Plump Jr v. Commissioner of Social Security
Filing
34
OPINION AND ORDER: The final decision of the Commissioner of Social Security denying plaintiff Stanley Plump, Jr.s application for Social Security Disability benefits is AFFIRMED. The Clerk shall enter judgment in favor of defendant and against plaintiff. Signed by Judge Philip P Simon on 8/13/2018. (jss)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
STANLEY PLUMP, JR.,
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Plaintiff,
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vs.
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NANCY BERRYHILL, Acting Commissioner )
of the Social Security Administration,
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Defendant.
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3:17CV238-PPS
OPINION AND ORDER
Stanley Plump, Jr. appeals the denial of his application for disability insurance
benefits by the Commissioner of the Social Security Administration. Plump was 38
years old on the alleged onset date of his disability, December 1, 2012. The
administrative law judge found that he had severe impairments of rheumatic heart
disease, status-post mitral valve replacement, and anxiety. [AR at 24.]1 He previously
worked as a furnace helper and a waste collector, and at the time of his hearing before
the ALJ on November 5, 2015, continued to work part-time as a janitor at a steel mill.
The ALJ issued a written decision denying Plump’s claim for benefits on December 28,
2015. [AR 21-33.] The ALJ concluded that Plump‘s severe impairments do not
conclusively establish disability and further found that Plump possessed the residual
functional capacity to perform sedentary work with certain limitations. The ALJ then
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The administrative record [AR] is found in the court record at docket entry 10, and consists
of 1180 pages. A supplemental record of 221 pages is found at docket entry 30. I will cite to the
pages of this AR according to the Social Security Administration’s Bates stamp numbers rather than
the court’s Electronic Case Filing page number.
found that Plump was capable of performing jobs that exist in significant numbers in
the national economy, and that he is, therefore, not disabled. [AR at 27, 32-33.]
Plump asks me to reverse the ALJ’s decision and remand for further proceedings
by the Social Security Administration. My review of the ALJ’s decision is deferential. I
must affirm it if it is supported by substantial evidence, meaning “‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011) (citation omitted). I can’t reweigh
the evidence or substitute my judgment for that of the ALJ. Minnick v. Colvin, 775 F.3d
929, 935 (7th Cir. 2015). But these standards do not mean that I “will simply rubberstamp the Commissioner’s decision without a critical review of the evidence.” Clifford
v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
It’s worth noting that “an ALJ is not required to provide a complete and written
evaluation of every piece of testimony and evidence, but ‘must build a logical bridge
from the evidence to his conclusion.’” Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015),
quoting Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005). In other words, the ALJ’s
decision must offer an explanation of the rationale from the evidence to his or her
conclusions “sufficient to allow us, as a reviewing court, to assess the validity of the
agency’s ultimate findings and afford [the claimant] meaningful judicial review.” Moore
v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014).
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Analysis
Obesity
Plump challenges the ALJ’s handling of his obesity. I find no error. The ALJ
does not ignore Plump’s weight, noting that he is 5'9" tall and weighs 209 pounds, with
a body mass index of 30.86 that puts him in the Level 1 obesity category. [AR at 27.] I
note that this is only barely within the lowest (BMIs of 30.0 - 34.9) of three levels of
obesity under the applicable guidelines. SSR 02-1p, citing Clinical Guidelines on the
Identification, Evaluation, and Treatment of Overweight and Obesity in Adults (NIH
Publication No. 98-4083, September 1998).
The issue regarding Plump’s obesity seems to have come out of nowhere. His
application for benefits did not claim disability based on obesity, and the issue was not
referenced in his hearing before the ALJ. What’s more, Plump cites no evidence –
medical or otherwise – that his weight impacted his functioning or was a disabling
impairment. On this record, I see no basis for requiring the ALJ’s decision to do more
than it did, namely acknowledge that Plump met the guidelines for a very low level of
obesity, and indicate that the ALJ “fully considered” the cumulative effects of Plump’s
obesity but found it to have no more limiting effect on his ability to work than
contemplated by the sedentary RFC. [AR at 27.] Where the ALJ considered the impact
of marginal obesity — even despite the fact that the claimant “did not specifically claim
obesity as an impairment (either in his disability application or at his hearing),” — and
where the claimant does not “specify how his obesity further impaired his ability to
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work,” I readily find that any remand for more explicit and detailed consideration of
obesity is unnecessary and would not affect the outcome of the case. Skarbek v. Barnhart,
390 F.3d 500, 504 (7th Cir. 2004). See also Prochaska v. Barnhart, 454 F.3d 731, 736-37 (7th
Cir. 2006).
Mental Functioning
Next Plump seeks a remand based on the ALJ’s handling of his mental
functioning. Like the issue of obesity, Plump’s application for benefits made no claim
of mental impairments. Psychological issues were first raised at the hearing, at which
Plump’s counsel reported that Plump had been receiving counseling. But counsel
expressly stated that “We don’t believe, and we’re not arguing, Judge, that depression
would be sufficient for him to be found disabled,” and “I don’t think it affects his
thinking, to the point that that would interfere with his ability to function.” [AR at 55.]
Because the record of medical sources is devoid of any reference to anxiety or
other mental health problems, the ALJ apparently based his determination that Plump
has a severe impairment of anxiety on Plump’s hearing testimony (which was scant on
the subject) and the opinions of a counselor, Susan Geist, whom Plump and his wife
had been seeing through his church. Contrary to Plump’s argument, the ALJ did not
reject Geist’s opinion. The parties agree that Geist is not a “medically acceptable
source” under 20 C.F.R. §404.1513(a) and §416.913(a), but the ALJ nonetheless afforded
her opinions “some weight,” based on her provision of counseling services to Plump for
some months leading up to the hearing. [AR at 30.]
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Plump’s other arguments concerning anxiety – that the ALJ erred in his analysis
of its equivalence to a listed impairment and in devising accommodations in the RFC –
are non-starters. First of all, the claimant has the burden of showing medical
equivalence. “[T]he burden of proof at step 3 rests with the claimant, and the ALJ has
no duty to analyze equivalance when the claimant...presents no substantial evidence of
it.” Eskew v. Astrue, 462 Fed.Appx. 613, 616 (7th Cir. 2011). See also Clifford v. Apfel, 227
F.3d 863, 868 (7th Cir. 2000). Plump’s 11th-hour references to anxiety (and non-medically
acceptable evidence on the subject) was not substantial evidence of listing equivalence.
Plump contends that the ALJ was required to consult a medical expert
designated by the Commissioner on the issue of equivalence. But it’s a “finding of
medical equivalence” (not a rejection of medical equivalence) that “requires an expert’s
opinion on the issue.” Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015) (emphasis
added). Far from a perfunctory analysis of the equivalence issue, the ALJ carefully sets
out the requirements of Listing 12.06 for anxiety-related disorders and explains his
conclusions, with reference to the evidence of record, that Plump’s anxiety does not
satisfy or medically equal the Listing’s criteria. [AR at 26.]
Residual Functional Capacity
Plump contends that the RFC limiting him to simple routine repetitive tasks
involving only occasional interaction with the public and co-workers is “insufficient.”
[DE 24 at 31.] What evidence does Plump direct me to that this does not capture all of
his limitations? He points only to Geist’s opinion (which, by the way, was not part of
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the record until after the hearing and so was not available to the ALJ when he formed
the hypotheticals for the vocational expert). Even crediting the entirety of Geist’s
assessment, she speaks repeatedly and primarily of Plump having difficulty coping
with work-related stress. [AR at 1174-75.] These comments do not address the
disability buzzwords of “concentration, persistence, or pace” to which Plump’s
arguments refer. On those subjects, Geist opines that Plump is able to “understand,
remember, and carry out complex, not complex, or simple job instructions” (apparently
all three). [AR at 1174.] She merely expresses the view that Plump’s mental and
emotional symptoms could reasonably be expected to “slow[] him down” in completing
tasks in a timely manner. [AR at 1175.]
The ALJ did find, in his Step 3 analysis, that Plump had “moderate difficulties”
with regard to concentration, persistence, or pace. [AR at 26.] But in the next
paragraph, he also found that Plump “has no impairment of recent or remote memory
with normal attention span and ability to concentrate.” [Id.] The ALJ also notes that at
the hearing, Plump “was able to understand, focus, concentrate, comprehend, respond,
communicate, pay attention, and remember adequately without medication.” [Id.]
Plump does not now identify any evidence supporting a greater degree of mental
limitation than to “simple routine repetitive tasks.”
As for interactions with others, Geist notes that Plump is himself a supervisor
and experiences stress in that role when “co-workers come to him with work-related
problems.” [AR at 1174.] Based on this opinion, the ALJ quite reasonably (even
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generously) included in the RFC a limitation on interaction with the public and coworkers. Plump’s complaint that the ALJ included no restriction on his ability to work
with supervisors is not based on any evidence that Plump arguably requires such a
limitation, and is rejected out of hand.
Reliance on State Agency Medical Consultants
Next in Plump’s litany of alleged errors by the ALJ is his reliance on a State
Agency medical consultant whose December 9, 2013 opinion Plump characterizes as
outdated and incomplete. [DE 24 at 34; AR at 90.] The ALJ’s hearing was in November
2015 and his decision in December 2015. There was another State Agency consultant
opinion in February 2014. [AR at 107.] All three found that Plump retained the RFC to
perform sedentary work. [AR at 27, 89, 106.] But the ALJ also considered the entire
medical record, including what occurred after the later of the two State Agency reports,
so his ultimate opinion took into account all that Plump now complains was missed.
[AR at 28-30.]
Plump does not allege that any new or worsening condition occurring in the
interim rendered him disabled. He does not identify medical evidence in the record
that contradicts the State Agency physicians’ conclusions, or “specifically point to any
evidence in subsequent records that would indicate greater functional limitations than
the ALJ found.” [DE 31 at 14.] To the contrary, as noted by the Commissioner, the
medical record reflected stability in Plump’s heart condition, the principal basis for his
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disability application. [DE 31 at 13.] Plump shows no reversible error in the ALJ’s
analysis of the State Agency physician opinions.
Credibility Findings
Plump next challenges the ALJ’s assessment of his credibility. Because the ALJ is
“in the best position to determine a witness’s truthfulness and forthrightness,”
reviewing courts “will not overturn an ALJ’s credibility determination unless it is
‘patently wrong.’” Skarbek v. Barnhart, 390 F.3d 500, 504, 505 (7th Cir. 2004) (quotations
omitted). When an ALJ assesses a claimant’s credibility, she must “consider the entire
case record and give specific reasons for the weight given to the individual’s
statements.” Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009) (internal quotations
omitted). Now that the matter is before me for review, I “merely examine whether the
ALJ’s determination was reasoned and supported.” Shideler v. Astrue, 688 F.3d 306, 311
(7th Cir. 2012), quoting Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
In weighing Plump’s testimony concerning his mental health, the ALJ found that
Plump’s statements were “less credible because the level and/or frequency of treatment
are inconsistent with the level of complaints,” noting that Plump had received
counseling only for the past 8 months as of his hearing, had never sought treatment
from a specialist and never taken any medication for anxiety. [AR at 30.] The
credibility assessment also took into account Plump’s reported daily activities and that
he continued to perform part time work at the medium exertion level, albeit with some
accommodations. [Id.] The ALJ also found that Plump’s “description of the severity of
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pain and other limitations has been so extreme as to appear implausible,” noting
examples not supported by the medical evidence. [Id. at 30-31.] Finally, the ALJ
observed that review of the medical records discloses no restrictions placed on Plump
by his treating doctors. [AR at 31.] This analysis shows that the ALJ’s assessment was
based on a broad examination of all the evidence of record. The credibility
determinations were reasoned and supported, and were not patently wrong. Plump’s
challenge does not compel a remand for further consideration of his credibility.
New Evidence before Appeals Council
Plump’s last argument is that the Appeals Council rejected evidence submitted
with his request for review at the administrative level. [DE 24 at 40.] The evidence in
question is medical records of treatment in 2016 at the Elkhart Clinic and at St. Joseph
Regional Medical Center, which have been provided to the court in a supplemental
certification by the Commissioner. [DE 30.] The Appeals Council in fact reviewed the
records, and noted that they pertained to a period of time after the ALJ’s December 28,
2015 decision. [AR at 2.] “Under 20 C.F.R. §404.970(b), additional evidence submitted
to the Appeals Counsel will be evaluated only if it is ‘new and material’ and ‘relates to
the period on or before the date of the [ALJ] hearing decision.’” Stepp v. Colvin, 795 F.3d
711, 721 (7th Cir. 2015). Plump fails to demonstrate that this medical evidence postdating the ALJ’s decision related to the earlier period, and so fails to demonstrate that
the Appeals Council’s decision requires a remand. Plump’s suggestion that the records
“bridged an evidentiary gap” so as to relate to the earlier time period comes too late,
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only in his reply, and is in any event unpersuasive. [DE 32 at 15.] Frazee v. Berryhill,
Fed.Appx.
, 2018 WL 2129812, at *3 (7th Cir. 2018). Nor did the Commissioner’s
initial failure to include the exhibits in the administrative record filed here frustrate
judicial review or otherwise constitute a basis for remand.
Conclusion
My role is not to determine from scratch whether or not Plump is disabled and
entitled to benefits. Instead, my review of the ALJ’s findings is deferential, to determine
whether the ALJ applied the correct legal standards and whether the decision is
supported by substantial evidence. Shideler v. Astrue, 688 F.3d at 310; Castile v. Astrue,
617 F.3d 923, 926 (7th Cir. 2010); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008).
After that, I “must affirm the ALJ’s decision even if reasonable minds could differ about
the ultimate disability finding.” Brown v. Colvin, 845 F.3d 247, 251 (7th Cir. 2016).
Because substantial evidence supports the Commissioner’s findings, they are
conclusive. 42 U.S.C. §405(g). For the reasons I’ve explained, Plump has not
demonstrated that the ALJ failed to build a logical bridge from the evidence to his
conclusion that Plump does not qualify for disability, or otherwise committed reversible
error. The Commissioner’s final decision must be affirmed.
ACCORDINGLY:
The final decision of the Commissioner of Social Security denying plaintiff
Stanley Plump, Jr.’s application for Social Security Disability benefits is AFFIRMED.
The Clerk shall enter judgment in favor of defendant and against plaintiff.
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SO ORDERED.
ENTERED: August 13, 2018.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
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