TUTSON v. COLVIN

Filing 26

ENTRY on Judicial Review-The Commissioner's decision should be affirmed. Final judgment shall be duly entered. Signed by Magistrate Judge Denise K. LaRue on 7/15/2016.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
IINDIANAPOLIS DIVISION
LASHANNA R. TUTSON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 1:15-cv-0652-DKL-RLY

Entry on Judicial Review
Plaintiff Lashanna R. Tutson appeals the decision of the Commissioner of Social
Security denying her application for supplemental security income (“SSI”). See 42 U.S.C.
§ 405(g). The parties have consented to the Magistrate Judge’s exercise of jurisdiction.
For the reasons that follow, the Court finds that the Commissioner’s decision should be
affirmed.
I.

Background
In August 2012, Tutson filed an application for supplemental security income,

alleging disability beginning January 1, 1999, because of depression and degenerative
disk disease. [R. 136.] Tutson was 25 years old at her alleged onset date. Her claim was
denied initially and on reconsideration. She requested an administrative hearing; in
September 2013 a hearing was held before Administrative Law Judge (“ALJ”) Lisa B.

Martin. Tutson, who was represented by counsel, appeared and testified; an impartial
vocational expert (“VE”) also testified.
Tutson submitted medical records in support of her applications for benefits.1
Included among them were treatment records from her primary care physician, Julie A.
Vannerson, M.D., emergency room records, and rehabilitation records. The records
reflect that Tutson treated with Dr. Vannerson from June 2011 to March 28, 2012, and
again on April 9, 2013 and June 2013. On June 27, 2013, Dr. Vannerson noted that Tutson’s
pain “has been well-controlled on pain medication. [R. 476.]
In late March 2013, Tutson suffered a gunshot wound to her left leg, resulting in a
tibia fracture and compartment syndrome. [R. 521.] She had surgery to repair a tibia
fracture and was hospitalized for several days thereafter. Tutson treated with pain
medication and physical and occupational therapy, although she regularly failed to
attend the therapy appointments after her discharge from the hospital. Her condition
improved.
Dr. Vannerson submitted two residual functional capacity questionnaires. The
first was dated September 27, 2012; the second was dated July 17, 2013. The earlier
assessment concluded that Tutson could sit for 60 minutes at a time, stand/walk for 15
minutes at a time, sit for a total of 8 hours in an 8-hour workday, and stand/walk for a
total of 4 hours in an 8-hour workday. [R. 459.] The physician opined that Tutson was
physically capable of working an 8-hour day, 5 days a week on a sustained basis at “a

Because the parties’ briefs and the ALJ’s decision thoroughly discuss the medical evidence, the
Court merely highlights some of it to provide necessary factual background for this opinion.
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sedentary job.” [R. 460.] In the July 2013 assessment, she stated that Tutson could only
sit for 15 minutes at a time and for a total of 2 hours in an 8-hour workday. [R. 468.] Dr.
Vannerson said that Tutson could stand/walk for “0” minutes at one time, and
stand/walk for a total of 1 hour in an 8-hour day. [Id.] She concluded that Tutson was
not physically capable of full-time work. [R. 469.]
Tutson testified about her physical and mental impairments and her functional
activities. Though she alleged disability since 1999, she claimed that she became disabled
two or three years prior to the hearing when her “back went out.” [R. 50.] In late March
2013, she sustained a gunshot wound to her left leg when her cousin shot her for “no
reason.” [R. 53.] She stated that she wears a boot and always will. She also has a walker.
[R. 54.] She said that she sees her primary care physician Dr. Vannerson every one or two
months. [R. 54.] Tutson testified that she could stand for 5-10 minutes at one time, sit for
15-60 minutes at a time, and walk half a block. [R. 60-61.]
Tutson was 40 years old at the time of the hearing. [R. 52.] She had an 11th grade
education. [R. 53.] In 2012 (after her alleged onset date), she was going to school to obtain
her GED. She attended classes four days per week for around four hours a day. [R. 44.]
She said that she would have graduated in March 2013, but she “got shot.” [R. 45.] She
was planning to return and complete the program. [R. 46.] In 2010-2012 she babysat
three children (ages 7, 5 or 6, and 9 months in 2012) twice a week from 9 a.m. until 4 p.m.
[R. 46-47.] She said that the 9 month old sat on her bed and explained that the 7 year old
helped her with the infant. [R. 58-59.] In 2009 she cleaned houses one or two times per

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month. [R. 48.] She has past work experience at a Taco Bell as a cashier and cleaning the
tables and restrooms. [R. 44.]
Using the five-step sequential process for analyzing disability claims, see 20 C.F.R.
§§ 404.1520 and 416.920, the ALJ found that Tutson had not engaged in substantial gainful
activity since the application date of August 17, 2012. [R. 25.] The ALJ determined that
Tutson had severe impairments of lumbar spine disorder, shoulder disorder, depression,
anxiety with post-traumatic stress disorder, and history of cocaine and marijuana abuse,
and beginning in March 2013, she also had a left tibia disorder status post-gunshot
wound. [Id.] None of these, singly or in combination, meets or medically equals the
severity of a listed impairment. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. [R. 26.]
ALJ Martin assessed Tutson’s residual functional capacity, concluding that she
could perform a full range of light work with the following restrictions:
She requires a sit-stand option and change of position opportunity as often
as every 30 minutes. [She] must avoid climbing ladders, ropes, and
scaffolds, as well as avoid more than occasional climbing ramps and stairs,
balancing, stooping, kneeling, crouching, and crawling. Moreover [she]
must avoid overhead reaching tasks and dangerous work hazards
(including protected heights and exposed machinery). Overall [she] is
limited to routine, uninvolved tasks not requiring a production rate/fast
assembly quota pace.
[R. 27.] At the hearing, the ALJ posed a hypothetical to the VE to determine what jobs, if
any, Tutson could perform. She asked the VE to assume an individual with Tutson’s age,
education, and work background who:
can perform at a full range of light work activities but will need to have a
sit/stand option in the work place. Has the opportunity to do the job either
sitting or standing and changing that position as often as every 30 minutes.
No lateral or scaffold climbing. And only occasional postural otherwise.
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They need to avoid overhead reaching tasks. They need to avoid exposure
to dangerous work hazards which would be unprotected heights and
exposed machinery. Finally, they’re limited to routine uninvolved type of
work activities at a nonproductive rate or fast assembly pace and this is
because of pain or mental health distractions that would prevent detailed
decision making.

[R. 69.] The VE testified that such an individual could not perform Tutson’s past work,
but could perform other jobs including silverware wrapper, maker, and sorter. [R. 6970.] Based on the VE’s testimony, the ALJ determined that Tutson was unable to perform
any past relevant work but could work as a silverware wrapper, marker, and garment
sorter. [R. 32-33.] Therefore, the ALJ decided that Tutson was not under a disability as
defined under the Social Security Act. [R. 33.] The Appeals Council denied review, and
Tutson commenced this action, seeking judicial review.
II.

Discussion
Judicial review of an ALJ’s decision is limited to determining whether the findings

are supported by substantial evidence and whether there has been an error of law. Stepp
v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015); Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013).
“Substantial evidence” is defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Varga v. Colvin, 794 F.3d 809, 813 (7th Cir.
2015). The district court considers the record as a whole but cannot reweigh the evidence,
make credibility determinations, or substitute its judgment for that of the ALJ. See Stepp,
795 F.3d at 718. An ALJ is not required to mention every piece of evidence in the record

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but must build a “logical bridge” from the evidence to her conclusions. Varga, 794 F.3d
at 813.
In seeking judicial review, Tutson argues that the ALJ improperly discounted
treating physician Dr. Vannerson’s July 2013 medical opinion regarding Tutson’s
limitations. She also argues that the ALJ’s hypothetical question to the VE did not
account for all of her limitations, which she attributes to errors at prior steps in the
sequential evaluation process. More specifically, she contends that the ALJ failed to
account for her moderate difficulties in concentration, persistence, or pace.
Generally, a treating physician’s opinion about a medical condition is given more
weight than the opinion of other, non-treating medical sources. See 20 C.F.R. § 404.1527.
This is because a treating physician is more familiar with the claimant’s conditions and
circumstances. Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). When a treating
physician’s opinion on the nature and severity of a medical condition is well supported
by medical findings and not inconsistent with other substantial record evidence, the
regulations entitle it to controlling weight. Id; see 20 C.F.R. § 404.1527(c)(2). If an ALJ
does not give a treating physician’s opinion controlling weight, then she must consider
certain factors in deciding how much weight to give it. Scrogham v. Colvin, 765 F.3d 685,
697 (7th Cir. 2014); 20 C.F.R. § 404.1527(c)(2). An ALJ is not required to discuss every
such factor in her decision, but when the decision does address the factors, the Court is
better able to evaluate whether the ALJ gave appropriate weight to the treating
physician’s opinion. See Scrogham, 765 F.3d at 697. An ALJ must give “good reasons” for
rejecting a treating physician’s opinion. Yurt v. Colvin, 758 F.3d 850, 860 (7th Cir. 2014).
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The ALJ gave Dr. Vannerson’s July 17, 2013 residual functional capacity
assessment “little weight.” [R. 31.] This assessment, the ALJ found, was not inconsistent
with the first functional capacity assessment from September 2012, but rather “reflects a
healing period for the claimant after her gunshot wound” and that “after healing, [her]
functional ability rose more to at least the limitations outlined in B8F,” referencing the
September 2012 RFC assessment. [Id.] Tutson argues that in deciding how much weight
to give Dr. Vannerson’s opinion, the ALJ did not discuss the regulatory factors, and thus
the Court cannot review whether she properly determined not to give much weight to
that opinion, citing Scrogham, 765 F.3d at 697. Yet the Court can assess whether the ALJ’s
decision to give Dr. Vannerson’s July 2013 opinion “little weight” was appropriate.
In order to be found disabled under the Social Security Act, Tutson has to show
that her impairment “can be expected to result in death” or “has lasted or can be expected
to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3).
The ALJ understood the July 2013 opinion to reflect a “healing period” following Tutson’s
gunshot wound. [R. 31; see also R. 29 (noting that there was no indication in the record
that Tutson’s gunshot injury was permanently disabling or causing more limitations than
she had before that injury).] Dr. Vannerson indicated that Tutson’s progress was “fair”
[R. 468], but nothing in her opinion reasonably suggests that the impairment or
impairments from her gunshot injury were expected to last 12 months or more, or result
in death.
Furthermore, the ALJ correctly noted that the July 2013 opinion limited Tutson to
no standing and/or walking at one time [R. 468], yet Dr. Vannerson failed to provide any
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medical explanation as to why Tutson was unable to stand or walk. [R. 29.] The ALJ
contrasted that opinion with the fact that Tutson had demonstrated the ability to stand
and walk at the September 2013 hearing. [Id.] Thus, the restriction to no standing or
walking was inconsistent with the ALJ’s own observations almost two months after Dr.
Vannerson gave her opinion. Besides, as the ALJ correctly noted, Tutson was last seen
for follow-up regarding her gunshot injury three months after her injury, on June 24,
2013, when, despite “very minimal healing at the fracture site,” her left tibial
intramedullary nail was “stable without acute complicating features.” [R. 479.] She was
instructed to continue weight bearing as tolerated in her boot and was going to be
returned to physical therapy. [Id.] The Court finds that ALJ Martin gave good reasons
for discounting Dr. Vannerson’s July 2013 opinion as to Tutson’s functional limitations.
Turning to Tutson’s second argument, the hypothetical question to the VE, like the
RFC assessment, must account for all of the claimant’s limitations supported by the
medical record, including deficiencies in concentration, persistence or pace. Varga, 794
F.3d at 813; see also O'Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010). However,
the ALJ need not use the “concentration, persistence, or pace” terms where her
hypothetical otherwise captures the claimant’s deficiencies in these areas. See Yurt, 758
F.3d at 857-58; O’Connor-Spinner, 627 F.3d at 619 (stating that the court has not insisted
that the “concentration, persistence and pace” terminology be used in the hypothetical in
all cases). To the extent Tutson contends that the ALJ’s hypothetical was flawed because
it was based on alleged errors by the ALJ in discounting Dr. Vannerson’s opinion, this
issue has already been addressed.
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Tutson further argues that the ALJ’s hypothetical failed to account for the
moderate difficulties she found Tutson to have in an ability in concentration, persistence,
or pace.2 She submits that ALJ’s restriction to “routine, uninvolved tasks not requiring a
production rate/fast assembly quota pace” [R. 27] did not sufficiently account for her
limitations in concentration, persistence, and pace. The ALJ did find that Tutson has
moderate difficulties in concentration, persistence, or pace. [R. 26.] This finding was
based on Tutson’s testimony that her medication causes drowsiness that makes her
unable to concentrate when she first wakes up in the morning [R. 64] and that she had
difficulty sitting still without fidgeting and moving around. [R. 60.] The ALJ did not
merely limit Tutson to “simple, repetitive work,” which was problematic in other cases
such as O’Connor-Spinner, 627 F.3d at 620. Rather, she imposed further limitations,
restricting Tutson “to routine uninvolved type of work activities at a nonproductive rate
or fast assembly pace and this is because of pain or mental health distractions that would
prevent detailed decision making.” [R. 69.] This hypothetical adequately captures
Tutson’s limitations in concentration, persistence, or pace. See O’Connor-Spinner, 627 F.3d
at 619 (stating that the court has “let stand an ALJ’s hypothetical omitting the terms

Tutson notes that the consulting clinical psychologist opined that her symptoms significantly
and negatively impacted her ability to interact with others and engage in daily functioning tasks
[R. 457] and that she testified to having depression and anxiety that causes “[c]onstant crying.”
[R. 64.] However, she has failed to develop any argument on these points, so any such an
argument is waived. Besides, it is unclear how the alleged limitations in social interaction and
activities of daily living would have affected her concentration, persistence, or pace. And the ALJ
found Tutson to have only mild restrictions in her activities of daily living and social functioning.
[R. 26.] These findings are supported by substantial evidence, including the evidence that Tutson
attended classes several days a week an attempt to earn her GED, she rode the bus to and from
school, and she did her babysitting job, all since the alleged onset of disability.
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‘concentration, persistence and pace’ when it was manifest that the ALJ’s alternative
phrasing specifically excluded those tasks that someone with the claimant’s limitations
would be unable to perform.”).
Conclusion
For the foregoing reasons, the Commissioner’s decision should be affirmed. Final
judgment shall be duly entered.
DATED: 07/15/2016

Electronic distribution to counsel of record

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