REED v. ASTRUE

Filing 24

ORDER on Judicial Review. For the reasons detailed in this Entry, the conclusion reached by the ALJ is supported by substantial evidence. Accordingly, the decision of the ALJ is AFFIRMED. (S.O.). Signed by Judge Sarah Evans Barker on 2/23/2012.(MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

CLARENCE A. REED,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.

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1:10-cv-1226-SEB-DKL

ENTRY

Clarence A. Reed (“Reed”) seeks judicial review of a final decision by the
Commissioner of the Social Security Administration (“Commissioner”) denying his
application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security
Act (the “Act”). See 42 U.S.C. §§ 416(i); 423(d). For the reasons detailed below, the
judgment is AFFIRMED.
Applicable Standard
To be eligible for DIB, a claimant must prove he is unable to engage in any
substantial gainful activity by reason of a medically determinable physical or mental
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 twelve months. 42 U.S.C. §§
423(d)(1)(A); 1382c(a)(3)(A). To establish disability, the plaintiff is required to present

medical evidence of an impairment that results “from anatomical, physiological, or
psychological abnormalities which can be shown by medically acceptable clinical and
laboratory diagnostic techniques. A physical or mental impairment must be established
by medical evidence consisting of signs, symptoms, and laboratory findings, not only by a
claimant’s statement of symptoms.” 20 C.F.R. §§ 416.908; 404.1508.
The Social Security Administration (“SSA”) has implemented these statutory
standards in part by prescribing a “five-step sequential evaluation process” for
determining disability. 20 C.F.R. §§ 404.1520 and 416.924. If disability status can be
determined at any step in the sequence, an application will not be reviewed further. Id.
At the first step, if the claimant is currently engaged in substantial gainful activity, then
he is not disabled. At the second step, if the claimant’s impairments are not severe, then
he is not disabled. A severe impairment is one that “significantly limits [a claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c) and
416.924(c). Third, if the claimant’s impairments, either singly or in combination, meet or
equal the criteria of any of the conditions included in the Listing of Impairments, 20
C.F.R. Part 404, Subpart P, Appendix 1, then the claimant is deemed disabled. The
Listing of Impairments are medical conditions defined by criteria that the Administration
has pre-determined are disabling. 20 C.F.R. § 404.1525. If the claimant’s impairments
do not satisfy a Listing, then his residual functional capacity (“RFC”) will be determined
for the purposes of the next two steps. RFC is a claimant’s ability to do work on a regular
and continuing basis despite his impairment-related physical and mental limitations. 20
2

C.F.R. §§ 404.1545 and 416.945. At the fourth step, if the claimant has the RFC to
perform his past relevant work, then he is not disabled. Fifth, considering the claimant’s
age, work experience, and education (which are not considered at step four), and his RFC,
he will not be determined to be disabled if he can perform any other work in the relevant
economy. The claimant bears the burden of proof at steps one through four, and at step
five the burdens shifts to the Commissioner. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d
345, 352 (7th Cir. 2005). The task a court faces in a case such as this is not to attempt a
de novo determination of the plaintiff’s entitlement to benefits, but to decide if the
Commissioner’s decision is supported by substantial evidence and otherwise is free of
legal error. Kendrick v. Shalala, 998 F.2d 455, 458 (7th Cir. 1993). “Substantial
evidence” has been defined as “‘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) (quoting Consolidated Edison v. NLRB,
305 U.S. 197, 229 (1938)).
On December 8, 2006, Reed filed an application for DIB, alleging disability since
December 24, 2005, due to seizures, epilepsy, hypertension, heart disease, and sleep
apnea. Reed’s DIB application was denied initially and upon reconsideration and he
subsequently requested a hearing with an administrative law judge. On July 15, 2009, a
hearing was held before the Administrative Law Judge (“ALJ”), during which Reed, who
was represented by counsel, testified. At step one of the sequential evaluation process,
the ALJ found that Reed had been unable to engage in substantial gainful activity since
3

his onset date. At step two, the ALJ found that Reed suffered from the severe
impairments of seizure disorder and heart disease. At step three, the ALJ found that Reed
does not have an impairment or combination of impairments that either meet or medically
equal any of the conditions in the Listing of Impairments.
The ALJ found that Reed has the RFC to perform limited “light” work, with the
following restrictions: lift and carry twenty pounds occasionally and ten pounds
frequently and push or pull within those restrictions; no limitation on ability to sit and can
stand or walk for up to six hours in an 8-hour workday; occasionally climb ramps or
stairs, kneel, crouch, crawl, or stoop; frequently balance; must avoid climbing ladders,
ropes, and scaffolds; avoid extreme heat, extreme cold, extreme high humidity, dangerous
moving machinery, unprotected heights and unprotected bodies of water. At step four,
the ALJ found that Reed is unable to perform his past relevant work, which was as a
correctional officer. At step five, the ALJ found that, considering Reeds’s RFC, age (59
at the hearing date), education (at least a high school education), and work experience,
and relying on the Medical-Vocational Guidelines, there were a sufficient number of jobs
in the national economy that Reed could perform. Therefore, the ALJ found that Reed
was not disabled and not entitled to benefits.
Evidence
Plaintiff’s Medical History. On December 24, 2005, Reed was admitted to St.
John’s Hospital after he experienced three syncopal episodes in the two months prior. At
that time, Reed reported that he had recently suffered from brief episodes in which he lost
4

consciousness or felt as if he were going to lose consciousness that were preceded by
nausea. A CT scan of Reed’s brain was negative, except for evidence of old ischemic
changes in the cerebellar region. R. at 288. An MRI of Reed’s brain revealed no acute or
active processes, but showed some residuals of previous ischemic type infarct over the
cerebellum and small vessel ischemic change in the cerebrum. R. at 277. An EEG was
negative and there was no evidence of masses or clots in Reed’s brain. R. at 261, 288.
Reed was diagnosed with recurrent syncope of undetermined etiology. R. at 288.
Reed was transferred from St. John’s to the Heart Center of Indiana on December
27, 2005. At the Heart Center, Reed underwent a cardiac catheterization, which
demonstrated 70% proximal stenosis requiring stenting. R. at 174. Reed then underwent
a stenting procedure with an optimal angiographic result. Id. On December 30, 2005,
Reed was discharged from the Heart Center. He was diagnosed with recurrent syncope
(possible seizure disorder) and had multiple risk factors for coronary artery disease
following the cardiac catheterization and stenting. Id. Reed was prescribed Trileptal, an
anticonvulsant medication, to help control his seizures, and was discharged in stable
condition. R. at 288-89.
On January 5, 2006, Reed saw his treating physician, George Agapios, M.D., a
board-certified physician in family medicine, for a follow-up after his hospitalization.1
Dr. Agapios diagnosed Reed with syncope and coronary artery disease and recommended

1

Dr. Agapios had been treating Reed since March 2005.
5

a neurological consultation, but noted that Reed had not experienced any syncopal
episodes since starting his medication. R. at 239. On Dr. Agapios’s recommendation,
Reed was examined by Loretta VanEvery, M.D., a neurologist, in January 2006. Reed
reported that he had not experienced any episodes of nausea, alterations of consciousness,
or confusion since he started taking Trileptal and Dr. VanEvery’s examination did not
reveal any significant abnormal findings. R. at 283. Dr. VanEvery diagnosed Reed with
complex partial epilepsy and opined that he should not drive until he was seizure-free for
at least two months, and that he should not climb to heights, take a tub bath, or engage in
any other dangerous activities. Id.
Dr. VanEvery also expressed concern regarding Reed’s ability to perform his
occupation as a correctional officer. She stated that, although Reed’s seizures appeared at
that point to be well-controlled with Trileptal, it would be impossible to be certain that
Reed would never have a breakthrough seizure. Given that his job as a correctional
officer involved carrying a weapon and being around dangerous inmates, Dr. VanEvery
stated that Reed might need to consider medical retirement in light of his epilepsy
diagnosis. R. at 284. Dr. VanEvery recommended that Reed see James Zhang, M.D., a
neurologist, for ongoing treatment. Id.
In February 2006, Reed was again examined by Dr. Agapios. At that time, Reed
complained of seizures with occasional disorientation and increased fatigue. Dr. Agapios
diagnosed Reed with seizure disorder. Reed was prescribed Trileptal for the seizure
disorder, Vytorin, which is indicated in the treatment of hypercholesterolemia and
6

hyperlipidemia, and Toprol, for hypertension. R. at 237.
On February 14, 2006, Reed was seen by Dr. Zhang. Reed complained of
decreased memory, headaches, and snoring at night. After examining him, Dr. Zhang
diagnosed Reed with epilepsy, obstructive sleep apnea (“OSA”), and tension headaches.
Dr. Zhang recommended that Reed continue to take Trileptal, that he undergo a video
EEG, and that he refrain from driving. R. at 271. Reed underwent long-term video EEG
monitoring for a four day period between April 24, 2006 and April 28, 2006, under the
supervision of Dr. Zhang. Reed continued to take Trileptal during the observation period
and the EEG monitoring did not reveal any epileptic events. R. at 275.
On March 28, 2006, at the request of Dr. Zhang, Reed was evaluated by James
Milligan, M.D., a board-certified otolaryngologist. Dr. Milligan noted that Reed had a
history of obstructive sleep apnea. An examination revealed moderate palate
enlargement, which Dr. Milligan recommended be corrected through surgery. On June
12, 2006, Reed underwent such surgery, which included epiglottoplasty.
Reed returned to Dr. Zhang for a follow-up evaluation in May 2006. Reed
reported that he had not experienced any more seizures since starting his Trileptal
medication and stated that he believed his problems were due to stress from his work as a
correctional officer. Reed inquired whether he could retire earlier. Dr. Zhang
recommended that Reed continue to take Trileptal and that he reduce his level of stress.
At that time, Dr. Zhang also indicated that Reed might benefit from early retirement from
his stressful duties as a correctional officer. R. at 518.
7

On August 22, 2006, Reed told Dr. Zhang that he had experienced a couple of
seizures after trying to reduce his dosage of Trileptal for financial reasons, but that once
he resumed his prescribed dosage of the medication, he had not experienced any other
epileptic episodes. Dr. Zhang recommended that Reed continue taking the prescribed
dosage of Trileptal. R. at 235. On November 16, 2006, Reed reported that, although he
had not experienced any more seizures since he had resumed taking the prescribed dose
of Trileptal, he had been experiencing mild, partial hand tremors over the prior four years.
Dr. Zhang recommended that Reed increase his dosage of Trileptal. R. at 234.
On December 14, 2006, Dr. Agapios completed a “Seizures Impairment
Questionnaire” for Reed. Dr. Agapios made it clear on the form that Reed’s seizure
disorder was primarily being treated by a neurologist. However, Dr. Agapios stated that
Reed had complex partial seizures with his most recent seizures occurring on December
8, 2006, September 13, 2006, and February 10, 2006. R. at 326. Dr. Agapios also noted
that Reed’s seizures were associated with loss of consciousness and an inability to always
take safety precautions before a seizure occurred, that the seizures did not occur at any
particular time of the day, that they were associated with urinary or fecal incontinence,
and that they were followed by a period of about an hour of “feeling drunk” and
disoriented. R. at 326-27. Reed’s seizures were exacerbated by stress or when he forgot
to take his medication. R. at 326. Dr. Agapios opined that Reed’s prognosis was poor at
his job as a correctional officer and that Reed was unable to perform jobs that required
him to work at heights or with machines that required an alert operator and that working
8

around dangerous individuals would exacerbate his stress, which would cause increased
seizure activity. Thus, Dr. Agapios opined that Reed would need a low stress
environment in which to work and that he would be absent from work, on average, more
than three times a month as a result of his impairments and/or treatment. R. at 329.
In January 2007, Dr. Zhang completed a narrative report regarding Reed’s
epilepsy. Dr. Zhang stated that Reed’s seizures were manifested as a loss of
consciousness followed by confusion, disorientation, and headache. Dr. Zhang also
stated that Reed complained of poor memory. In that report, Dr. Zhang noted that Reed
had been prescribed Trileptal, which had helped decrease the seizures, but had not
eliminated them. Dr. Zhang indicated that he had advised Reed not to drive and had
recommended that he avoid climbing, operating heavy machinery, and swimming. Dr.
Zhang also stated that Reed’s job as a correctional officer was demanding and that the
stress could make his seizures worse. Finally, Dr. Zhang opined that Reed was disabled
and could not work for at least twelve months. R. at 351.
Also in January 2007, Dr. Zhang completed a “Seizures Impairment
Questionnaire” form provided by Reed’s attorney. Dr. Zhang reported that Reed had
epilepsy with complex partial seizures with or without secondary generalization, citing
the EEG completed on December 27, 2005 in support of the diagnosis. R. at 352. Reed’s
seizures were described as lasting up to forty-five minutes if not generalized, exacerbated
by stress, and accompanied by confusion, disorientation, and headaches. R. at 253.
Although Dr. Zhang indicated that Reed experienced seizures once or twice per month, he
9

also reported that Reed had not experienced a seizure since August 2006. Id. Dr. Zhang
stated that Reed’s symptoms were sufficiently severe to periodically interfere with his
attention and concentration and that Reed could not work at heights, work with heavy
machinery that required an alert operator, or operate a motor vehicle. R. at 354-56. Dr.
Zhang opined that Reed was capable of performing low stress work, but that he would
need to take breaks to rest at unpredictable intervals during an 8-hour workday and that
he would likely be absent from work about once a month due to his condition. R. at 35556. Finally, Dr. Zhang stated that Reed’s impairment was likely to produce “good” and
“bad” days. R. at 356.
On February 12, 2007, Reed returned to Dr. Zhang for a follow-up examination.
At that time, Reed reported that he had not had any grand mal seizures but that he
experienced occasional “dizziness” and a “spinning sensation” approximately one to two
times per month when he was stressed. R. at 525-26. Dr. Zhang’s neurological and
motor examinations were within normal limits and he recommended that Reed continue
taking Trileptal. R. at 525.
On February 28, 2007, Reed presented to Dr. Wail Bakdash for a consultative
medical examination. Reed reported a history of coronary artery disease with stent
placement, sleep apnea, and seizures, but stated that he had not had a seizure in the three
months prior to the examination. R. at 313. Dr. Backdash diagnosed Reed with a history
of epilepsy, hypertension, coronary artery disease, sleep apnea, and hyperlipidemia. R. at
314. Dr. Backdash’s physical examination did not reveal any significant clinical findings.
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He opined that Reed was able to sit, stand, and walk normally, that Reed could grasp, lift,
carry, and manipulate objects in both hands and perform repeated movements with both
feet, and that Reed was able to bend over without restriction and squat normally. R. at
314. Dr. Backdash did not offer an opinion as to restrictions or limitations related to
Reed’s seizure disorder. Id.
On March 13, 2007, Reed was evaluated by V. Michael Bournique, M.D., a boardcertified cardiologist. Reed complained of chest pain and difficulty breathing with
exertion. Dr. Bournique recommended a Cardiolite stress test. R. at 461-62. On March
29, 2007, Dr. Bournique noted that a stress study showed possible basal inferolateral
ischemia with an ejection fraction of 50%. R. at 458.
Dr. J. Sands, a state agency reviewing physician, offered his opinion in March
2007 that Reed was able to lift and/or carry 50 pounds occasionally and 25 pounds
frequently, stand and/or walk for about 6 hours in an 8-hour workday, and sit for about 6
hours in an 8-hour workday. R. at 317. Dr. Sands further opined that Reed could
frequently climb ladders and stairs, balance, stoop, kneel, crouch, and crawl, but could
never climb ladders, ropes, or scaffolds, and that, in light of his seizure disorder, Reed
should avoid concentrated exposure to workplace hazards, such as machinery and heights.
R. at 318, 320. In April 2007, Dr. Fernando Montoya, another state agency reviewing
physician, affirmed Dr. Sands opinion. R. at 420.
In May 2007, Reed told Dr. Zhang that he was doing “pretty good” and that he
was not having any more seizures, but that he experienced occasional spinning sensations
11

that lasted for one or two minutes and occurred approximately twice per month. Dr.
Zhang recommended that Reed continue taking Trileptal. R. at 526. In February 2008,
Reed again saw Dr. Zhang and reported that he had not experienced any passing out
spells and that his hand tremors were better. Reed stated that he still experienced
occasional dizziness. Dr. Zhang again recommended that Reed continue taking Trileptal.
R. at 647.
On April 17, 2008, Reed started treatment at the Veterans Affairs Medical Center
(“VAMC”) because he was no longer able to afford his medications from his private
health care providers. Reed stated that he had still been taking his Trileptal because he
had received a lot of samples, but that his supply would run out the next day. Reed
complained of lightheadedness when he stood up in the mornings and a brief episode in
which the right side of his face and upper extremity felt slightly numb which was
accompanied by a headache. He reported that his last seizure had occurred more than one
year prior. R. at 625. A CT scan of Reed’s brain revealed no acute intracranial
abnormality. The attending physician diagnosed a history of coronary artery disease
status-post stent placement, a history of seizures, and hyperlipidemia. R. at 627.
Reed came to the neurology clinic at the VAMC in June 2008 for an initial
consultation regarding his seizure disorder. Reed reported that he had experienced
approximately ten seizures over a two to three day hospital stay in December 2005,
during which he thought he lost consciousness, but that he had not lost consciousness
from a seizure since mid-2006. R. at 612. The attending physician’s neurological and
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motor examinations were unremarkable. The attending physician noted that Reed had
been off his Trileptal medication for two months and, while Reed reported that he had
experienced some tremors in his left hand and some feelings of lightheadedness, he had
not suffered any seizures during that time. Id. Because Reed had been off Trileptal for
two months without incident, the attending physician recommended that Reed switch to
Keppra, another medication indicated for the treatment of seizures, because it required
less frequent dosages. R. at 613.
On September 24, 2008, Reed returned to the VAMC neurology clinic for a
follow-up appointment. Reed reported that he had experienced mild lateral chest pain
during the few weeks prior to the examination, but that he no longer experienced any such
pain. He stated that he had one aura episode approximately one month earlier, but that he
had not experienced any seizures. Reed stated that he was comfortable with the treatment
and his Keppra prescription was renewed. R. at 597. At his next visit, on October 29,
2008, Reed complained of increased irritability and an increase in the number of
headaches he experienced since he began taking Keppra. Toan R. Vu, M.D., a boardcertified internist, noted that Reed had not experienced any seizures during the past year
and advised Reed to decrease his dose of Kappra, as irritability and headaches could
possibly be side effects of the medication. R. at 593. On February 11, 2009, Reed
reported that he still had one aura episode approximately every three months, but that he
had not experienced any seizures. The attending physician recommended that Reed
continue taking Keppra at the lower dosage.
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In February 2009, Reed presented to Dr. Vu for a follow-up appointment. Reed
reported that the decreased Keppra dosage resulted in improvements in his irritability and
frequency of headaches. Reed had not experienced any new seizures and he also denied
having any new symptoms of headaches, syncope, vision disturbances, or irritable
behavior. However, Reed reported that he had recently experienced an episode of severe
chest pain that dissipated rather quickly, but caused him to have to sit down. R. at 722.
Reed stated that, since that time, he had been able to play video games without
experiencing any similar chest pain symptoms. Dr. Vu recommended that Reed undergo
a stress test. R. at 723-24. A stress test was performed on March 25, 2009, which
revealed periods of significant dyspnea (labored or difficult breathing) and shoulder
discomfort. R. at 720-21.
Dr. Vu completed a “Cardiac Impairment Questionnaire” dated April 28, 2009.
On that form, Dr. Vu indicated that Reed had been diagnosed with coronary artery disease
and that his prognosis was good. Clinical findings included chest pain, shortness of
breath, fatigue, dizziness, and sweatiness. Dr. Vu indicated that Reed’s primary
symptoms, to wit, chest pain and discomfort associated with shortness of breath, were
exacerbated by stress, physical exertion, and cold and hot weather. R. at 682-83. Dr. Vu
opined that Reed could sit for 8 hours and stand and/or walk for one hour in an 8-hour
work day, that he could lift up to 50 pounds occasionally and up to 10 pounds frequently,
that he should avoid temperature extremes, humidity, fumes, gases, dust, and heights, and
that he could not perform any kneeling, bending, or stooping. R. at 684-86. Dr. Vu
14

further opined that Reed was only capable of low stress work because stress increased his
symptoms. R. at 686.
On April 29, 2008, after reviewing the results of Reed’s March 2009 stress test,
Dr. Vu opined that there was no evidence of inducible ischemia. R. at 718. At that time,
Reed reported that he had not experienced any episodes of chest pain since his prior visit,
but complained of mild tightness in his chest. Reed denied having any radiation of chest
tightness, any associated shortness of breath, palpitations, or dizziness. Reed stated that
he felt his stamina was improving and that he was walking 1 to 1.5 miles per day with his
dog. Dr. Vu noted that Reed’s cardiac symptoms were mild and that he had a good
degree of exercise capacity that was continuing to improve. With regard to his epilepsy,
Reed reported that he had not experienced any further seizures and that he no longer had
headaches or increased irritability on his lower dosage of Keppra. R. at 717.
Medical Expert Testimony. Paul Boyce, M.D., provided expert medical
testimony at Reed’s administrative hearing. Dr. Boyce testified that the record indicated
that Reed’s impairments included a history of coronary artery disease, a history of
seizures, obstructive sleep apnea, back pain, and obesity. R. at 61, 64, 66. With regard to
the Reed’s epilepsy, Dr. Boyce testified that diagnostic testing did not reveal evidence of
a seizure focus and that the medical treatment notes in the record indicated that Reed had
not experienced any seizures while on medication and that Reed’s seizure disorder had
not occurred with any frequency since August 2006 when Reed had attempted to reduce
the dosage of his prescribed Trileptal medication. R. at 64, 66.
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At the hearing, Dr. Boyce testified that Reed was capable of lifting and/or carrying
20 pounds occasionally and 10 pounds frequently, standing and/or walking for up to 6
hours per 8-hour workday, and sitting without restriction. Dr. Boyce opined that, based
on Reed’s cardiac issues, he was limited to light exertional work with only occasional
climbing of ramps and stairs, kneeling, crouching, crawling, and stooping, and infrequent
balancing. Because of Reed’s history of coronary artery disease, Dr. Boyce also stated
that he (Reed) should avoid extremes of heat, cold, and high humidity. Dr. Boyce further
testified that, in light of Reed’s history of seizures, he could not climb ropes, ladders or
scaffolds, and that he needed to avoid dangerous moving machinery, unprotected heights,
and unprotected bodies of water. R. at 67-68.
Vocational Expert Testimony. Ray Burger, a vocational expert, testified at
Reed’s administrative hearing that an individual who was limited to light work with the
restrictions identified by Dr. Boyce would be capable of performing the job of a security
guard and that there were 3,450 such positions in the State of Indiana. R. at 69-70.
However, Mr. Burger also testified that, if an individual was unable to handle stressful
situations, he would be unable to work as a security guard. R. at 73-74.
Plaintiff’s Testimony. At the administrative hearing, Reed testified that, while he
no longer experienced seizures, he continued to have auras two to three times per month.
During these episodes, Reed stated that he became dizzy and felt lightheaded and
“tingly.” In order to prevent a seizure from following the aura, Reed testified that his
doctors had instructed him to sit down and relax or sleep, if possible. According to Reed,
16

his auras usually occurred when he was frustrated or angry, that they lasted anywhere
from 15 to 20 minutes and that he needed to rest for approximately 30 minutes before he
recovered. R. at 71. Reed stated that he would be unable to perform a job as a security
guard because he would need to leave his post to reset whenever he experienced an aura
and that he would useless if anyone tried to break-in because he had back problems and
anger issues. R. at 72.
Reed reported that his activities of daily living included cleaning his house, doing
laundry, and caring for a dog, and that he also painted ceramics at his home as a hobby.
He shared responsibilities with his son washing the dishes and cooking. Reed testified
that he was able to drive a motor vehicle, but not more than five or six miles at a time.
Finally, Reed stated that he had to reduce the dosages of his medications because they
otherwise caused the side-effect of extreme anger. R. at 56-59.
Discussion
Reed contends that the ALJ erred in determining his RFC by improperly
discounting the opinions of the treating sources who opined that he was only capable of
handling “low stress” work. Reed also argues that the ALJ improperly evaluated his
credibility. Finally, Reed contends that the ALJ erred by relying on incomplete testimony
from the vocational expert at Step 5. We address these arguments in turn.
Treating Physician Rule. Reed contends that in this case the ALJ erred when
making his RFC assessment by failing to properly consider the opinions of Reed’s
treating physicians. According to Reed, the critical distinction between the opinions of
17

his treating physicians and the ALJ’s RFC determination relates to whether he is able to
perform stressful work. Reed’s treating sources – Drs. Vu, Zhang, and Agopios – each
opined that Reed is limited to low stress work. However, the ALJ did not include such a
limitation in his RFC, instead giving significant weight to the opinion of the nonexamining medical expert, Dr. Boyce, who opined regarding Reed’s work capacity and
functional limitations, but did not provide an opinion as to the level of stress Reed could
handle in the workplace.
Under SSA rules, if an ALJ fails to give a treating source’s opinion “controlling
weight,” the ALJ’s written decision “must contain specific reasons for the weight given to
the treating source’s medical opinion, supported by evidence in the case record, and must
be sufficiently specific to make clear to any subsequent reviewers ... the reasons” why the
ALJ discounted the opinion. SSR 96-2p. Here, the ALJ provided an adequate
explanation for his decision affording Reed’s treating sources less weight. In his
decision, the ALJ noted that he had given less weight to the opinions of the treating
physicians because they either focused largely on the December 2005 episode, which
occurred before Reed began taking medication to treat his seizure disorder, or on his
symptoms in August 2006, which was near the time that he reduced his medication
dosage without consulting his physicians. The treatment notes in the record indicate that
once Reed again began taking the full dosage of his medication, he did not suffer another
seizure. In light of these facts, it was reasonable for the ALJ to give lesser weight to the
treating sources’ opinions about Reed’s RFC and to conclude that not all of the
18

limitations endorsed by Reed’s treating physicians were supported by medical evidence.
In his decision, the ALJ specifically addressed the opinions of Drs. Vu, Zhang, and
Agopios regarding Reed’s ability to handle stress. Each of the doctors completed
impairment questionnaire forms for Reed that addressed a range of issues pertaining to his
residual functional capacity. One of the questions dealt with the degree to which Reed
could handle work stress. Each of the three treating physicians checked a box to indicate
that he was only capable of performing “low stress” work. The ALJ noted that Reed’s
treating sources had so opined, but concluded from the narrative portions of the doctors’
opinions that their concerns were related to Reed’s past work as a corrections officer.
This conclusion is supported by substantial evidence. For example, Dr. Agapios
explained that Reed had reported a “loss of function” with moderate to high stress, noting
that “[b]eing around dangerous people2 increases stress which precipitates seizures.” R.
at 328. In a narrative letter, Dr. Zhang stated that Reed’s “job [as a correctional officer] is
very demanding and the stress can make his seizure worse.” R. at 351. Dr. Zhang’s
treatment notes also indicate that Reed had reported that he believed that the stress from
his past work as a correctional officer had contributed to his seizure problems. R. at 518.
Because the opinions of Reed’s treating physicians appear to be based on events
which occurred before he had initiated medication therapy and there is no evidence in the
record that he suffered a seizure as a result of stress once he began treatment, we find that

2

Presumably this refers to the conditions of Reed’s work as a correctional officer.
19

substantial evidence supports the ALJ’s conclusion that a limitation to low stress work
was not supported by the medical evidence as well as his decision to instead give greater
weight to the testimony of the medical expert, Dr. Boyce, in assessing Reed’s RFC.
Reed argues that in making the RFC determination the ALJ improperly took Dr.
Boyce’s silence on Reed’s ability to tolerate stress to be an opinion that Reed had no
restrictions in this area. It is true that an ALJ errs when he interprets a doctor’s silence as
support for a finding that the claimant suffers from no functional limitations in
circumstances in which the doctor does not render any opinion whatsoever about the
claimant’s work capacity. See, e.g., Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir.
2001); Rosa v. Callahan, 168 F.3d 72, 82 (2d Cir. 1999); Allen v. Bowen, 881 F.2d 37,
41 (3d Cir. 1989). Here, however, Dr. Boyce provided a detailed opinion about Reed’s
work capacity and opined as to the functional limitations he believed were supported by
the medical evidence of record. R. at 67-68. In these circumstances, where Dr. Boyce
addressed various functional limitations that he did believe were supported by the medical
evidence and did not include a limitation as to stress, it is an indication that he did not
believe such a limitation was warranted. While an ALJ may not “play doctor” by
substituting his opinion for that of a physician, it is the duty of the ALJ to weigh the
evidence and make reasonable inferences from the record. See Young v. Barnhart, 362
F.3d 995, 1001 (7th Cir. 2004); Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th
Cir. 2003). For the reasons detailed above, we find that the there is substantial evidence
to support the ALJ’s RFC assessment and that the ALJ adequately explained his reasons
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for discounting the opinions of Reed’s treating physicians and instead giving substantial
weight to Dr. Boyce’s testimony.
Credibility Determination. Reed next contends that the ALJ improperly
determined that his allegations of disability were not credible. We review an ALJ’s
credibility determination deferentially, in light of the fact that the ALJ is in the best
position to evaluate an applicant’s credibility. Simila v. Astrue, 573 F.3d 503, 517 (7th
Cir. 2009) (citation omitted). We reverse such a determination “only if it is so lacking in
explanation or support that we find it ‘patently wrong.’” Id. (quoting Elder v. Astrue, 529
F.3d 408, 413-14 (7th Cir. 2008)).
Reed first contends that the ALJ erred in his credibility determination by
improperly discounting Reed’s allegations that he is intolerant of stress and by failing to
cite to any evidence to contradict such allegations. However, Reed has failed to point us
to a place in the record where he testified that he was unable to handle stress in the
working environment. When asked during his administrative testimony why he would be
unable to perform a job as a security guard, Reed did not mention the stress related to
such a position, but rather that he would need to be able to sit down if he experienced an
aura of a seizure and that he would not be able to physically restrain someone. Because
Reed did not testify regarding his ability (or lack thereof) to handle a stressful working
environment, we cannot find that the ALJ erred by failing to address as part of his
credibility analysis an allegation that was never made by the Plaintiff during his
administrative testimony.
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Reed also cites the ALJ’s determination that Reed’s assertions about his
limitations “are not credible to the extent they are inconsistent with the above residual
functional capacity assessment,” arguing that such a conclusion is merely “boilerplate.”
It is true that, under Seventh Circuit law, such boilerplate language, by itself, is
inadequate to support a credibility finding. See, e.g., Punzio v. Astrue, 630 F.3d 704, 709
(7th Cir. 2011). Here, however, the ALJ provided specific reasons to support his adverse
credibility finding that are supported by the record. For example, the ALJ pointed to the
fact that, although Reed testified that he was functionally limited by “problems with [his]
back,” the medical records did not show consistent reporting of back problems during the
relevant time period, there was no evidence that Reed pursued treatment for his back
during the relevant time period, and the consultative physical examination indicated that
Reed had normal strength and sensation, full range of motion, and no tenderness in his
spine, and that he was able to sit, stand, bend, squat, and walk normally.
In assessing Reed’s credibility, the ALJ also cited to the fact that Reed’s seizures
were well controlled by medication and that his symptoms were relatively infrequent,
which belied his allegations of disability due to his seizure disorder. Reed argues that the
ALJ erred by failing to consider his testimony that, although he no longer had seizures at
the time, he continued to have auras two to three times a month that required him to sit
down or sleep if possible to prevent a full blown seizure. He testified that these episodes
lasted about 15 to 20 minutes during which he felt dizzy, lightheaded, and “tingly.”
Contrary to Reed’s contention, the ALJ did note Reed’s complaints of dizziness in his
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credibility analysis and took account of that testimony in assessing Reed’s RFC by
limiting him to a range of work that did not involve climbing ladders, ropes, and scaffolds
and did not involve exposure to dangerous moving machinery, unprotected heights, and
unprotected bodies of water. Based on the objective evidence, however, the ALJ
reasonably concluded that Reed’s reports of occasional dizziness were not entirely
credible insofar as establishing proof of his inability to work.
Finally, in making his credibility determination, the ALJ determined that Reed was
active to an extent inconsistent with his allegations of disability. Specifically, the ALJ
pointed to Reed’s report that he played active “Wii” video games including tennis and
bowling without chest pain or other heart problems, and that, despite his reported seizure
disorder, he continued to drive short distances. Reed argues that the ALJ placed undue
weight upon his performance of these daily activities in making his credibility
determination. Although we agree that Reed’s testimony regarding his daily activities by
itself would likely be insufficient to support an adverse credibility finding, for the reasons
detailed above, the ALJ’s determination was based on much more than this testimony
alone. The ALJ cited various medical reports to support his conclusions and sufficiently
explained which of Reed’s statements he did not credit and why. Accordingly, we find
that the ALJ provided an adequate basis for his credibility assessment.
Step Five Finding. Reed contends that the ALJ’s finding at step five is not
supported by substantial evidence because the ALJ did not include a limitation to low

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stress work in the hypothetical question he posed to the vocational expert.3 However, the
ALJ is only required to include in his hypothetical question those impairments and
limitations that he finds credible. See Schmidt v. Astrue, 496 F.3d 833, 845-46 (7th Cir.
2007). For the reasons discussed above, we have found that the ALJ reasonably declined
to adopt a limitation to low stress work in his RFC finding because such limitation was
either not supported by the medical evidence or was based only on his past work as a
correctional officer. Thus, the ALJ was not required to include such a limitation in his
hypothetical presented to the vocational expert. Accordingly, we find no error in the
ALJ’s analysis at step five.
Conclusion
For the reasons detailed above, the conclusion reached by the ALJ is supported by
substantial evidence. Accordingly, the decision of the ALJ is AFFIRMED.
IT IS SO ORDERED.

_______________________________

02/23/2012

Date: _________________________

SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

3

The vocational expert opined that Reed could perform the job of security officer, which
requires the ability to perform effectively under stress.
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Copies to:
Charles E. Binder
BINDER AND BINDER
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Eddy Pierre Pierre
LAW OFFICES OF HARRY J. BINDER AND CHARLES E. BINDER, P.C.
[e-mail]
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SOCIAL SECURITY ADMINISTRATION (SSA) added for
email notification purposes to the SSA General Counsel,
pursuant to A.O. memorandum of 7/19/2007.
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