PADGETT v. COLVIN

Filing 25

ENTRY ON JUDICIAL REVIEW - Plaintiff Beth Ann Padgett ("Ms. Padgett") requests judicial review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner"), denying her application for Soc ial Security Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act"). The final decision of the Commissioner is AFFIRMED. Ms. Padgett's appeal is DISMISSED. Signed by Judge Tanya Walton Pratt on 3/31/2015.(MGG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BETH ANN PADGETT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of the Social Security
Administration,
Defendant.

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Case No. 1:13-cv-01893-TWP-MJD

ENTRY ON JUDICIAL REVIEW
Plaintiff Beth Ann Padgett (“Ms. Padgett”) requests judicial review of the final decision
of the Commissioner of the Social Security Administration (the “Commissioner”), denying her
application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act (“the Act”). For the following reasons, the Court AFFIRMS the decision of the
Commissioner.
I.
A.

BACKGROUND

Procedural History
On July 11, 2011, Ms. Padgett filed applications for DIB, alleging a disability onset date

of December 2002, due to back problems, hepatitis C, neuropathy, arthritis, and cirrhosis. She
later amended her alleged onset date to March 29, 2010. Her claims initially were denied on
August 23, 2011, and again on reconsideration on September 15, 2011. Ms. Padgett filed a written
request for a hearing on November 1, 2011. On July 27, 2012, a hearing was held before
Administrative Law Judge Roxanne J. Kelsey (the “ALJ”). Ms. Padgett participated in the hearing
and was represented by counsel. On August 23, 2012, the ALJ denied Ms. Padgett’s applications

for DIB. On September 28, 2013, the Appeals Council denied Ms. Padgett’s request for review
of the ALJ’s decision, thereby making the ALJ’s decision the final decision of the Commissioner
for purposes of judicial review. Thereafter, Ms. Padgett filed this timely action for judicial review
of the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
B.

Factual Background
At the time of her alleged disability onset date, Ms. Padgett was 54 years old, and she was

56 years old at the time of the ALJ’s decision. Ms. Padgett lives with her husband and her 29
year old son. Her son does not work, but her husband maintains fulltime employment. Ms.
Padgett’s employment history includes working as a bartender, chair assistant, receptionist and
waitress. She worked after her alleged onset date as a waitress but only for approximately 12 hours
a week. She was unable to work more than that due to neuropathy in her feet and problems with
her back and spine. Ms. Padgett has not worked since October 2011.
Ms. Padgett is able to drive short distances such as thirty minutes but otherwise gets
fatigued. She has her GED. She is able to do “a little” bit of chores such as washing dishes and
light vacuuming. She is also able to load and unload the laundry but needs help carrying it to and
from the basement. She does not do any outside chores such as gardening. Her hobbies include
leather braiding. Ms. Padgett seldom watches television or reads for entertainment. She gets along
okay with other people and gets together with friends occasionally, approximately once every three
weeks, to sit outside or have a cookout; however, her husband does the cooking. She uses her
telephone alarm to remind her to take her medication.
Ms. Padgett was diagnosed with Hepatitis C in 2001. She testified that she underwent five
weeks of Interferon treatment in March 2010, however, her red and white blood count plummeted
and her doctor at the time said she was not qualified to continue treatment. At that time she was

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working as a waitress three days a week. She then changed doctors and at the time of the hearing
had been undergoing treatment for approximately eight or nine months and she had been virus free
since week 12 of her treatment. She stated that she has been struggling with her blood work and
she is on “rescue drugs” for her red and white cell count. The drugs have helped but she is still
short of breath and anemic. She had six weeks left in her 48 week course of treatment. She has
also dealt with funguses, itching, and rashes.
Ms. Padgett takes naps throughout the day for her fatigue but does not sleep due to restless
leg syndrome. She has numbness problems with her hands due to neuropathy. Ms. Padgett
testified that she has pain in her feet due to neuropathy and pain in her back. She has back pain if
she does any lifting or bending over. Her feet hurt and are numb all the time and she takes
Neurontin for this condition. Her medication is bad for her memory and it feels like a brain fog.
She indicated that stretching helps her back and rubbing her feet is also helpful. She estimated
that she can lift five to ten pounds and is able to sit for maybe 30 minutes. She can stay on her
feet for about 30 minutes as well but could not stand that long in one place. She believes she could
walk for about one minute. She stopped using alcohol in 2008 but smoked marijuana daily.
Ms. Padgett’s medical records show that in September 2011 she switched physicians and
began treatment with gastroenterologist and liver transplant specialist Dr. Paul Kwo (“Dr. Kwo”)
who noted that Ms. Padgett had genotype hepatitis C, with early cirrhosis. In December 2011, Ms.
Padgett was tolerating therapy well except for some neutropenia, anemia, fatigue, abdominal
cramping, and intermittent headaches, which Dr. Kwo explained was probably related to
medications and abdominal cramping. In January 2012, fatigue remained an issue and Ms. Padgett
had some atypical chest pain. Dr. Kwo found Plaintiff had on-treatment response to Peg-interferon

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and ribavirin and Boceprevir. However, she was doing well, and was stable and up to date on
screening for Hepatoma. Dr. Kwo noted that Ms. Padgett was managing the side effects well.
At an appointment with Dr. David Josephson (“Dr. Josephson”) in January 2011, Ms.
Padgett’s gait and station were normal, her motor examination did not reveal any arm drift,
weakness, tremor, or abnormal tone and sensory examination showed some mild decreased
pinprick sensation distally in the lower extremities and upper extremities. Dr. Josephson noted
evidence of both cervical spondylosis and sensory neuropathy. Ms. Padgett tried Elavil but this
caused her to be drowsy and she could not tolerate it.
In August 2011, state agency medical consultant M. Brill, M.D., (“Dr. Brill”) opined that
Ms. Padgett could do light work except she can never climb ladders, ropes, or scaffolds. Dr. Brill
additionally opined that Plaintiff could occasionally climb ramps or stairs, balance, stoop, kneel,
crouch, or crawl, should avoid unprotected heights, and could occasionally reach bilaterally
overhead. This assessment was affirmed in September 2011 by state reviewing physician J. Sands,
M.D.
In July 2012, Ms. Padgett’s treating physician, Jama Edwards, M.D. reported diagnoses of
hepatitis C, sensory neuropathy, cervical spondylosis with spinal stenosis, and liver cirrhosis. Dr.
Edwards opined that Ms. Padgett could stand/walk for less than 1 hour in an 8 hour workday, sit
for 1 hour in an 8 hour workday, occasionally and frequently lift less than five pounds, and can
occasionally bend, stoop, and balance. Dr. Edwards also believed Ms. Padgett would likely be
absent more than four days per month due to her impairments.
II.

DISABILITY AND STANDARD OF REVIEW

Under the Act, a claimant may be entitled to DIB or SSI only after she establishes that she
is disabled. Disability is defined as the “inability to engage in any substantial gainful activity by

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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).
The Commissioner employs a five-step sequential analysis to determine whether a claimant
is disabled. 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 that meets the durational requirement, she is not
disabled. 20 C.F.R. § 416.920(a)(4)(ii). A severe impairment is one that “significantly limits [a
claimant’s] physical or mental ability to do basic work activities.” 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. 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).
If the claimant’s impairments do not meet or medically equal one of the impairments on
the Listing of Impairments, then her residual functional capacity will be assessed and used for the
fourth and fifth steps. Residual Functional Capacity (“RFC”) is the “maximum that a claimant can
still do despite his 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 the fifth
and final step, it must be determined whether the claimant can perform any other work in the

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relevant economy, given her RFC and considering her age, education, and past work experience.
20 C.F.R. § 404.1520(a)(4)(v). The claimant is not disabled if she can perform any other work in
the relevant economy.
The combined effect of all the impairments of the claimant shall be considered throughout
the disability determination process. 42 U.S.C. § 423(d)(2)(B). The burden of proof is on the
claimant for the first four steps; it then shifts to the Commissioner for the fifth step. Young v. Sec’y
of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
Section 405(g) of the Act gives the court “power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). 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 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, 597 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.3d 329, 333 (7th

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Cir. 1994). The ALJ is required to articulate only a minimal, but legitimate, justification for his
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 first determined that Ms. Padgett met the insured status requirement of the Act
through March 31, 2012. The ALJ then began the five-step analysis. At step one, the ALJ found
that Ms. Padgett has not engaged in substantial gainful activity during the period of March 29,
2010, the amended alleged onset date, and March 31, 2012, the date last insured. At step two, the
ALJ found that through the date last insured, Ms. Padgett has the severe impairments of
spondylosis, arthritis; hepatitis C with neuropathy; and dysthymia. At step three, the ALJ found
that “Through the date last insured, the claimant did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.” (Filing No. 15-2 at ECF p.25.) At step four, the ALJ found
that through the date last insured, Ms. Padgett had the RFC to perform light work as defined in 20
CFR 404.1567(b) except she could not climb ladders, ropes, or kneel. She could have no more
than occasional exposure to concentrated, unprotected heights.

She may have occasionally

reached overhead with either upper extremity. She could not work on a production line or perform
fast-paced work (Id.). Based on this RFC, the ALJ found that Ms. Padgett could perform her past
relevant work as an orthodontist chair side assistant and a bartender; thus, Ms. Padgett was not
disabled.
IV. DISCUSSION
In her request for judicial review, Ms. Padgett asserts the singular argument that the ALJ
improperly discredited the opinion of her treating physician, Dr. Edwards. In the decision, the

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ALJ states that Dr. Edwards’ opinion deserves “little weight as these extreme allegations are not
supported by the allegations.” (Filing No. 15-2 at ECF p. 29.) Ms. Padgett argues that the ALJ
failed to consider and address the factors listed in 20 CFR 404.1527(c) and 416.927(c) when
determining the weight to give to Dr. Edwards’ medical opinions.
As stated previously, on July 9, 2012, Dr. Edwards opined that Ms. Padgett could
stand/walk for less than 15 minutes at one time for a total of less than 60 minutes in a workday.
She could sit for 30 minutes at one time for a total of 60 minutes in a workday. She could lift less
than five pounds on a frequent or occasional basis and could only occasionally bend, stoop or
balance. In addition, Ms. Padgett would be absent from work more than four days per month due
to her impairments or treatment (Filing No. 15-10 at ECF p.97).
Ms. Padgett relies on the decision in Lopez-Navarro v. Barnhart for her argument that the
ALJ erred in assigning little weight to Dr. Edwards’ opinions. There, the district court explained,
“Treating source opinions must be given special consideration. If it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial
evidence, the ALJ must give it controlling weight.” Lopez-Navarro v. Barnhart, 207 F. Supp. 2d
870, 885 (E.D. Wis. 2002) (internal citation and quotation marks omitted). The district court
further explained,
If the ALJ finds that the opinion does not warrant controlling weight, the ALJ may
not simply reject the opinion. SSR 96-2p. He still must evaluate the opinion’s
weight by looking at the length, nature and extent of the plaintiff and physician’s
treatment relationship, the degree to which the opinion is supported by evidence,
the opinion’s consistency with the record as a whole, whether the doctor is a
specialist, and “other factors.” 20 C.F.R. § 404.1527(d). “In many cases, a treating
source’s medical opinion will be entitled to the greatest weight and should be
adopted, even if it does not meet the test for controlling weight.” SSR 96-2p.
Regardless of the weight the ALJ ultimately gives the treating source opinion, the
ALJ must “give good reasons” for his decision.
Id.
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Ms. Padgett argues that Dr. Edwards’ opinion should have been adopted and given
controlling weight by the ALJ. “However, treating source opinions on issues that are reserved to
the Commissioner are never entitled to controlling weight or special significance.” SSR 96-5p;
see also 20 C.F.R. § 404.1527(d)(3). If the ALJ finds that the opinion does not warrant controlling
weight, the ALJ may not simply reject the opinion. SSR 96-2p. He still must evaluate the
opinion’s weight by looking at the length, nature and extent of the plaintiff and physician’s
treatment relationship, the degree to which the opinion is supported by evidence, the opinion’s
consistency with the record as a whole, whether the doctor is a specialist, and “other factors.” 20
C.F.R. Section 404.1527(d).
Here, the ALJ properly evaluated the factors. The ALJ found that Plaintiff could perform
a range of light work with additional limitations to account for her impairments (Filing No. 15-2
at ECF p. 26). Considering this RFC finding, an impartial vocational expert testified that Ms.
Padgett could perform her past relevant work as an orthodontist’s chair side assistant and as a
bartender. The ALJ reasonably relied on the testimony of the vocational expert and found that Ms.
Padgett was not disabled. Because substantial evidence supports the ALJ’s conclusion that Ms.
Padgett could perform her past relevant work, the Court affirms the ALJ’s decision.
Ms. Padgett takes issue with the reasons stated by the ALJ and asks this Court to reweigh
the reasoning, but the Court is not allowed to do that. For example, one of the reasons used by the
ALJ to discredit and ignore Dr. Edwards’ opinion was the fact that Ms. Padgett stated in January
2012 that she “did fairly strenuous workouts once or twice a week.” Ms. Padgett argues the ALJ
should have inquired “as to what Ms. Padgett considered a fairly strenuous workout or how long
these workouts lasted.” (Filing No. 18 at ECF p. 10.) However, in reviewing the ALJ’s decision,
this Court is not entitled to “reweigh the evidence, resolve conflicts, decide questions of credibility,

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or substitute [its] own judgment for that of the Commissioner.” Clifford v. Apfel, 227 F.3d 863,
869 (7th Cir. 2000).
Upon review of the ALJ’s decision, it is clear that the ALJ did not simply reject or
completely ignore the opinions of Dr. Edwards. The ALJ considered and discussed at length the
opinions of Dr. Edwards and compared those opinions with the clinical and laboratory diagnostic
evidence and the medical opinions of Dr. Kwo, Dr. Josephson, and others. For example, the ALJ
properly determined Ms. Padgett’s RFC in light of all the evidence of record, including the medical
opinions. The determination of an individual’s RFC need not be based on a medical opinion
because it is a determination reserved to the ALJ as fact-finder for the Commissioner. 20 C.F.R. '
404.1527(e)(2). It was proper for the ALJ to assess all the medical and other evidence and
determine Ms. Padgett’s RFC. Further, the ALJ’s RFC finding is supported by the opinions of
two reviewing state agency physicians, who both found that Ms. Padgett could perform a range of
light work with no climbing of ladders, ropes, or scaffolds, occasional climbing of ramps or stairs,
occasional balancing, stooping, kneeling, crouching, or crawling, no exposure to unprotected
heights, and only occasionally reaching bilaterally overhead.
The ALJ explained that she assigned little weight to Dr. Edwards’ opinion because she
concluded that the extreme limitations stated by Dr. Edwards were not supported by the record
evidence. As an example, the ALJ pointed out evidence supporting Ms. Padgett’s ability to
continue to exercise and perform “fairly strenuous” workouts once or twice weekly, was
inconsistent with her claims of significantly limiting fatigue. The ALJ also noted inconsistencies
with Dr. Edwards’ opinion that Ms. Padgett could not exceed one hour of standing, and Ms.
Padgett’s testimony that despite her spondylosis, she was able to work as a server for 12 hours a
week (4 hours a day) following her alleged onset date of disability—a job that required light

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exertion and standing/walking for more than the one hour restriction stated by Dr. Edwards. Ms.
Padgett concedes in her brief that she worked in this capacity until October 2011. Additionally,
the ALJ observed that Ms. Padgett testified she was able to travel to California for a San Diego
vacation in December 2010, which was not consistent with her allegations of extreme fatigue. As
the ALJ further noted, there is also a sharp contrast between the clinical findings recorded in Ms.
Padgett’s January 2011 neurological examination (by Dr. Josephson) and Dr. Edwards’ opinion of
her limitations (Filing No. 15-8 at ECF p. 38). For example, Dr. Josephson noted that Ms.
Padgett’s gait and station were normal, which did not support the extreme restrictions on standing
and walking Id. Her motor examination did not reveal any arm drift, weakness, tremor, or
abnormal tone. Id. Her sensory examination showed some mild decreased pinprick sensation
distally in the lower extremities and upper extremities. Id. It was reasonable for the ALJ to
conclude that these mild findings did not support a restriction of 1 hour of standing/walking a day
or sitting for up to 1 hour a day. Because Dr. Edwards’ opinion was not well-supported by
objective medical evidence, it was entirely reasonable for the ALJ to give his opinion little weight.
20 C.F.R. § 404.1527(d)(2) (controlling weight given to treating physician opinion only if wellsupported by medically acceptable objective evidence and not inconsistent with the other
substantial evidence of record.
In addition, the two state agency physicians who saw all of the evidence found that Ms.
Padgett was capable of performing a range of light work (Filing No. 15-10 at ECF pp. 45-46, 52).
It was entirely reasonable for the ALJ to consider the fact that the physician opinions of record
were all consistent with one another, apart from the extreme opinion of Dr. Edwards. 20 C.F.R. §
404.1527(d)(2) (significant or controlling weight to treating physician’s opinion if not inconsistent
with other substantial evidence of record).

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The ALJ addressed the weight she gave to each of the expert and non-expert opinions and
the reasons for his decisions. The ALJ’s determinations were supported by sufficient evidence,
and any contrary evidence was adequately considered and addressed. Having determined that Ms.
Padgett has an RFC to do her past relevant work as an orthodontist side chair assistant and a
bartender, the ALJ concluded that Ms. Padgett is not disabled.
V.

CONCLUSION

For the reasons set forth above, the final decision of the Commissioner is AFFIRMED.
Ms. Padgett’s appeal is DISMISSED.
SO ORDERED.
Date: 3/31/2015

DISTRIBUTION:
Michael G. Myers
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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