Payne v. Commissioner of Social Security

Filing 23

OPINION AND ORDER: The decision of the Commissioner of Social Security is AFFIRMED. Signed by Judge Joseph S Van Bokkelen on 2/16/17. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA

CYNTHIA FRANCES PAYNE,

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Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration
Defendant.

CAUSE NO. 4:15-CV-43-JVB-PRC

OPINION AND ORDER
Plaintiff Cynthia Payne has appealed the Acting Commissioner’s denial of supplemental
security income. For the reasons stated below, the Court affirms the decision of the Acting
Commissioner.

A.

Overview of the Case
Plaintiff filed an application for Supplemental Security Income (SSI). This was denied,

both initially and upon reconsideration. Thereafter, Administrative Law Judge (ALJ) Henry
Kramzyk conducted a hearing at which both a vocational expert and Plaintiff testified. Plaintiff
was represented by counsel at this hearing.
The ALJ ultimately denied Plaintiff’s claim and issued a written opinion to that effect.
The Appeals Council subsequently declined to review the ALJ’s decision, rendering it final
agency action. See 5 U.S.C. § 704; 20 C.F.R. § 416.1481. Plaintiff seeks judicial review of this
denial.

B.

Standard of Review
This Court has authority to review the Commissioner’s decision under 42 U.S.C.

§§ 405(g) and 1383(c)(3). The Court must ensure that the ALJ has built an “accurate and logical
bridge” from evidence to conclusion. Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). The
Court will uphold decisions that apply the correct legal standard and are supported by substantial
evidence. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008).

C.

Disability Standard
The Commissioner follows a five-step inquiry in evaluating claims for disability benefits

under the Social Security Act:
(1) whether the claimant is currently employed; (2) whether the claimant has a
severe impairment; (3) whether the claimant’s impairment is one that the
Commissioner considers conclusively disabling; (4) if the claimant does not have
a conclusively disabling impairment, whether he can perform his past relevant
work; and (5) whether the claimant is capable of performing any work in the
national economy.
Kastner v. 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).

D.

Analysis
Plaintiff’s alleges a solitary error in the ALJ’s decision: he failed to give proper weight to

the opinion of Dr. Luella Bangura. (Pl.’s Br. at 17–24.) In his decision, the ALJ gave Dr.
Bangura’s opinion “no weight” because it was inconsistent with the findings of record as well as
Dr. Bangura’s own findings regarding Plaintiff’s capabilities. (R. at 26.) Plaintiff asserts Dr.
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Bangura’s opinion, as the only opinion from an examining source, should have been given the
most weight of all medical opinions in the record. (Pl.’s Br. at 19.) Alternatively, and on the
basis of the same reasoning, Plaintiff contends Dr. Bangura’s opinion should have at least been
given some weight. (Pl.’s Br. at 23.)
The Administration is required to consider all opinions regarding a claimant’s disability.
20 C.F.R. § 404.1527(c) (“Regardless of its source, we will evaluate every medical opinion we
receive.”); see also Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) (“Weighing
conflicting evidence from medical experts . . . is exactly what the ALJ is required to do.”). When
different medical opinions conflict, however, it becomes necessary to weigh them against each
other. See generally 20 C.F.R. § 404.1527(c).
The parties here do not contest that Dr. Bangura constitutes an “acceptable medical
source” who gave a “medical opinion” within the definitions provided by 20 C.F.R. § 1513(a)(1)
and § 404.1527(a)(2). Nor do the parties contest Dr. Bangura’s classification as an “examining
source” with no “treating relationship.” See 20 C.F.R. § 404.1527(c)(1); see also (R. at 338 (Dr.
Bangura’s own notes emphasizing the lack of a treating relationship between Plaintiff and
herself).) The issue, then, is what weight, if any, a medical opinion is entitled to merely by virtue
of being the only examining source in the record.
Medical opinions from examining sources are generally given more weight than those
from non-examining sources. 20 C.F.R. § 404.1527(c)(1). Unlike Subsection (c)(2), which
considers treating sources and the requirements for giving such sources controlling weight,
Subsection (c)(1) only presents an examining relationship as one of the numerous factors to
consider when weighing medical opinions. 20 C.F.R. § 404.1527(c). Other weighing factors
include the supportability of the opinion ((c)(3)), the consistency of the opinion with other

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evidence ((c)(4)), the relevant specialization of the source ((c)(5)), and “other factors,” such as
how well the source understands disability programs ((c)(6)).
These regulations would suggest the ALJ is only required to consider an opinion from the
only examining source by weighing it with all the other factors in Subsection (c). This is
Defendant’s contention. (Resp. at 8.) The Seventh Circuit, however, has provided more specific
guidance on the issue: An ALJ may only reject an examining physician’s opinion for reasons
supported by substantial evidence in the record; a contradictory opinion of a non-examining
physician does not, by itself, suffice. Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). The
case Gudgel cites for this proposition, Moore v. Barnhart, 279 F.3d 920, 924 (9th Cir. 2002),
adds the requirement that such reasons given must be both “specific” and “legitimate” to support
a rejection of an examining physician’s opinion in favor of a non-examining one. See also Dogan
v. Astrue, 751 F. Supp. 2d 1029 (N.D. Ind. 2010) (reversing the decision of an ALJ, inter alia, for
failure to explain why he adopted the non-examining medical expert’s opinion over the opinions
of examining sources).
Additionally, the ALJ’s decision must be based on all relevant evidence and must
articulate, at some minimal level, his analysis of the evidence. Herron v. Shalala, 19 F.3d 329,
333 (7th Cir. 1994). The ALJ may not select and discuss only the evidence which favors his
ultimate conclusion. Id.
Here, Dr. Bangura was of the opinion that Plaintiff was able to lift or carry less than 10
pounds frequently, more than 10 pounds occasionally, and handle objects for at least 2 hours; but
was unable to stand, walk, or sit for at least 2 hours; and had limitations in memory and
understanding, sustained concentration, and social interaction. (R. at 26, 341.) The ALJ gave this
opinion no weight because:

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[It] is not consistent with the findings of record, including the findings by Dr.
Brown on psychological consultative examination, or the findings of the
claimant’s pain specialist, Dr. Bigler (Ex. 10F, 25F). Further, Dr. Bangura’s
opinion is inconsistent with her own good findings on examination of normal gait
and station, ability to bend over 75%, 5/5 muscle strength in all muscle groups
tested, 5/5 hand grip and normal fine finger movements (Ex. 18F/3–4).
(R. at 26.) Because Gudgel makes clear that a medical opinion from an examining source may
not be rejected merely because it is inconsistent with an opinion from a non-examining source,
this Court may not uphold the ALJ’s rejection of Dr. Bangura’s opinion merely for being
inconsistent with the opinions of Doctors Brown and Bigler. See Gudgel, 345 F.3d at 470.
Furthermore, because the ALJ must articulate his reasoning in such a way that allows a
reviewing court to follow it, and because the apparent internal inconsistency of Dr. Bangura’s
opinion was the only other reason the ALJ provided for affording it no weight, this Court may
only uphold the ALJ’s decision if all the cited inconsistencies together—or the internal
inconsistencies alone—constitute substantial evidence supporting the decision to afford Dr.
Bangura’s opinion no weight. See Clifford v. Apfel, 227 F.3d 863, 874 (2000) (“For meaningful
appellate review . . . we must be able to trace the ALJ's path of reasoning.”)
In finding Dr. Bangura’s opinion inconsistent with her own findings, the ALJ ostensibly
compared Bangura’s findings (that Plaintiff had normal gait and station, ability to bend over
75%, 5/5 muscle strength in all muscle groups tested, 5/5 hand grip and normal fine finger
movements) with her conclusion (that Plaintiff could lift or carry less than 10 pounds frequently,
lift or carry more than 10 pounds occasionally, and handle objects for at least 2 hours; could not
stand or walk for at least 2 hours, nor sit for at least 2 hours; and had limitations in memory and
understanding, sustained concentration, and social interaction) and found them inconsistent with
each other. The Court finds it difficult to see which of Dr. Bangura’s fairly mild findings
substantiate the relatively severe limitation conclusions.
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At first glance, an ALJ finding a medical opinion internally inconsistent might appear
dangerously close to a medical conclusion, which the ALJ is not entitled to make. See Rohan v.
Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play
doctor and make their own independent medical findings.”). This Court, however, has previously
upheld an ALJ’s decision to reject an examining doctor’s conclusions where the ALJ found the
doctor’s conclusions were inconsistent with his own examination findings and the medical
evidence of record. See Vanschoyck v. Astrue, No. 3:08-CV-350-JVB, 2009 WL 2840953, at *11
(N.D. Ind. Sept. 2, 2009). This decision was affirmed because these sorts of inconsistency
determinations are not medical opinions that the doctor is wrong; rather, they are legal
determinations of how to weigh conflicting evidence. See Young v. Barnhart, 362 F.3d 995, 1001
(7th Cir. 2004) (“Weighing conflicting evidence from medical experts . . . is exactly what the
ALJ is required to do.”).
Here, the ALJ gave no weight to Dr. Bangura’s opinion because it conflicted with three
other pieces of evidence in the record: Dr. Brown’s opinion, Dr. Bigler’s opinion, and Dr.
Bangura’s own findings. (R. at 26.) When considered together, this evidence is substantial
enough to support the ALJ’s decision to afford no weight to the opinion of an examining source.

E.

Conclusion
For the reasons stated above, the Court affirms the Commissioner’s decision.

SO ORDERED on February 16, 2017.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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