DEES v. COLVIN
ENTRY ON JUDICIAL REVIEW: In this case, the ALJ 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 ALJ is AFFIRMED (SEE ENTRY). Signed by Judge William T. Lawrence on 1/9/2015.(SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
SONYA D. DEES,
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Cause No. 1:13-cv-1997-WTL-TAB
ENTRY ON JUDICIAL REVIEW
Plaintiff Sonya D. Dees requests judicial review of the final decision of the Acting
Commissioner of the Social Security Administration (the “Commissioner”), denying her
application for Supplemental Social Security Income (“SSI”) under Title XVI of the Social
Security Act (the “Act”). The Court now rules as follows.
Dees filed her application for SSI on May 2, 2011, alleging disability beginning March 1,
2011, due to breathing problems associated with asthma and other lung problems. Dees’
application was initially denied on June 28, 2011, and again upon reconsideration on October 12,
2011. Thereafter, Dees requested a hearing before an Administrative Law Judge (“ALJ”). The
hearing was held on September 11, 2012, via video conference before ALJ Julia D. Gibbs. Dees
and her counsel appeared in Indianapolis, Indiana, and the ALJ presided over the hearing from
Falls Church, Virginia. During the hearing, Ray O. Burger also testified as a vocational expert.
On October 19, 2012, the ALJ issued a decision denying Dees’ application for benefits. The
Appeals Council upheld the ALJ’s decision and denied a request for review on November 1,
2013. This action for judicial review ensued.
EVIDENCE OF RECORD
The medical evidence of record in this case is fairly sparse, and consists mostly of
treatment records from Dees’ visits to a hospital emergency room (“ER”).
On January 22, 2011, Dees visited the ER complaining of a cough and chest and nasal
congestion. A chest x-ray was indicative of pneumonia. She was diagnosed with pneumonia and
an exacerbation of asthma. On February 26, 2011, she visited the ER with similar complaints and
additional imaging reflected similarly.
On March 7, 2011, Dees was taken to the ER by ambulance. She complained of
worsening shortness of breath. She was diagnosed with an exacerbation of asthma.
From March 15 to March 17, 2011, Dees was treated in the hospital for shortness of
breath. Tests indicated “patchy airspace disease, while the pulmonary function study was
characterized as consistent with moderate obstructive lung disease, mild gas trapping, and mildly
abnormal distribution of ventilation with moderate diffusion.” Tr. at 14. She was diagnosed with
allergic asthma, emphysema, and atypical-community acquired pneumonia.
On April 27, 2011, Dees was treated in the ER for wheezing.
On April 28, 2011, Dees followed up with Dr. Cynthia Ebini to establish care. Dr. Ebini
diagnosed Dees with emphysema. However, upon examination she observed normal breath
sounds, no wheezing, and no rales or crackles in Dees’ lungs.
On June 6, 2011, Dees underwent a physical consultative exam with Dr. Bilal Salfadi.
He diagnosed her with emphysema and asthma. He also advised that Dees should “seek further
care as she ha[d] diffuse wheezing.” Id. at 337.
On June 22, 2011, Dees underwent a pulmonary function study. The results of the test,
which are discussed in further detail below, indicated “significant abnormalities” in the function
of her lungs, “though [her breathing] slightly improved with a bronchodilator.” Id. at 15.
On August 15, 2012, Dees was treated in the ER for a cough, nasal congestion, wheezing,
and related symptoms. Notes indicate that she had “ran out of meds.” Id. at 399. Dees was
diagnosed with an acute COPD exacerbation.
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 that 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, 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), 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. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled.
416.920(a)(4)(iii). 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).
On review, the ALJ’s findings of fact are conclusive and must be upheld by the 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 the 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). The ALJ is required to articulate only a minimal, but legitimate,
justification for he 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 her reasoning . . . [and] build an accurate and
logical bridge from the evidence to her conclusion.” Dixon, 270 F.3d at 1177.
THE ALJ’S DECISION
At step one, the ALJ found that Dees had not engaged in substantial gainful activity since
May 2, 2011, her application date. At step two, the ALJ concluded that Dees suffered from the
following severe impairments: asthma, COPD, and emphysema. At step three, the ALJ
determined that Dees’ severe impairments did not meet or medically equal a listed impairment.
At step four, the ALJ concluded that Dees had the residual functional capacity (“RFC”) to
perform sedentary work “with no standing or walking more than fifteen minutes at a time, in a
clean environment with no excessive exposure to gas, fumes, dust, or other environmental
irritants.” Tr. at 13. Given this RFC, and taking into account Dees’ age, education, and work
experience, the ALJ determined at step five that Dees could perform jobs existing in significant
numbers in the national economy, those being a cashier, an office clerk, and a telemarketer.
Accordingly, the ALJ concluded that Dees was not disabled as defined by the Act from May 2,
2011, through the date of her decision.
Dees advances several objections to the ALJ’s decision; each is addressed below.
A. Listings 3.02 and 3.03
First, Dees argues that she “met her burden of . . . proving that her combined pulmonary
impairments met or medically equaled Listing 3.02 (pulmonary insufficiency) or Listing 3.03
(asthma-obstructive airway disease).” Dees’ Br. at 6. The Court does not agree.
To satisfy Listing 3.02A (the prong most relevant to Dees’ argument), Dees’ must show
that she suffers from a chronic obstructive pulmonary disease with forced expiratory volume in
one second (FEV1) equal to or less than 1.15 liters. The Listings also provide that pulmonary
testing “should be repeated after administration of an aerosolized bronchodilator,” and “[t]he
highest values of the FEV1 . . . should be used to assess the severity of the respiratory
impairment.” 20 C.F.R. Pt. 404, Subpart P, App. 1 § 3.00(E). On June 21, 2011, Dees’ FEV1
value was measured at 1.14 liters. After administration of a bronchodilator, however, her FEV1
value was measured at 1.39 liters. Dees argues that her FEV1 value of 1.14 liters “proves”
disability, and the ALJ “ignored” this evidence. Dees is mistaken; again, “only the highest postbronchodilator result is used to assess the severity of the respiratory impairment.” Eskew v.
Astrue, 462 F. App’x 613, 615 (7th Cir. 2011). Here, the ALJ correctly ignored the prebronchodilator result and properly concluded that the 1.39 FEV1 value was too high to meet
Listing 3.02A. Id. (reaching the same conclusion on similar facts).
The ALJ also correctly concluded that the requirements of Listing 3.03 were not met.
Listing 3.03 requires evidence of chronic asthmatic bronchitis, evaluated under the criteria for
Listing 3.02A, discussed above, or evidence of “[a]ttacks . . . in spite of prescribed treatment and
requiring physician intervention, occurring at least once every 2 months or at least six times a
year.” 20 C.F.R. Pt. 404, Subpart P, App. 1 § 3.03B. “Attacks” are further defined by the
Listings as “prolonged symptomatic episodes lasting one or more days and requiring intensive
treatment, such as intravenous bronchodilator or antibiotic administration or prolonged
inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting.” Id. at §
3.00C. “The medical evidence must also include information documenting adherence to a
prescribed regimen of treatment as well as a description of physical signs.” Id. Dees argues “that
she had six attacks within a twelve month period.” Dees’ Br. at 7. She cites the five hospital
stays she had in 2011 (one that lasted two days) as evidence of the attacks. She does not,
however, identify how these hospital visits satisfied the definition of “attacks,” or how Dees
satisfies the “adherence to a prescribed regimen of treatment” requirement. The Court will not
make Dees’ argument for her, nor will the Court scour the record in search of evidence to
support such an argument. Regardless, the ALJ specifically considered and discussed these
hospital visits in her decision. Tr. at 14-15. Thus, the ALJ did not “refuse to acknowledge” the
hospital visits, as Dees suggests.
In short, the Court finds that the ALJ’s consideration of Listings 3.02 and 3.03 was not
improper under the circumstances, and remand is not warranted.
B. Failure to Call Medical Expert
Dees also argues that “[t]he ALJ’s failure to summon a medical advisor (pulmonologist)
to testify whether [Dees’] combined impairments medically equaled any Listed impairment (such
as Listings 3.02, 3.03) requires reversal of the denial decision.” Id. at 10. Dees specifically takes
issue with the fact that the agency’s reviewing physicians examined Dees prior to her pulmonary
evaluation on August 15, 2012. The ALJ, however, did not abuse her discretion in failing to call
a medical expert to testify at the hearing.
Whether a claimant’s condition equals a listed impairment is “strictly a medical
determination,” and “the focus must be on medical evidence.” Hickman v. Apfel, 187 F.3d 683,
688 (7th Cir. 1999). However, the court gives deference to an ALJ’s decision about how much
evidence is sufficient to develop the record and what measures are needed to accomplish that
goal. See Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2007); Kendrick v. Shalala, 998 F.2d
455, 458 (7th Cir. 1993). Thus, an ALJ’s decision to call a medical expert is discretionary, 20
C.F.R. § 416.927(f)(2)(iii), and an ALJ is not required to consult a medical expert if the medical
evidence in the record is adequate to render a decision on the claimant’s disability. See Skarbek
v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004).
The Court is unsure why the treatment notes from August 15, 2012, are particularly
significant and require additional review by a physician. On that date, Dees visited the ER
complaining of a cough, nasal congestion, wheezing, and related symptoms. Not unlike her other
visits to the ER, Dees was diagnosed with pneumonia and an acute COPD flare-up before she
was released with an antibiotic and bronchodilating medication. Dees fails to articulate in any
meaningful way why this treatment record is important, and the Court, without more, will not
reverse this matter simply because the ALJ did not call a pulmonologist to consider “all of the
evidence in the record.” See also D.N.M. ex rel. Brame v. Colvin, No. 1:13-CV-00884-RLY,
2014 WL 4636390, at *7 (S.D. Ind. Sept. 16, 2014) (“His argument is: ‘Presumably if they had
reviewed all of the evidence they would have reasonably determined the claimant was totally
disabled.’ . . . That is certainly not the Court’s presumption. While it might be [the plaintiff’s]
presumption, it was definitely his burden to show that the nature of these items of evidence,
compared to the other evidence the state agency physicians reviewed, required the ALJ to obtain
a supplemental medical opinion.”) (emphasis in original).
C. Credibility Determination
Next, Dees argues generally that the ALJ’s credibility determination was “patently
erroneous” because it was “contrary [to] the evidence and contrary to Social Security Ruling 967p.” Dees’ Br. at 13. She asserts that “the ALJ ignored or mischaracterized the evidence . . .
which proved [that Dees] was totally disabled.” Id. Again, the Court does not agree.
In determining credibility, an ALJ must consider several factors, including the claimant’s
daily activities, level of pain or symptoms, aggravating factors, medication, treatment, and
limitations, see 20 C.F.R. § 404.1529(c); S.S.R. 96–7p, and justify her finding with specific
reasons. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). “Furthermore, the ALJ may not
discredit a claimant’s testimony about [her] pain and limitations solely because there is no
objective medical evidence supporting it.” Id. (citations omitted). Of course, district courts
“afford a credibility finding ‘considerable deference,’ and overturn [a finding] only if ‘patently
wrong.’” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (quoting Carradine v.
Barnhart, 36 F.3d 751, 758 (7th Cir. 2004)).
For the most part, Dees seems to fault the ALJ for using boilerplate language to explain
her credibility finding. Although the Court shares in the sentiments expressed by the Seventh
Circuit regarding the meaninglessness of Social Security “templates,” such as the one used here,
See, e.g., Bjornson v. Astrue, 671 F.3d 640, 645-46 (7th Cir. 2012), given the facts of this case,
the ALJ’s credibility determination was appropriate. She considered the relevant factors and
justified her finding with specific reasons. For example, the ALJ noted that Dees’ daily activities
of caring for her grandson, preparing meals, performing household chores, and shopping were
not consistent with complaints of complete disability. Additionally, the ALJ did not “ignore or
mischaracterize the evidence” as Dees alleges. As discussed above, her consideration of the
medical evidence at steps two, three, and four was appropriate. Accordingly, remand is not
D. Step Five Determination
Lastly, Dees argues that “the ALJ’s [RFC] assessment did not accurately describe [Dees’]
impairments.” Dees’ Br. at 17. Thus, according to Dees, the ALJ’s determination at step five was
not supported by substantial evidence. This argument, however, is premised on the idea that
Dees’ impairments are disabling and more severe than what was found by the ALJ. As noted
above, however, the ALJ’s consideration of the Dees’ impairments was not improper.
Additionally, the ALJ’s determination at step five accounted for Dees’ documented impairments,
RFC, age, education, and work experience, as well as the vocational expert’s written testimony.
Accordingly, the ALJ’s step five analysis does not warrant remand.
In this case, the ALJ 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
ALJ is AFFIRMED.
SO ORDERED: 1/09/15
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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