DOWNS v. COLVIN

Filing 21

ENTRY ON JUDICIAL REVIEW: The ALJ in this case satisfied her obligation to articulate the reasons for her decision, and that decision is supported by substantial evidence in the record. Accordingly, the decision of the Commissioner is AFFIRMED ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 6/4/2014.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CHRISTOPHER T. DOWNS,
Plaintiff,
vs.
CAROLYN W. COLVIN, acting
Commissioner of the Social Security
Administration,
Defendant.

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ENTRY ON JUDICIAL REVIEW
Plaintiff Christopher T. Downs requests judicial review of the final decision of the
Defendant denying Mr. Downs’ application for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act (“the
Act”). The Court rules as follows.
I.

APPLICABLE STANDARD

Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that his physical or mental limitations prevent him from doing not only his previous
work, but any other kind of gainful employment which exists in the national economy,
considering his age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
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 he is

not disabled, despite his medical condition and other factors. 20 C.F.R. § 404.1520(b).1 At step
two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits his
ability to perform basic work activities), he is not disabled. 20 C.F.R. § 404.1520(c). 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. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d). At
step four, if the claimant is able to perform his past relevant work, he is not disabled. 20 C.F.R. §
404.1520(f). At step five, if the claimant can perform any other work in the national economy,
he is not disabled. 20 C.F.R. § 404.1520(g).
In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this court “so long as substantial evidence supports them 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., and this court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). 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). In order to be
affirmed, the ALJ must articulate her analysis of the evidence in her decision; while she “is not
required to address every piece of evidence or testimony,” she must “provide some glimpse into

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The Code of Federal Regulations contains separate sections relating to DIB and SSI that
are identical in all respects relevant to this case. For the sake of simplicity, this Entry contains
citations to DIB sections only.
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her reasoning . . . [and] build an accurate and logical bridge from the evidence to her
conclusion.” Dixon, 270 F.3d at 1176.
II.

BACKGROUND

Christopher Downs filed for SSI and DIB on December 29, 2008, alleging he became
disabled on January 1, 1996. In his application for benefits, Mr. Downs alleged that he was
disabled because of chronic back pain, ADHD, and depression. Mr. Downs’ application was
denied initially on March 16, 2009, and again upon reconsideration on May 12, 2009. Following
the denial upon reconsideration, Mr. Downs requested and received a hearing before an
Administrative Law Judge (“ALJ”). A video hearing, during which Mr. Downs was represented
by counsel, was held by ALJ Janice M. Bruning on March 14, 2011. The ALJ presided over the
hearing from Oak Brook, Illinois. Mr. Downs appeared in Indianapolis, Indiana. The ALJ
issued her decision denying Mr. Downs’ claim on June 14, 2011.
The Appeals Council denied Mr. Downs’ request for review on April 30, 2013, thereby
rendering the ALJ’s decision the final decision of the Commissioner and subject to judicial
review.
Medical Evidence
Mr. Downs’ medical evidence begins on October 26, 2004, when an MRI of the lumbar
spine was performed. It showed early changes of disc dessication in one part of the spine and
mild facet degenerative changes, ligamentum flavum thickening, and a minimal disc bulge in
another part of the spine.
On January 10, 2005, Mr. Downs went to Wagoner Medical Center with complaints of
depression. He was diagnosed with depression, an adjustment disorder, gastroesophageal reflux
disease, and low back pain. He was prescribed Prozac. At this exam, his weight was 244.8

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pounds. On February 21, 2005, he again was diagnosed with depression. At this exam, his
weight was 249.4 pounds. On June 26, 2007, lumbosacral x-rays showed scoliosis and evidence
of facet joint arthritis.
Between June 25, 2007, and November 27, 2007, Mr. Downs went to Wagoner Medical
Center approximately once every four to six weeks with complaints of low back pain and
asthma. It was noted that his height was 74 inches and his weight ranged between 246.9 and 256
pounds. He was diagnosed with asthma/COPD, acute low back pain, and lumbago. Following a
pulmonary function test, Dr. Marius Nefliu concluded that Mr. Downs had mild to moderate
obstructive respiratory defect and hyperinflation.
On January 3, 2008, Mr. Downs went to the emergency room with moderate to severe
pain in his right elbow. He was found to have tenderness, swelling, and limited active range of
motion in the upper extremity and was diagnosed with right elbow bursitis.
Between January 2008 and January 2009, Mr. Downs went to Wagoner Medical Center
once a month for medication refills and complaints of low back pain. At these visits, his weight
ranged between 245.8 and 260.8 pounds. From January through July 2008, his diagnoses
included lumbago, chronic low back pain, COPD, asthma, spondylosis, and degenerative disc
disease of the lumbar spine. He was also found to have muscle spasms in his back. Between
September 2008 and January 2009, all but one of Mr. Downs’ exams showed a decreased range
of motion due to low back pain and paravertebral muscle spasms. In January 2009, he was
diagnosed with restrictive airway disease.
On April 4, 2008, Mr. Downs reported decreased energy and motivation and lack of
sleep. On May 7, 2008, Mr. Downs underwent a psychological evaluation with Dr. Paul J.
Martin, PhD. He reported decreased energy, sleep onset insomnia, and a weight problem. It was

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noted that he appeared to be substantially overweight. He showed signs of tension, anxiety, and
lack of attention and concentration. Dr. Martin diagnosed ADHD, predominantly inattentive
type. He also noted that Mr. Downs “displayed no unusual pain or discomfort.” R. at 416.
On February 11, 2009, Mr. Downs underwent a psychological evaluation with Dr. Jean
M. Badry, PhD, a State Agency doctor. She noted that he was able to remain seated for the twoand-a-half-hour interview and test. She noted that he did not have problems with inattentiveness
or memory impairment. She also noted that it would be unusual for someone with mild scoliosis
to be as impaired as Mr. Downs claimed to be. Id. at 356-59.
Between February 2009 and April 2009, Mr. Downs continued to go to Wagoner Medical
Center once a month. His diagnoses included chronic pain, chronic low back pain, degenerative
disc disease of the lumbar spine and restrictive airway disease. He had a decreased range of
motion in the lumbar spine and muscle spasms. During these months, his weight ranged between
248.5 and 250.3 pounds.
On February 5, 2009, Mr. Downs had a consultative examination with Dr. Duan Pierce.
He reported problems with memory and concentration, an occasional cough, shortness of breath
with overexertion, occasional chest pain with stress, and weight loss. His height was recorded as
71.5 inches and his weight as 256 pounds. It was noted that he was obese. Dr. Pierce stated that
Mr. Downs had lumbar spine pain and could not stand for more than three hours or lift more than
fifteen pounds. He stated that Mr. Downs “may be able to resume working normally after
completing physical therapy.” Id. at 85.
On April 20, 2009, Mr. Downs underwent a physical therapy back evaluation. Mr.
Downs had moderate to severe tenderness to palpation on his central spine, and his range of
motion was decreased bilaterally with side bending and rotation. Manual traction increased pain.

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On May 12, 2009, Dr. J. Sands, a State Agency doctor, completed a physical Residual
Functional Capacity (“RFC”) assessment. He diagnosed Mr. Downs with COPD. He noted Mr.
Downs’ body mass index of 35.2. He stated that Mr. Downs could occasionally lift twenty
pounds, frequently lift ten pounds, stand at least two hours a day, and sit about six hours a day.
On July 4, 2010, x-rays of Mr. Downs’ right hand showed a fracture with associated soft
tissue swelling. On March 15, 2011, an MRI of the lumbar spine showed minimal disc
dessication with slight loss of disc height and mild circumferential disc bulging.
Hearing Testimony
At the hearing, Mr. Downs testified that he was unable to work because of his chronic
pain. He had not worked since 2006. He testified that he lived with his fiancé. He had four
children and his fiancé was pregnant at the time. His children did not live with him all of the
time, but he saw them on weekends. He was 73 to 73.5 inches tall and weighed about 230
pounds. Mr. Downs testified that he took Tramadol and Flexeril, but they did not alleviate his
pain. He said that he once tried physical therapy, but it made his back worse. He said he could
walk about three blocks before needing to rest and could stand about ten minutes before needing
to sit down. He said he could take care of himself, but it hurt to do so. He did not leave the
house unless it was a necessity.
After Mr. Downs concluded his testimony, the ALJ heard testimony from the Vocational
Expert (“VE”), Aimee Mowery. The ALJ asked the VE to consider a hypothetical individual
with Mr. Downs’ age, education, and work experience who could work with the following
restrictions: lift and carry twenty pounds occasionally and ten pounds frequently; stand and/or
walk for a total of six out of eight hours; sit for a total of six out of eight hours; never climb
ladders, ropes, or scaffolding; occasionally climb ramps and stairs, balance, stoop, crouch, kneel,

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and crawl; not be near humidity, temperature extremes, and lung irritants; and perform three to
four step simple, repetitive routine tasks. The VE testified that such an individual could perform
work as a ticket taker, mail order clerk, and a hand packager.
III.

DISCUSSION

In his brief in support of his request for judicial review, Mr. Downs presents two issues
for the Court’s review. First, he argues that the ALJ failed to consider Mr. Downs’ obesity.
Second, he argues that the ALJ’s credibility analysis is inadequate because the ALJ failed to
consider all of the appropriate factors when assessing Mr. Downs’ credibility. The Court will
address his arguments, in turn, below.
A. The ALJ’s Consideration of Obesity
Mr. Downs argues that the ALJ committed an error in not considering his obesity because
the ALJ did not mention it in her decision, despite evidence of it in the record. Mr. Downs
argues that the omission violated Social Security Ruling (“SSR”) 02-01p, which notes that ALJs
should consider the impact of obesity because “[o]besity can cause limitation of function” and
“[t]he combined effects of obesity with other impairments may be greater than might be expected
without obesity.” SSR 02-01p. The Court believes, however, that the omission in this case was
harmless.
When an ALJ relies on medical records that note the claimant’s height and weight but
does not mention obesity in her decision, the error is harmless. Prochaska v. Barnhart, 454 F.3d
731, 737 (7th Cir. 2006); see also Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (noting
that “the references to [the claimant’s] weight in his medical records were likely to alert the ALJ
to the impairment”). Here, the ALJ considered Mr. Downs’ obesity by relying on medical
records that included information about his height and weight. Dr. Pierce noted his obesity and

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Dr. Sands, the State Agency physician, noted his BMI of 35.2. The ALJ was thorough in her
review of the record and in relying on these opinions, took into account Mr. Downs’ obesity.
Further, an ALJ’s failure to mention the claimant’s obesity is harmless when no
medical opinion identifies the claimant’s obesity as “significantly aggravating . . . or contributing
to [his] physical limitations,” and the claimant “fails to point to any other evidence suggesting
how [his] obesity further impaired [his] ability to work.” Prochaska, 454 F.3d at 737. Neither
Dr. Pierce nor Dr. Sands, who both noted Mr. Downs’ obesity, nor any other examining doctor
identified Mr. Downs’ obesity as contributing to his impairments or limiting his functional
abilities. Mr. Downs did not identify obesity in his application as an illness or condition that
limited his ability to work, R. at 197, and he did not mention it at his hearing. While he
repeatedly sought treatment for his chronic back pain, the medical records show that he did not
seek treatment for his obesity. He reported a weight problem only once during a psychological
evaluation with Dr. Martin. Id. at 415. Now for the first time, Mr. Downs asserts his obesity is a
problem, but he fails to show his obesity has an impact on his impairments or on his ability to
work. Because “any remand for explicit consideration of [Mr. Downs’] obesity would not affect
the outcome of this case,” Skarbek, 390 F.3d at 504, the ALJ’s omission is harmless.
B. The ALJ’s Credibility Analysis
Mr. Downs next argues that the ALJ erred in assessing his credibility. In examining
credibility determinations, the Court will not overturn the ALJ’s conclusions “unless they were
patently wrong.” Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). However, “[t]he
determination of credibility must contain specific reasons for the credibility finding” and “must
be supported by the evidence and must be specific enough to enable the claimant and a reviewing

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body to understand the reasoning.” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008) (citing
Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007)).
Mr. Downs specifically argues that the ALJ: 1) ignored the side effects of his
medications; 2) failed to mention that he used a heating pad to alleviate his pain; and 3) failed to
mention that when he performs his activities of daily life, he experiences pain. The Court does
not agree with Mr. Downs that these alleged failures warrant remand.
First, the ALJ did specifically note that Tramadol and Flexeril cause Mr. Downs to
experience sleepiness, R. at 23, and also noted that “[a]ny and all activities hurt [Mr. Downs’]
back.” Id. The ALJ did not, therefore, ignore this evidence. Further, it is true that the ALJ did
not mention Mr. Downs’ use of a heating pad; however, it is unclear to the Court how that fact is
relevant to the ALJ’s credibility determination. While SSR 96-7p lists a number of factors that
the ALJ must consider in determining the credibility of a claimant including, among others, the
side effects of medications and other pain-alleviating measures a claimant may use, an ALJ is
under no obligation to cite to every piece of evidence in the record. See Moore v. Colvin, 743
F.3d 1118, 1123 (7th Cir. 2014) (“[A]n ALJ does not need to discuss every piece of evidence in
the record, [but] . . . may not analyze only the evidence supporting her ultimate conclusion while
ignoring the evidence that undermines it.”).
In his brief, Mr. Downs does not explain to the Court how these alleged failures affected
his credibility determination. See Schomas v. Colvin, 732 F.3d 702, 708 (7th Cir. 2013) (“[I]in
Schomas’s brief to the district court, he . . . cit[ed] generally to SSR 96–7, [but did not explain]
how the corresponding evidence would support his argument.”). Rather he argues that his case
“must be remanded so a proper credibility analysis can be performed and the side effects of his
medication and his use of a heating pad can be considered.” Pl.’s Br. at 18-19. The Court does

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not agree. The ALJ built a logical bridge between the evidence and her conclusion, and the
Court is satisfied with the reasoning behind her credibility determination.
IV.

CONCLUSION

The ALJ in this case satisfied her obligation to articulate the reasons for her decision, and
that decision is supported by substantial evidence in the record. Accordingly, the decision of the
Commissioner is AFFIRMED.
SO ORDERED: 06/04/2014

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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