STANTON v. COLVIN

Filing 22

ENTRY ON JUDICIAL REVIEW - Plaintiff Rachel V. Stanton ("Ms. Stanton") requests judicial review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Act. The final decision of the Commissioner is AFFIRMED. **SEE ENTRY** Signed by Judge Tanya Walton Pratt on 3/25/2014.(MGG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RACHEL V. STANTON,
Plaintiff,
v.
CAROLYN W. COLVIN Acting
Commissioner of the Social Security
Administration,
Defendant.

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ENTRY ON JUDICIAL REVIEW
Plaintiff Rachel V. Stanton (“Ms. Stanton”) requests judicial review of the final decision
of the Commissioner of the Social Security Administration (the “Commissioner”) denying her
application for Supplemental Security Income (“SSI”) under Title XVI of the Act. For the
reasons set forth below, the Court AFFIRMS the decision of the Commissioner.
I.
A.

BACKGROUND

Procedural History
On June 23, 2010 Ms. Stanton protectively filed an application for SSI alleging a

disability onset date of October 1, 2009. Ms. Stanton’s application was denied initially on
October 11, 2010, and upon reconsideration on December 20, 2010. After her request for
reconsideration was denied, Ms. Stanton filed a written request for a hearing on February 24,
2011.

A video hearing was scheduled for Ms. Stanton on October 27, 2011, before

Administrative Law Judge Julia D. Gibbs (the “ALJ”). Ms. Stanton was represented by an
attorney at the hearing. On November 10, 2011, the ALJ denied Ms. Stanton’s application. On
January 24, 2013, the Appeals Council denied Ms. Stanton’s request for review of the ALJ’s
decision. The ALJ’s decision is the final decision of the Commissioner for purposes of judicial

review. Ms. Stanton filed this civil action, pursuant to 42 U.S.C. 405(g), for review of the ALJ’s
decision.
B.

Factual Background
At the time of her alleged onset date of October 2009, Ms. Stanton was 30 years old and

had a high school education. Prior to the alleged onset date of her disability, she had past
relevant work as a cashier and a warehouse worker. Ms. Stanton lives with her mother. She
alleges problems with depression, bipolar disorder, disc herniation, spondylosis, and shoulder
pain. The ALJ found that Ms. Stanton had not engaged in substantial gainful activity since June
23, 2010, the date of her SSI application.
Ms. Stanton suffers from both mental and physical impairments. The record indicates
that she has a history of problems with her back, including documentation of a July 2008 surgery
to repair a herniated disc at the L4-5 level. R. at 218. She has had ongoing pain in her back
since that time. Her medical records further reveal that Dr. Neil Zlatinski performed an MRI in
March 2010, which showed a large disc herniation.

R. at 249.

On Dr. Zlatinski’s

recommendation, Ms. Stanton underwent an examination by Dr. Todd Eads (“Dr. Eads”) who
observed that she was suffering from progressive back pain. However, Dr. Eads also noted that
she had not undergone much treatment for her back, so he recommended a conservative
approach including physical therapy and Neurontin. R. at 28. After her evaluation by Dr. Eads
in July 2010, Ms. Stanton’s records reveal a gap in her medical treatment until she met with Dr.
Kristen Davis (“Dr. Davis”) in August 2011. R. at 29. Dr. Davis treated Ms. Stanton for
depression, and noted some issues with Ms. Stanton’s back, but did not provide any treatment for
her back pain. Finally, Ms. Stanton underwent a consultative examination with Dr. Katherine
Brooks, who assessed Ms. Stanton’s range of motion, noted her complaints of pain, and reported

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that Ms. Stanton should “avoid significant bending, stooping, lifting, crouching, kneeling, or
crawling.” R. at 29.
In addition to her back pain, Ms. Stanton suffers from depression and bipolar disorder.
She was initially diagnosed with depression by Dr. Terri Pellow (“Dr. Pellow”) at Midtown
Community Mental Health (“Midtown”) in February 2010. R. at 226. Dr. Pellow later revised
that diagnosis to bipolar disorder. R. at 234. Dr. Pellow’s bipolar diagnosis was corroborated by
Dr. Stephen Dunlop, one of Dr. Pellow’s colleagues at Midtown. R. at 240.

However,

consultative examiner Dr. Mark Dobbs concluded that Ms. Stanton suffered from major
depression due to her medical condition consisting of chronic back pain. R. at 264.

He also

gave Ms. Stanton a score of 49 on the global assessment of functioning, which indicated that she
suffered from serious symptoms as a result of her mental impairments. R. at 266. During her
treatment at Midtown for her mental health issues, she was prescribed medication to control her
depression and bipolar disorder and attended group therapy sessions. However, she ceased
treatment at Midtown in May 2010. In August 2011, Dr. Davis began prescribing Ms. Stanton
medication to treat her depression.
II.

DISABILITY AND STANDARD OF REVIEW

Disability is defined as the “inability to engage in any substantial gainful activity by
reason of any 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 12 months.” 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that her physical or mental limitations prevent her from doing not only her previous
work, but any other kind of gainful employment which exists in the national economy,
considering her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).

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In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity, she is
not disabled, despite her medical condition and other factors. 20 C.F.R. § 416.920(a)(4)(i). At
step two, if the claimant does not have a “severe” impairment (i.e. one that significantly limits
her ability to perform basic work activities) that meets the durational requirement, she is not
disabled. 20 C.F.R. § 416.920(a)(4)(ii). At step three, the Commissioner determines whether the
claimant’s impairment or combination of impairments meets or medically equals any impairment
that appears in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, and
whether the impairment meets the twelve month duration requirement; if so, the claimant is
deemed disabled. 20 C.F.R. § 416.920(a)(4)(iii). In order to determine steps four and five, the
ALJ must determine the claimant’s Residual Functional Capacity (“RFC”), which is the
“maximum that a claimant can still do despite [her] mental and physical limitations.” Craft v.
Astrue, 539 F.3d 668, 675-76 (7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(1); SSR 96-8p). At
step four, if the claimant is able to perform her past relevant work, she is not disabled. 20 C.F.R.
§ 416.920(a)(4)(iv). At step five, if the claimant can perform any other work in the national
economy, she is not disabled. 20 C.F.R. § 416.920(a)(4)(v).
In reviewing the ALJ’s decision, this Court must uphold the ALJ’s findings of fact if the
findings are supported by substantial evidence and no error of law occurred.

Dixon v.

Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. Further,
this Court may not reweigh the evidence or substitute its judgment for that of the ALJ. Overman
v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). While the Court reviews the ALJ’s decision
deferentially, the Court cannot uphold an ALJ’s decision if the decision “fails to mention highly

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pertinent evidence, . . . or that because of contradictions or missing premises fails to build a
logical bridge between the facts of the case and the outcome.” Parker v. Astrue, 797 F.3d 920,
921 (7th Cir. 2010) (citations omitted).
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.3ed 329, 333
(7th Cir. 1994). The ALJ is required to articulate only a minimal, but legitimate justification for
her acceptance or rejection of specific evidence of disability. Scheck v. Barnhart, 357 F.3d 697,
700 (7th Cir. 2004).
III. THE ALJ’S DECISION
The ALJ applied the five-step evaluation the Commissioner has adopted to determine
whether an individual has a disability within the meaning of the Act. At step one, the ALJ found
that Ms. Stanton had not engaged in substantial gainful activity since June 23, 2010. At step
two, the ALJ found that Ms. Stanton had the following severe impairments: depression, bipolar
disorder, disc herniation, and spondylosis. The ALJ also explained that although the diagnoses
in the record did not list anxiety as an impairment, she considered anxiety along with depression
and bipolar disorder when she determined Ms. Stanton’s severe impairments. At step three, the
ALJ found that Ms. Stanton did not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.

The ALJ concluded that Ms. Stanton had the residual functional

capacity to perform sedentary work and is limited to unskilled work. The ALJ also found that
Ms. Stanton could not perform more than occasional bending, stooping, crouching, or crawling
and required a sit/stand option. In addition, the ALJ also noted that Ms. Stanton must avoid face-

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to-face interaction with the general public and should not have any more than superficial contact
with coworkers and supervisors. At step four, the ALJ determined that Ms. Stanton is unable to
perform any of her past relevant work. At step five, the ALJ found that considering Ms.
Stanton’s age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that she can perform; consequently, Ms. Stanton is not disabled
for purposes of the Social Security Act (“the Act”) from her alleged onset date through the date
of the ALJ’s decision.
IV. DISCUSSION
Ms. Stanton raises three issues on appeal that she claims constitute reversible error. First
she argues that the ALJ failed to ask her treating physician for clarification as to her
recommended physical limitations. Second, she argues that the ALJ failed to satisfy step three of
the sequential evaluation process by failing to consider whether Ms. Stanton’s alleged physical
impairments were covered under listings 1.02 or 1.04. Third, Ms. Stanton argues that the ALJ
failed to articulate her application of Social Security Ruling (“SSR”) 96-7p when she assessed
Ms. Stanton’s symptoms.
A.

The ALJ correctly evaluated the medical source opinion.
Ms. Stanton contends that Barnett v. Barnhart, 381 F.3d 664, 669-670 (7th Cir. 2004)

requires the ALJ to solicit additional medical records to clarify disputed issues. The Government
argues that the ALJ did not have to recontact the treating physician for clarification because
“there was no objective support for the limitation” that Dr. Davis placed on Ms. Stanton. Def.
Br. at 4. The Government cites 20 C.F.R. § 416.912, which places the burden of proof on the
claimant to prove that she is disabled. The Government cites to Ms. Stanton’s treatment history
which shows that Dr. Davis had generally observed that Ms. Stanton was in good health. The

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ALJ explained that she could not determine whether Dr. Davis’ statement was “a subjective
complaint or medical recommendation.” R. at 29. The ALJ also explained that “[Dr. Davis] did
not otherwise treat the claimant’s back impairments in any significant way.” R. at 29.
The ALJ has a duty to develop the medical record in the case by requesting evidence
from the claimant’s medical sources. See 20 C.F.R. § 404.1512(d); 20 C.F.R. § 416.912(d). If
the ALJ is unable to properly evaluate the medical evidence in the record she can employ a range
of measures to assist her comprehension; to that end, the ALJ can request additional records,
recontact the treating physician, or order a consultative examination.

See 20.C.F.R §

404.1527(c)(1)-(6); 20 C.F.R. § 404.1512(e). “An ALJ need[s] [to] recontact medical sources
only when the evidence received is inadequate to determine whether the claimant is disabled.”
Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (citing 20 C.F.R. § 404.1512(e)). In
Barnett v. Barnhart, the court explained that if an ALJ is not able to evaluate a medical opinion,
she should solicit additional medical evidence so that she can make an accurate evaluation of a
doctor’s findings. 381 F.3d 664, 669-670 (7th Cir. 2004). Nevertheless, the claimant still bears
the burden of developing her case. See 20 C.F.R. § 404.1512; 20 C.F.R. § 406.912.
In her brief, Ms. Stanton cites to 20 C.F.R. §§ 404.1512(e) and 406.912 in support of her
position that the ALJ should have recontacted Dr. Davis, a treating physician, for clarification of
the limitation for “no lifting, prolonged sitting, or standing” that Dr. Davis noted regarding Ms.
Stanton.

R. at 284.

Those regulatory sections deal with situations where a consultative

examination might be necessary because of a doctor’s inability to “provide certain tests or
procedures” rather than when an ALJ should recontact a treating physician. 20 C.F.R. 1512(e).
Although the ALJ noted that Dr. Davis’ records were unclear as to whether the notes regarding
Ms. Stanton’s restrictions were subjective complaints or medical recommendations, that was not

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the only basis for the ALJ finding that Dr. Davis’ opinion regarding Ms. Stanton’s physical
limitations was entitled to no weight. In addition, the ALJ noted that Dr. Davis had not treated
Ms. Stanton for “[her] back impairments in any significant way” and noted that Ms. Stanton
went to Dr. Davis with reports that she needed treatment for depressive symptoms. R. at 29.
The ALJ also discussed evidence from consultative examiner Dr. Brooks indicating that Ms.
Stanton had “no obvious limitations.” R. at 29. Ms. Stanton argues that the disputed observation
in Dr. Davis’ report was “an admittedly unclarified treating physician statement” but she does
not offer citations to the record for why the ALJ’s reasoning on this issue was in error.
Therefore, the Court concludes that the ALJ did not commit reversible error when she failed to
contact Dr. Davis for clarification of the statement made in the medical report.
B.

The ALJ satisfied step three of the sequential evaluation process.
Next, Ms. Stanton contends that the ALJ should have discussed her physical impairments

under listings 1.02(joints) or 1.04(spine). She observes that the ALJ limited her discussion on
these impairments to “[n]o treating or examining physician has mentioned findings equivalent in
severity to the criteria of any listed impairment, nor does the evidence show medical findings
that are the same or equivalent to those of any listed impairment.” R. at 25. Ms. Stanton argues
that the decision in Taylor v. Barnhart, 189 Fed. Appx. 557, 561 (7th Cir. 2006) supports her
conclusion that the ALJ should have specifically mentioned the relevant listings, 1.02 and 1.04,
when assessing her physical impairments. The Government contends that the ALJ committed
harmless error when she failed to consider listings 1.02 and 1.04.
1.

The ALJ did not have to consider Listing 1.02

The listing of impairments describes impairments for each of the major body systems
considered to be severe enough to prevent a claimant from doing any gainful activity. Listing

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The Government accurately points out that Ms. Stanton’s complaint of shoulder pain occurred
prior to her alleged disability onset date. The regulations indicate that the Commissioner has to
develop the claimant’s medical history twelve months back from the filing date unless the
claimant says the disability began less than twelve months before filing an application. 20
C.F.R. §§ 404.1512(d); 406.9129(d). These regulations discuss the Commissioner’s obligation
to assist the claimant in developing the medical record within the regulatory time frame rather
than setting out guidance for the specific medical reports the Commissioner must review when
determining whether a particular impairment meets a listing.
Even though the ALJ did not mention the report of shoulder pain, which was only
documented in the medical records once on August 17, 2009, the ALJ did not necessarily have to
consult that report because the evidence as a whole does not support the conclusion that Ms.
Stanton had a history of shoulder pain. R. at 212. Unlike her back pain, which is welldocumented, Ms. Stanton’s shoulder pain appears to have been an isolated instance, and the
ALJ’s failure to reference this was not necessary because it was not supported by any other
evidence in the record from the relevant time period, and because the ALJ did not find this to be
a severe impairment at step 2. Ms. Stanton does not address any other evidence in the record
supporting her argument that her shoulder pain should have been considered a severe
impairment, or that it met the requirements for Listing 1.02. Therefore, the Court concludes that
the ALJ did not commit reversible error by failing to mention Listing 1.02.
2.

Failure to specifically mention Listing 1.04 was not reversible error.

The Government argues that the ALJ’s omission of Listing 1.04 is harmless error that
would have led to the same result on remand because the record as a whole supports the
inference that Ms. Stanton would not have been able to meet the requirements of that listing.

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Ms. Stanton argues that because the ALJ found that she suffered from “disc herniation and
spondylosis” the ALJ should have provided a more detailed explanation for why she did not
meet Listing 1.04.
When the ALJ decides whether a particular impairment qualifies under a listing, the ALJ
“must discuss the listing by name and offer more than a perfunctory analysis.” Barnett, 381 F.3d
at 668. The ALJ must determine disability “based on one of the agency’s listed impairments.”
Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2003); see also Ribaudo v. Barnhart, 458 F.3d
580, 583 (7th Cir. 2006) (emphasizing that the ALJ “should mention specific listings”). Even
though the ALJ must mention the specific listing from the listed impairments, “the claimant
bears the burden of proving his condition meets or equals a listed impairment.” Maggard v.
Apfel, 167 F.3d 376, 380 (7th Cir. 1999).
Ms. Stanton states correctly that the ALJ failed to reference any specific physical
impairment in her explanation.

She argues that the absence of specific reasons leaves a

reviewing court to guess at the reasons why the ALJ did not find that Ms. Stanton’s impairments
may have qualified under Listing 1.04. Ms. Stanton asserts that the ALJ concluded she suffered
from “disc herniations and spondylosis[,]” which she marshals in support of her contention that
the ALJ should have mentioned Listing 1.04. However, in her opinion, the ALJ justified her
reasoning for not listing impairment. Specifically, the ALJ stated that “[n]o treating or examining
physician has mentioned findings equivalent to the criteria of any listed impairment, nor does the
evidence show medical findings that are the same or equivalent to those of any listed
impairment.” R. at 25. Moreover, elsewhere in her opinion, the ALJ discusses evidence that Ms.
Stanton had full strength, intact sensation, and did not exhibit an antalgic gait. R. at 28. While
the ALJ did not explicitly mention Listing 1.04, she made reference to symptoms that are taken

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into consideration when determining whether a claimant meets Listing 1.04, which shows that
the ALJ did consider the requirements of the listing. See 20 C.F.R. § 404 app. 1, § 1.04(A)
(Listing 1.04 requires “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)”).
Likewise, Ms. Stanton does not point to specific evidence in the record that explains why
she meets the requirements of Listing 1.04, nor does she explain how the evidence cited by the
ALJ is inconsistent with her conclusion that Ms. Stanton does not have any medical conditions
that meet any of the listed impairments. Remand is not warranted to simply have the ALJ
explicitly mention a listing by number where the evidence discussed otherwise shows that the
outcome would be the same. See Spiva v. Astrue, 628 F.3d 346 (7th Cir. 2010) (“If it is
predictable with great confidence that the agency will reinstate its decision on remand because
the decision is overwhelmingly supported by the record though the agency’s original opinion
failed to marshal that support, then remanding is a waste of time.”). Therefore, the Court
concludes that the ALJ did not commit reversible error when she failed to mention explicitly
Listing 1.04.
C.

Substantial evidence supports the ALJ’s credibility determination.
For her final issue, Ms. Stanton contends that the ALJ did not provide specific reasons for

why she was not credible. She urges the Court to conclude that the ALJ did not apply the factors
outlined in SSR 96-7p and instead made unlawful assumptions and inferences about her
condition. In contract, the Government contends the evidence as a whole supports the ALJ’s
credibility finding.

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The ALJ applies a two-step process to arrive at a credibility determination. SSR 96-7p
requires the ALJ to determine whether there is a medically determinable impairment which could
reasonably be expected to produce the pain or other symptoms alleged, and second, the ALJ
must evaluate the intensity and persistence of the symptoms and determine the extent to which
the symptoms limit the claimant’s capacity for work. If the claimant’s symptoms are not
substantiated by objective medical evidence, the ALJ makes a finding on the credibility of the
claimant’s statements based on the record as a whole.

See SSR 96-7p; 20 C.F.R. §

404.1529(c)(4). To assess the credibility of the individual’s statements, the ALJ must review the
claimant’s daily activities, the location, duration, frequency and intensity of the claimant’s
symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness,
and side effect of any medication the claimant takes to alleviate the symptoms; any measures
other than treatment the claimant uses or has used to relieve symptoms; and any other factors
concerning the claimant’s functional limitations and restrictions due to symptoms. SSR 96-7p;
20 C.F.R. § 404.1529(c)(3).
Reviewing courts generally provide great deference to an ALJ’s credibility
determination. Courts will defer to an ALJ’s credibility determination unless the determination
is “patently wrong.” Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2010). The court does not
undertake “a de novo review of the medical evidence” but instead “examine[s] whether the
ALJ’s determination was reasoned and supported.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir.
2008).

The Seventh Circuit cautions an ALJ from relying on “meaningless boilerplate”

recitations that a claimant’s testimony is not credible. Bjornson v. Astrue, 671 F.3d 640, 645
(7th Cir. 2012). If the ALJ does not explain the reasons supporting a credibility determination a
court will reverse the ALJ’s credibility determination. Elder, 529 F.3d at 413.

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The ALJ observed that “the claimant has not generally received the type of medical
treatment one would expect for a totally disabled individual, even when considering her limited
access to care.” R. at 28. During the hearing testimony, the ALJ asked Ms. Stanton about the
gaps in her medical treatment, which seems to have at least partially formed the basis for this
statement as to Ms. Stanton’s credibility. The ALJ prefaced her credibility discussion by noting
that she considered evidence bearing on credibility according to the requirements of SSR 96-7p.
As Bjornson pointed out, when an ALJ does not explain the reasons supporting a credibility
determination a court will reverse the credibility determination. However, that rationale is not
evident on these facts. The ALJ reviewed the medical evidence at length in her opinion. R. at
28-30. To manage her back pain, the ALJ observed that Dr. Zlatinski, one of Ms. Stanton’s
doctors, prescribed her pain medication. R. at 28. Another doctor, Dr. Eads, recommended
conservative treatment, and even considering the gap in treatment, the ALJ noted that when Ms.
Stanton returned to Dr. Zlatinski, who had referred her to Dr. Eads, she did not report back pain.
R. at 29. The ALJ also noted that Ms. Stanton was able “to wash laundry” and “to do activities
such as sweeping, mopping, vacuuming, cooking, and shopping in short intervals.” R. at 29. As
a result, the ALJ considered Ms. Stanton’s credibility according to the requirements of SSR 967p. Therefore, the Court concludes that the ALJ did not commit reversible error when she made
her credibility determination.
V.

CONCLUSION

For the reasons set forth above, the final decision of the Commissioner is AFFIRMED.

SO ORDERED.
03/25/2014
Date: _____________

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

DISTRIBUTION:
Charles D. Hankey
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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