CREECH v. COLVIN

Filing 21

**PLEASE DISREGARD, DOCKTED IN ERROR**ENTRY - The Commissioner of Social Security denied Sara L. Mitcham's claim for disabilityinsurance benefits under the Social Security Act. Ms. Mitcham brought this suit for judicial review of that denial. Briefing is now complete and the matter is ready for decision. Ms. Mitcham has not shown that the Commissioner's denial of her claim is unsupported by substantial evidence or is the result of legal error, will issue affirming the Commissioner's decision. **SEE ENTRY**. Signed by Magistrate Judge Denise K. LaRue on 3/25/2015.(MGG) Modified on 3/25/2015 (MGG).

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA,
INDIANAPOLIS DIVISION

SARA L. MITCHAM,
Plaintiff,
vs.

CAUSE NO. 1:14-cv-315-DKL-SEB

CAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.
ENTRY
The Commissioner of Social Security denied Sara L. Mitcham’s claim for disabilityinsurance benefits under the Social Security Act. Ms. Mitcham brought this suit for
judicial review of that denial. Briefing is now complete and the matter is ready for
decision. The parties consented to this magistrate judge conducting all proceedings in
this Cause, including entry of judgment, [docs. 4 and 12], and the district judge referred
the Cause accordingly, [doc. 15].
Standards
Judicial review of the Commissioner’s factual findings is deferential: courts must
affirm if her findings are supported by substantial evidence in the record. 42 U.S.C. '
405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v. Barnhart, 345 F.3d
467, 470 (7th Cir. 2003). Substantial evidence is more than a scintilla, but less than a
preponderance, of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). If
the evidence is sufficient for a reasonable person to conclude that it adequately supports
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the Commissioner’s decision, then it is substantial evidence. Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758
(7th Cir. 2004). This limited scope of judicial review derives from the principle that
Congress has designated the Commissioner, not the courts, to make disability
determinations:
In reviewing the decision of the ALJ [administrative law judge], we cannot
engage in our own analysis of whether [the claimant] is severely impaired
as defined by the SSA regulations. Nor may we reweigh evidence, resolve
conflicts in the record, decide questions of credibility, or, in general,
substitute our own judgment for that of the Commissioner. Our task is
limited to determining whether the ALJ’s factual findings are supported by
substantial evidence.
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758. While
review of the Commissioner=s factual findings is deferential, review of her legal
conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
The Social Security Act defines disability 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); 20 C.F.R. § 404.1505(a). 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. ' 416.905(a). A
person will be determined to be disabled only if his impairments “are of such severity
that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
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which exists in the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A) and
1382c(a)(3)(B). 20 C.F.R. §§ 404.1505, 404.1566, 416.905, and 416.966. The combined effect
of all of an applicant’s impairments shall be considered throughout the disability
determination process. 42 U.S.C. '§ 423(d)(2)(B) and 1382c(a)(3)(G). 20 C.F.R. §§ 404.1523
and 416.923.
The Social Security Administration has implemented these statutory standards in
part by prescribing a “five-step sequential evaluation process” for determining disability.
If disability status can be determined at any step in the sequence, an application will not
be reviewed further. At the first step, if the applicant is currently engaged in substantial
gainful activity, then he is not disabled. At the second step, if the applicant’s impairments
are not severe, then he is not disabled. A severe impairment is one that “significantly
limits [a claimant’s] physical or mental ability to do basic work activities.” Third, if the
applicant’s impairments, either singly or in combination, meet or medically equal the
criteria of any of the conditions included in the Listing of Impairments, 20 C.F.R. Pt. 404,
Subpt. P, Appendix 1, Part A, then the applicant is deemed disabled. The Listing of
Impairments are medical conditions defined by criteria that the Social Security
Administration has pre-determined are disabling. 20 C.F.R. ' 404.1525. If the applicant’s
impairments do not satisfy the criteria of a listing, then her residual functional capacity
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(“RFC”) will be determined for the purposes of the next two steps. RFC is an applicant’s
ability to do work on a regular and continuing basis despite his impairment-related
physical and mental limitations and is categorized as sedentary, light, medium, or heavy,
together with any additional non-exertional restrictions.

At the fourth step, if the

applicant has the RFC to perform his past relevant work, then he is not disabled. Fifth,
considering the applicant’s age, work experience, and education (which are not
considered at step four), and his RFC, the Commissioner determines if he can perform
any other work that exists in significant numbers in the national economy. 42 U.S.C. '
416.920(a)
The burden rests on the applicant to prove satisfaction of steps one through four.
The burden then shifts to the Commissioner at step five to establish that there are jobs
that the applicant can perform in the national economy. Young v. Barnhart, 362 F.3d 995,
1000 (7th Cir. 2004). If an applicant has only exertional limitations that allow her to
perform the full range of work at her assigned RFC level, then the Medical-Vocational
Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the “grids”), may be used at step
five to arrive at a disability determination.

The grids are tables that correlate an

applicant’s age, work experience, education, and RFC with predetermined findings of
disabled or not-disabled. If an applicant has non-exertional limitations or exertional
limitations that limit the full range of employment opportunities at his assigned work
level, then the grids may not be used to determine disability at that level. Instead, a
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vocational expert must testify regarding the numbers of jobs existing in the economy for
a person with the applicant’s particular vocational and medical characteristics. Lee v.
Sullivan, 988 F.2d 789, 793 (7th Cir. 1993). The grids result, however, may be used as an
advisory guideline in such cases.
An application for benefits, together with any evidence submitted by the applicant
and obtained by the agency, undergoes initial review by a state-agency disability
examiner and a physician or other medical specialist. If the application is denied, the
applicant may request reconsideration review, which is conducted by different disability
and medical experts. If denied again, the applicant may request a hearing before an
administrative law judge (“ALJ”).1 An applicant who is dissatisfied with the decision of
the ALJ may request the SSA’s Appeals Council to review the decision. If the Appeals
Council either affirms or declines to review the decision, then the applicant may file an
action in district court for judicial review. 42 U.S.C. ' 405(g). If the Appeals Council
declines to review a decision, then the decision of the ALJ becomes the final decision of
the Commissioner for judicial review.

By agreement with the Social Security Administration, initial and reconsideration reviews in
Indiana are performed by an agency of state government, the Disability Determination Bureau, a division
of the Indiana Family and Social Services Administration. 20 C.F.R. Part 404, Subpart Q (' 404.1601, et seq.).
Hearings before ALJs and subsequent proceedings are conducted by personnel of the federal Social
Security Administration.
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Background
In February 2011, Ms. Mitcham applied for disability-insurance benefits under
Title II of the Social Security Act, alleging that she became disabled on April 28, 2010. Her
claim was denied on initial and reconsideration reviews by the state agency. (R. 98-106,
108-114.) A hearing before an ALJ was held on September 14, 2012, at which she, her
daughter, and a vocational expert testified. (R. 34-76.) She was represented by current
counsel during the hearing. The ALJ denied her claim on September 25, 2012, (R. 20-29),
and she asked the Commissioner’s Appeals Council to review that denial, (R. 15-16). She
submitted additional evidence to the Appeals Council, consisting of medical evidence
that was generated after the hearing and the ALJ’s decision. (R. 633-36); [docs. 31-1, 312.] The Appeals Council denied her request for review, (R. 1-4), which rendered the ALJ’s
decision the final decision of the Commissioner on Ms. Mitcham’s claim and the one that
the Court reviews.
The ALJ initially found that Ms. Mitcham last met the insured-status requirements
for disability-insurance benefits on March 31, 2012, (R. 22), which meant that she had to
establish that she was disabled as of that date. At step one of the sequential evaluation
process, the ALJ found that Ms. Mitcham had not engaged in substantial gainful activity
from her alleged onset date of April 28, 2010 to her date last insured. At step two, he
found that she has the severe impairment of status post lumbar surgery. The ALJ also
found that Ms. Mitcham had the non-severe impairment of status post bilateral carpal
tunnel release surgery in 1993. At step three, the ALJ found that Ms. Mitcham does not

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have an impairment or combination of impairments that meet or medically equal any of
the conditions in the Listing of Impairments.
For the purposes of steps four and five, the ALJ determined Ms. Mitcham’s RFC.
He found that she could perform light work with additional climbing, postural, and
environmental restrictions. He found that this RFC prevented the performance of any of
Ms. Mitcham’s past relevant work. At step five, relying on the testimony of the vocational
expert, the ALJ found that a significant number of jobs exist in the national economy that
Ms. Mitcham can perform and, therefore, she was not disabled before she last had insured
status. The Appeals Council denied Ms. Mitcham’s request to review the ALJ’s decision.
Evidence submitted to the Appeals Council
Ms. Mitcham submitted to the Appeals Council additional evidence consisting of
(1) a State Farm insurance company form titled “Attending Physician’s Statement of
Disability,” dated November 1, 2012, that was completed by Melissa A. Roche, M.D.,
whom Ms. Mitcham describes as her “attending physician,” (R. 635-66); (2) a December
20, 2012 letter from John M. Gorup, M.D., a board-certified orthopedic surgeon, to Dr.
Roche, [doc. 31-2, p. 5]; (3) a January 24, 2013 opinion letter by Dr. Gorup regarding Ms.
Mitcham’s medical status [doc. 31-2, pp. 3-4]; and (4) an order form, payments receipts,
and discharge instructions for a lumbar spine CT myelogram performed on Ms. Mitcham
on November 27, 2012, [doc. 31-1, pp. 3-6].

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20 C.F.R. § 404.970(b) provides:
If new and material evidence is submitted, the Appeals Council shall
consider the additional evidence only where it relates to the period on or
before the date of the administrative law judge hearing decision. The
Appeals Council shall evaluate the entire record including the new and
material evidence submitted if it relates to the period on or before the date
of the administrative law judge hearing decision. It will then review the
case if it finds that the administrative law judge’s action, findings, or
conclusion is contrary to the weight of the evidence currently of record.
Courts review de novo the Appeals Council’s application of this regulation for errors of
law. If the Appeals Council committed no legal error, then its determination of whether
the ALJ’s decision is contrary to the weight of all of the evidence, including the new
submissions, is discretionary and unreviewable. Getch v. Astrue, 539 F.3d 473, 483-84 (7th
Cir. 2008); Perkins v. Chater, 107 F.3d 1290, 1294 (7th Cir. 1997).
In this case, the Appeals Council determined that Dr. Roche’s statement was new,
material, and related to the relevant period, before the expiration of Ms. Mitcham’s
insured status on March 31, 2012. (R. 1-2.) The Council considered whether the ALJ’s
decision is contrary to the weight of the evidence, including Dr. Roche’s statement, and
it determined that there was no basis for changing the ALJ’s decision. (R. 2.) Therefore,
the Council’s determination is discretionary and unreviewable, as far as it relates to Dr.
Roche’s statement.
The Appeals Council determined that Dr. Gorup’s December 2012 letter, his
January 2013 opinion letter, and the CT myelogram notes did not relate to the period
before Ms. Mitcham’s insured status expired and, therefore, the Council did not consider

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those documents. Dr. Gorup first examined Ms. Mitcham on November 16, 2012, [doc.
31-2, p. 3], almost two months after the ALJ’s decision and almost eight months after her
insured status expired. While his January 24, 2013 opinion letter (written two months
after his examination) states that Ms. Mitcham “will be totally and permanently disabled
for the remainder of her working career,” id., it offers no opinion on her status before her
insured status expired. Ms. Mitcham argues that “[i]t is only logical that the opinions of
Dr. Roche [who did express a retroactive opinion] and Dr. Gorup would relate back at
least to the date of surgery if not well before and well before the Date Last Insured.
Nothing indicates a deterioration of her condition between her Date Last Insured and
these two opinions.” (Reply Brief of Plaintiff [doc. 38] at 7.)

But Ms. Mitcham’s

unsupported “logic” does not substitute for expert medical opinion on her condition
before March 31, 2012. She had sufficient opportunity to advise Dr. Gorup of the critical
importance of the time period for his original opinion and she had sufficient opportunity
to obtain a clarifying supplemental opinion when she discovered that Dr. Gorup’s
opinion letter did not address the relevant time period, but none was submitted. The
Appeals Council and the Court are may assume that such an opinion would not have
been helpful to Ms. Mitcham. As it is, the Court finds no legal error in the Appeals
Council’s assessment of Dr. Gorup’s opinion, or the later-submitted documents, under
the standard of 20 C.F.R. § 404.970(b).
Therefore, neither Dr. Roche’s nor Dr. Gorup’s opinions may be considered in the
Court’s review of the ALJ’s decision.

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Discussion
Ms. Mitcham argues that the ALJ erred in his credibility determination and in his
assignment of “great weight” to the state-agency’s medical reviewer.
1. Credibility determination. Ms. Mitcham makes five arguments against the
ALJ’s credibility determination.
a. Recovery from carpal-tunnel surgery. The ALJ found that Ms. Mitcham’s
reports of numbness in her hands and wrists and allegations of manipulation limitations
did not justify a greater RFC restriction than an environmental limitation on vibrations
because the record shows normal clinical findings and a number of years working after
her carpal-tunnel surgery. (R. 25.) Ms. Mitcham argues that the fact that she worked
after carpal-tunnel surgery “is far different than being able to work after major back
surgery.” (Brief of Plaintiff at 9.) But Ms. Mitcham reads too much into the ALJ’s finding.
His credibility determination here was limited to her manipulation restrictions; he did
not find that she has the RFC for full-time work because she recovered her ability for finefinger manipulation following her carpal-tunnel surgery.
b. Functional capacity evaluation. In support of his credibility determination,
the ALJ cited the functional capacity evaluation of Ms. Mitcham that was performed in
June 2012, before she was released from the work conditioning program following her
lumbar surgery. (R. 25, 26, 497-503.) This evaluation was a five-and-one-half-hours test
comprised of ninety-minute job circuits. The ALJ cited the evaluator’s report that (1) pain
questionnaires indicated strong tendencies toward inappropriate illness behavior by Ms.
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Mitcham, (2) her subjective reports did not correlate well with movement patterns or pain
behaviors, (3) her performance was unreliable with variable effort, (4) her safe maximal
capacity should have been greater than demonstrated because she did not exhibit
expected competitive test performance behaviors, (5) her pulse rates did not achieve
expected levels of elevation, (6) she did not demonstrate expected use of accessory muscle
patterns, and (7) while she exhibited an intermittent limp, it was not consistent when she
was distracted for other ambulatory activities. (R. 26, 497, 500.)
Ms. Mitcham argues that it was error for the ALJ to rely on these comments
because the pain questionnaires themselves weren’t included with the evaluator’s report,
the evaluator’s other comments were not explained, and no examples were given, all of
which prevents independent evaluation of the evaluator’s findings. Ms. Mitcham also
contends that a “full reading” of the report indicates that she exerted maximum effort
during the evaluation.
It was not error for the ALJ to rely on the evaluator’s reports of Ms. Mitcham’s
exaggerated symptoms and lack of effort. The ALJ was not required to second-guess the
evaluator, determine the evaluator’s credibility, or examine the raw data himself, and
neither is the Court. There is no indication in the record, and none is pointed out by Ms.
Mitcham, that the evaluator’s observations or opinions were unreliable. Her invitation
for the Court to examine the entire report and find that, on balance, the evidence shows
that she expended maximal effort is to ask the Court to reweigh the evidence. The Act
assigns weighing of evidence and making evaluative judgments to the Commissioner,
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and it was not error for the ALJ to place more weight on the more experienced and live
observations and opinions of the evaluator.
Ms. Mitcham also, again, misreads the ALJ’s citation of the evaluator’s comments
as the basis for his RFC finding that she can perform the requirements of full-time work
at the light level. The ALJ’s citation was only in partial support of his credibility
determination.
c. Use of a cane. Ms. Mitcham faults the ALJ for citing her use of a cane as a factor
weighing against the veracity of her symptom and functional-limitation allegations. She
relies on Parker v. Astrue, 597 F.3d 920 (7th Cir. 2010), but that decision criticized an ALJ
for discrediting a claimant who used a cane that was not prescribed, which is not the case
here. While the ALJ observed that Ms. Mitcham was not prescribed a cane, he found that
her use of a medically unnecessary cane ― not an unprescribed one ― eroded her
credibility. He noted that no doctor had indicated that an assistive device was necessary,
the functional-evaluation evaluator reported that her intermittent limp was not credible,
clinical findings showed that she was neurologically intact, and Dr. Schwartz noted that,
on discharge, she ambulated without a cane. It was not error for the ALJ to cite Ms.
Mitcham’s use of a cane that she did not need as a factor weighing against her credibility.
d. Balance of the evidence. Finally, Ms. Mitcham argues that “[l]ooking at the
entire record we find considerable evidence of credibility on the part of Mitcham.” (Brief
of Plaintiff at 11.) There follow pages of citations to indications in the record that Ms.
Mitcham is credible and arguments from the absence of indications in the record that she
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is not credible, e.g., doctors’ suggestions that she was not making a good-faith effort on
tests, was not trying to improve, or was showing inappropriate illness behavior. This is
another invitation to the Court to reweigh the evidence, which it may not do. The ALJ
considered the evidence in the record and his reasons for finding her symptom-severity
and function-limiting statements to be not fully credible are supported by substantial
evidence in the record. The ALJ’s conclusion might not be the one that Ms. Mitcham, the
Court, or another ALJ might make, but such is not the standard that the Court applies on
review.
Ms. Mitcham has not shown error in the ALJ’s credibility determination.
2. RFC based on Dr. Fife’s opinion. Ms. Mitcham argues that the ALJ erred by
giving more weight to Dr. Fife’s opinion than Dr. Bangura’s and by adopting Dr. Fife’s
RFC opinion which was issued before her lumbar surgery and the existence of the later
evidence of her functional limitations following surgery.
R. Fife, M.D., is the state-agency physician who made the medical determination
on initial review of Ms. Mitcham’s application for benefits. (R. 77, 98-106.) His RFC
opinion was recorded on a Physical Residual Functional Capacity Assessment form, (R. 31623), which he completed after reviewing the report of Luella Bangura, M.D., to whom he
had sent Ms. Mitcham for an outside consultative examination, (R. 312-15). Ms. Mitcham
asserts that it is “uncertain why the ALJ gave great weight to Dr. Fife’s opinion and very
little weight to Dr. Luella Bangura . . . .” (Brief of Plaintiff at 16.) But it is not uncertain;
the ALJ explained that he found that Dr. Fife’s opinion, which was confirmed by another
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state-agency physician on reconsideration review, (R. 359), was supported by the mild
diagnostic test results and clinical findings by Dr. Bangura, (R. 26). The ALJ also wrote
that he assigned “little weight” to Dr. Bangura’s opinion because it was vague; it
indicated only that Ms. Mitcham might have difficulties in certain functions (e.g.,
handling objects, standing, walking for long periods, and lifting), without positively
indicating what she is capable of doing, which is required for an RFC determination; her
opinion regarding handling objects was directly contradicted by her clinical findings; and
it appeared to the ALJ that her opinions were based on Ms. Mitcham’s subjective reports
rather than objective findings. (Id.)
Ms. Mitcham argues that the ALJ erred by ‘adopting’ and ‘giving controlling
weight’ to Dr. Fife’s RFC opinion because (1) Dr. Fife is a non-examining source; (2) his
opinion was issued months before her lumbar surgery occurred, which she contends is
the primary cause of her disability; and (3) his opinion was issued before the best
evidence of her disability, namely the reports of Drs. Roche and Gorup, were issued.
Ms. Mitcham’s arguments do not show error by the ALJ. First, the ALJ’s RFC
opinion was not based solely on Dr. Fife’s opinions. The ALJ explained that his RFC
finding was based, in part, on Dr. Fife’s (and Dr. Sands’) opinions; the results of the postsurgery functional-capacity evaluation; Ms. Mitcham’s credibility in general; and the
opinion of her treating orthopedic specialist, David Schwartz, M.D., who reported that
she had recovered well from the surgery, with limitations consistent with light work. (R.
25-26.) There is no support in the record for a finding that the ALJ simply adopted Dr.
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Fife’s opinion as his RFC finding. Second, as decided above, Dr. Roche’s and Dr. Gorup’s
opinions may not be considered in the Court’s review of the ALJ’s decision.
Ms. Mitcham has not shown error in the ALJ’s assignment of weight to Dr. Fife’s
opinion or in the ALJ’s RFC finding.
Conclusion
Because Ms. Mitcham has not shown that the Commissioner’s denial of her claim
is unsupported by substantial evidence or is the result of legal error, judgment will issue
affirming the Commissioner’s decision.
DONE this date: 03/25/2015

Denise K. LaRue
United States Magistrate Judge
Southern District of Indiana

Distribution to all ECF-registered counsel of record via ECF-generated e-mail.

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