CALLAWAY v. ASTRUE

Filing 27

ENTRY on Judicial Review. Signed by Judge Larry J. McKinney on 3/22/2012.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

SHERRIE A. CALLAWAY,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,
Defendant.

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1:10-cv-01245-LJM-TAB

ENTRY ON JUDICIAL REVIEW
Pending before the Court is plaintiff’s, Sherrie A. Callaway (“Callaway”), request for
judicial review of a decision made by defendant, Michael J. Astrue (“Commissioner”), in his
capacity as Commissioner of the Social Security Administration, to deny her Social Security
disability benefits from May 6, 2008 forward.

I. BACKGROUND
Callaway was born on June 6, 1958. R. 22.1 She has a high school education. Id.
Her past relevant work includes experience as a cannery worker, closing machine tender,
food assembler, and custodian. Id. At the time of onset of her disability, Callaway was
forty-seven years old and working as a custodian at Center Grove High School. Id.; see
also R. 394–95. She has not worked since February 27, 2006. R. 19.

1

For ease of discussion, citations to the administrative record [Dkt. No. 15] will be denoted by
“R.” followed by the page number.

A. MEDICAL HISTORY
Callaway has a history of back pain that worsened in late 2005 and early 2006. In
November 2005, Callaway had an MRI performed on her lower back. R. 161. The MRI
revealed “some degree of congenital change at L5-S1 with a small spinous process and
perhaps a pars defect[.]” Id. Degenerative changes also were noted at L4-5 and L3-4. Id.
In March 2006, Callaway visited Dr. John Lomas (“Dr. Lomas”) with complaints of
low back, hip, and groin discomfort, primarily on the right side. R. 152. Dr. Lomas noted
tenderness over both SI joints as well as the sciatic notch and trochanters. Id. Her lower
lumbosacral paraspinals were “very tender” on both the left and right sides. Id. Dr. Lomas
recommended physical therapy and SI joint injections. Id. He also prescribed Ultram and
took Callaway off of nonsteroidals. Id.
In May 2006, Callaway had a consultative physical examination. R. 248–50. In
describing her condition, Callaway stated that she was unable to lift more than ten pounds,
stand for more than fifteen minutes, or walk for more than a half an hour. R. 248. The
consultative examiner noted that Callaway did not require an ambulatory assistive device.
Id. Her gait appeared normal, and there was no swelling in any of her joints. R. 249.
Straight leg raise was seventy-five degrees in both legs. Id. She was able to walk on both
heels and toes and squat. R. 250. Her muscle strength was normal bilaterally with no
muscle weakness or atrophy. Id. The consultative physician did note tenderness over
Callaway’s spine and hips. R. 249.
On June 12, 2006, Callaway was seen by Dr. William L. Driehorst (“Dr. Driehorst”)
for worsening low back pain. R. 149. Callaway reported that she had been given injections
in her sacroiliac joints, but these had provided only temporary relief. Id. Dr. Driehorst
2

noted tenderness over the great trochanters and SI joints. R. 150. He further noted that
her forward bending was limited, although her motor, sensory, and neurological exams
were intact. Id. He diagnosed Callaway with chronic lumbar syndrome. R. 151.
On June 29, 2006, Callaway underwent a discogram. R. 312. The discogram was
positive at the L4-5 and L5-S1 levels. R. 313. It revealed significant spread of contrast
from center out to the extreme periphery at L5-S1. Id. It also revealed significant
reproduction of pain at L4-5, somewhat less at L5-S1. Id.
On July 17, 2006, Callaway returned to Dr. Lomas, who opined that she could not
lift over twenty pounds, was limited in bending, and was unable to perform her normal work
duties. R. 361. In another visit with Dr. Lomas on February 14, 2007, he once again noted
tenderness in the trochanters, right SI joint, and the left lumbosacral paraspinal area. R.
360. At that time, Callaway rated her pain a 2 out of 10. Id. He recommended she take
three to four Darvocet on a regular schedule during the day. Id.
On March 5, 2007, Callaway had a another MRI performed on her lumbar spine. R.
341. The MRI revealed a disc protrusion on the right side at L5-S1 with some mass effect
on the thecal sac and right S1 nerve root, as well as several other small disc protrusions.
Id. Additionally, an MRI of her cervical spine revealed degenerative changes at C5-6 with
mild bilateral neural forminal stenosis and a central protrusion at C6-7 with focus of T2
hyperintensity at the posterior aspect of the disc that might represent an annular tear. R.
342.
During a May 8, 2007 appointment with Dr. Lomas, Callaway reported increased mid
and lower back pain. R. 375. She rated her mid back pain as 2 out of 10 and her lower
back pain as 3 out of 10. Id. She reported that pain increased with activity. Id.
3

On July 11, 2007, Callaway had a CT scan performed on her lumbar spine, which
revealed degenerative disc disease primarily at L4-5 and L5-S1. R. 339. The degenerative
changes were most pronounced at L5-S1, where there was a right disc herniation
producing severe right lateral recess compromise. Id. A discogram performed the same
day was positive at L4-5 and L5-S1 but negative at L3-4. R. 356–57.
On September 11, 2007, Dr. James Cole (“Dr. Cole”) performed surgery on
Callaway’s back, including fusions at L4-5 and L5-S1 and decompression of the right S1
nerve root. R. 344–45. Post-operatively, Callaway’s pain was “well controlled” on oral
narcotics, and she was released three days after surgery. R. 355.
On November 1, 2007, during a follow-up visit with Dr. Cole, he noted that Callaway
was neurologically intact. R. 366. Callaway was participating in physical therapy and
taking two pain pills per day. Id. On December 27, 2007, Callaway reported to Dr. Cole
that her pain symptoms had temporary gone away but returned following a severe coughing
episode. R. 365. Her pain was worse with activity but better with sitting, and Darvocet was
effective in lessening her pain. Id. Dr. Cole noted that she was neurologically intact but
lumbar flexion and extension were only to mid-shin. Id.
On January 9, 2008, Callaway reported to Dr. Cole that a Medrol dose pack had
helped her pain symptoms. R. 364. She stated that she was participating in a home
exercise program and doing squats. Id. Two days later, Dr. Cole completed a Physician’s
Supplemental Disability Report and described Callaway’s condition as “improving.” R. 314.
He restricted her to lifting no more than thirty pounds but stated that, with that lifting
restriction, she was able to return to work. Id.
On April 30, 2008, Callaway returned to Dr. Cole complaining of lower back, hip, and
4

right foot pain that increased with activity. R. 363. She did not report any leg pain during
this visit. Id. She also reported that sitting increased the pain in her lower back and hips.
Id. Although surgery did not completely cure her lower back pain, Callaway reported that
it had helped. Id.
On May 7, 2008, following another visit by Callaway, Dr. Lomas reported that
surgery had helped her back “a fair amount,” although she continued to have pain down
her leg and into her right foot. R. 388. Callaway had rated her pain in her right foot as a
3 out of 10, stating that pain increased with bending, walking, and lifting. Id. Dr. Lomas
reported that she had some tenderness in the lumbosacral area over her surgical scar and
was hypersensitive to tactile stimulation, but the scar appeared to be healing well without
significant swelling or color changes. Id. He further reported that lumbar flexion and
extension were uncomfortable, and she had some numbness on the sole and outside of
her right foot, as well as positive straight leg raising on the right side. Id. Dr. Lomas
concluded that Callaway was capable of lifting forty pounds but should have some
restrictions in bending. Id.
On May 16, 2008, Callaway reported to Dr. Lomas that her lower back pain had
decreased and her pain medications were helping. R. 371. In June 2008, Callaway
continued to report improved pain control on Neurontin and Darvocet, rating her lower back
pain a 2 out of 10. R. 370.
On September 17, 2008, Callaway visited Dr. Cole complaining of numbness in her
right buttocks and aching in the bottom of her foot with walking. R. 362. Dr. Cole noted
that x-rays showed healing post-surgery and that Callaway was doing a home exercise
program. Id.
5

B. APPLICATION FOR BENEFITS AND HEARING
On March 26, 2006, Callaway filed an application for disability benefits. R. 16, 92.
This application was initially denied on June 2, 2006, and again upon reconsideration on
July 17, 2006. R. 16, 46–48, 52–55. On July 31, 2006, Callaway filed a timely request for
an administrative hearing. R. 16, 44.
On September 26, 2008, a hearing on Callaway’s application for disability benefits
was held before Administrative Law Judge Andrew Tranovich (“ALJ”). Callaway appeared
in person and by counsel. Also appearing at the hearing were Dr. Paul Schneider (“Dr.
Schneider”), a medical expert, and Michael Blankenship (“Blankenship”), a vocational
expert. R. 389.
Callaway testified that problems with lifting and bending precluded her from work.
R. 397. She stated that she could only lift about five pounds without difficulty, and lifting
a gallon of milk hurt her wrists and elbows. R. 398. She could stand for approximately
fifteen minutes before having to move. Id. Walking is easier, but she could walk for only
about twenty minutes before the pain forces her to stop. Id. Both standing and walking
cause pain on her right side, in particular at her right hip and down her right leg into her
foot. Id. She could sit for fifteen to twenty minutes before her right side begins to bother
her. R. 399. She takes a number of medications, including Lortabs, Lodine, and Paxil. Id.
In describing the activities of a normal day, Callaway testified that she wakes up,
takes her medicine, then drinks coffee and watches television. R. 400. She washes dishes
and goes for a walk at night, then she goes to bed at 7:00PM. Id. She alternates
housework with her husband and adult daughter, who lives with her along with Callaway’s
two grandchildren. Id. Although Callaway occasionally does dishes, she does not vacuum
6

or mop. Id. She washes laundry, but her daughter puts the clothing in the dryer and
removes it. Id. She tries to get out of the house at least two days a week, including going
to the store with family members. R. 401. However, she has problems walking around the
store, so she sits and waits on her family members. Id. She carries light groceries. Id.
Callaway drives to the doctor or the store, but she does not “feel comfortable” driving alone
and usually has her daughter accompany her. Id. Her medications make her tired. Id.
She spends approximately two hours a day “resting,” which usually involves lying in bed.
R. 398, 401–02.
Dr. Schneider, a board certified orthopedic surgeon, testified as an independent
medical expert. R. 407. Dr. Schneider noted that Callaway’s medical records evidenced
degenerative disc disease since at least February of 2006. R. 408. He did not notice any
objective medical evidence supporting Callaway’s complaints of hip pain. Id. He noted that
on May 7, 2008, Dr. Lomas recommended limiting Callaway to forty pounds lifting and
limiting her bending. R. 388, 410. Other than the diagnosis of degenerative disc disease,
Dr. Schneider opined that there were no other clinical findings in Callaway’s medical
records meeting the requirements of Listing 1.04A or any other Listing. R. 411. Dr.
Schneider further noted that, apart from Dr. Lomas’s May 7, 2008, recommendations, no
other physician described work restrictions for Callaway. Id.
Dr. Schneider disagreed with two previous reviewing physicians in Callaway’s file,
both of whom opined that her impairments were non-“severe.” R. 412. He stated that he
believed Callaway’s impairments qualified as “severe.” Id. Dr. Schneider further opined
that, although she would have been “less than sedentary” prior to May 6, 2008, following
her back surgery, Callaway had reached maximum medical improvement.
7

R. 415.

However, he did opine that Callaway could still have some residual numbness. R. 420.
Describing limitations to Callaway’s residual functional capacity (“RFC”) following her
surgery, Dr. Schneider stated that the medical evidence warranted a lifting restriction of
twenty-five pounds, two to four hours of standing or walking per work day, and six to eight
hours of sitting with a break every hour or two at the work site. R. 415–17. Additionally,
he recommended limiting pushing and pulling with the right lower extremity to ten to twenty
pounds, as well as limiting bending to only occasional. R. 417–19. He stated that Callaway
should not be climbing ladders, ropes, scaffolds, although she could occasionally climb
stairs, and that she should avoid heights, moving machinery, vibration, kneeling, crouching,
or crawling. R. 418–20.
Blankenship, a certified rehabilitation counselor, testified as a vocational expert. R.
421. He opined that Callaway’s previous employment as a cannery worker qualified as a
light, unskilled job according to the Department of Labor, although he indicated that
Callaway’s testimony regarding the weight she had to lift might increase the job to a
medium exertion level. R. 422–23. Her job as a janitor was classified as medium and
semi-skilled, although he once again noted that this classification could change based on
the weight she was required to carry. R. 423.
The ALJ asked Blankenship to consider a hypothetical worker with Callaway’s
education and work experience, as well as the limitations indicated by Dr. Schneider. R.
424–25. Blankenship opined that all of Callaway’s past relevant work would be precluded
because of the limitation on standing or walking for more than two hours. R. 425. Prior to
May 5, 2008, Blankenship further opined that the hypothetical worker would be precluded
from all work. R. 426. However, given Dr. Schneider’s proposed limitations after May 6,
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2008, Blankenship indicated that there would be unskilled, light exertion jobs that the
hypothetical worker could perform, including receptionist, information clerk, general office
worker, and administrative support worker. Id. Blankenship admitted that, if in addition to
the limitations provided by Dr. Schneider, the hypothetical worker had to take a thirty
minute break every two hours, all work would be precluded. R. 427.

C. THE ALJ’S DECISION
On December 19, 2008, the ALJ issued a decision on Callaway’s disability claim.
See generally R. 14–27. The ALJ broke Callaway’s claim down into two distinct time
periods: from the onset date until May 5, 2008 (“Period One”), and from May 6, 2008
forward (“Period Two”). R. 16.
For steps one and two, the ALJ determined that the analysis was the same for both
time periods. At step one, the ALJ found that Callaway has not engaged in substantial
gainful activity since February 27, 2006, the onset date of her disability. R. 19. At step two,
the ALJ found that during both periods, Callaway’s chronic back pain, degenerative disc
disease of the cervical and lumbar spine, lumber facet arthropathy, and right lower
extremity radiculopathy qualified as “severe” impairments. R. 20–21.
The ALJ then evaluated steps three, four, and five for each time period. During
Period One, at step three, the ALJ determined that Callaway’s impairments did not meet
or medically equal a Listing. R. 21. Turning to Callaway’s RFC during Period One, the ALJ
determined that Callaway could perform less than sedentary work.

Id.

She could

occasionally lift and carry ten pounds, either stand or walk one hour in an eight-hour work
day, and sit about two hours a day. Id. At steps four and five, the ALJ determined that
9

Callaway’s RFC during Period One rendered her unable to either return to her past relevant
work or adjust to any other work available in the national economy. R. 21–22. The ALJ
determined that Callaway was disabled during Period One. R. 23.
Turning to Period Two, the ALJ concluded that medical improvement occurred as
of May 6, 2008, following surgery. Id. The ALJ concluded based on Dr. Schneider’s
testimony that Callaway’s impairments did not meet or equal a Listing during Period Two.
Id. Addressing Callaway’s RFC during Period Two, the ALJ concluded that she could
perform light work. Id. She could occasionally lift and carry thirty pounds and frequently
lift and carry twenty-five to twenty-nine pounds. Id. She could either stand or walk two
hours in an eight-hour work day without an ambulatory assistive device. Id. She could sit
six to eight hours a day, provided that she would be able to alternate between sitting and
standing for five minutes every one to two hours. Id. Although she could push or pull thirty
pounds with her lower left extremity, her right lower extremity was restricted to ten to twenty
pounds. Id. She could climb ramps and stairs but not ladders, ropes, or scaffolds. Id. She
could occasionally balance, stoop, and bend but never kneel, crouch, or crawl. R. 24.
Additionally, she should avoid all work hazards, including heights, moving machinery, and
vibratory tools. Id.
In light of the RFC determination during Period Two, the ALJ concluded at step four
that Callaway was still unable to return to her past relevant work due to its “exertional
demands.” R. 26. At step five, the ALJ determined that Callaway’s “ability to perform all
or substantially all of the requirements of [light] work has been impeded by additional
limitations.” Id. However, based on Blankenship’s testimony, the ALJ determined that
based on her age, education, experience, and RFC, Callaway could perform some work.
10

Id. In particular, the ALJ pointed to jobs as a receptionist/information clerk, general office
worker, and office/administrative support as light, unskilled jobs that Callaway could
perform even with her limitations. Id. Because sufficient numbers of these positions exist
in Indiana, the ALJ concluded that Callaway was not disabled during Period Two. Id.
On September 10, 2010, the Appeals Council declined to review the ALJ’s decision,
rendering the ALJ’s decision the final decision of the Commissioner. R. 5–7; see also
Hendersen v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999). On October 1, 2010, Callaway filed
this action pursuant to 42 U.S.C. § 405(g) seeking review of the Commissioner’s decision.
Dkt. No. 1.
The Court includes additional facts below as necessary.

II. LEGAL STANDARD
To be eligible for Social Security benefits, a claimant must have a disability under
42 U.S.C. § 423. “Disability” means the inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment that 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). In determining whether a claimant is disabled, the ALJ applies a five-step
process set forth in 20 C.F.R. § 404.1520(a)(4):
1)

If the claimant is employed in substantial gainful activity, the claimant is not
disabled.

2)

If the claimant does not have a severe medically determinable physical or
mental impairment or combination of impairments that meets the duration
requirement, the claimant is not disabled.

3)

If the claimant has an impairment that meets or is equal to an impairment
listed in [20 C.F.R. § 404, Subpart P, Appendix 1] (“Listing”) and satisfies the
11

duration requirement, the claimant is disabled.
4)

If the claimant can still perform the claimant’s past relevant work given the
claimant’s [RFC], the claimant is not disabled.

5)

If the claimant can perform other work given the claimant’s residual functional
capacity, age, education, and experience, the claimant is not disabled.

The burden of proof is on the claimant for the first four steps, shifting to the Commissioner
at the fifth step. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 389 (7th Cir.
1992).
The Social Security Act, specifically 42 U.S.C. § 405(g), provides for judicial review
of the Commissioner’s denial of benefits. When the Appeals Council denies review of the
ALJ’s findings, the ALJ’s findings become findings of the Commissioner. See, e.g.,
Hendersen, 179 F.3d at 512. This Court will sustain the ALJ’s findings if they are supported
by substantial evidence. 42 U.S.C. § 405(g); Nelson v. Apfel, 131 F.3d 1228, 1234 (7th Cir.
1999). In reviewing the ALJ’s findings, the Court may not decide the facts anew, reweigh
the evidence, or substitute its judgment for that of the ALJ. Id. While a scintilla of evidence
is insufficient to support the ALJ’s findings, the only evidence required is “such evidence
as a reasonable mind might accept as adequate to support a conclusion.” Diaz v. Chater,
55 F.3d 300, 305 (7th Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)). In order for remand to be required, the ALJ’s error must have the potential to
effect the ALJ’s ultimate disability determination. See Cottrell v. Astrue, No. 1:10-cv-941,
2011 WL 1343904, at *4 (S.D. Ind. Apr. 6, 2011) (citing Keys v. Barnhart, 347 F.3d 990 (7th
Cir. 2003)) (applying doctrine of harmless error to Social Security administrative
determinations).
The ALJ “need not evaluate in writing every piece of testimony and evidence
12

submitted.” Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993). However, the “ALJ’s
decision must be based upon consideration of all relevant evidence.” Herron v. Shalala,
19 F.3d 329, 333 (7th Cir. 1994). Further, “[a]n ALJ may not discuss only that evidence
that favors his ultimate conclusion, but must articulate, at some minimum level, his analysis
of the evidence to allow the [Court] to follow the path of his reasoning.” Diaz, 55 F.3d at
307. An ALJ’s articulation of his analysis “aids [the Court] in [its] review of whether the
ALJ’s decision was supported by substantial evidence.” Scott v. Heckler, 768 F.2d 172,
179 (7th Cir. 1995).

III. DISCUSSION
The ALJ determined that Callaway was disabled during Period One. R. 23.
Callaway’s challenge to the ALJ decision, therefore, is limited to the ALJ’s conclusion that
she was not disabled during Period Two. In particular, Callaway contends that the ALJ’s
determinations at steps three and five of the five-step process are contrary to law and not
supported by substantial evidence.

A. LISTING 1.04A
Callaway first contends that the ALJ erred in determining that her spinal impairments
failed to meet or equal Listing 1.04A for Disorders of the Spine (“Listing 1.04A”). If a
claimant’s impairments meet or equal a specific impairment listed in 20 C.F.R. § 404,
Subpart P, Appendix 1, for a sufficient duration, the claimant is entitled to a finding of
disability. 20 C.F.R. § 404.1520(a)(4). Listing 1.04A comprises:

13

Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis,
vertebral fracture), resulting in compromise of a nerve root . . . or the spinal
cord [with e]vidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss
(atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss, and, if there is involvement of the
lower back, positive straight-leg raising test (sitting and supine)[.]
20 C.F.R. Pt. 404, Subpart P, Appendix 1, 1.04A. To meet or equal a listed impairment,
a claimant must satisfy all of the criteria of the listed impairment. Maggard v. Apfel, 167
F.3d 376, 379 (7th Cir. 1999). The claimant bares the burden of proving that her condition
meets or equals a listed impairment. Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir.
2006).
In finding that Callaway’s condition did not meet or equal Listing 1.04A, the ALJ
noted that “[c]linical findings revealed no nerve root involvement,2 sensory or reflex loss,
spinal arachnoiditis, or ambulatory limitations[.]”3 R. 21, 150. Further, he relied on the
testimony of the Dr. Schneider, the impartial medical expert, who concluded that Callaway’s
condition failed to meet or equal Listing 1.04A. R. 23, 411.
Although the ALJ’s discussion of whether Callaway meets or equals Listing 1.04A
is not as detailed as one might hope, the Court concludes that it is sufficiently supported

2

The report from Callaway’s March 10, 2009, MRI indicates “nerve root or cord compression” and
“mild spinal canal stenosis,” undermining the ALJ’s conclusion that there were no clinical findings of “nerve
root involvement.” R. 302. However, the Court may not consider this evidence because it was not
presented to the ALJ, having been obtained after the hearing, and the Appeals Council denied review of
the ALJ’s decision. Eads v. Secretary of Dep’t of Health & Human Servs., 983 F.2d 815, 817 (7th Cir.
1993). Although this evidence may effect a new application for benefits, it has no bearing on whether the
ALJ’s December 2008 decision was supported by substantial evidence.
3

The ALJ is correct that Callaway’s condition fails to meet the requirements of Listings 1.04B and
1.04C. Listing 1.04B requires evidence of spinal anachoiditis. 20 C.F.R. Part 404, Subpart P, Appendix 1,
1.04B. Listing 1.04C requires evidence of ambulatory limitations. Id. at 1.04C. Callaway does not dispute
that she meets neither of these requirements. See R. 21.

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by substantial evidence. In order for remand to be required, Callaway must point to
evidence that each requirement of Listing 1.04A is present in her condition. Ribaudo, 458
F.3d at 583. Although Callaway does point to evidence of positive straight leg raising in
May 2008 that was not addressed by the ALJ—see R. 388—as well as evidence of
persistent discomfort, numbness, and limitations in flexion and extension—see R. 362,
388—she has not pointed to evidence for all requirements of Listing 1.04A. In particular,
during Callaway’s consultative physical examination in May 2006, the consulting physician
noted there was no muscle weakness or atrophy, although there was some tenderness
over Callaway’s spine and hips. R. 250. Callaway has pointed to no medical evidence in
the record contradicting this statement. As atrophy or muscle weakness is required by
Listing 1.04A, the Court concludes that the ALJ’s finding that Callaway fails to meet Listing
1.04 is supported by substantial evidence.

B. CREDIBILITY DETERMINATION
Callaway further contends that the ALJ erred in his credibility determination by failing
to account for the factors of Social Security Ruling 96-7 and instead focusing exclusively
on the “objective medical evidence.” Credibility determinations by an ALJ are entitled to
deferential review, particularly since the ALJ had the opportunity to observe the claimant
in making the credibility determination. Myles v. Astrue, 582 F.3d 672, 676 (7th Cir. 2009).
The Court “merely examine[s] whether the ALJ’s determination was reasoned and
supported.” Elder v. Astrue, 529 F.3d 408, 414 (7th Cir. 2008). Only when the ALJ’s
determination “lacks any explanation or support” that the Court may declare it “patently
wrong” and reverse the ALJ’s decision. Id. (quoting Jens v. Barnhart, 347 F.3d 209, 213
15

(7th Cir. 2003)).
An ALJ must make a specific determination as to the credibility of a claimant’s
testimony regarding her own condition and functional limitations. SSR 96-7p. In making
a credibility determination, an ALJ is required to account for the following seven factors:
1)

The claimant’s daily activities;

2)

The location, duration, frequency, and intensity of claimant’s pain or other
symptoms;

3)

Precipitating and aggravating factors;

4)

The type, dosage, effectiveness, and side effects of any medication claimant
takes or has taken to alleviate pain or other symptoms;

5)

Treatment, other than medication, that claimant receives or has received for
pain or other symptoms;

6)

Any measures claimant uses or has used to relieve pain or other symptoms
(e.g., lying flat on one’s back, standing for 15 to 20 minutes every hour,
sleeping on a board, etc.); and

7)

Other factors concerning claimant’s functional limitations and restrictions due
to pain or other symptoms.

Id.; 20 C.F.R. §§ 404.1529, 416.929. “An individual’s statements about the intensity and
persistence of pain or other symptoms or about the effect the symptoms have on his or her
ability to work may not be disregarded solely because they are not substantiated by
objective medical evidence.” SSR 96-7p.
In testimony about her functional limitations, Callaway testified that she could not lift
more than five pounds, and she could only stand for fifteen minutes at a time, walk for
fifteen to twenty minutes, and sit for fifteen to twenty minutes before experiencing
uncomfortable pain in her right leg and foot. R. 397–99. She further testified that bending
and lifting “inflam[es]” her hips and SI joints. R. 397. When asked to describe her daily
16

activities, Callaway stated that she washes dishes twice a week and washes clothes. R.
400. She does not load clothes in and out of the dryer, mop, or vacuum. Id. She “tr[ies]
to get out” at least twice a week, including trips to the store with her daughter and
grandchildren, although she has problems walking in the store and ends up sitting and
waiting on them. R. 401. Callaway does drive to the doctor and the store, although she
often makes her daughter accompany her. Id. Regarding side effects of her medications,
she noted that they make her “tired.” Id.
The ALJ found Callaway “not . . . fully credible regarding her level of pain.” R. 25.
He further noted that “the objective medical evidence does not substantiate the extreme
functional deficits to which she testified.” Id. In support of his conclusion, the ALJ noted
that Callaway reported a decrease in pain to her treating physicians following
decompression surgery. R. 25, 370–71, 387. Additionally, the ALJ noted that Callaway
takes regular walks, drives, and attends to her own personal hygiene. R. 25. He also
addressed effects of her medication, noting that she exhibits no major side effects, and her
non-medication treatments, including physical therapy. Id. The ALJ concluded that
Callaway would still have some work restrictions—including a thirty pound lifting
restriction—but that these restrictions would not preclude her from performing light work.
Id. The ALJ further relied on both Callaway’s treating physician and the impartial medical
expert, both of whom agreed that Callaway would be able to perform light work with a lifting
restriction. Id. While the ALJ may not rely on objective medical evidence to ignore a
claimant’s subjective complaints, he may find a claimant to be less credible when her
reported symptoms contradict the medical evidence and other evidence about her daily
living activities. Schmidt v. Barnhart, 395 F.3d 737, 746–47 (7th Cir. 2005). The Court
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concludes that the ALJ’s credibility determination is not “patently wrong” and not, therefore,
not a sufficient basis for remand.

C. STEP FIVE DETERMINATION
Lastly, Callaway argues that the ALJ’s conclusion at step five is not supported by
substantial evidence. At step five, the ALJ found that Callaway could perform light work.
R. 23. He noted that she should never climb ladders, ropes, or scaffolds; never kneel,
crouch, or crawl; and avoid “all work hazards such as height, moving machinery, and
vibratory tools.” R. 23–24. Additionally, he placed a thirty-pound lifting restriction and
noted that she will require the opportunity to alternate between sitting and standing for five
minutes at her work station. R. 23.
Callaway contends that the hypothetical question posed to Blankenship, the
vocational expert, failed to incorporate all the restrictions noted by Dr. Lomas and Dr. Cole.
When an ALJ relies on the testimony of a vocational expert, the hypothetical question
posed to the expert must incorporate all of the limitations supported by medical evidence
in the record. Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004). However, the “ALJ
is required only to incorporate into his hypotheticals those impairments and limitations that
he accepts as credible.” Schmidt v. Astrue, 496 F.3d 833, 846 (7th Cir. 2007).
The Court concludes that the ALJ’s decision at step five does not require remand.
As discussed above, the ALJ determination as to Callaway’s credibility was not patently
wrong. Because the ALJ did not find Callaway’s testimony as to her limitations credible,
he was not required to incorporate those limitations into the hypothetical posed to
Blankenship. Id. Callaway points to no specific limitations proposed by either Dr. Lomas
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or Dr. Cole apart from Dr. Lomas’s May 2008 recommendation of a forty-pound lifting
restriction and limited bending and Dr. Cole’s January 2008 recommendation of a thirtypound lifting restriction. R. 388. The ALJ incorporated these restrictions into his RFC
determination and the hypothetical posed to Blankenship. R. 23, 415–16, 418–19, 425.
In fact, the ALJ imposed a thirty-pound lifting restriction, the most conservative
recommendation from Callaway’s treating physicians. Id. at 23. The Court concludes that
the ALJ’s determination at step five is supported by substantial evidence.

IV. CONCLUSION
For the reasons discussed herein, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED this 22nd day of March, 2012.

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

Distribution to:

Patrick Harold Mulvany
[e-mail]

Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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