hour workday, and sit for 6
hours in an 8 hour workday, provided that she has the opportunity to stand and take a couple of
steps for 5 minutes out of every 60 minute period without abandoning the workstation or losing
concentration on the task before her. He also found that Lemere can occasionally climb ramps
and stairs, occasionally balance, stoop, kneel, crouch and crawl, but she can never climb ladders,
ropes or scaffolds. He then found that Lemere is able to use her bilateral hands for frequent fine
and gross manipulation, but she can never reach overhead using her dominant right arm, and she
can never perform tasks requiring a forceful or repetitive grip and grasp or the use of vibrating
tools. In addition, Lemere needs to use a cane for walking on uneven terrain or for prolonged
ambulation over 100 yards. The ALJ then found that Lemere is capable of performing her past
relevant work as an outpatient admitting clerk.
2
On July 9, 2013, the Appeals Council denied review of the ALJ’s decision making it the
Commissioner’s final decision. See Liskowitz v. Astrue, 559 F.3d 736, 739 (7t h Cir. 2009); 20
C.F.R. § 404.981. On September 3, 2013, Lemere filed a complaint in this Court seeking a
review of the ALJ’s decision.
II.
ANALYSIS
A.
Facts
Lemere was a fifty-four year old female at the time the ALJ denied her claims. She has a
high school education and completed two years of college. Lemere has performed past relevant
work as an outpatient admitting clerk and received specialized job training for medical coding
and transcription.
1.
Claimant’s Hearing Testimony
At the hearing, Lemere testified that at her last job, she sat seven and a half hours in an
eight hour work day. The job required her to be able to use her hands to fax documents as well
as use a computer. She testified that she stopped working at that job because it had “gotten to a
point where it was getting very difficult to be there for any amount of time.” Doc. No. 13 at 41.
She told the ALJ she felt she was unable to work because she’s unable to be in a seated or
standing position for over five minutes without shifting or moving to reduce the pain in her left
hip and femur. She stated that she drove approximately forty miles to the hearing, but had to stop
twice because her hip and shoulder bothered her.
Lemere also testified that Dr. Randolph Ferlic, her hand surgeon, had suggested the next
step for the pain in her left wrist would be to have it fused, but that she did not want to pursue
fusion and risk losing any more movement in her wrist. Doc. No. 13 at 48. Lemere noted that
3
she had stopped seeing Dr. Ferlic because her insurance did not cover it. She stated that she
believes she would be able to lift up to ten pounds. She also stated that she can stand for up to
five minutes and walk about fifty feet. Lemere then testified that she used her cane every time
she left the house. The ALJ questioned her use of the cane due to a consultative examination
from 2010 that said Lemere had said she was supposed to use her cane but did not. Lemere
replied that the only reason she wouldn’t have been using her cane is if her right shoulder was in
pain.
2.
Medical Evidence
Lemere was involved in a motorcycle accident on June 5, 2004. As a result, her initial
serious injuries included a broken left leg with the femur having pierced the skin, a left hip
fracture, a fracture to her shin bone by the left knee, a broken left wrist, and a tear in ligament
tissue inside her left knee. Immediately after the accident, Lemere underwent a series of
procedures for her injuries. Her left femur was washed out and cleaned by removing any foreign
debris or dead tissue. A rod was then inserted from her knee up into her femur, and she had the
wound on her left thigh closed. She then had her left hip bone put back into alignment and
secured with a device to hold the bone in place, and had hardware placed in her left knee. Lastly,
she had her wrist bone put back into place. Two days later, on June 7, 2004, Lemere had her left
wrist bone repositioned back into place again and had hardware placed to help stabilize the bone.
Her left femur was again washed out and cleaned to remove any debris.
On July 21, 2004, Lemere then underwent surgery for her left wrist where the fragments
of her fractured bone were not in the right position. The screw in her left wrist was removed and
part of her wrist bone was removed. During a follow up appointment in 2004, Dr. Ferlic noted
4
the possibility that a further salvage procedure may be necessary for Lemere’s wrist, specifically
arthrodesis, or fusion, of the wrist. Lemere regularly attended follow up doctor’s appointments
for her injuries into 2007. In 2006, she underwent more procedures for the fracture to her left
femur that had failed to heal. Lemere began seeing Dr. Christopher Balint, who became her
treating physician for her left hip and left knee injuries, and received steroid injections that
improved Lemere’s condition. At the same time, Lemere also began to complain of right
shoulder pain, which was classified as tendinosis1.
On September 18, 2010, Dr. Crystal Strong, a consultative medical examiner, evaluated
Lemere. Dr. Strong noted Lemere’s history of pain issues in her left side due to a motor vehicle
accident. She stated that Lemere did not use or require any assistive device to walk. Her
impression was that Lemere had no limitations in her ability to reach, handle, grasp, or
manipulate objects with her hands. Dr. Strong opined that if there were arthritic changes to
Lemere’s left hip and left knee, though she was not sure that there were drastic changes, it would
limit Lemere to squatting, lifting from a squatted position, climbing stairs, and repeatedly
transitioning from standing to sitting less than one third of a work day.
On September 1, 2011, Dr. Ferlic saw Lemere and noted that her chief complaint was
pain in both of her wrists that began three years ago. Dr. Ferlic opined that her upper extremity
usage was limited to a maximum of one third to one half of a work day. However, he also stated
that to “definitively assess function impairment an FCE [functional capacity evaluation] could be
pursued.” Doc. No. 13 at 385. Dr. Ferlic referred to Lemere having a “clinical suspicion [of]
bilateral CTS [carpal tunnel syndrome]” based on her reports to him of an EMG done fifteen
1
At a follow up appointment , Lemere’s right shoulder injury was referred to as tendinitis, which is the term
the ALJ uses when outlining her severe injuries.
5
years ago. Doc. No. 13 at 385. In a follow up letter to Lemere’s attorney later that month, Dr.
Ferlic stated that he believes Lemere’s upper extremity usage is limited to a maximum one third
of a work day, and that fusion for her left wrist is still a possibility.
B.
Standard of Review
In reviewing disability decisions of the Commissioner, the Court shall affirm the ALJ’s
decision if it is supported by substantial evidence and free of legal error. See 42 U.S.C. § 405(g);
Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); Haynes v. Barnhart, 416 F.3d 621, 626
(7th Cir. 2005); Golembiewski v. Barnhart, 322 F.3d 912, 915 (7th Cir. 2003). “Substantial
evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971). A reviewing court is not to substitute its own opinion for that of the ALJ’s or to reweigh the evidence, but the ALJ must build a logical bridge from the evidence to his conclusion.
Haynes, 416 F.3d at 626. An ALJ’s decision cannot stand if it lacks evidentiary support or an
adequate discussion of the issues. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).
However, an ALJ need not provide a “complete written evaluation of every piece of testimony
and evidence.” Rice v. Barnhart, 384 F.3d 363, 370 (7th Cir. 2004) (quoting Diaz v. Chater, 55
F.3d 300, 308 (7th Cir. 1995)). An ALJ’s legal conclusions are reviewed de novo. Haynes, 416
F.3d at 626.
To be entitled to disability insurance benefits under 42 U.S.C. § 423 or supplemental
security income under 42 U.S.C. § 1381a, Lemere must establish that she is “disabled.” See 42
U.S.C. § 423(a)(1)(D). The Social Security Act defines “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
6
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). The Social
Security regulations prescribe a sequential five-part test for determining whether a claimant is
disabled. The ALJ must consider whether: (1) the claimant is presently employed; (2) the
claimant’s impairment or combination of impairments is severe; (3) the claimant’s impairment
meets or equals any impairment listed in the regulations and therefore is deemed so severe as to
preclude substantial gainful activity; (4) the claimant is unable to perform her past relevant work
given her RFC; and (5) the claimant cannot adjust to other work in light of her Residual
Functional Capacity (“RFC”). 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)2; Young
v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
If the ALJ finds that the claimant is disabled or not disabled at any step, he may make
his determination without evaluating the remaining steps. 20 C.F.R. §§ 404.1520(a)(4). An
affirmative answer at either Step Three or Step Five establishes a finding of disability. Briscoe,
425 F.3d at 352. At Step Three, if the impairment meets any of the severe impairments listed in
the regulations, the Commissioner acknowledges the impairment and finds the claimant disabled.
See 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. app. 1, subpart P, § 404. However, if the
impairment is not so listed, the ALJ assesses the claimant’s RFC, which is then used to
determine whether the claimant can perform her past work under Step Four and whether the
claimant can perform other work in society under Step Five. 20 C.F.R. § 404.1520(e)-(g). The
2
The regulations governing the determination of disability for DIB are found at 20 C.F.R. § 404.1504 et.
seq. The SSI regulations are substantially identical to the DIB regulations and are set forth at 20 C.F.R. § 416.901
et. seq. For convenience, only the DIB regulations will be cited henceforth in this opinion.
7
claimant bears the burden of proof on Steps One through Four, but the burden shifts to the
Commissioner at Step Five. Young, 362 F.3d at 1000.
C.
Issues for Review
This Court must ascertain whether the ALJ’s RFC determination for Lemere is supported
by substantial evidence. Lemere argues that the ALJ’s opinion failed to articulate a logical
bridge between the evidence and his conclusion at Step Four because (1) the ALJ ignored
significant medical evidence regarding the severity of the trauma to Lemere’s left wrist, (2) the
logic of the ALJ in rejecting her treating physician cannot be traced, and (3) the ALJ “played
doctor” by substituting his own medical opinions for that of medical evidence in the record. Doc.
No. 18 at 1.
At Step Four, the ALJ must make an RFC determination in order to assess whether a
claimant is able to perform her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv). The RFC is
“an administrative assessment of what work-related activities an individual can perform despite
her limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). An individual’s
RFC demonstrates her ability to do physical and mental work activities on a sustained basis
despite functional limitations caused by any medically determinable impairment(s) and their
symptoms, including pain. 20 C.F.R. §§ 404.1545; SSR 96-8p 1996. In making a proper RFC
determination, the ALJ must consider all of the relevant evidence in the case record. 20 C.F.R.
§§ 404.1545; Young, 362 F.3d at 1001. The record may include medical signs, diagnostic
findings, the claimant’s statements about the severity and limitations of symptoms, statements
and other information provided by treating or examining physicians and psychologists, third
party witness reports, and any other relevant evidence. SSR 96-7p 1996. “Careful consideration
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must be given to any available information about symptoms because subjective descriptions may
indicate more severe limitations or restrictions than can be shown by objective medical evidence
alone.” SSR 96-8p. However, it is the claimant’s responsibility to provide medical evidence
showing how her impairments affect her functioning. 20 C.F.R. § 404.1512(c). The ALJ must
rely on medical opinions based upon objective observations and not merely a recitation of a
claimant’s subjective complaints when evaluating the claimant’s RFC. Rice, 384 F.3d at 371
(7th Cir. 2004). Therefore, when the record does not support specific physical or mental
limitations or restrictions on a claimant’s work-related activity, the ALJ must find that the
claimant has no related functional limitations. See SSR 96-8p.
1.
The ALJ properly considered the evidence regarding the severity of
Lemere’s left wrist impairment.
Lemere contends that the ALJ ignored significant medical evidence demonstrating the
severity of the historical trauma and post-traumatic changes to Lemere’s left wrist. She asserts
that the ALJ did not articulate a logical bridge in his RFC determination because he “expressed
inadequate appreciation for the severity” to her left wrist. Doc. No. 27 at 5. She states that the
ALJ had to indicate understanding of the severity of the injury and the surgeries in order for a
reviewing court to assess whether the ALJ’s decision is supported by substantial evidence.
Lemere expresses concern that the ALJ failed to show he understood the injuries by his lack of
use of technical medical language to describe her surgeries. She then contends that the ALJ
failed to acknowledge the possibility of fusion of her left wrist as a treatment option to reduce
her pain. Doc. No. 18 at 14. Lemere argues that if the ALJ did not properly understand the
injury, he could not have properly weighed her treating physician’s evidence. Despite Lemere’s
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arguments, however, the ALJ did not ignore any of the medical evidence that relates to the
severity of Lemere’s left wrist impairment as discussed below.
An ALJ “is not required to discuss every piece of evidence but is instead required to
build a logical bridge from the evidence to her conclusions.” Simila v. Astrue, 573 F.3d 503, 516
(7th Cir. 2009). Nevertheless, an ALJ may not ignore a line of evidence contrary to his decision
either. Golembiewski, 322 F.3d at 917. “The ALJ’s failure to address these specific findings,
however, does not render his decision unsupported by substantial evidence because an ALJ need
not address every piece of evidence in his decision.” Sims v. Barnhart, 309 F.3d 424, 429 (7th
Cir. 2002) (finding where an ALJ acknowledged a severe medical problem and cited numerous
medical reports, he did not ignore evidence and he established a bridge between the evidence and
his conclusion).
The ALJ did not ignore the history or severity regarding Lemere’s left wrist injury. At
the beginning of the RFC assessment, the ALJ stated “while I agree that the claimant’s history of
fractures in the lower left extremity and left wrist are ‘severe’ impairments . . . these conditions
do not result in limitations which preclude all work.” Doc. No. 13 at 22. He acknowledged that
“the evidence does show that the claimant has typical post-traumatic degenerative changes at the
fracture sites.” Id. He explained that Lemere was involved in a motorcycle accident, which
resulted in “multiple injuries, including a fracture of the left ribs, distal radius, femur, tibial
plateau, hip, and left wrist.” Doc. No. 13 at 23. He indicated that Lemere “underwent several
procedures to surgically fixate the lower extremity and left wrist, and shortly after the left wrist
surgery, she underwent a partial hardware removal with distal ulnar resection.” Id. He indicated
that her treatments after that generally consisted of injections for her knee and hip and treatment
10
for right shoulder pain rather than her left wrist. Id. All of these statements show that the ALJ did
not ignore the evidence pertaining to Lemere’s left wrist injuries and condition.
Lemere’s other arguments are also unpersuasive. Despite Lemere’s unsupported
arguments to the contrary, the ALJ need not discuss every detail of every procedure to
demonstrate that he has an adequate understanding of the injury and surgeries. In addition,
Lemere’s demand that the ALJ rely on Dr. Ferlic’s recommendation of fusion surgery in
determining Lemere’s RFC related to her wrist is misplaced. First, the ALJ acknowledged the
possibility of fusion surgery when he explicitly stated that Dr. Ferlic had mentioned “pursuing
left wrist complete arthrodesis.” Id. Second, the reports of Dr. Ferlic that Lemere cites in her
effort to persuade the Court all say “may” require arthrodesis, not that it was required. Doc. No.
18 at 7. Morevoer, Lemere testified that she does not want to have her wrist fused because she
does not want to lose any more movement than necessary. Clearly then, the ALJ used technical
language to describe her injuries and treatments and discussed the possibility of fusion surgery.
As such, the ALJ did not ignore any of the evidence Lemere now begs the Court to consider. As
a result, the ALJ built a logical bridge from the evidence to an RFC determination regarding
Lemere’s left wrist that is supported by substantial evidence.
2.
The ALJ’s decision to not give Lemere’s treating hand surgeon, Dr.
Ferlic controlling weight is supported by substantial evidence.
Lemere also argues that remand is necessary because the ALJ refused to give Dr. Ferlic’s
treating source opinion controlling weight without articulating sufficiently the logic of his
reasoning for rejecting the opinion. An ALJ must give a treating physician’s opinion controlling
weight if it is “well supported by medically acceptable clinical and laboratory diagnostic
techniques” and if it is “not inconsistent with other substantial evidence in the record.” Hofslien
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v. Barnhart, 439 F.3d 375, 376 (7th Cir. 2006); Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir.
2000); 20 C.F.R. §§ 404.1527(d)(2); SSR 96-8p; SSR 96-2p. A “treating source” is a medical
professional who provides medical treatment or evaluation to the claimant and has or had an
ongoing relationship with the claimant. 20 C.F.R. § 404.1502. Generally, an ALJ weighs the
opinions of a treating source more heavily because he is more familiar with the claimant’s
conditions and circumstances. Clifford, 227 F.3d at 870; 20 C.F.R. § 404.1527(c)(2). However,
a claimant is not entitled to benefits merely because a treating physician labels her as disabled.
Dixon, 270 F.3d at 1177; 20 C.F.R. § 404.1527(d)(1). “Once well-supported contradicting
evidence is introduced, the treating physician’s evidence is no longer entitled to controlling
weight.” Hofslien, 439 F.3d at 376. While the ALJ is not required to award a treating physician
controlling weight, the ALJ must articulate, at a minimum, his reasoning for not doing so.
Clifford, 227 F.3d at 870.
If an ALJ does not give a treating physician’s opinion controlling weight, he must
consider factors, including the claimant’s examining and treating relationship with the source of
the opinion, the support provided for the medical opinion, its consistency with the record as a
whole, and the physician’s specialty, when determining what weight to give to the opinion. 20
C.F.R. § 404.1527(c)(1)–(6); see also Scrogham v. Colvin, No. 13-3601, 2014 WL 4211051, at
*8 (7th Cir. Aug. 27, 2014). “If the ALJ discounts the physician’s opinion after considering
these factors, we must allow that decision to stand so long as the ALJ ‘minimally articulated’ his
reasons – a very deferential standard” that the Seventh Circuit has deemed “lax.” Elder v.
Astrue, 529 F.3d 408, 415 (7th Cir. 2008) (citing Berger v. Astrue, 516 F.3d 539, 545 (7th Cir.
2008), quoting Rice, 384 F.3d at 372).
12
In the RFC determination, the ALJ indicates that Lemere is limited to using both hands
for “frequent3 fine and gross manipulation, . . . can never reach overhead using her dominant
right arm, and . . . can never perform tasks requiring a forceful or repetitive grip and grasp or the
use of vibrating tools.” Doc. No. 13 at 22. Lemere challenges the ALJ’s decision not to give
controlling weight to the opinion of Dr. Ferlic in reaching this conclusion. In considering the
medical evidence of Lemere’s wrist condition, the ALJ summarized Dr. Ferlic’s opinion stating
that “she was limited to using her upper extremity to a maximum of 1/3 to ½ workday, and that
this finding was supported by ‘prior entertainment of pursuing left wrist complete arthrodesis
[i.e., fusion surgery] in 2005.” Doc. No. 13 at 23 (citing id. at 385 (Ferlic’s September 1, 2011,
treatment notes); id. at 200 (Ferlic’s September 28, 2011, letter to Lemere’s attorney)). The ALJ
then acknowledged that Dr. Ferlic’s opinion reflected limitations to both of her extremities that
would prevent her from performing all work. Id. Yet, the ALJ found Dr. Ferlic’s opinion
“hardly persuasive, let alone controlling.” Id. Having decided that Dr. Ferlic’s opinion was not
worthy of controlling weight, the ALJ was then obligated to articulate his reasons for doing so
taking into account the regulatory factors cited above. Despite Lemere’s argument to the
contrary, the ALJ did just that.
First, the ALJ acknowledged that Dr. Ferlic was Lemere’s treating physician and
orthopaedic surgeon. Id. at 24. Second, the ALJ explained that Dr. Ferlic’s opinion was not
consistent with the record and was not supported by objective evidence. Specifically, the ALJ
found Dr. Ferlic’s opinion unsupported because there was no contemporary imaging or
diagnostic testing done to show the condition of Lemere’s wrist in 2011. Moreover, the ALJ
3
Appendix C of the Dictionary of Occupational Titles defines “occasionally” as up to 1/3 of the time,
“frequently” as 1/3 to 2/3 of the time, and “constantly” as 2/3 or more of the time.
13
noted inconsistencies between Dr. Ferlic’s opinion and the objective medical data points noted in
the opinion of consultative examiner Dr. Crystal Strong who had examined Lemere in September
2010. Also persuasive to the ALJ was Lemere’s own testimony about her use of her hands in a
variety of activities over the time period in which she had indicated pain in both of her wrists
which conflicted with Dr. Ferlic’s opinion about Lemere’s remaining functionality.
Most importantly, the ALJ did not simply make conclusory statements about the lack of
sufficient evidentiary support for Dr. Ferlic’s opinion or the inconsistencies between Dr. Ferlic’s
opinion and other evidence in the record. His opinion detailed evidence from Dr. Strong’s
examination of Lemere and compared it to the results of Dr. Ferlic’s examination. He also
demonstrated Dr. Ferlic’s own hesitation to commit to his conclusion that Lemere could not
work because of the limitations she faced due to her wrist impairment. As the ALJ noted, Dr.
Ferlic qualified his opinion by stating that the only way to definitively assess the functionality of
Lemere’s upper extremities would be through a Functional Capacity Evaluation. Id. at 24.
Lemere argues that this is not enough to create the logical bridge necessary to explain
why controlling weight was not given to Dr. Ferlic’s opinion. Lemere argues that her wrist
surgeries in 2004–2005 and x-rays from that same time period along with Dr. Ferlic’s September
2011 physical examination of her wrist and reference to the possibility of fusion surgery amount
to sufficient evidence in support of Dr. Ferlic’s opinion that she cannot work. Yet the ALJ’s
opinion shows that he considered all of this evidence in determining what weight to give to Dr.
Ferlic’s opinion. Lemere is just not happy with how the ALJ, acting within the authority granted
to him, interpreted Dr. Ferlic’s opinion in light of the entire record. Such dissatisfaction does not
14
justify remand when the ALJ supported his decision with substantial evidence and articulated a
logical explanation for discounting the opinion.
3.
The ALJ did not play doctor when determining Lemere’s RFC
analysis because he articulated a bridge between the evidence and his
conclusions, which were supported by substantial evidence.
Lemere argues that the ALJ failed to build a logical bridge between the evidence and his
conclusion because he “played doctor” by substituting his own opinion for that of a medical
doctor. Doc. No. 18 at 20-21. She argues that the ALJ did not properly weigh the evidence and
inserted his own opinion. Doc. No. 27 at 11. The Commissioner argues that the ALJ reasonably
considered the record as a whole in determining Lemere’s RFC and fully explained his reasoning
the weight he gave the medical opinions. Doc. No. 24 at 18-19. The Court agrees with the
Commissioner.
An ALJ “plays doctor” when he ignores relevant evidence and substitutes his own
judgment. Olsen v. Colvin, 551 Fed. App’x 868, 874–75 (7th Cir. 2014) (collecting cases). The
ALJ cannot “substitute his own judgment for a physician’s opinion without relying on other
medical evidence or authority in the record.” Clifford, 227 F.3d at 870. While medical source
statements are evidence, the RFC assessment is the ALJ’s ultimate finding based on a
consideration of the medical source statements and all other evidence in the record regarding
what an individual can do despite her impairments. SSR 96-5p 1996. An ALJ need not
articulate the expression of his RFC determination function-by-function; a narrative discussion
of claimant’s symptoms and medical source opinions is sufficient. Knox v. Astrue, 327 Fed.
App’x 652, 657 (7th Cir. 2009).
15
As already discussed related to Dr. Ferlic’s opinion about Lemere’s limitations due to her
wrist condition, the ALJ thoroughly discussed the medical evidence in this case and articulated
his reasoning for his RFC determination. Lemere, however, argues that the ALJ merely reached
conclusory statements after his discussion of evidence and that his limitations were not
supported by a doctor’s opinion. She seems to believe that the ALJ made up his determination
of her limitations when he concluded that
while the claimant’s surgical history of the left wrist does suggest a limitation
from forceful and repetitive grasping or gripping, there is no evidence that the
claimant is not otherwise able to perform fine and gross manipulation at least
frequently, if not constantly. Likewise, the claimant’s, largely untreated, right
shoulder pathology suggests a limitation in overhead reaching, but nothing
further.
Doc. No. 13 at 24. What Lemere fails to see is that the ALJ only arrived at this conclusion after
two pages of discussion about Lemere’s limitations, addressing her surgeries and Dr. Ferlic’s
and Dr. Strong’s medical opinions, as evidenced by her medical record. Moreover, the ALJ is
charged with making an RFC determination that reflects the entire record, not just one doctor’s
opinion. Consequently, Lemere’s suggestions that limitations ultimately included in a claimant’s
RFC must be specifically stated in a medical source opinion and that limitations noted in medical
source opinions must be included in an ALJ’s RFC determination are not convincing. As a
result, the Court finds that the ALJ did not inappropriately “play doctor” when defining the
limitations to be included in and excluded from Lemere’s RFC.
4.
Lemere’s other arguments also fail.
Lemere appears to have raised concerns about the ALJ’s credibility determination as well
as the ALJ’s neutrality in her opening brief. As to credibility, Lemere waits until the conclusion
of her opening to assert her belief that the ALJ’s credibility findings were patently wrong and
16
improperly explained in the decision. Without establishing the legal standard for credibility
determinations, Lemere references some concerns she has, but then cuts the argument short.
Lemere seems so confident in her other arguments that she decides not to develop her credibility
argument fully. In so doing, Lemere waived any credibility argument. See United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal ‘argument’, really nothing more than an
assertion, does not preserve a claim.”).
As to the ALJ’s neutrality, Lemere hinted throughout her entire opening brief that the
ALJ was not a neutral decision maker, but rather a biased and hostile advocate. See, e.g., Doc.
No. 18 at 3 n.1, 26 (“the ALJ’s apparent adversarial approach to Ms. Lemere’s case”). Lemere
has presented no support for this conclusion other than the fact that the ALJ did not find Lemere
legally disabled for the purposes of disability benefits. Moreover, Lemere’s attacks on the ALJ’s
ethics are unpersuasive when the ALJ included more limitations in Lemere’s RFC than the
consultative examiner, on whose opinion Lemere urges the Court to rely, recommended.
III.
CONCLUSION
For the reasons stated above, the Court finds that the ALJ’s RFC determination was
supported by substantial evidence and he did articulate a logical bridge from the evidence in the
record to his findings. Therefore, the Court DENIES Lemere’s request for remand. [Doc. No.
18]. The Commissioner’s decision is AFFIRMED. The Clerk is DIRECTED to term the case
and enter judgment in favor of the Commissioner.
SO ORDERED.
Dated this 17th day of September, 2014.
S/Christopher A. Nuechterlein
Christopher A. Nuechterlein
United States Magistrate Judge
17
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