REED v. COLVIN

Filing 35

ORDER ADOPTING 33 REPORT AND RECOMMENDATIONS - Plaintiff's objections to the Magistrate Judge's Report and Recommendation set forth in sections A, C, and D above are OVERRULED. We SUSTAIN Plaintiff's objection to the Magistrate Judge's Report and Recommendation set forth in section B above. The denial is therefore REVERSED and this case is REMANDED to the agency for reevaluation consistent with this opinion. Signed by Judge Sarah Evans Barker on 3/31/2017.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
GERALD REED,
Plaintiff,
vs.
NANCY A. BERRYHILL,1 Acting
Commissioner of the Social Security
Administration,
Defendant.

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No. 1:16-cv-00359-SEB-TAB

ORDER
This is an action for judicial review of the final decision of Defendant Commissioner
of Social Security (“Commissioner”) finding Plaintiff Gerald Reed not entitled to
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant
to the Social Security Act (“the Act”), 42 U.S.C. § 405(g), from March 4, 2011 through
September 11, 2014. The Administrative Law Judge (“ALJ”) denied Plaintiff’s application
for DIB and SSI after concluding that Plaintiff was not disabled and that he could perform
past relevant work. This case was referred to Magistrate Judge Baker for a report and
recommendation, which he issued on January 20, 2017, holding that the Commissioner’s
decision was supported by substantial evidence. This cause is now before us on Plaintiff’s
Objections to the Magistrate Judge’s Report and Recommendation.

1

Ms. Berryhill, who succeeds Carolyn W. Colvin, is automatically substituted for her as Defendant
in this case. Fed. R. Civ. Pro. 25(d).

Facts2
Plaintiff, Gerald Reed, at the time of his administrative hearing, was 46 years old.
Plaintiff is a chiropractor (practicing from February 2007 through his alleged onset date of
March 4, 2011). He has also held jobs as an auto salesperson, teacher, and chemist.
Plaintiff’s claim for disability benefits relates primarily to back and hip problems
and pain stemming from to a 1986 car accident in which Plaintiff’s pelvis, femur, and left
patella were fractured. On August 2, 2011, Plaintiff underwent a total hip arthroplasty.
According to his medical records, by September 12, 2011, Plaintiff’s progress was
“wonderful” and he was very happy with the results of the surgery.
Plaintiff’s medical records reveal a 7-month gap following September 12, 2011. On
April 9, 2012, he returned to the orthopedic clinic complaining of lower back pain with
radiating pain in his legs.

Based on the findings of a CT scan and his doctor’s

recommendation, Plaintiff opted for back surgery, which was conducted on June 6, 2012.
As compared to his preoperative state, Plaintiff’s symptoms of radiculopathy and back pain
improved so that, in July 2012, his surgeon determined that he was healing at a satisfactory
rate, although Plaintiff was still using the assistance of crutches to walk.
During August of 2012, Plaintiff moved from Illinois to Indiana. Dr. Travis
Richardson, Plaintiff’s treating orthopedist, wrote a letter on Plaintiff’s behalf opining that
Plaintiff was unable to maintain a full-time job and that he met the criteria for Social

Because the facts are sufficiently laid out in the ALJ’s opinion, the parties’ briefing, and the
Magistrate Judge’s Report and Recommendation, we need not reiterate them in full here. We
recount facts only as necessary to address Dr. Reed’s objections to the Report and
Recommendation.
2

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Security disability. Dr. Richardson stated that Plaintiff “had a multilevel spine fusion
decompression of [his] lumbar spine” and that his use of narcotics and pain medications
would affect his judgment. Dr. Richardson explained that Plaintiff suffers from chronic
hip pain following his total hip arthroplasty and that he has experienced a loss in range of
motion in his hip and back.
On January 29, 2013, as part of Plaintiff’s disability application process, Dr. Ami
Rice examined Plaintiff and concluded that the clinical evidence did not support the need
for an ambulatory aid. She noted that Plaintiff had tenderness along his back, had limited
motion in his left hip and ankle and lumbar spine, but had full ranges of motion in his upper
extremities and no radiating back pain.
Plaintiff’s claims for benefits were denied initially on February 11, 2013, and upon
reconsideration on March 7, 2013. Plaintiff requested and received an administrative
hearing, which was held on May 13, 2013, at which he testified. The ALJ concluded that
Plaintiff retained the residual functional capacity to perform light work, with certain
exceptions, and that he was capable of performing his past relevant work as a salesperson,
teacher, chemist, and auto salesperson. Plaintiff appealed the ALJ decision in this action,
contending that the ALJ’s decision was in error on four grounds: the ALJ selectively
reviewed the evidence of his back impairments; the ALJ improperly evaluated Dr.
Richardson’s opinion; the ALJ erred in analyzing Plaintiff’s credibility; and the ALJ
improperly prohibited Plaintiff from testifying about the physiology of his atrophy.
The parties appeared before Magistrate Judge Tim Baker on December 20, 2016 for
oral argument in connection with this appeal of the ALJ’s conclusions, on the basis of
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which, the Magistrate Judge issued a Report and Recommendation that affirmed the ALJ’s
decision. Plaintiff then filed objections to the Report and Recommendation on February
3, 2017, which we address below.
Standard of Review
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, 368-69 (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. P. 72(b). The district court
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“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
raised by a party. See Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759-61 (7th Cir.
2009).
Discussion
The ALJ’s ruling tracked the first four steps of the five-step analysis as required by
20 C.F.R. § 404.1520(a). This appeal involves the fourth step of the sequential evaluation
process, which addresses whether a claimant is capable of performing past relevant work
given his Residual Functional Capacity (“RFC”). RFC is a claimant’s ability to do work
on a regular and continuing basis despite his impairment-related limitations. 20 C.F.R.
§ 1545. After considering Plaintiff’s testimony and the evidence of record, the ALJ
determined that Plaintiff was physically capable of performing his past relevant light,
semiskilled work including salesperson in a vision center, teacher, chemist, and auto
salesperson. The Magistrate Judge’s Report and Recommendation concurred in the ALJ’s
assessment, to which Plaintiff objects here in large part by reiterating the arguments he
made in his opening appeal brief.
A.

The ALJ’s Review of the Evidence of Dr. Reed’s Back Impairments
Plaintiff contends that the ALJ erred in omitting from her determination a discussion

of eight pieces of medical evidence that he submits are material to his disability
determination. [Dkt. No. 34 at 4-5.] Plaintiff fails, however, to explicate the way(s) in
which any of these medical records constitutes relevant evidence which contradicts the
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ALJ’s determination. We agree with the Magistrate Judge that “the ALJ did discuss
Plaintiff’s history of hip and back problems, his surgery and his progress,” relying on
“findings from Plaintiff’s orthopedic surgeon” and examining physician Dr. Rice. [Dkt.
No. 33 at 4.]
In our view, the evidence allegedly omitted from the ALJ’s determination is at most
duplicative of, and not in conflict with, the ALJ’s specific findings. For example, Plaintiff
contends that the ALJ failed to mention “Dr. Richardson’s August 10, 2012, statement that
Dr. Reed would not be able to perform work ‘that requires standing or sitting for a length
of time’”. [Dkt. No. 34 at 5.] Yet, the ALJ acknowledged Dr. Richardson’s opinion that
“the claimant would not be able to work any longer than thirty minutes to one hour without
needing to change positions from sitting to standing.” [AR at 26.] Likewise, Plaintiff
faults the ALJ for failing to consider nerve compression, obliteration, and destruction [Dkt.
No. 34 at 4], and yet, the ALJ specifically considered Plaintiff’s CT scan evidencing “grade
two spondylolistheses of L5 on S1” and “bilateral L5 foraminal narrowing”. [AR at 24.]
It is clear that the ALJ considered all of these medical records, albeit without specifically
quoting from them. However, “[t]he ALJ’s failure to address [certain] specific findings . .
. does not render his decision unsupported by substantial evidence because an ALJ need
not address every piece of evidence in his decision.” Sims v. Barnhart, 309 F.3d 424, 429
(7th Cir. 2002); see also, e.g., Hodges v. Barnhart, 399 F. Supp. 2d 845, 855 (N.D. Ill.
2005) (affirming decision where “ALJ summarized the substantial medical evidence
provided by the claimant and considered the medical evidence in its entirety”). “[A]n ALJ
need only ‘minimally articulate’ his or her justification for rejecting or accepting specific
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evidence of a disability.” Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004). (quoting
Stewart v. Bowen, 858 F.2d 1295, 1299 (7th Cir. 1988)). Here, the ALJ more than satisfied
this “lax standard.” Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2004).
Even if the ALJ had failed to consider relevant medical evidence, it is Plaintiff’s
burden to show that any such failure constituted harmful error sufficient to affect the
outcome of his claim. See Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009) (burden of
showing harmful error is on party attacking the agency’s decision); Parker v. Astrue, 597
F.3d 920, 924 (7th Cir. 2010) (“[H]armless error . . . is applicable to judicial review of
administrative decisions and is thus an exception to the Chenery doctrine.”); Shramek v.
Apfel, 226 F.3d 809, 814 (7th Cir. 2000) (affirming the ALJ’s decision despite errors
because none of them affected the outcome); see also Fisher v. Bowen, 869 F.2d 1055,
1057 (7th Cir. 1989) (“No principle of administrative law or common sense requires us to
remand a case in quest of a perfect opinion unless there is reason to believe that the remand
might lead to a different result.”). The ALJ here did in fact consider and discuss Plaintiff’s
history of hip and back problems, but even if the Plaintiff’s argument is correct, i.e., that the
ALJ failed to consider a conflicting medical record, Plaintiff has not demonstrated that such
omissions would affect the outcome of his claim. We OVERRULE Plaintiff’s objection to
the Magistrate Judge’s finding as well as that of the ALJ on this ground.
B.

The ALJ’s Evaluation of Dr. Travis Richardson’s Opinion
Dr. Richardson is an orthopedic physician who treated Plaintiff’s back and hip

problems. An ALJ must give a treating physician’s opinion controlling weight if it is both
“(1) supported by medical findings; and (2) consistent with substantial evidence in the
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record.”

Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008) (citing 20 C.F.R.

§ 404.1527(c)). If an ALJ does not give a treating source’s medical opinion controlling
weight, then “all of the following facts” are considered in deciding the weight to give the
medical opinion:

examining relationship, treatment relationship, supportability,

consistency, specialization, and a catch-all “other factors” category.

20 C.F.R.

§ 404.1527(c). The Seventh Circuit has held that even if an ALJ articulates good reasons
for rejecting a treating physician’s opinion, “it still would [be] necessary to determine what
weight his opinion was due under the applicable regulations.” Larson v. Astrue, 615 F.3d
744, 751 (7th Cir. 2010) (citing 20 C.F.R. § 404.1527(d)(2) (eff. Aug. 1, 2006 to Nov. 11,
2010), now 20 C.F.R. § 404.1527(c) (eff. Aug. 24, 2012 to Mar. 26, 2017)). Describing
the § 404.1527(c) factors as a “required checklist,” the Court in Larson reversed and
remanded the case to the district court because the ALJ failed to analyze these factors. Id.;
see also Chambers v. Astrue, 835 F. Supp. 2d 668, 677-78 (S.D. Ind. 2011).
Here, the ALJ did not structure her analysis around the “required checklist” of the
§ 404.1527(c) factors. She stated in her ruling that she gave Dr. Richardson’s opinion
“very little weight in assessing the claimant’s functional capacity” “due to the lack of any
significant objective support for [his] opinion” and inconsistencies between his opinion
and the treatment records. Though this may be enough to explain the reason that the ALJ
did not give Dr. Richardson’s opinion controlling authority, it is still necessary to determine
more precisely what weight Dr. Richardson’s opinion was due under the regulations. [See
AR at 26.]

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In considering Dr. Richardson’s opinions, the ALJ did explain that he was Plaintiff’s
treating physician and an orthopedic doctor. She also determined that Dr. Richardson’s
opinion was inconsistent with Dr. Reed’s “rapid[] improvement” (without citing any
medical record evincing the same), but her analysis stopped there. [AR 26.] Missing from
her determination is any discussion of the remaining factors, to wit, the length of treatment
and frequency of examination, the nature and extent of the treatment relationship, and other
factors, such as whether Dr. Richardson understood disability programs and evidentiary
requirements, particularly since his opinion is specific to a social security disability
determination. [Id.; see 20 C.F.R. § 404.1527(c).] Moreover, the ALJ failed to discuss at
all the final portion of Dr. Richardson’s opinion letter relating to Plaintiff’s diagnosis, pain
medication, surgery, and range of motion, along with the medical records consistent with
his opinion. [See AR 26, 202-03; Dkt. No. 20 at 25 (identifying treatment notes in the
record that Plaintiff contends are consistent with Dr. Richardson’s opinion of atrophy in
Plaintiff’s left leg).]
It is clear that the ALJ gave Dr. Richardson’s opinion “very little weight.” What is
not clear are the reason(s) she decided to attribute this reduced amount of weight to the
opinion. As our court stated in Chambers: “The ALJ may have had legitimate reasons
anchored in the required factors for giving the treating physician’s opinion [very little
weight]; however, [s]he must at least ‘minimally articulate’ those reasons in [her]
decision.” Therefore, we SUSTAIN Plaintiff’s objection to the ALJ’s analysis of Dr.
Richardson’s opinion, and REMAND this issue for reconsideration.

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C.

Dr. Reed’s Credibility
In reviewing the ALJ’s decision, we do 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. The court affords special deference to credibility
determinations because ALJs “are in the best position to see and hear the witnesses and
assess their forthrightness.” Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000); see also
Sims v. Barnhart, 442 F.3d 536, 538 (7th Cir. 2006). An ALJ’s credibility determination
is to be upheld unless it is patently wrong. Diaz v. Chater, 55 F.3d 300, 308 (7th Cir.
1995).
Dr. Reed objects to the ALJ’s determination that inconsistencies existed between
Plaintiff’s allegations of severe pain and the evidence in the record as a whole. [Dkt. No.
34 at 10 (the ALJ did not give much weight to Plaintiff’s testimony of “fairly limited”
activities of daily living).] The ALJ specifically found that based on the “relatively weak
medical evidence and other factors discussed in this decision,” it was “difficult to attribute
[Plaintiff’s alleged] degree of limitation to his medical condition, as opposed to other
reasons.” [AR 26.] The ALJ “turned to the claimant’s credibility” immediately following
her analysis of the state-agency medical consultant Dr. Ruiz’s opinion that Plaintiff could
perform a “range of light work” with some exceptions. The ALJ found Dr. Ruiz’s opinion
persuasive and consistent with the medical evidence of record as compared to Plaintiff’s
testimony of his limitations on daily activities.
Plaintiff urges us to find that the only support for the ALJ’s discounting of Plaintiff’s
credibility “was that during an emergency room visit, Dr. Reed said that he was hiking
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outside.” [Dkt. No. 34 at 10 (citing AR 26-27).] Despite her “far from perfect” analysis
[see the Magistrate Judge’s Report and Recommendation, at 6], the ALJ’s credibility
determination was not, as Plaintiff might have us believe, limited to a consideration of an
emergency room visit notation that Plaintiff was wearing hiking boots.
As one example of evidence contradicting Plaintiff’s alleged limitations, the ALJ
referenced Plaintiff’s emergency room visit where he “admitted that he was hiking
outside.” [See AR 24-25; id. 526 (Pt. [with] hiking boots. in weeds & briars”).] Although
Plaintiff disputes that his wearing of hiking boots was an admission of “hiking,” we find
this argument disingenuous. Plaintiff testified in the hearing that he went camping, fishing,
and walking along the creek. [AR 587-89.]3 The ALJ found that Plaintiff’s “hiking”
suggested that his alleged limitations were not due to his physical pain. [AR 26-27.] Even
so, the ALJ did not find that Plaintiff’s testimony lacked all credibility. The ALJ “[found]
the claimant credible to the extent that he experiences ongoing difficulties with pain and
limitation of motion of his hip and back.” [Id. 27.]4

We are not giving a post hoc rationale to the ALJ’s determination here by recognizing Plaintiff’s
testimony of hiking, fishing, and camping, but, rather, we are acknowledging the lack of credibility
marking Plaintiff’s attempt to explain away the emergency room record of Plaintiff wearing
“hiking boots” as inconclusive evidence that Plaintiff “hiked.”
3

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Plaintiff turns our attention to his Reply Brief [Dkt. No. 30 at 15] in which he contends that the
ALJ found Plaintiff “lacked credibility because he had not taken prescription medication for two
years.” [Dkt. No. 30 at 15.] This recasting of the ALJ’s decision is inaccurate. The ALJ
acknowledged that Plaintiff did not have insurance, which limited his pain relief to over-thecounter medication, but that since he had not taken prescription medication for two years, his use
of medication did not support a finding of disability. [AR 27.] This finding does not go to
Plaintiff’s credibility but, rather, whether Plaintiff’s history of prescription medication supports a
finding of disability.
Plaintiff also argues that the ALJ erred in not considering his work history “as required by 20
C.F.R. § 404.1529(c)(3)” when making a credibility determination. [Dkt. No. 20 at 31.] That

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We must give special deference to the ALJ’s determination of Plaintiff’s credibility
because she was in the best position to see and hear Plaintiff testify and assess his
forthrightness. Although the ALJ here could have provided a more thorough explication
of the basis for her credibility determination, we do not find her determination to be
patently wrong. We therefore OVERRULE Plaintiff’s objection on this basis.
D.

The ALJ’s Prohibition of Dr. Reed’s Expert Testimony
The Magistrate Judge found that the “ALJ did not err in limiting Plaintiff’s

testimony to his condition as a claimant rather than as a medical expert expounding on the
nature and severity of his own impairments.” [Dkt. No. 33 at 7.] The Magistrate Judge
supported his conclusion because Plaintiff was not capable of serving as a neutral medical
witness, testifying on his own behalf or as a chiropractor might who has the required
medical background to qualify as an acceptable medical source under the regulations.
Plaintiff does not deny that an obvious conflict of interest would exist if Plaintiff
were allowed to testify as a medical expert on his own behalf. As the Commissioner
explained, the pertinent regulations prohibit medical experts/consultants from serving as a
consultant in the case where the claimant was a patient. 20 C.F.R. § 404.1519q. Clearly,
if a conflict of interest would prevent a medical expert/consultant from testifying in a case
in which the claimant was a former patient, then Claimant likewise would not be permitted

regulation does not require a consideration of work history to make a credibility determination.
Rather, that section states that “we will carefully consider any other information you may submit
about your symptoms” and gives “prior work record” as evidence that when presented will be
considered, but such a review is not per se required. 20 C.F.R. § 404.1529(c)(3). In any event,
the ALJ did consider the Plaintiff’s work history in her determination, even though her recital
follows her written credibility determination findings. [AR 28-29.]

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to testify on his own behalf as a purported neutral expert medical witness. For this reason,
we find no error in the ALJ’s determination that Plaintiff could not testify as a medical
expert on his own behalf, and, accordingly, do not reach the issue of whether a chiropractor
can offer medical source testimony.
Conclusion
For the foregoing reasons, we OVERRULE Plaintiff’s objections to the Magistrate
Judge’s Report and Recommendation set forth in sections A, C, and D above. We
SUSTAIN Plaintiff’s objection to the Magistrate Judge’s Report and Recommendation set
forth in section B above. The denial is therefore REVERSED and this case is REMANDED
to the agency for reevaluation consistent with this opinion.
IT IS SO ORDERED.
_______________________________

Date: _____________
3/31/2017

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

Distribution:
All CM/ECF Counsel of Record

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