Burk v. Commissioner of Social Security
Filing
18
OPINION AND ORDER: Burk's appeal of the Social Security Administration's decision denying his application for Supplemental Security Income is DENIED. The Acting Commissioner's decision is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk is instructed to term the case and enter judgment in favor of the Acting Commissioner. Signed by Magistrate Judge Michael G Gotsch, Sr on 10/22/2018. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ALAN WILLIAM BURK,
Plaintiff,
v.
NANCY BERRYHILL
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No. 3:17-CV-00870-MGG
OPINION AND ORDER
Plaintiff Alan William Burk seeks judicial review of the Social Security Acting
Commissioner’s decision denying his application for Title XVI supplemental security
income (“SSI”) as allowed under 42 U.S.C. § 405(g). This Court may enter a ruling in
this matter based on parties’ consent pursuant to 28 U.S.C. § 636(b)(1)(B); 42 U.S.C. §
405(g); [DE 14]. For the reasons below, the Court affirms the decision of the Acting
Commissioner of the Social Security Administration.
I.
OVERVIEW OF THE CASE
Burk alleges an onset of disability on May 6, 2014, which was caused by nerve
damage to his lower back, thyroid blockage of his vocal box and airway, difficulty
breathing, lower back pain, and ankle stiffness. [DE 15 at 2]. On the date of the alleged
onset of his disability, Burk was a fifty-two-year-old man, which is defined as an
individual closely approaching advanced age. 20 C.F.R. § 416.963. He completed the
“second year of high school,” did not earn his G.E.D., and had not worked anywhere
since 2001. [DE 10 at 46].
Burk’s application for SSI on May 6, 2014, was denied initially and upon
reconsideration. Following a video hearing on October 12, 2016, the Administrative Law
Judge (“ALJ”) issued a decision affirming the Social Security Administration’s (“SSA”)
denial of benefits. The ALJ found that Burk has no past relevant work. [Id. at 23].
However, the ALJ found that Burk has the residual functional capacity (“RFC”) to
perform light work as defined by the regulations with some limitations [Id. 19]. The ALJ
also found that Burk has the ability to meet the requirements for employment as an
office helper, label coder, and cafeteria attendant as those jobs are defined by the
Dictionary of Occupational Titles [Id. at 24]. Based upon these findings, the ALJ denied
Burk’s claims for benefits.
Other facts will be included as necessary.
II.
DISABILITY STANDARD
The Acting Commissioner follows a five-step inquiry in evaluating claims for
disability benefits under the Social Security Act: (1) whether the claimant is doing
substantial gainful employment; (2) consideration of the medical severity of the
claimants impairments; (3) whether the claimant’s impairment meets or equals one of
the listings in Appendix 1 to Subpart P of Part 404; (4) assessment of the claimant’s RFC
and whether he can perform his past relevant work; and (5) whether the claimant is
capable of making an adjustment to other work. 20 C.F.R. § 416.920; see also Kastner v.
2
Astrue, 697 F.3d 642, 646 (7th Cir. 2012). The claimant bears the burden of proof at every
step except Step Five. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
III.
STANDARD OF REVIEW
This Court has authority to review the Acting Commissioner’s decision under 42
U.S.C. § 405(g). However, this Court’s role in the judicial review of Social Security
Administration cases is limited, and it is not permitted to reweigh the facts or evidence.
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). The Court must give deference to the
ALJ’s decision so long as it is supported by substantial evidence. Thomas v. Colvin, 745
F.3d 802, 806 (7th Cir. 2014) (citing Similia v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009)).
The deference for the ALJ’s decision is lessened where the ALJ’s findings contain error
of fact or logic, or fail to apply the correct legal standard. Schomas v. Colvin, 732 F.3d 702,
709 (7th Cir. 2013).
Additionally, an ALJ’s decision cannot be affirmed if it lacks evidentiary support
or an inadequate discussion of the issues. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir.
2003). Moreover, the ALJ’s decision will lack sufficient evidentiary support and require
remand if it is clear that the ALJ “cherry-picked” the record to support a finding of nondisability. Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010); see also Wilson v. Colvin, 48
F. Supp. 3d 1140, 1147 (N.D. Ill. 2014). At a minimum, an ALJ must articulate her
analysis of the record to allow the reviewing court to trace the path of her reasoning
and to be assured the ALJ has considered the important evidence in the record. Scott v.
Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). While the ALJ need not specifically address
every piece of evidence in the record to present the requisite “logical bridge” from the
3
evidence to her conclusions, O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir.
2010), the ALJ must at least provide a glimpse into the reasoning behind her analysis
and the decision to deny benefits. Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001).
The ALJ’s decision must reflect that he built a “logical bridge from the evidence to his
conclusion.” Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015).
A court reviews the entire administrative record, but does not reconsider facts,
re-weigh the evidence, resolve conflicts of evidence, decide questions of credibility, or
substitute its judgement for that of the ALJ. Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005). Thus, the question upon judicial review is not whether the claimant is, in fact,
disabled, but whether the ALJ used “the correct legal standards and the decision [was]
supported by substantial evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2007).
Substantial evidence must be “more than a scintilla but may be less than a
preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th. Cir. 2007). Thus, substantial
evidence is simply “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017); Kepple v. Massanari, 268 F.3d 513,
516 (7th. Cir. 2001).
IV.
ANALYSIS
Following the hearing, the ALJ issued a written decision, based upon the five-
step disability evaluation process prescribed by the SSA’s regulations 1, finding that
1
20 C.F.R. § 416.920.
4
Burk was not disabled and denying him disability benefits. At Step One of the ALJ’s
analysis, he determined that Burk had not engaged in substantial gainful activity since
the alleged disability onset date, May 6, 2014. [DE 10 at 17]. At Step Two, the ALJ noted
that Burk had the following severe impairments: (1) status post thyroidectomy; (2)
laryngeal carcinoma; (3) obesity; (4) degenerative disc disease in the lumbar spine; (5)
obstructive sleep apnea; and (6) hypertension. [Id. at 18]. At Step Three of the
evaluation, the ALJ concluded that Burk’s impairments did not meet or medically equal
the severity of any of the listed impairments. [Id.].
Before proceeding to Step Four, the ALJ analyzed Burk’s RFC and concluded that
Burk retained the ability to perform light work with some limitations. Based on this
RFC, the ALJ found that Burk had no past relevant work, at Step Four. [Id. at 23]. At
Step Five, however, the ALJ found that, in consideration of Burk’s age, education, work
experience, and RFC, Burk was able to perform a significant number of jobs that existed
within the national economy. [Id. at 23]. Based upon these findings, the ALJ concluded
that Burk had not been under a disability as defined by the SSA.
Burk now argues that the ALJ’s RFC assessment was unsupported by substantial
evidence, with respect to the following: (1) the ALJ failed to build a logical bridge
between the evidence and his assessed RFC; (2) the ALJ did not attain a medical opinion
to which he could afford significant weight; and (3) the ALJ did not afford appropriate
weight to the opinion of a treating physician. The Court will consider each issue raised.
5
A.
ALJ Did Build a Logical Bridge Between the Evidence and the RFC
If a person is found to be disabled at Step Three, the ALJ will make a finding as
to the claimant’s RFC before moving on to Step Four. See 20 C.F.R. § 416.920(e); see also
20 C.F.R. § 416.945. The RFC is an administrative assessment of the claimant’s
impairments, and any related symptoms, that affect what the claimant can do in a work
setting. Specifically, the RFC is the most that the claimant can still do despite his or her
limitations, based upon all the relevant evidence and the claimant’s medical record. 20
C.F.R. § 416.945(a)(1). All impairments are taken into consideration, at this point in the
process, not just those that have been previously determined to be severe. 20 C.F.R.
§416.945(a)(2). In making a proper RFC determination, the ALJ must consider all of the
relevant evidence in the case record. 20 C.F.R. § 416.945(a)(3). However, the claimant
retains the burden to provide the ALJ with medical evidence showing how his
impairments affect his functioning. Id.
In this case, the ALJ found:
[a]fter careful consideration of the entire record . . . [Burk] has
the residual functional capacity to perform light work as
defined in 20 C.F.R. 416.967(b) except occasionally climb
ramps and stairs; never climb ladders, ropes, or scaffolds;
occasionally balance, stoop, and crouch; speaking limited to
occasionally; should never be exposed to unprotected heights
or moving mechanical parts; and no more than occasional
exposure to dusts, odors, fumes, and pulmonary irritants.
[DE 10 at 19]. Burk argues that the ALJ’s RFC finding is not supported by substantial
evidence because the ALJ did not accord strong weight to any medical source regarding
Burk’s physical RFC determination. [DE 15 at 5]. In support, Burk cites Terry v. Astrue,
6
580 F.3d 471, 476 (7th Cir. 2009) to assert that the ALJ’s RFC determination cannot be
based upon substantial evidence when there is no opinion evidence in the record to
support it. [DE 15 at 6]. Terry establishes that an ALJ’s decision will be upheld and
receive deference “if it is supported by substantial evidence,” which is evidence that a
“reasonable mind might accept as adequate to support a conclusion.” Id. at 475. Unlike
Terry, where the ALJ relied upon an unsigned medical report to make his RFC
determination, the ALJ in this case relied upon properly signed medical reports from
Burk’s treating physician, four State Agency medical consultants, and the reports of two
examining physicians. [DE 10 at 18-23].
To further support his claim, Burk argues that when the Court cannot determine
how the ALJ came to his or her conclusion, remand is required, citing Rohan v. Chater, 98
F.3d 966, 970-71 (7th Cir. 1996). [Id. at 7]. Rohan stands for the proposition that the ALJ
cannot ignore the reports of the consulting physicians or substitute his or her own
independent medical finding in lieu of the testimony and medical evidence on the
record. 98 F.3d at 970-71. This case can be distinguished from Rohan because the ALJ
here did not base his decision on his own medical opinion. Rather, the ALJ articulated
his assessment of medical evidence in the record sufficiently to enable this Court to
follow the logical path of his reasoning.
Finally, Burk concludes that the ALJ “failed to build a logical bridge between the
evidence and his conclusion.” [Id. at 8]. The only support that Burk provides for this
assertion is the fact that the ALJ did not afford any medical opinion significant weight
on the most relevant issues, to wit: the ALJ only afforded “some weight” to the State
7
Agency medical consultants, and “little weight” to the opinion of treating physician, Dr.
Motley. [Id. at 7].
The Seventh Circuit and this Court have repeatedly recognized that the ALJ is not
required to rely entirely on a particular physician’s opinion, nor must the ALJ choose
between the opinions of any of the claimant’s physicians. Schmidt v. Astrue, 496 F.3d
833, 845 (7th Cir. 2007); Hannah-Walker v. Colvin, No. 2:12-cv-61-PRC. 2013 WL 5320664,
at 10 (N.D. Ind. Sept. 23, 2013)). Further, determination of a claimant’s RFC is a matter,
not for the treating or examining physicians, but for the ALJ alone. Thomas v. Colvin, 745
F.3d 802, 808 (7th Cir. 2014). The final responsibility for the RFC determination at the
administrative law judge hearing remains exclusively with the ALJ. 20 C.F.R.
§416.946(c).
The objective and opinion medical evidence that the ALJ considered in his
decision included reports from several medical sources including various treatment
reports and reports provided by Burk’s treating physician, State Agency consultants,
and a consultative examiner. [DE 10 at 19-22]. Burk’s treating physician, Dr. Charles
Motley provided a Physical RFC Assessment form dated February 15, 2016. [Id. at 50507]. The State Agency medical consultants Drs. M. Brill and J.V. Corcoran, as well as
Donna Unversaw, Ph.D. and Joelle Larsen, Ph.D. all contributed reports to the medical
record the ALJ considered. Dr. Brill and Donna Unversaw provided a Disability
Determination Explanation dated July 28, 2014, while Dr. Corcoran and Joelle Larsen
provided a Disability Determination Explanation dated October 29, 2014. The ALJ also
considered a consultative examination report prepared by Doctor Ralph Inabnit dated
8
July 21, 2014. The ALJ also referred to progress notes prepared by Dr. Rishi Sukhija
dated September 1, 2016.
In his analysis, the ALJ documented Burk’s complaints of pain over several years,
referenced Burk’s morbid obesity, and history of hypertension. [DE 10 at 20-21]. The
ALJ found that although Burk’s medically determinable impairments could reasonably
be expected to cause some of the symptoms alleged by Burk, his statements concerning
the intensity, persistence, and limiting effects of these symptoms are inconsistent with
the medical evidence in the record. [Id. at 21].
The ALJ substantiated this claim of inconsistency by citing to objective medical
evidence, including a consultative examination report prepared by Dr. Ralph Inabnit on
July 21, 2014, and follow-up progress notes from an examination of Burk by Dr. Rishi
Sukhija on September 1, 2016. Dr. Inabnit’s report shows that despite his complaints,
Burk’s “exams showed normal range of motion of the lumbar spine, 5/5 strength in the
upper and lower extremities, normal sensory exam, and normal casual walk.” [DE 10 at
307-08]. Similarly, Dr. Sukhija found during a follow-up after previous cardiac testing,
that Burk’s ambulation status was within normal limits. [Id. at 705]. The ALJ concluded
that “[t]he objective physical record does not support the severity of alleged disabling
symptoms and instead supports a finding that the claimant remains capable of
performing a range of light work within the restrictions set forth herein.” [Id. at 22].
Burk has failed to demonstrate that the ALJ’s RFC determination was not
logically connected to the medical evidence in the record, because despite his claims,
the ALJ reviewed the medical record, which included a consultative examination, all of
9
which logically connects to the ALJ’s conclusion. The ALJ complied with the regulatory
requirements for determining Burk’s RFC, and the Court can trace the logical path from
the evidence to the ALJ’s assessed RFC. Therefore, the RFC is supported by substantial
evidence.
B.
No Additional Consultative Examination Was Required
Burk next argues the ALJ was required to order an additional consultative
examination, because the ALJ did not give great weight to either the treating physician,
Dr. Motley, or to the State Agency physicians, Drs. Brill and Corcoran. Additionally,
Burk contends that, without an additional examination, the ALJ could not have made
an informed decision regarding Burk’s RFC. However, the ALJ did not make his
informed decision without a consultative examination. The medical record included a
consultative examination performed by Dr. Inabnit in July 2014, as well as Progress
Notes from a cardiac testing follow-up by Dr. Rishi Sukhija dated September 1, 2016..
When the evidence is insufficient to support an RFC decision, the ALJ has the
option of ordering a consultative examination. 20 C.F.R. § 416.920b(b); Poyck v. Astrue,
414 F. App’x 859, 861 (7th Cir. 2011). A consultative examination is normally required if
the evidence is ambiguous, if specialized medical evidence is required but missing from
the record, or if there is a change in a condition but the current severity of the
impairment is not established. 20 C.F.R. § 416.919a(b). However, the ALJ may, but is not
required to, order additional consultative examinations if the claimant’s medical
evidence is insufficient to support an RFC decision. See 20 C.F.R. §§ 416.912(f); 416.917;
Skinner v. Astrue, 478 F.3d 836, 844 (7th Cir. 2007). Additionally, deference should be
10
given to an ALJ’s decision about the sufficiency of available evidence and what
measures, including consultative examinations, might be needed to fully develop the
record. Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009).
Here, Burk relies on Clayborne v. Astrue, No. 06 C 6380, 2007 WL 6123191 (N.D.
Ill. Nov. 9, 20017), to support his contention that a consultative examination was
required. The Court in Clayborne held that a consultative examination may be required
if a conflict, inconsistency, ambiguity, or insufficiency in the evidence must be resolved.
[Id. at *5]. The Court in Clayborne held that the ALJ was obligated to order a second
consultative examination, because the examination that was performed did not provide
the medical evidence needed to resolve the question of Clayborne’s disability
determination. [Id.] This case is distinguishable from Clayborne because the record
before the ALJ is not plagued with the deficiency of medical evidence present in
Clayborne. Here, the record the ALJ reviewed in making his decision, and about which
the ALJ provided a detailed narrative, supported his conclusion regarding Burk’s RFC.
[DE 10 at 18-23].
In light of this evidence cited in the ALJ’s decision, this case is more analogous to
Poyck than Clayborne. In Poyck, the ALJ did not order an additional consultative
examination because the record was replete with several mental and physical
examination records. 414 F. App’x at 861. Similarly here, as detailed above, the ALJ had
access to substantial evidence regarding Burk’s physical impairments making it
reasonable for the ALJ not to order an additional consultative examination. See also
Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004) (indicating that no medical record is
11
ever complete because “one may always obtain another medical examination, seek the
views of one more consultant . . . and so on,” yet the ALJ still needs to make a decision).
Additionally, the ALJ reviewed, and relied upon in part, the report from a consultative
examination conducted by Dr. Inabnit in July 2014. [See DE 10 at 21-22].
Consequently, the ALJ’s decision not to order additional consultative
examinations was reasonable and his physical RFC determination was supported by
substantial evidence.
C.
The ALJ Properly Considered the Treating Physician’s Opinion.
Burk’s final argument is that the ALJ’s physical RFC determination is not
supported by substantial evidence because the ALJ failed to follow the treating
physician rule by only partially accepting the opinion of Burk’s treating physician,
Charles Motley, M.D. Specifically, Burk argues that the ALJ erred by only affording
little weight to Dr. Motley’s opinion concerning Burk’s physical limitations, which
allegedly limit his ability to work.
More weight should be given to the opinion of a treating source because they are
more familiar with the claimant’s conditions and circumstances. Gudgel v. Barnhart, 345
F.3d 467, 470 (7th Cir. 2003). Additionally, the opinion of the treating physician will be
given controlling weight if it is not inconsistent with the medical record as a whole. 20
C.F.R. § 404.1527(c)(2). The ALJ can reject an examining source’s opinion if his reasons
for discounting the opinion are supported with substantial evidence. Id. When a
treating source opinion is not given controlling weight, the ALJ must consider the
length of treatment, nature and extent of the treatment relationship, supportability of
12
the opinion, consistency with the evidence of record, and any other factors that support
the opinion. 20 C.F.R. § 404.1527(c).
In a Physical RFC Assessment dated February 15, 2016, Dr. Motley opined that
Burk is limited to standing 10-15 minutes at one time, sitting upright 20 minutes at one
time, is unable to lift and/or carry during an 8 hour workday, and his impairments
require him to lie down during the day. [DE 10 at 506-07]. The ALJ indicated that he
gave “little weight” to the opinion of Dr. Motley related to the RFC, because “his
statement appear[s] extreme” based upon the other objective and opinion evidence in
the record. [Id. at 22].
In support, the ALJ compared Dr. Motely’s opinion to that of the physical
consultative examination performed by Dr. Ralph Inabnit. The ALJ noted that during
Dr. Inabnit’s July 2014 examination of Burk, he found that Burk’s range of motion of the
spine and extremities was normal. [Id. at 305-06]. The ALJ also referenced, Dr. Inabnit’s
conclusion that Burk’s physical exam was near normal, and, although Burk uses a cane,
he walked into the office for his examination “without the use of the cane at all.” [Id. at
307]. The ALJ showed further inconsistency with Dr. Motely’s opinion by citing a May
2016 examination report by Dr. Rishi Sukhija, in which the doctor states Burk’s
ambulation and appearance were within normal limits. [DE 10 at 705].
The ALJ further supported his determination by giving only some weight to the
opinions of the State Agency medical consultants Drs. Brill and Corcoran. Drs. Brill and
Corcoran opined that Burk was limited to performing medium work. In considering
this evidence, the ALJ stated that Burk is more limited than determined by the State
13
Agency consultants based upon evidence received at the hearing level, including
testimonial evidence and imaging of Burk’s lumbar spine. [DE at 22]. The ALJ
concluded that the State Agency consultants did not adequately consider Burk’s
subjective complaints; therefore, their opinions were afforded only some weight. [Id.].
This finding regarding the State Agency consultants shows that the ALJ considered all
medical evidence in the record, including evidence that was contrary to his ultimate
determination of Burk’s RFC.
By citing to multiple pieces of objective evidence in the record, the ALJ
effectively explained why he decided that Dr. Motley’s opinion was not entitled to
controlling weight. Despite reaching this conclusion, the ALJ did not completely
disregard Dr. Motely’s opinion. In fact, the ALJ incorporated limitations and exceptions
consistent, to some extent, with Dr. Motley’s opinion, into Burk’s RFC.
Therefore, the ALJ supported his physical RFC determination with substantial
evidence.
V.
CONCLUSION
For the reasons stated above, this Court concludes that the ALJ did not fail to
build a logical bridge between the evidence and his conclusions regrading Burk’s RFC.
The ALJ also did not err in failing to order another physical consultative examination,
or in giving little weight to the opinion of Burk’s treating physician, Dr. Motley.
Therefore, the ALJ’s RFC determination is supported by substantial evidence.
Accordingly, Burk’s appeal of the Social Security Administration’s decision denying his
application for Supplemental Security Income is DENIED. The Acting Commissioner’s
14
decision is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk is
instructed to term the case and enter judgement in favor of the Acting Commissioner.
SO ORDERED
Dated this 22nd day of October 2018.
s/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?