ROBERTSON v. ASTRUE

Filing 22

ENTRY - For the reasons stated, the decision of the Commissioner of the Social Security Administration in this case is AFFIRMED. Final judgment shall accompany this entry. **SEE ENTRY**. Signed by Judge Tanya Walton Pratt on 3/28/2012.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KEITH A ROBERTSON,
Plaintiff,
v.

MICHAEL J. ASTRUE,
Commissioner of Social
Security Administration,
Defendant.

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Case No. 1:11-cv-00143-TWP-TAB

ENTRY ON JUDICIAL REVIEW
Plaintiff, Keith A. Robertson (“Mr. Robertson”), requests judicial review of the decision
of Defendant, Michael J. Astrue, Commissioner of the Social Security Administration (“the
Commissioner”), denying Mr. Robertson’s application for Social Security Disability Benefits.
For the reasons set forth below, the Commissioner’s decision is AFFIRMED.
I. BACKGROUND
Mr. Robertson was born on July 16, 1958. (R. at 802.) He was 46 years old on his
alleged onset date of December 1, 2004. (R. at 61.) He has a high school education and worked
as a skilled brick mason from 1977 to 1997; he then worked as a mason estimator until 2005. (R.
at 290. 830.) He has three children, is separated from his wife, and now lives with his father. (R.
at 803.)
A.

Procedural History
On October 14, 2005, Mr. Robertson filed an application for disability insurance benefits

(“DIB”), alleging that he became disabled on December 1, 2004. His application was denied
initially and upon reconsideration. On November 25, 2008, Mr. Robertson appeared in
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Indianapolis, Indiana with attorney, Andrew Sheff, and testified at a hearing before
Administrative Law Judge Peter C. Americanos (“the ALJ”). On March 2, 2009, the ALJ issued
his decision finding that Mr. Robertson was not disabled. On December 1, 2010, the Appeals
Council upheld the ALJ’s decision by denying Mr. Robertson’s request for review. The ALJ’s
decision is therefore the final decision of the Commissioner for purposes of judicial review.
B.

Medical History
On May 7, 1999, Mr. Robertson visited Dr. Jonathon Helvie (“Dr. Helvie”) for shoulder

pain; in doing so, he also noted that he had experienced pain in his shoulders, elbows, and back
for 20 years. (R. at 107.) Mr. Robertson also described the series of prednisone dose packs and
injections that he had been prescribed in order to ease his shoulder pain. Id. Dr. Helvie noted
that Mr. Robertson was “quite conversive” and “does not appear in a great deal of pain.” (R. at
108.) Dr. Helvie noted areas of tenderness and that Mr. Robertson’s “range of motion in the
shoulder, elbow, and wrist and hand area is good.” Dr. Helvie concluded that Mr. Robertson
might be suffering from myofascial pain syndrome, which was most likely aggravated by muscle
overuse through his work as a brick mason. Id. Dr. Helvie recommended exercises, performed
trigger-point injections on Mr. Robertson’s shoulders, and prescribed medications including
Ultram, Lorcet, and Elavil. Id. As scheduled, Mr. Robertson returned a month later; at that time,
he received bilateral steroid injections of the acromioclavicular joints. (R. at 104.)
Throughout 2000, Mr. Robertson received additional trigger point injections for his
myofascial pain syndrome. On a February 7, 2000 visit, Dr. Helvie noted that Mr. Robertson
complained that his “pain is everywhere” at a level of 6 out of 10; Dr. Helvie also noted that Mr.
Robertson “has not been exercising as previously recommended.” (R. at 98.) When Dr. Helvie
asked Mr. Robertson why he wasn’t adhering to the exercise program, he responded “that it was

2

easier to take a pill to help his pain.” Id. Dr. Helvie observed that Mr. Robertson “does not seem
interested in taking an active part in helping his condition.” Id. On a July 13, 2000 visit, Dr.
Helvie reported that Mr. Robertson gets “some relief with trigger point injections” but seems
“overly focused on obtaining medication” and that this was “a poor way to control chronic pain.”
(R. at 94.) On October 28, 2000, Mr. Robertson reported that he was “doing better” and that the
medications and injections were helping. (R. at 92.) However, by December 13, 2000, Mr.
Robertson was less optimistic, complaining of “the winter blues”; he further complained that his
pain was a 5 out of 10 and received seven trigger point injections. (R. at 90.)
In February 2001, Mr. Robertson saw Dr. Chetan Shukla (“Dr. Shukla”) at Clarian Health
for pain in his shoulders, elbows, and back. (R. at 463.) Dr. Shukla concluded that Mr.
Robertson was suffering from myofascial pain. Mr. Robertson reported that he experienced
temporary pain relief for about three weeks after receiving trigger point injections, but that any
kind of activity made his pain worse. Id. Dr. Shukla determined that Mr. Robertson had restricted
range of motion in the cervical and lumbar spine as well as diffuse tenderness over the bilateral
paraspinal areas over the cervical, thoracic, and lumbar spine. Id. Dr. Shukla also found tender
areas over the left anterior chest and the left acromioclavicular joint. Id. Dr. Shukla noticed that
Mr. Robertson appeared to be “somewhat depressed.” Id. Dr. Shukla continued with the trigger
point injection therapy, administering five injections. Id.
On several occasions in 2002, Mr. Robertson sought treatment for depression from James
Teague, Ph.D.

On October 10, 2002, Mr. Robertson reported that he was feeling better

physically and had been “trying to get out more and has been going grocery shopping with his
wife and on walks.” (R. at 467.) However, he was still struggling with depression and his
relationships. Id.

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Mr. Robertson’s pain continued in 2003. At that time, Mr. Robertson was working 40
hours a week as an estimator. (R. at 691.) Following an examination on May 9, 2003, Dr.
Kolowitz diagnosed Mr. Robertson with fibromyalgia. (R. at 692.) Dr. Kolowitz found Mr.
Robertson’s range of motion to be “approximately three-quarters functional … with pain at the
extremes.” (R. at 691.) Dr. Kolowitz also found, “his fibro examination is positive in 11 of 18
tender points.” Id. Dr. Kolowitz recommended that Mr. Robertson maintain the pain medication
and treatment, visit the physical therapy staff, and attend a fibromyalgia class. (R. at 692.) Mr.
Robertson underwent a physical therapy initial evaluation on May 20, 2003. (R. at 697.) There,
it was noted that his pain ranged from a 4 to an 8 out of 10, and that he “is currently having
difficulty walking greater than 15 minutes, bending to get his lawnmower out, is unable to
participate in sports, and has pain going up and down stairs.” Id.
Dr. Kolowitz examined Mr. Robertson a second time in June 2003. Dr. Kolowitz noted
that Mr. Robertson was compliant with the first portion of his physical therapy courses, and that
Mr. Robertson suffered from diffuse body pain, fibromyalgia, and back and radicular leg pain.
(R. at 690.) The doctor also noted that neither morphine nor duragesic appeared to give Mr.
Robertson any relief. Dr. Kolowitz stated, “I believe his pain syndrome is declaring itself opioid
non-responsive.” Id. Dr. Kolowitz also ordered an MRI, which revealed the following:
L5-S1. Moderate disc space narrowing and dehydration. A broad-based shallow
disc protrusion is present centrally. No stenosis or nerve root compression is
identified.
The neural formina are uncompromised. Minor facet joint
degeneration is present bilaterally.
L4-5. There is mild disc space narrowing and dehydration. The posterior annulus
is intact. Central canal and nerve root canals are uncompromised and the facet
joints are unremarkable.
L3-4. There is a moderate dehydration and disc-space narrowing. Circumferential
bulging of the annulus is noted without focal herniation. There is no significant
central stenosis. Mild forminal narrowing is present without nerve root
compression. The posterior element is grossly intact.
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L2-3. No significant abnormalities are noted.
L1-2. There is moderate dehydration with circumferential bulging of the annulus
and moderate ventral osetyphyte spurring. Increased signal intensity is noted with
posterior annulus. There is mild narrowing of the central canal in the AP
diameter without significant stenosis. Neural foramina are unremarkable.
The reviewing radiologist’s conclusion was “multilevel moderate to moderately-advanced disc
degeneration involving the lower thoracic and lumbar spine.” (R. at 704-05.)
Following the MRI, Dr. Kolowitz developed a treatment program that included epidural
steroid injections. Dr. Kolowitz injected Mr. Robertson at L5-S1 on June 27, 2003. (R. at 688.)
At this time, Mr. Robertson reported a reduction in pain from a 7 to a 4 out of 10. Id. On July 7,
2003, Dr. Kolowitz removed Mr. Robertson from opioids finding that his impairments were
unresponsive to the drugs. (R. at 687.) On July 11, 2003, three epidural injections were
attempted but only two were successful. Mr. Robertson received an epidural injection at L3-L4
and L4-L5, while L5-S1 was too difficult to reach. (R. at 685.) Mr. Robertson returned on
November 19, 2003 and received an L5-S1 epidural injection. The related report noted that “[h]e
has responded well to translaminar epidural steroids.” (R. at 684.)
In January 2004, Mr. Robertson was referred to Dr. John Kincaid (“Dr. Kincaid”) at
Indiana University for a consultation regarding migraine headaches. Dr. Kincaid found that the
headaches were possibly the result of a spinal nerve sleeve rupture or a micropuncture of the
dura, both of which could have been caused by the epidurals. (R. at 547.) Two days following
this initial examination, Mr. Robertson presented himself at the IU Emergency Room with a
severe unremitting headache. (R. at 544.) It was unclear to the doctors “whether the headache
was a result of an exacerbated migraine, to the point of being in status migrainous, or whether

5

this was an atypical manifestation of a post spinal, low-pressure type headache.” Id.

Mr.

Robertson was treated with infusions of dihydroergotamine, which provided relief. (R. at 545.)
In a later physical examination, Dr. Kincaid found that Mr. Robertson’s headaches “have
been under relatively good control.” However, his back continued to bother him greatly. Dr.
Kincaid reviewed his relevant medical history, noting that Mr. Robertson had been examined by
the St. Francis Pain Center but, in Mr. Robertson’s words, they “would not reaccept him.” (R. at
543.) Under “impressions,” Dr. Kincaid wrote that Mr. Robertson had “persisting back pain with
some radicular features. I suspect much of this is either facette or soft tissue in nature, given the
lumbar MRI did not show any significant disc or osteophyte formation.” (R. at 544.) On May 5,
2004, Mr. Robertson returned to Dr. Kincaid for a follow-up visit. Dr. Kincaid had removed Mr.
Robertson from a prescription for propanolol and a nine-day period of intense migraines
followed. However, after those nine days, the migraines “quieted down and [have] not
reappeared.” Mr. Robertson continued to complain of back pain, but further noted that he “is
trying to do masonry estimating … rather than actually going back to brick laying” and “thinks
this will work out.” (R. at 542.)
In April 2004, Dr. Brian S. Foley (“Dr. Foley”) first examined Mr. Robertson and
administered facet injections to the tender areas. (R. at 484.) Dr. Foley also administered
epidural steroid injections in June, August, and November 2004, which provided Mr. Robertson
with some relief. (R. at 536-38.) In January 2005, Mr. Robertson was evaluated by Dr. Joseph
Riina (“Dr. Riina”), an orthopedic surgeon at OrthoIndy. In the examination Mr. Robertson told
Dr. Riina, “the pain is getting worse in that it is present more often and getting worse in that is
more intense.” (R. at 492.) Dr. Riina noted that Mr. Robertson appeared healthy and “in no
acute distress,” but that he “appears to be in mild pain.” (R. at 494.) Dr. Riina ordered a new

6

MRI and referred Mr. Robertson to a physiatrist. (R. at 495.) The MRI was performed on
January 14, 2005, and yielded the following:
L5-S1. There is mild interval increase in size of moderate broad-based posterior
disc protrusion measuring 4mm in thickness. The disc protrusion now extends
into the left posterolateral region measuring 5mm in thickness and was not seen
on the prior exam. This now slightly impinges on the left S1 sacral nerve root and
may contact the right S1 sacral nerve root. This is superimposed on a small
diffuse disc bulge, resulting in stable minor narrowing of the neural foramina
bilaterally without significant spinal stenosis.
L4-5. There are no focal disc protrusions. No significant spinal stenosis or neural
foraminal narrowing.
L3-L4. There is a stable small diffuse disc bulge measuring 3mm in thickness and
is asymmetric to the left side resulting in stable moderate narrowing of the left
neural foramen and may contact the left L3 exiting nerve root and ganglion and
mild narrowing of the right neural foramen. No significant spinal stenosis.
L2-L3. There are no focal disc protrusions.
L1-L2. There is a stable moderate diffuse disc bulge measuring 4mm in thickness
resulting in stable borderline spinal stenosis, with the thecal sac measuring 10 mm
in AP dimension. No significant neural foraminal narrowing. (R. at 789.)
Dr. McLimore of OrthoIndy performed the physiatry consultation. Using the recent MRI
information, Dr. McLimore found that Mr. Robertson’s pain pattern “maps out in a left S1 and
probable concurrent L3 pattern.” (R. at 490.) Dr. McLimore recommended a Pain Patient
Profile (P3) to better determine the psychological factors that could be affecting treatment. (R. at
491.) These results showed that Mr. Robertson was more depressed than the average pain
patient, making the depression likely to interfere with his treatment (R. at 503). The report
explained:
Sleep and appetite disturbances may be noted as part of the patient’s depression
symptoms. He may be described by others as sad, lethargic, apathetic, listless,
and aloof. Efforts to involve him in a participatory physical rehabilitation
program may be hampered by his emotional state. It is likely that he suffered
highly significant symptoms and problems with depression prior to pain onset or
that he is currently feeling particularly distressed, drained, and emotionally
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burdened by the duration of his discomfort and the impact of his problems on his
ability to function. The clinician should investigate whether a history of
depression preceded pain onset or whether depression symptoms are reactive to
pain. If depression is acute, the patient should be carefully and regularly
monitored to guard against further emotional deterioration. It is very likely that
the patient’s psychological symptoms will interfere with physical pain treatment.
(R. at 505.)
The report recommended that Mr. Robertson see a mental health professional and that the use of
anti-depressant medication should be considered. (R. at 506.) On February 4, 2005, Mr.
Robertson visited his family physician, Dr. Bernard Herbst (“Dr. Herbst”). Mr. Robertson
confided that he felt hopeless about his situation and that Dr. Riina had placed him on Neurontin
with no change in his condition. (R. at 554.)
On February 8, 2005, Dr. McLimore performed selective nerve root blocks and
transforaminal epidural corticosteroid injections on both the left L3 and left S1. (R. at 497).
Subsequently, Dr. Herbst referred Mr. Robertson to Dr. John Swofford for consultation regarding
surgical implantation of a dorsal column nerve stimulator, writing:
I’m referring Mr. Keith Robertson to Dr. Swofford for possible dorsal column
stimulator, due to intractable pain from spinal problems and failure to have
reasonable improvement in spite of numerous modalities of therapy. He’s been to
five specialists (ortho/neurosurgery, paid clinics/etc) and tried numerous
medications including anticonvulsants, tricyclics, SSRI’s, analgesics in increasing
amount and strength, etc. Also, he’s been through nerve blocks, facet injections,
and epidural steroids with no relief. He’s even been evaluated by psychiatry for
pain evaluation/coping skills, etc. (R. at 362.)
Dr. Swofford found Mr. Robertson to be a good candidate for a nerve stimulator for two
reasons: (1) Mr. Robertson was unable to find long-term relief after different procedures and
treatments; and (2) Mr. Robertson was not a candidate for corrective back surgery at that time.
(R. at 499.) On May 2, 2005, stimulator leads were surgically implanted on Mr. Robertson’s
spine on a trial basis. (R. at 577.) After having “excellent relief with the trial,” on May 23,
2005, Dr. Swofford implanted the stimulator in Mr. Robertson’s body and placed permanent
8

leads on Mr. Robertson’s spine. (R. at 575.) Although Mr. Robertson did receive some relief
from the implanted stimulator, he still experienced pain.

Accordingly, Dr. Swofford

administered a lumbar epidural steroid injection as adjunctive therapy on August 30, 2005. (R.
at 573.) Mr. Robertson received an additional injection on October 26, 2005. (R. at 569.)
On December 30, 2005, Dr. Poplia examined Mr. Robertson for the Social Security
Administration (“SSA”). Dr. Poplia stated as follows:
The patient presents alleging disability secondary to stabbing chest pain in the left
chest with shortness of breath. Patient states lying down, coughing and taking a
deep breath starts the pain while rest helps to alleviate it. Patient rates the pain 68 on a scale of 0/10. Frequency of pain is 3-4 times per month and duration lasts
from 1 hour to 4 hours. Patient also alleges back pain, leg pain, migraine
headaches, fibromyalgia, depression, high cholesterol and high blood pressure.
(R. at 397.)
Under physical movements, Dr. Poplia noted that the patient is “well developed, no limitations in
meeting the demands of the examination.” Under musculoskeletal, Dr. Poplia noted “normal
posture, normal gait stability, speed, and sustainability; range of motion is limited … the patient
is able to walk on his toes but not his heels … tender lumbar spine to light touch, negative
straight leg raising.” Under impression, Dr. Poplia noted chronic low back pain, chronic chest
wall pain and tenderness, HTN, depression, and migraine headaches.
On March 21, March 23, and August 1, 2006, Mr. Robertson returned to Dr. McLimore
for additional steroid injections (R. at 136-37, 156, 158-60). At Mr. Robertson’s last visit on
September 7, 2006, Dr. McLimore noted the following:
He still describes some ongoing lombago, preferentially left-sided with radiation
into the left lower extremity from the back, buttock, posterior lateral thigh, and
posterior lateral left leg to the heel. He gets some radiation partially to the right
thigh, but not below the knee. He describes 60% back, 40% left lower extremity
pain. He had on 08/06 a left L5-S1 interlaminar lumbar epidural corticosteroid
injection. He states he had 4-5 weeks of at least 50% improvement. He rates the
pain at rest 7 and with activity 7+. He has been taking oxycodone and Lyrica
medication through his family practitioner. (R. at 133.)
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Dr. McLimore concluded:
The natural history of the problem and treatment options were discussed at length.
At this point, we have exhausted all conservative measures that have included
interventional pain management (interlaminar ESI- selective nerve block roots)
and in addition he has a dorsal column stimulator placed by Dr. Swofford. He has
had a P3 psychometric screen that was negative for somatization disorder. He has
described elements of depression that is reactive to his chronic pain. He has
gained some weight here recently. We discussed the importance of weight
reduction. He is understanding of a home exercise program. He also tried a
TENS unit in the past without much benefit. He continued with his current
medication regimen through his family practitioner. He did see the PA of Dr.
Riina’s in the past. He would like to get a formal opinion from Dr. Riina to see if
indeed he may qualify for surgical intervention. He may need diskogram updated
to definitively clarify at this stage as he states his pain is becoming progressively
worse over the last three to six months with progressive sciatica. EMG studies
have been ordered. I left follow-up on a p.r.n. basis with me. I will await Dr.
Riina’s opinion…If he is not a surgical candidate, the next step would be March
2007 if necessary to do a bilateral S1 selective nerve root block. Otherwise, there
is nothing further that I would have to offer him. (R. at 133.)
In June 2007, Mr. Robertson began seeing Dr. Dan Nordmann (“Dr. Nordmann”) at the
Indiana Spine Group. Upon examining Mr. Robertson, Dr. Nordmann found that “he has
diminished lumbar lordosis and increased muscle spasm in the lower back. He has had slightly
positive straight leg raise on the left.” (R. at 123). Dr. Nordmann ordered a new CT scan, which
revealed the following:
L1-L2. There is a mild facet sclerosis. There is a mild broad-based disc bulge.
There is no nerve root compression. There is some mild spinal stenosis at L1-L2.
L2-L3. There is a mild broad-based disc bulge identified. There is no nerve root
compression. There is no significant spinal stenosis.
L3-L4. There is a diffuse disc bulge identified. Some far lateral nerve root
compression on the left cannot be excluded. There is mild spinal stenosis. There
is facet sclerosis.
L4-L5. There is moderate broad-based disc bulge. There is no significant spinal
Stenosis and there is no nerve root compression.

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L5-S1. There is no definitive nerve root compression. There is no spinal stenosis.
(R. at 127-28).
After the CT scan, Dr. Nordmann treated Mr. Robertson with a series of epidural steroid
injections. Mr. Robertson received three injections from Dr. Nordmann in 2007, (R. at 114-16),
and again returned to Dr. Nordmann on January 8, 2008. (R. at 129.)
Dr. Herbst, Mr. Robertson’s primary care physician who had been treating him since
1985, provided a statement to Mr. Robertson’s counsel in which he summarized the treatments
and referrals he had coordinated for Mr. Robertson. (R. at 190-93.) Dr. Herbst has retained sole
responsibility for prescribing pain medications “for safety reasons and to keep some continuity,”
and maintained close follow up with Mr. Robertson. (R. at 191.) Dr. Herbst stated that the
objective tests and Mr. Robertson’s “signs and symptoms do give us the picture that he has some
irritative nerve root problems and that he suffers from sciatica on a chronic basis.” (R. at 192.)
Dr. Herbst further explained:
We have many patients who have no real surgical lesion found on their
evaluations, but have definite signs and symptoms of back pain and nerve root
irritation. In fact, it is probably more common to see people without severe x-ray
abnormalities and yet have subjective symptoms that would tell us what the
problems are … or at least where the locations of the problems are. So it is not
unusual to have this degree of pain in spite of a finding that surgery is not
recommended. I think people tend to believe that, if it is not bad enough to
require surgery, it can’t be that bad. But any specialist in the spine field will tell
you that most of the patients they see with chronic pain are not surgical
candidates. This is the real challenge today -- the patients with spinal problems
that we can’t just fix with surgery. They are the most difficult to manage. It
would be so nice if we had a correctable lesion that we could just deal with, like
patients sometimes think, and be cured and move on with life. But that is not the
case with Keith Robertson at all. (R. at 192.)
When asked whether Mr. Robertson could “perform a job on a regular basis that called for
continuous lifting or carrying of objects,” Dr. Herbst responded:
This gentleman absolutely should not be engaged in any kind of employment that
would require much carrying, let alone lifting, and certainly avoiding any
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squatting or bending. Things that require a lot of physical activity would just be
too much for him. In fact, not recently, but for the last ten years, I had been
telling the gentleman that he needed to change his occupation from masonry work
to something that is more sedentary because he was experiencing multiple joint
and back problems going back through many years that were aggravated and
caused by this type of work. (R. at 193.)
Moreover, Dr. Herbst explained that, even though he believed the medications necessary to help
mitigate the pain, the cumulative side effects of the medications adversely affected Mr.
Robertson’s ability to function in a competitive work environment.
In fact, his medication regimen is such that I would think that it would be very
difficult to expect him to maintain any high functioning level of even a sedentary
job that would require concentration and focus, which includes most desk jobs.
He is often drowsy due to his medication, with multiple side effects from them.
Many times it would be unsafe for him to drive an automobile back and forth to
work because of his condition and the adverse effects of his medications.
Certainly, given the fact that he cannot maintain a high level of mental sharpness
and high-cognitive functioning because of his medicines, I think it would be very
difficult to expect him to have any meaningful, certainly competitive-paced job,
even sedentary work, let alone, return to what he was doing before. (R. at 193.)
C.

The Administrative Hearing
1.

Mr. Robertson’s Testimony

At the administrative hearing, Mr. Robertson testified that he was a masonry contractor
for twenty years. (R. at 806.) During those years, Mr. Robertson testified, he developed
shoulder, elbow, and right hand problems. Id. He testified he has had surgery on both elbows,
both shoulders, and his right hand, but none of the surgeries relieved his pain. Id. Doctors
advised him to seek alternative employment, which he did. Id. Mr. Robertson also testified that
he had surgery in September 2005 for mild right-side carpal tunnel syndrome, and, more
recently, he experienced some symptoms of left-side carpal tunnel, but his doctor instructed him
to wear a splint, which resolved the symptoms. (R. at 822-23.)

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When prompted by the ALJ to discuss what happened on December 1, 2004 (disability
date), Mr. Robertson testified that he worked from home as a masonry estimator until the pain in
his back became unbearable from sitting over a table. (R. at 804.) He testified he had to
frequently take breaks by lying down to relieve the pain. Id. After awhile, the pain escalated to
the point where he was unable to pay attention and began making mistakes. Id. Mr. Robertson
testified that the doctors diagnosed him with low back degenerative disc disease, a herniated
disc, and arthritis. Id. When asked about treatments, Mr. Robertson testified that he has received
steroid epidural injections and a stimulator implant, but opted not to undergo surgery. (R. at
804-05, 819.)
During a series of questions by the ALJ, Mr. Robertson estimated he can sit between
fifteen to twenty minutes, maybe twenty-five if he has a comfortable chair; stand for ten minutes;
lift between twenty to thirty pounds four or five times in a day;1 and walk “a couple” of blocks
with a self-prescribed cane he has been carrying for the last year and a half. (R. at 812-13, 819.)
Mr. Robertson testified he drives to his brother-in-law’s house, which is ten miles away from
where he lives, and goes to restaurants once or twice a week with his father. (R. at 813-14.)
Mr. Robertson testified he has experienced back pain since the age of twenty-two, when
he fell off a roof. (R. at 806.) He also testified that he has had migraines since his early
twenties, (R. at 807), and that his migraines occur roughly six to seven times a month. (R. at
816.) He testified that, when he experiences a migraine, he has to lie in bed in a dark room with
no sound; moreover, if the migraines are really bad, he must take off from work. (R. at 808.) As
a result of the migraines, Mr. Robertson testified, he would take a couple days a month off from
work. (R. at 807-08.) A medicine he takes called Relpax provides him with some relief. (R. at

1

Later, when questioned by his attorney, Mr. Robertson testified he has trouble lifting a gallon jug of milk, so his
father buys half gallon containers instead. (R. at 820.)

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808.) Mr. Robertson also testified that he takes Oxycontin and morphine to relieve his other
pain. The worst side effect he experiences from these medications is constipation, and the doctor
does a check-up every four months to make sure his medications are not causing problems with
his liver and other systems. (R. at 820-21.)
When asked about other problems, Mr. Robertson testified he recently (within the last six
to eight months) began experiencing constant pain in his knees. (R. at 811.) He testified that he
mentioned it to his primary care physician, who injected cortisone in each one of his knees. Id.
2.

Medical Expert’s Testimony

A medical expert, Dr. Richard Hutson (“the ME”), who is board certified in orthopedic
surgery, testified at the hearing. (R. at 824, 835.) The ME testified that the medical evidence
revealed that Mr. Robertson had multilevel degenerative disc disease in his lower back. (R. 82122.) After he had a spinal cord stimulator implanted, testing revealed some mild spinal stenosis,
some left lateral nerve root compression, and a possible lateral disc herniation, but there were no
clinical findings indicating that this was a problem. (R. at 822.) The ME concluded that Mr.
Robertson had a vertebrogenic disorder with degenerative disc disease in the lumbar area of his
spine. (R. at 824.) However, his condition did not meet or equal Listing 1.04 because he did not
have the appropriate loss of neurological function. Id. The ME added that, because of the
implanted spinal cord stimulator, Mr. Robertson should do no more than sedentary work. Id.
When questioned by Mr. Robertson’s attorney, the ME testified that he was aware of Mr.
Robertson’s descriptions of pain; however, he noted that there are no objective medical tests for
pain. Id. Thus, there was nothing he could do to prove or disprove Mr. Robertson’s subjective
complaints of pain at any given time. Id. The ME did testify, however, that Mr. Robertson’s
complaints of pain were consistent with his condition and the condition was objectively

14

documented. (R. at 825.) Furthermore, the ME testified that the non-surgical medical treatments
Mr. Robertson received were consistent with objective findings of his back condition. Id. Mr.
Robertson’s attorney then asked whether the following facts were consistent with objective
medical evidence: 1) the fact that Mr. Robertson had only temporary relief, and 2) the fact that
Mr. Robertson was not offered a surgical solution to his medical problem. Id.

The ME

responded in the affirmative. Id.
Upon re-questioning by the ALJ, the ME testified to the significance of Mr. Robertson’s
spinal cord stimulator, which can be jarred and broken when moving around, lifting, and
bending.

(R. at 828.)

Additionally, when asked whether Mr. Robertson’s file contained

evidence of headaches, the ME replied in the affirmative and testified that Mr. Robertson had
been hospitalized between January and February 2004 for treatment of migraines. (R. at 830-31.)
3.

Vocational Expert’s Testimony

Michael Blankenship, the vocational expert (“the VE”), testified that Mr. Robertson’s
previous position was as an estimator for a masonry company. (R. at 829.) The VE described
the job as a sedentary position with a Service Vocational Preparation (“SVP”) of seven. Id. The
VE testified that the position requires reviewing sketches, measurements, and blueprints;
utilizing methodologies and techniques to determine the price for time and labor; estimating the
number of hours it will take to complete a job; and being knowledgeable about vendors. (R. at
830-31.) The VE also testified that Mr. Robertson’s occupation prior to his work as an estimator
was as a bricklayer or mason. (R. at 830.) He described the job as a heavy and skilled position
with an SVP of eight. Id.
The ALJ questioned the VE regarding whether a hypothetical individual with the
claimant’s same age, education, and work experience can do the prior sedentary work of the

15

claimant, but in addition to being sedentary, such an individual must be allowed to take off work
one day a month. (R. at 831.) The VE responded in the affirmative and testified the occupations
such an individual could perform include cost-estimators. (R. at 831-32.) The VE testified there
are 2,517 cost-estimators in the State of Indiana, but noted the claimant’s skills would not be
readily transferable to some of the jobs in this category, such as plumbing and drywall costestimators.

Id.

However, he testified the claimant’s acquired job skills would be readily

transferable to approximately 1,200 to 1,300 of these jobs. Id.
The ALJ proceeded to question the VE by adding additional limitations to the previously
described hypothetical. First, the ALJ asked if anything would change if the number of days off
work increased to two days a month. (R. at 832.) The VE responded that once the individual got
through the probationary period and combined his sick days, vacation days, and personal time
off, he might be able to take two days off per month. (R. at 833.)
Next, the ALJ asked if the additional limitation of doing no more than occasional
bending, kneeling, stooping, and no squatting, changed any of the VE’s answers. Id. The VE
testified it would not. Id. He noted that the ALJ’s limitation is described as stooping by the
Department of Labor, which involves moving from a standing to a seated position. Id. He
further noted that Mr. Robertson had changed from a standing to seated position a couple times
during the hearing without any noticeable difficulty. Id.
Lastly, the ALJ asked if the additional limitation of alternating between standing and
sitting five minutes per hour without leaving the work station would change anything. Id. The
VE testified it would not. Id. Pursuant to SSR 00-4p, the ALJ asked the VE if his testimony was

16

in accordance with the information contained in the Dictionary of Occupation Titles. He
responded in the affirmative. (R. at 834.)2
II. DISABILITY AND STANDARD OF REVIEW
To be eligible for DIB, 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 … 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). In
determining whether a claimant is disabled, an 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 the appendix to this section and satisfies the duration requirement, the
claimant is disabled.
4. If the claimant can still perform the claimant’s past relevant work given the
claimant’s residual functional capacity, 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; it then shifts 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

2

Notably, Mr. Robertson’s father also testified at the hearing. His testimony was generally consistent with Mr.
Robertson’s.

17

findings, the ALJ’s findings become the findings of the Commissioner. See Hendersen v. Apfel,
179 F.3d 507, 512 (7th Cir. 1999). 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. Although 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)).
The ALJ “need not evaluate in writing every piece of testimony and evidence submitted.”
Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993). However, the “ALJ’s decision must be
based upon consideration of all the 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 trace 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. 1985).
III. DISCUSSION
A.

The ALJ’s Findings
The ALJ found that Mr. Robertson met the disability insured status requirements of the

Social Security Act on March 31, 2008, and that Mr. Robertson had not engaged in substantial
gainful activity since his alleged onset date of December 1, 2004, through his date last insured of
March 31, 2008. (R. at 15.) The ALJ found that Mr. Robertson suffers the following severe

18

impairments: disorder of the back and headaches. Id. The ALJ concluded that Mr. Robertson’s
back impairment did not meet or medically equal Listing 1.04. (R. at 17.) In addition, the ALJ
found there is no medical listing for Mr. Robertson’s headaches; however, when considering this
impairment alone and “in combination with” Mr. Robertson’s other impairment, the ALJ
determined Mr. Robertson did not meet or medically equal any listing. Id.
The ALJ found that Mr. Robertson had the residual functional capacity (“RFC”) to
perform sedentary work consistent with the following limitations: he must be allowed to
alternate between sitting and standing for at least five minutes per hour without leaving the
workstation; he can do no more than the occasional bending, kneeling, stooping, and crawling;
he cannot squat; and he must be allowed two days off per month. (R. at 18.) In making the
above determinations, the ALJ found Mr. Robertson’s statements regarding intensity,
persistence, and limiting effects of his symptoms were not credible to the extent they were
inconsistent with the RFC assessment. Id. In doing so, the ALJ highlighted Mr. Robertson’s
objective medical evidence; daily activities; types, dosages, effectiveness, and side effects of any
medication he takes or had taken to alleviate symptoms; and non-medication treatments. (R. at
18-22.)
From there, the ALJ detailed why he ascribed “considerable weight” to the opinion of the
medical examiner, Dr. Hutson, and the opinion of treating specialist, Dr. Nordmann; and “some
weight” to the opinions of the State agency medical consultants, the second consultative
examiner, and treating primary care physician, Dr. Herbst. (R. at 22-23.) With regard to the
effects of Mr. Robertson’s medications, the ALJ explained why he ascribed “little weight” to Dr.
Herbst’s opinion. (R. at 23.) Specifically with regard to Mr. Robertson’s mental impairment, the
ALJ explained why he gave “considerable weight” to the State agency consultants. Id. Finally,

19

based on Mr. Robertson’s RFC assessment, the ALJ concluded that he was able to perform his
past relevant work as a masonry estimator.

Id.

Therefore, the ALJ determined that Mr.

Robertson is not disabled. (R. at 25.)
B.

Arguments On Appeal
Mr. Robertson makes four arguments on appeal.3

First, the ALJ erred in his

determination of Mr. Robertson’s RFC. Second, the ALJ’s credibility determination incorrectly
required objective medical evidence to directly corroborate subjective evidence of pain. Third,
the ALJ failed to review the totality of the circumstances when making his credibility
determination. Fourth, the ALJ failed to consider the combined effects of Mr. Robertson’s
impairments when determining Mr. Robertson’s RFC. Each argument is addressed in turn.
1.

Residual Functional Capacity Assessment

First, Mr. Robertson argues that the ALJ erred in assessing his RFC, which “is the most
[a claimant] can still do despite [his] limitations.” 20 C.F.R. § 404.1545. RFC assessments are
based on “all the relevant evidence” in the case record. Id. Ultimately, the ALJ concluded Mr.
Robertson had the RFC to perform sedentary work, as defined in 20 C.F.R. § 404.1567(a), with
the following limitations: Mr. Robertson must be allowed to alternate between sitting and
standing for at least five minutes per hour without leaving the workstation; he can do no more
than the occasional bending, kneeling, stooping, and crawling; he cannot squat; and he must be
allowed two days off from work per month. (R. at 18.) The Court finds that this RFC finding
was supported by substantial evidence in the record.
In his RFC explanation, the ALJ gave “considerable weight” to the opinion of Dr.
Hutson, the medical expert who testified at Mr. Robertson’s hearing. (R. at 22.) He also gave

3

Actually, according to Mr. Robertson’s briefing, he made five arguments. However, for organizational purposes,
the Court collapsed these into four arguments.

20

some weight to the opinion of the State agency medical consultant, Jonathan Sands, M.D. (“Dr.
Sands”) (R. at 22). In June 2006, Dr. Sands reviewed Mr. Robertson’s entire claim file and
completed a physical RFC assessment form. (R. at 325-32.) Dr. Sands concluded that Mr.
Robertson could lift up to twenty pounds occasionally and ten pounds frequently; stand and or
walk for a total of about six hours in an eight-hour workday; sit for about six hours in an eighthour workday; and push and or pull (including the operation of hand and/or foot controls) for an
unlimited amount of time. (R. at 326.) He also concluded that Mr. Robertson could balance,
stoop, kneel, crouch, crawl, and occasionally climb ramps, stairs, ladders, ropes, and scaffolds.
(R. at 327.) the ALJ’s RFC finding was consistent with Dr. Sands’ RFC assessment, which
limited Mr. Robertson to light work, as defined in 20 C.F.R. § 404.1567(b), rather than sedentary
work. The ALJ, however, further restricted Mr. Robertson to sedentary work based on Dr.
Hutson’s expressed concern that anything greater than sedentary work might damage his
implanted spinal cord stimulator. (R. at 824, 828.)
In addition to Dr. Sands’ and Dr. Hutson’s medical opinions, the ALJ also relied on
several additional medical opinions to support his RFC finding. In May 2006, Dr. M. Majid, a
State agency medical consultant, performed a consultative examination of Mr. Robertson. (R. at
317-21.) In his summary of findings, Dr. Majid concluded that Mr. Robertson had no limitation
on sitting, but did have limitations on standing and walking. (R. at 321.) Dr. Majid limited Mr.
Robertson to lifting ten to twenty pounds. (R. at 321.) Later, in October 2007, Dr. Nordmann,
who gave Mr. Robertson a steroid injection, wrote in his report that Mr. Robertson should lift no
more than twenty pounds; he included no other restrictions, but he instructed Mr. Robertson to
increase activities such as walking, weight loss, and range of motion exercises. (R. at 77.)

21

Based on these findings, the ALJ limited Mr. Robertson to sedentary work, which includes a
maximum lifting amount of ten pounds. (R. at 18.)
In April 2008, Mr. Robertson’s family doctor, Dr. Herbst, provided a statement for Mr.
Robertson’s attorney. (R. at 190-93.) Dr. Herbst stated that Mr. Robertson “absolutely should
not be engaged in any kind of employment that would require much carrying, let alone lifting,
and certainly avoiding any squatting or bending.” (R. at 193.) Dr. Herbst believed that Mr.
Robertson should “change his occupation from masonry work to something that is more
sedentary” due to his joint and back problems. (R. at 193.) In addition, Dr. Herbst stated that
Mr. Robertson was “often drowsy due to his medication,” and that it would therefore be “very
difficult to expect him to maintain any high functioning level of even a sedentary job that would
require concentration and focus, which includes most desk jobs.” (R. at 193.) The ALJ closely
reviewed and accepted Dr. Herbst’s opinion regarding Mr. Robertson’s limitations on lifting and
carrying, as well as the doctor’s opinion that Mr. Robertson should be limited to sedentary work.
(R. at 23.) With regard to Mr. Robertson’s medication side effects, however, the ALJ gave “little
weight” to Dr. Herbst’s opinion because the record failed to demonstrate the side effects opined
by Dr. Herbst. (R. at 23.)
According to the regulations, a treating source’s opinion about the nature and severity of
a claimant’s impairments is entitled to controlling weight only if it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
other substantial evidence in the case record. 20 C.F.R. § 404.1527(d)(2). The regulations
explicitly state that the ALJ “will always give good reasons in [his] notice of determination or
decision for the weight [he gave a claimant’s] treating source opinion.” Id. Here, the ALJ gave
several good reasons for the weight he gave Dr. Herbst’s opinion regarding Mr. Robertson’s side

22

effects to medications. (R. at 21.) In doing so, the ALJ emphasized Mr. Robertson’s testimony
about the medications’ side effects. Specifically, Mr. Robertson testified that Dr. Herbst
occasionally checked to make sure his medications were not adversely affecting his liver and
other systems, and that the only side effect he experienced was constipation. (R. at 821.) Mr.
Robertson did not mention drowsiness, impaired concentration, or any other symptom that would
interfere with his ability to perform his past relevant work. Plainly stated, substantial evidence
supports the ALJ’s RFC assessment.
2.

Credibility Determination

Mr. Robertson next asserts that the ALJ erroneously relied only on the absence of
objective medical evidence for his subjective complaints of pain. For allegations of subjective
symptoms, such as pain, the ALJ must make a credibility determination. Dampeer v. Astrue, ___
F. Supp. 2d ___, 2011 WL 5169448, at *9 (N.D. Ill. Oct. 31, 2011). Moreover, “[m]edical
science confirms that pain can be severe and disabling even in the absence of ‘objective’ medical
findings, that is, test results that demonstrate a physical condition that normally causes pain of
the severity claimed by the applicant.” Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004).
That said, the ALJ’s credibility determinations are entitled to “special deference” because only
the ALJ has the opportunity to observe the claimant testify. Jones v. Astrue, 623 F.3d 1155,
1160 (7th Cir. 2010). Thus, credibility determinations are only reversed if they are “patently
wrong.” Id. Notwithstanding, the “special deference” afforded ALJs, the ALJ is still required to
articulate his reasoning and discuss or distinguish any relevant contrary evidence. See Banks v.
Barnhart, 63 Fed. Appx. 929, 935 (7th Cir. 2003).
When evaluating a claimant’s subjective symptoms of pain, the ALJ must follow the
guidelines provided in SSR 96-7p, which provides that the ALJ: (1) cannot base a finding of

23

disability on symptoms of pain unless there is medical evidence to prove the existence of a
medically determinable impairment(s) that could be expected to produce the symptoms; (2) must
evaluate the intensity, persistence, and functionally limiting effects of the symptoms when the
existence of a medically determinable impairment(s) has been established to determine the extent
to which the symptoms affects the claimant’s ability to work; (3) carefully consider the
claimant’s statements about symptoms of pain with the rest of the relevant evidence in the case
record if a disability determination that is fully favorable cannot be made solely on the basis of
objective medical evidence; (4) consider the entire case record, including objective medical
evidence, the individual’s own statements about symptoms, and other information provided by
treating or examining physicians about the symptoms and how they affect the claimant; and (5)
provide specific reasons for the finding on credibility, supported by evidence in the case record.
On this point, the ALJ stated explicitly that “whenever statements about intensity, persistence, or
functionally limiting effects of pain or other symptoms are not substantiated by objective
medical evidence, I must make a finding on the credibility of the statements based on a
consideration of the entire case record.” (R. at 18.)
The ALJ’s assessment of Mr. Robertson’s credibility considered these guidelines. The
ALJ’s decision considered Mr. Robertson’s ability to engage in a range of daily activities; the
types, dosages, effectiveness, and side effects of any medications Mr. Robertson takes or has
taken to alleviate symptoms; and Mr. Robertson’s non-medication treatments. (R. at 18-22.) For
instance, the ALJ specifically noted that “I find the claimant’s activities of daily living are
consistent with the ability to perform work as set forth in the residual functional capacity I have
assessed for him.” (R. at 19.) By considering this evidence and explaining how it influenced his
credibility analysis, the ALJ followed the requirements for evaluating credibility of a claimant’s

24

subjective complaints of pain. Given the ALJ’s explanation, the Court cannot find that this
determination was “patently wrong.”
3.

Totality of the Circumstances

Third, Mr. Robertson argues that the ALJ failed to completely review the totality of the
circumstances when determining the credibility of his description of intensity, persistence, and
limiting effects of his impairment. When determining the credibility of a claimant the ALJ must
consider all relevant evidence, including evidence of the following factors:
(1) daily activities;
(2) location, duration, frequency, and intensity of pain or other symptoms;
(3) precipitating and aggravating factors;
(4) type, dosage, effectiveness, and side effects of any medication the claimant takes or
has taken to alleviate pain or other symptoms;
(5) treatment, other than medication, the claimant received for relief of pain or other
symptoms;
(6) measures the claimant uses or has used to relieve pain or other symptoms; and
(7) other factors concerning the claimant’s functional limitations and restrictions due to
pain or other symptoms.
20 C.F.R. § 404.1529(c)(3).
Mr. Robertson draws the Court’s attention to the fifth factor. He alleges that the ALJ
failed to mention the spinal injections he received as treatment for his back pain. This is
incorrect. In the ALJ’s analysis of the type, dosage, effectiveness, and side effects of any
medication Mr. Robertson takes or has taken to alleviate symptoms, he mentions that Mr.
Robertson testified to receiving several epidural steroid injections that provided only temporary
relief of his back pain. (R. at 21.) Along similar lines, it is also untrue that the ALJ mentioned
“only physical therapy, exercises, and the nerve stimulator” in his evaluation of Mr. Robertson’s
25

treatments. The ALJ specifically referenced the medications Mr. Robertson has taken and made
it a point to note the epidural spinal injections. (R. at 21.) Indeed, it appears that the ALJ
generally considered the above factors, as required by 20 C.F.R. § 404.1529(c)(3). (R. at 19-22.)
Moreover, it is worth noting that the ALJ specifically acknowledged that Mr. Robertson would
likely experience some amount of pain while doing sedentary work. But the existence of pain is
not dispositive. As the ALJ noted, it is well-settled that “disability requires more than a mere
inability to work without pain.” (R. at 20) (citing Stucky v. Sullivan, 881 F.2d 506, 509 (7th Cir.
1989)).

Specifically, the ALJ accommodated Mr. Robertson’s pain in his restrictive RFC

finding.
Next, Mr. Robertson argues that the ALJ failed to acknowledge Mr. Robertson’s
consistency in describing pain to his various medical providers, and failed to consider
observations made by a SSA employee, as required by SSR-96-7p. According to SSR-96-7p,
“[o]ne strong indication of the credibility of an individual’s statements is their consistency, both
internally and with other information in the case record.” Again, here the ALJ specifically
acknowledged that Mr. Robertson might never work in a pain-free manner. Instead, the ALJ
ruled that Mr. Robertson was not disabled because he could perform sedentary work, with certain
restrictions. Moreover, it is worth emphasizing that the medical records are replete with
references to Mr. Robertson’s pain, and the balance of the ALJ’s opinion makes clear that he
reviewed the entire record. Thus, to the extent the ALJ failed to specifically mention the
consistency of Mr. Robertson’s complaints of pain (or the observations of the SSA employee),
those errors are harmless. See, e.g., Kittelson v. Astrue, 362 Fed. Appx. 553, 557 (7th Cir. 2010)
(The ALJ “did not specifically discuss how Kittelson’s obesity and medications factored into his

26

assessment of her credibility, but his summary of her medical record reflects that he was aware
of and considered them, so any error in not highlighting them was harmless.”).
4.

Total Combined Effect of Impairments

Last, Mr. Robertson contends that the ALJ failed to review the combined effects of his
impairments. According to the regulations, an ALJ is required to consider the combined effect
of all of a claimant’s impairments, regardless of whether any impairment, considered separately,
would be severe. See 20 C.F.R. § 404.1523; Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th
Cir. 2003). Mr. Robertson’s argument resembles an argument made in Getch v. Astrue, 539 F.3d
473 (7th Cir. 2008), where Mr. Getch argued that the ALJ failed to give sufficient weight to the
combined impact of his health problems. The Seventh Circuit found that the ALJ did, in fact,
consider the combined impact of Mr. Getch’s health problems and determined that his
impairments were not severe enough “either singly or in combination,” to equal one of the listed
impairments. Id. at 483.
The same is true in this case. In the ALJ’s decision, he explicitly stated that although Mr.
Robertson’s headaches did not have a specific listed impairment, he considered Mr. Robertson’s
headaches, “alone and in combination with” his other impairments, and determined he did not
meet or medically equal a listing. (R. at 17.) Moreover, the ALJ made specific mention of Mr.
Robertson’s headaches, noting that Mr. Robertson “has a headache six to seven times per
month.” (R. at 20.) But, then, the ALJ accounted for Mr. Robertson headaches by “limiting his
overall exertional level to [a] very modest requirement[]” and providing that he “be allowed two
days off per month due to headaches.” As for Mr. Robertson’s depression, the ALJ specifically
mentioned that it was not “severe” because it did not cause more than minimal limitations on his

27

ability to work. (R. at 16-17.) Accordingly, the Court is not persuaded by Mr. Robertson’s
argument.
IV. CONCLUSION
For the reasons stated herein, the decision of the Commissioner of the Social Security
Administration in this case is AFFIRMED. Final judgment shall accompany this entry.

SO ORDERED. 03/28/2012

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:

Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail], [e-mail], [e-mail]
SSA (Court Use Only)
[e-mail], [e-mail]
Andrew P. Sheff
BENNETT & SHEFF
[e-mail], [e-mail]

28