Neldon v. Commissioner of Social Security

Filing 22

OPINION AND ORDER: The final decision of the Commissioner of Social Security is AFFIRMED. Signed by Judge Philip P Simon on 9/14/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JOHN M. NELDON,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of the Social Security
Administration,
Defendant.

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OPINION AND ORDER
John M. Neldon appeals the Social Security Administration’s decision to deny his
application for Social Security Disability Insurance Benefits. An administrative law
judge found that Neldon was not disabled within the meaning of the Social Security
Act. Neldon raises five main arguments as to why he thinks the ALJ’s decision was
contrary to law and unsupported by sufficient evidence. After review of these
arguments, the ALJ’s decision, and the underlying record, I conclude that Neldon’s
arguments are themselves without merit and unsupported by the evidence. Therefore I
will affirm the ALJ’s decision.
Background
In his application for benefits, Neldon alleged a disability onset date of March 1,
2007.1 [A.R. 29.] At the time of his reconsideration hearing, Neldon was 52 years old and

1

The Administrative Record (A.R.) in this case is found at Docket Entry #12.
Citations are to the page number in the lower right hand corner of the A.R.

alleged he was disabled primarily on account of pain in his feet and back as a result of
various conditions.2 Prior to his alleged disability, Neldon mostly worked as an
electrician within the construction industry and as an HVAC installer. [A.R. 31.]
In the written decision denying benefits, the ALJ followed the familiar five-step
process used to evaluate claims for disability. At step one, the ALJ determined that in
some years since the alleged disability onset date, Neldon had engaged in substantial
gainful activity, earning annual wages in excess of $34,000 for three consecutive years.
[A.R. 21.] Despite this, the ALJ continued his review of Neldon’s applications for all
years. At step two, the ALJ determined the following severe impairments:
“degenerative disc disease of the spine, bilateral plantar fasciitis, biceps tendon repair
on the right, right shoulder degenerative joint disease and right rotator cuff repair.”
[A.R. 21-22.] The ALJ found at step three that while these impairments were severe,
they did not meet or equal any of the applicable social security listings. [A.R. 22.]
At step four, the ALJ assessed Neldon’s residual functional capacity (“RFC”) and
found that Neldon could not perform any of his past relevant work as either an
electrician or HVAC installer. [A.R. 32.] The RFC determination was that Neldon was
limited to light work, subject to several other restrictions, including limitations in
standing, overhead lifting, as well no climbing of ladders, ropes or scaffolds. [A.R. 23.]
Consequently at step five, the ALJ determined that there existed jobs in significant

2

A more detailed account of Neldon’s medical history is contained with the
ALJ’s written decision. [See A.R. 21-31.]
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numbers in the national economy that Neldon could perform. [A.R. 32.] Specifically, the
ALJ found that Neldon could perform the job of school bus monitor and thus that
Neldon was not disabled. [A.R. 33.]
Legal Standard
At the outset, it is imperative to note that, as a district court judge, I may not
make a determination as to whether or not Mr. Neldon is disabled. That’s a decision for
the Social Security Administration to make. My job is to review the ALJ’s ruling to
determine whether or not it complies with the applicable standards and regulations. I
will affirm the ALJ’s decision if his factual determinations are supported by substantial
evidence and are not contrary to law. See 42 U.S.C. §405(g). “When reviewing for
substantial evidence, we do not displace the ALJ’s judgment by reconsidering facts or
evidence or making credibility determinations.” Schmidt v. Astrue, 496 F.3d 833, 842 (7th
Cir. 2007) (citation omitted). “Because the Commissioner is responsible for weighing the
evidence, resolving conflicts and making independent findings of fact, this Court may
not decide the facts anew, re-weigh the evidence or substitute its own judgment for that
of the Commissioner to decide whether a claimant is or is not disabled.” Powers v. Apfel,
207 F.3d 431, 434–35 (7th Cir. 2000) (internal citations omitted). “In other words, so long
as, in light of all the evidence, reasonable minds could differ concerning whether [the
claimant] is disabled, [I] must affirm the ALJ’s decision denying benefits.” Schmidt, 496
F.3d at 842 (quoting Books v. Chater, 91 F.3d 972, 978 (7th Cir.1996)).

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Discussion
Neldon’s first argument is that the ALJ erred at step two of the process by failing
to consider his obesity as part of determining whether he met any of the listed criteria
for disability. The issues concerning Neldon’s obesity seemingly come out of the blue.
His obesity was never even discussed at the hearing before the ALJ despite the fact that
Neldon was represented by counsel at the hearing. In all events, the argument is
without merit.
It is true that Neldon had an abnormal BMI as noted in his medical records.
[E.g., A.R. 802, 815, 818, 822, 825, 826, 829, 932, 1140.] But as the Commissioner
persuasively argues, none of those records, or the medical opinion evidence, noted that
Neldon’s obesity or BMI were a contributing factor to Neldon’s limitations or alleged
disability. What’s more, the ALJ appears to have been aware of, and at a minimum
indirectly considered, Neldon’s BMI and related obesity because Neldon’s doctors were
certainly aware of his obesity and the ALJ considered the opinions of Neldon’s doctors.
That is enough in these circumstances. Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir.
2004) (affirming denial of benefits and finding no error where “although the ALJ did
not explicitly consider [plaintiff’s] obesity, it was factored indirectly into the ALJ's
decision as part of the doctors' opinions”).
Furthermore, given that there does not appear to be any indication that obesity
was contributing factor to Neldon’s functional limitations, and Neldon offers nothing
more than speculation to the contrary, the ALJ’s failure to explicitly address Neldon’s
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BMI in his written opinion would be at most a harmless error as there does not appear
to be any basis for Neldon’s BMI to affect the step two analysis. See Skarbek, 390 F.3d at
504 (“[A]ny remand for explicit consideration of [the plaintiff’s] obesity would not affect
the outcome of this case”).
Neldon’s second argument challenges the ALJ’s determination at step three that
he did not meet any of the social security listings for disability or their medical
equivalent. Neldon concedes that he did not meet Listings 1.02 or 1.04 but argues it was
reversible error by the ALJ to fail to determine “the critical issue of medical
equivalence.” [DE 15 at 22.] Again, Neldon focuses on what he says was the ALJ’s
inadequate consideration of his obesity. Neldon further argues that the ALJ was
required to obtain additional medical expert testimony to evaluate Neldon on this issue.
Neither of these arguments warrants a reversal of the ALJ’s decision.
Concerning additional medical expert testimony on the issue of equivalence,
Neldon misstates what was required of the ALJ. An ALJ is only required to obtain a
medical expert opinion when the ALJ is “finding that the claimant’s impairment(s)
medically equals a listing.” See Hearings, Appeals, and Litigation Law Manuel
(HALLEX) I-2-5-34, 1994 WL 637370. Here, the ALJ found that Neldon did not medically
equal a listing. The ALJ was thus not required to obtain additional medical expert
testimony to support that conclusion beyond the reasons stated in the ALJ’s opinion,
including his consideration of the two state agency medical consultants who reviewed
and determined that Neldon did not meet any of the listings or their medical
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equivalence. Sutherlin v. Colvin, No. 1:13-CV-01603-SEB, 2015 WL 1046101, at *5 (S.D.
Ind. Mar. 10, 2015) (finding two state agency opinions determining that claimant did
not meet any listing to “satisfy the requirement for expert medical opinion on the issue
of medical equivalence”).
Furthermore, Neldon’s argument that an additional medical expert was required
based upon the need to consider additional evidence is unpersuasive because he “fails
to show the relevance of any later-submitted evidence or medical opinion to the criteria
of Listing 12.02 and the subject of medical equivalence” beyond simply repeating his
belief that his obesity should have been more heavily weighed. Sutherlin, 2015 WL
1046101, at *5; id. (“Although the ALJ wrote that the state-agency physicians had not
reviewed the evidence submitted after the reconsideration decision, his statement was
in the context determining [the claimant’s] RFC, after he had already made his
step-three Listings determination.”).
Neldon’s third argument challenges the ALJ’s RFC determination, arguing that it
was flawed for three reasons. First, he reiterates his arguments as to obesity that I have
found to be unpersuasive for the reasons discussed above. Second, Neldon argues that
the ALJ gave insufficient weight to the medical opinion of Dr. Christopher M. Annis, an
anesthesiologist and Neldon’s treating physician. Third, and related, Neldon argues
that the ALJ gave improper weight to a functional capacity evaluation which had been
ordered by Dr. Annis and was part of Dr. Annis’s opinions.

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Before I address these arguments, I think it is helpful to properly frame the
evidence which the ALJ analyzed and is being discussed here. Dr. Annis did not testify
at the hearing and did not issue a single opinion. Instead, there are four temporally
distinct pieces of opinion evidence: (1) an August 28, 2013 letter on Neldon’s behalf
[A.R. 518]; (2) a March 18, 2014 letter to Neldon’s lawyer [A.R. 795-796]; (3) a followup
April 21, 2014 letter to Neldon’s lawyer [A.R. 794]; and (4) the transcript of a “dialogue”
between Dr. Annis and Neldon’s lawyer which took place on November 6, 2015 [A.R.
1247-1252]. The ALJ reviewed, considered, and gave varying degrees of weight to the
opinions of Dr. Annis contained within these various pieces of evidence.
“[A] treating physician’s opinion regarding the nature and severity of a medical
condition is entitled to controlling weight if it is (1) supported by medical findings; and
(2) consistent with substantial evidence in the record.” Elder v. Astrue, 529 F.3d 408, 415
(7th Cir. 2008) (citing 20 C.F.R. § 404.1527(d)(2)). The ALJ may reject the opinions of a
treating physician (like Dr. Annis) “if the opinion ‘is inconsistent with the opinion of a
consulting physician or when the treating physician's opinion is internally inconsistent,
as long as [the ALJ] minimally articulates his reasons for crediting or rejecting evidence
of disability.’” Schmidt, 496 F.3d at 842 (citation omitted). I will address each piece of Dr.
Annis’s opinion evidence in turn.
The August 28, 2013 letter from Dr. Annis indicated that he had been seeing
Neldon for several months for pain management by that point in time and that
Neldon’s pain was “preventing him from being able to work any meaningful amount of
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time in the capacity he once was due to an inability to tolerate the pain. He cannot
tolerate standing on a ladder nor can he tolerate some of the positions his prior job
required.” [A.R. 518.] While the ALJ stated that he gave this letter only “some weight,”
the ALJ generally agreed with Dr. Annis’s opinion contained within this letter. Namely
the ALJ agreed that Neldon could not return to work as an electrician, his prior job,
which is classified as medium work, or that he could not tolerate standing on a ladder.
[A.R. 29.]
The ALJ considered the March 18 and April 21, 2014 letters together, presumably
given their close proximity in time. The March 18, 2014 letter again notes that in Dr.
Annis’s opinion, Neldon’s “main complaint has been bilateral feet [pain]” and that the
associated pain “has limited his ability to perform his job as an electrician, which
requires climbing ladders on a regular basis.” [A.R. 795.] The same letter noted that
Neldon “has had difficulty with his right shoulder and had a debridement of a rotator
cuff with subacromial decompression to help alleviate some of his problem. This has
healed, and he continues to convalesce from this.” [Id.] The April 21, 2014 letter contains
a short assertion, without additional support, that Neldon “would miss 3 or more days
in a month because of his underlying conditions.” [A.R. 794.]
The ALJ stated that “the opinion [within the April 2014 letter to the lawyer] is
vague and does not indicate why the claimant would miss work, such as pain.” [A.R.
29.] This is certainly true. And what the ALJ found most concerning was the fact that
Dr. Annis had issued a report regarding Neldon’s capacity to work just a month earlier
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and it didn’t say a thing about absenteeism. [Id.] But more importantly, because Dr.
Annis did not support the opinion with objective medical evidence or discussion of
Neldon’s symptoms, it was within the ALJ’s power to give this letter minimal weight.
Powers, 207 F.3d at 435 (“The hearing officer was within his discretion to reject that
opinion as conclusory and unsupported by the evidence.”).
The ALJ further discounted the April 21, 2014 letter and its conclusions because it
was unsupported by a February 2014 functional capacity evaluation that Dr. Annis
ordered with another provider because Dr. Annis was “not qualified to assess
[Neldon’s] capacity in this manner.” [A.R. 795.] This evaluation, which included
observations and tests of Neldon’s ability, was given “some weight” by the ALJ and its
conclusion was that Neldon could perform work within the light range category. [A.R.
30, 796.] Importantly, nothing within the functional capacity evaluation stated that
Neldon’s limitations would cause absenteeism. [A.R. 795-96.]
The November 6, 2015 transcript was given little weight by the ALJ because he
found it was partially unsupported and contradicted in other parts by objective medical
evidence. [A.R. 30.] In the transcript, Dr. Annis opined that Neldon was sedentary,
could only stand for two hours a day during an eight-hour work day in 20 minute or
less intervals, lift up to 10 pounds, use his hands occasionally and again stated that
Neldon would miss at least three days of work a month. [A.R. 1248-51.] In particular,
the ALJ noted that Neldon’s treating podiatrist had found his EMG and MRI to be
“relatively unremarkable and would not account for his symptoms.” [A.R. 30.] And
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while Dr. Annis opined that Neldon was sedentary, the ALJ found this contradicted by
the extensive activities Neldon testified he engaged in over an extensive period of time
(e.g., house renovations, wood splitting, digging in a garden, travel, etc.). [Id.] As for the
limitation that Neldon could only lift 10 pounds, it too was contradicted by Neldon’s
own treatment notes from December 29, 2014 which “noted the claimant had normal
strength in the upper extremities.” [Id.]
Concerning Neldon’s back and foot pain which Dr. Annis opined would cause
absenteeism of three or more days a month, the ALJ here found the opinion
contradicted by other evidence on several bases and accordingly gave it little weight.
[A.R. 30.] Specifically, the ALJ found Dr. Annis’s opinion was undercut by the facts of
Neldon not seeing his podiatrist for over 15 months, his podiatrist’s comments
concerning Neldon’s EMG and MRI, as well as the podiatrist’s own notes that
conservative treatment in the form of orthotics had helped with Neldon’s foot pain. [Id.]
Furthermore, Dr. Annis himself had noted that Neldon’s back pain appeared to be
“more of a ligamentous or muscle irritation issue as opposed to one related to his
underlying degenerative changes.” [Id.] Neldon may disagree with these conclusions,
but he offers no law or particular facts which the ALJ ignored in reaching them which
would warrant a reversal in this case.
Thus, it is apparent to me that the ALJ took a meaningful review of Dr. Annis’
opinion and credited it when it was supported by evidence and rejected those opinions
which were either unsupported by or contradicted by other objective evidence. See
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Brown v. Colvin, No. 3:13-cv-352-CAN, 2014 WL 3579686, at *7 (N.D. Ind. July 18, 2014).
This is precisely the ALJ’s role in the disability determination and the ALJ does not
appear to have made any decisions which were not supported by substantial evidence.
See Luster v. Astrue, 358 F. App’x 738, 740 (7th Cir. 2010).
Fourth, Neldon argues that the ALJ improperly discounted his credibility as to
his claims of pain. The ALJ found Neldon’s “statements concerning the intensity,
persistence, and limiting effects of [his] symptoms are not entirely credible” and not
“credible to the extent alleged.” [A.R. 24, 30.] My review of the ALJ’s credibility
determination is especially deferential because while I am reviewing a cold record on
appeal, the ALJ at the hearing has an opportunity to examine and question the witness
and evaluate his or her credibility. Put simply, “the ALJ is in the best position to
observe witnesses” and I “will reverse an ALJ’s credibility determination only if the
claimant can show it was patently wrong.” Schmidt, 496 F.3d at 843 (citations omitted).
Neldon has not made such a showing in this instance.
Neldon argues that his situation is analogous to Carradine v. Barnhart, 360 F.3d
751, 756 (7th Cir. 2004). In that case, the Seventh Circuit reversed an ALJ’s ruling
because of the ALJ’s “perverse” focus on the fact the claimant testified that she could at
times walk up to two miles as a basis to undermine her credibility as to her pain.
Carradine, 460 F.3d at 756. Critically, however, the claimant’s walks in the Carradine case
were “one of the treatments that doctors have prescribed for [claimant’s] pain, and she

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does not claim to be paralyzed, we cannot see how her being able to walk two miles is
inconsistent with her suffering severe pain.” Id. at 755.
Neldon, on the other hand, testified that he engaged in much more than sporadic
walks. Following his alleged onset date, Neldon rehabbed a house, was splitting wood,
moving mattresses, traveling out of state and gardening, in addition to routine
activities, such as household chores, shopping, cooking and cleaning. [A.R. 30-31.] The
ALJ also noted that Neldon would drive on occasion, including to his hearing, [A.R.
31]—a fact which is important for the step five determination concerning possible jobs
for Neldon, discussed below. The ALJ also noted that Neldon had substantial earnings
for several years after his alleged disability onset date of March 1, 2007. [A.R. 19.] “[H]e
earned $36,455.63 in 2008, $41,445.41 in 2009, $37,972.51 in 2010, $34,862.82 in 2011" and
diminishing amounts the following two years. [A.R. 30.] The ALJ also pointed to
objective medical evidence which appeared to contradict Neldon’s claims of pain
including EMG and MRI scans which were “relatively unremarkable and would not
account for his symptoms.” [A.R. 31.] Thus, it was the ALJ’s prerogative to partially
discount Neldon’s claims of disabling pain throughout the period of alleged disability
based upon substantial evidence in the record.
At bottom, the ALJ did not find Neldon to be perfectly fit, functioning without
any limitation as Neldon seems to suggest or entirely disbelieve that he was without
pain. Indeed, the opposite is true. The ALJ noted many limitations Neldon had when he

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made his RFC determination, but simply not enough limitations so as to be considered
disabled for the present purposes. [See A.R. 23.]
Fifth, Neldon challenges the ALJ’s determination that he could work as a school
bus monitor, one of the three jobs that the Vocational Expert (VE) testified that a person
with Neldon’s limitations could perform. Here, the ALJ considered the VE’s testimony
that Neldon could perform three different jobs: parking lot attendant, attendant arcade,
and school bus monitor. The ALJ found that the first two jobs were not appropriate
given Neldon’s limitations of use of his upper extremities. [A.R. 33.] But that isn’t the
case with a school bus monitor, which does not require frequent use of the upper
extremities. [Id.] Neldon argues that the VE’s testimony (and thus the finding that
Neldon could work as school bus monitor) should be either accepted in full by the ALJ
or disregarded entirely. But this misstates both the role of the VE and the ALJ. “[A]
vocational expert is not a required or even essential part of a disability benefits hearing.
The decision whether to employ the services of a vocational expert is entirely within the
discretion of the ALJ.” King v. Barnhart, 66 F. App’x 65, 70 (7th Cir. 2003) (quoting
Ehrhart v. Secr'y of Health and Human Servs., 969 F.2d 534, 540 (7th Cir.1992)). A VE is
simply another piece of evidence the ALJ weighs in making his determination.
Finally, Neldon makes an argument that the Dictionary of Occupational Titles
published by the Department of Labor is factually incorrect, as well as outdated, and
therefore should be disregarded. Neldon takes issue with the job of school bus monitor
because according to him it is “common knowledge” that the job of school bus monitor
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requires the ability to withstand heavy vibrations. [DE 15 at 34.] This argument is easily
disposed of, as vibration limitations were not part of the RFC determination, nor has
Neldon argued they should have been. What’s more, the Dictionary of Occupational
Titles notes that vibrations are not present with the job of school bus monitor. See DOT
No. 372.667-042, 1991 673102. And to the extent Neldon may now be arguing after the
fact that limitations as to riding in a vehicle should be part of his RFC determination,
such an argument is undercut by the fact that Neldon testified that he drives himself
places, including for over an hour to his hearing with the ALJ. [A.R. 31.]
While Neldon’s assertions as to the currentness of the Dictionary of Occupational
Titles may be true (I have no idea), the Social Security Administration and its
regulations recognize it as a main source in the list of job publications used in making
disability determinations. See 20 C.F.R. § 404.1566(d)(1). So for better or worse, it’s what
we have to work with in determining available jobs. Thus, Neldon’s “argument is
without merit and can, therefore, be addressed in short order. The law is abundantly
clear that, in making a step five determination, the ALJ is permitted to take
administrative notice of the DOT and rely upon information contained therein.” Lane v.
Astrue, No. 1:10-CV-28 JD, 2011 WL 3348095, at *13 (N.D. Ind. Aug. 3, 2011). Perhaps the
volume should be updated or replaced, but that is a decision for the Social Security
Administration or Congress, not a district court judge reviewing a denial of benefits.

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Conclusion
The final decision of the Commissioner of Social Security denying plaintiff John
M. Neldon’s application for Social Security Disability Insurance Benefits is AFFIRMED.

SO ORDERED on September 14, 2018.

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

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