SCOTT v. COLVIN

Filing 40

ORDER OVERRULING OBJECTIONS to Magistrate Judge's REPORT AND RECOMMENDATION 37 with the additional supplementation set forth in Order. Signed by Judge Sarah Evans Barker on 9/23/2014.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DIANA A. SCOTT,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
CAROLYN W. COLVIN Acting
Commissioner of the Social Security
Administration,
Defendant.

No. 1:13-cv-01053-SEB-TAB

ORDER OVERRULING OBJECTIONS TO MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION
This is an action for judicial review of the final decision of Defendant
Commissioner of Social Security (“Commissioner”) finding Plaintiff Diana Scott not
entitled to disability insurance benefits (“DIB”). The Administrative Law Judge (“ALJ”)
denied Ms. Scott’s application for DIB after concluding that there are jobs that exist in
significant numbers in the national economy that she can perform. This case was referred
to Magistrate Judge Baker for initial consideration. On July 3, 2014, Magistrate Judge
Baker issued a report and recommendation that the Commissioner’s decision be affirmed
because it is supported by substantial evidence. This cause is now before the Court on
Plaintiff’s Objections to the Magistrate Judge’s Report and Recommendation.
Standard of Review

1

We review the Commissioner’s denial of benefits to determine whether it was
supported by substantial evidence or is the result of an error of law. Rice v. Barnhart,
384 F.3d 363, 368–369 (7th Cir. 2004); Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535,
539 (7th Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Dixon v. Massanari, 270 F.3d
1171, 1176 (7th Cir. 2001). In our review of the ALJ’s decision, we will not “reweigh
evidence, resolve conflicts, decide questions of credibility, or substitute [our] own
judgment for that of the Commissioner.” Lopez, 336 F.3d at 539. However, the ALJ’s
decision must be based upon consideration of “all the relevant evidence,” without
ignoring probative factors. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). In other
words, the ALJ must “build an accurate and logical bridge” from the evidence in the
record to his or her final conclusion. Dixon, 270 F.3d at 1176. We confine the scope of
our review to the rationale offered by the ALJ. See SEC v. Chenery Corp., 318 U.S. 80,
93–95 (1943); Tumminaro v. Astrue, 671 F.3d 629, 632 (7th Cir. 2011).
When a party raises specific objections to elements of a magistrate judge’s report
and recommendation, the district court reviews those elements de novo, determining for
itself whether the Commissioner’s decision as to those issues is supported by substantial
evidence or was the result of an error of law. Fed. R. Civ. Pro. 72(b). The district court
“makes the ultimate decision to adopt, reject, or modify” the report and recommendation,
and it need not accept any portion as binding; the court may, however, defer to those
conclusions of the report and recommendation to which timely objections have not been

2

raised by a party. See Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759–761 (7th
Cir. 2009).
Discussion 1
Ms. Scott objects to the Magistrate Judge’s Report and Recommendation on the
following two grounds: First, she argues that the Magistrate Judge erred in determining
that the ALJ properly rejected the functional evaluation by her treating physician.
Second, Ms. Scott contends that the Magistrate Judge erroneously determined that the
Commissioner was not required to respond to her argument that the ALJ failed to present
to the vocational expert an accurate description of all of her impairments. We address
these arguments in turn below.
Ms. Scott first contends that the ALJ erred by failing to accord the opinion of her
treating physician, Dr. Silbert, controlling weight. In 2012, Dr. Silbert completed a
medical source statement for Ms. Scott, opining that she could not lift anything, was
unable to complete any postural movements, and could never work in most environments.
Ms. Scott contends that by giving little weight to Dr. Silbert’s opinion, the ALJ
impermissibly “played doctor” by improperly substituting his own judgment for Dr.
Silbert’s opinion regarding Ms. Scott’s limitations.
The Seventh Circuit has cautioned that ALJs “must be careful not to succumb to
the temptation to play doctor.” Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990)

1

As the parties thoroughly summarized the medical records in their briefing, we will only cite to
the portions relevant to the issues on which Ms. Scott requests review.

3

(citations omitted). However, the ALJ is not required to accept all conclusions reached
by physicians. A treating doctor’s opinion receives “controlling weight” only if it is
“well supported by medically acceptable diagnostic techniques and consistent with other
evidence” in the record. Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir. 2011); 20 C.F.R. §
404.1527(c)(2). An ALJ must offer “good reasons” for discounting the opinion of a
treating physician. Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011).
Here, the ALJ clearly and adequately explained his reasons for discounting Dr.
Silbert’s opinion. The ALJ opined that the extreme limitations described by Dr. Silbert
were not supported by the record, pointing to Dr. Silbert’s treatment notes from the
alleged period of disability, which the ALJ found “showed improvement and
conservative treatment.” R. at 15. The ALJ went on to state that Dr. Silbert’s opinion
that Ms. Scott could not even lift one pound was inconsistent with the fact that during
that same time period Ms. Scott worked part-time in fairly physically demanding jobs,
including as a waitress and a bartender. Additionally, the ALJ discounted Dr. Silbert’s
opinion in part because his statement was completed approximately seven or eight years
since his last treatment of Ms. Scott. There is some dispute regarding whether Ms. Scott
was seen by Dr. Silbert at some point within that period, but there is no dispute that if
Ms. Scott received treatment from Dr. Silbert between December 31, 2004 and January
12, 2012 (the date of his opinion), such treatment was as the Magistrate Judge described,
“minimal at best.” Dkt. 37 at 3. Accordingly, the ALJ was justified in taking that
timeframe into consideration when determining how much weight to give Dr. Silbert’s

4

opinion. The ALJ also observed that Dr. Silbert’s examination notes from August 9,
2004, one of the last times that Dr. Silbert saw Ms. Scott before the long gap in treatment,
show that Ms. Scott had “normal gait, no problems heel or [toe] walking, and no
difficulty changing from a sitting to standing position. Moreover, she had a negative
straight leg raise and normal stability in her spine.” R. at 14-15 (citing Exh. 18F).
The ALJ cited ample evidence from the record in support of his decision to
discount Dr. Silbert’s opinion and specifically provided his reasons for doing so.
Accordingly, the ALJ did not err in failing to give Dr. Silbert’s opinion controlling
weight and we agree with the Magistrate Judge that substantial evidence supports the
ALJ’s decision in this regard.
Ms. Scott’s second objection to the Magistrate Judge’s Report and
Recommendation is that the Magistrate Judge improperly argued for the Commissioner in
response to Ms. Scott’s contention that the ALJ erred by failing to present to the
vocational expert an accurate description of her impairments, having failed to include Dr.
Silbert’s functional findings in his hypothetical question. However, because we review
challenged elements of the Magistrate Judge’s Report and Recommendation de novo, we
need not address the Magistrate Judge’s handling of the argument and instead look
directly to the ALJ’s opinion to determine whether there is reversible error. Given our
finding that the ALJ properly explained his reasons for rejecting Dr. Silbert’s opinion, we
cannot find that the ALJ erred by failing to include those limitations in his hypothetical
question to the vocational expert.
5

It is true that “an ALJ’s hypothetical questions to a vocational expert ‘must
include all limitations supported by medical evidence in the record.’” Seamon v. Astrue,
364 Fed. App’x 243, 248 (7th Cir. 2010) (quoting Steele v. Barnhart, 290 F.3d 936, 942
(7th Cir. 2002)). But “the reference to ‘all’ limitations … does not encompass those that
find no support in the record; the ALJ’s hypothetical should incorporate only those
limitations that he accepts as credible.” 364 Fed. App’x at 248 (citing Schmidt v. Astrue,
496 F.3d 833, 846 (7th Cir. 2007)). As explained supra, the ALJ here properly rejected
Dr. Silbert’s opinion, and thus, was not required to incorporate those limitations in his
hypothetical questions to the vocational expert.
The ALJ limited Ms. Scott to sedentary work with additional limitations, including
no work with repetitive foot controls; continuous walking of no more than 15 minutes;
only occasional climbing, ramps or stairs and stooping or balancing; no climbing ladders,
ropes, scaffolds; no kneeling, crouching, or crawling; and no concentrated exposure to
hazards such as moving machinery and heights. We recognize that Ms. Scott suffers
from significant medical problems, but upon careful review, we are satisfied that the ALJ
adequately considered Ms. Scott’s medical history and included in his RFC the
limitations that were supported by the record. The ALJ included all of those limitations
in the hypothetical question to the vocational expert, who identified jobs existing in
significant numbers that Ms. Scott was capable of performing. Accordingly, substantial
evidence supports the ALJ’s determination at Step 5 of the sequential evaluation process.
Conclusion
6

For the foregoing reasons, we OVERRULE Ms. Scott’s objections and ADOPT
the result of the Magistrate Judge’s Report and Recommendation with the additional
supplementation set forth above.
IT IS SO ORDERED.

_______________________________

9/23/2014
Date: _____________________________

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

7

Distribution:
Patrick Harold Mulvany
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Carole J. Kohn
US SOCIAL SECURITY ADMINISTRATION
[e-mail]

8