SLEEK v. COLVIN

Filing 33

ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF APPEAL: The Commissioner's decision is affirmed. Sleek's brief in support of appeal [Filing No. 24] is denied. See Order. Signed by Magistrate Judge Tim A. Baker on 8/9/2017.(SWM)

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

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No. 1:16-cv-02307-TAB-TWP

ORDER ON PLAINTIFF’S BRIEF IN SUPPORT OF APPEAL
I.

Introduction
Plaintiff Robin A. Sleek appeals the Commissioner’s denial of her application for Social

Security benefits. Sleek argues that the Administrative Law Judge made erroneous findings at
step two, in the Residual Functional Capacity determination, and when weighing the medical
evidence. For reasons explained below, Sleek’s supporting arguments are unavailing. Sleek’s
brief in support of appeal [Filing No. 24] is therefore denied.
II.

Background
On May 10, 2013, Sleek applied for disability insurance benefits and supplemental

security income, alleging disability beginning on March 13, 2012. The agency denied Sleek’s
applications initially and upon review. On November 21, 2014, an Administrative Law Judge
held a hearing and Sleek testified, along with a Medical Expert, Psychological Expert, and
Vocational Expert. On March 16, 2015, the ALJ found Sleek is not disabled.
At step one, the ALJ determined that Sleek has not engaged in substantial gainful activity
since the alleged onset date. At step two, the ALJ found Sleek’s severe impairments are

ischemic heart disease and anxiety. At step three, the ALJ concluded that these impairments do
not meet or medically equal one of the listed impairments. At step four, the ALJ determined
Sleek has the RFC to perform light work with the following limitations:
lifting, carrying, pushing, and pulling twenty pounds occasionally and ten pounds
frequently; occasional climbing of ramps and stairs, but no climbing of ladders,
ropes and scaffolds; occasional balancing, stooping, and kneeling; no crouching or
crawling; occasional left overhead reaching; no exposure to hazardous equipment
or moving mechanical parts; work limited to simple, routine, and repetitive tasks,
and simple work-related decisions; only occasional contact with supervisors and
coworkers; and no contact with the public.
[Filing No. 14-2, at ECF p. 25.]
At step five, the ALJ found that Sleek is unable to perform past relevant work as
an informal server, fast food manager, assistant manager, and packing supervisor.
Relying on the VE’s testimony, the ALJ found that Sleek has the RFC to perform the
work of a store clerk order filler, weight measurer/checker, and routine clerk. Thus, the
ALJ concluded Sleek is not disabled. The Appeals Council denied Sleek’s request for
review, making the ALJ’s conclusion the Commissioner’s final decision. This appeal
followed.
III.

Standard of review
The Court must uphold the ALJ’s decision so long as she supports her findings with

substantial evidence, which is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013) (quoting
McKinzey v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011)). While the ALJ must consider all
relevant medical evidence and avoid “cherry-picking” facts supporting a non-disability
conclusion, she is not required to discuss every piece of evidence. Denton v. Astrue, 596 F.3d
419, 425 (7th Cir. 2010). The ALJ need only provide a logical bridge between the evidence and

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her conclusions. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). However, the ALJ must
also “confront the evidence that does not support her conclusion and explain why that evidence
was rejected.” Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014).
IV.

Discussion
A.

The ALJ did not err at step two

Sleek argues that the ALJ erred at step two by failing to find that Sleek’s back pain is a
severe impairment. The ALJ found that “[t]he majority of her documented back problems were
discussed from August 2013 through December 2013,” which did not last for the requisite
twelve-month period. [Filing No. 14-2, at ECF p. 23.] Sleek takes issue with the ALJ’s
conclusion that her back pain therefore does “not represent severe impairments that affect the
claimant’s ability to perform basic work functions.” [Filing No. 14-2, at ECF p. 23.]
As evidence that Sleek’s back pain is severe, Sleek points to a June 2011 MRI and an
August 2011 exam. It is not the Court’s role on judicial review to reweigh the evidence. Elder
v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). Not only does the ALJ address the 2011 MRI
relative to Sleek’s back pain, but the ALJ notes it occurred several months before the alleged
onset date. [Filing No. 14-2, at ECF p. 22.] Similarly, the exam occurred months prior to the
relevant time period. Sleek additionally points to records from August 2013, which document
that she had injections to treat back pain. However, this evidence does not demonstrate Sleek’s
back pain lasted more than the four months recognized by the ALJ. Sleek fails to convince the
Court that the ALJ erred in her finding. Therefore, remand is not appropriate on this issue.
B.

The RFC is not erroneous

Sleek argues the ALJ’s RFC determination is erroneous because it fails to include
restrictions for her back pain and panic issues. For back pain, Sleek takes issue with the ALJ’s

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finding that she could perform light work. Sleek contends that her back pain renders her unable
to stand and walk for up to six hours in an eight hour work day. Sleek points to her own
testimony that she suffers back pain. Sleek also points to the ME’s testimony, which was not
based on the 2013 treatment records of her back pain. This does not demonstrate error. Sleek’s
testimony makes no mention of her ability to stand or walk, and as the Commissioner points out,
the ALJ did not rely on the ME’s testimony in the RFC analysis.
As for Sleek’s panic issues, she fails to identify additional limitations that the ALJ should
have included in the RFC. The Commissioner argues that limitations for panic are contemplated
in the ALJ’s determination that Sleek can only perform simple, routine, repetitive tasks, and
make simple work-related decisions, with only occasional contact with coworkers and
supervisors and no contact with the public. [Filing No. 14-2, at ECF p. 25.] The Court agrees
with the Commissioner. Sleek again points to her testimony, in which she provides an
explanation that she experiences panic, anxiety, and feels overwhelmed. Sleek asserts her
cardiac illness is a result of her panic, and points to several instances where panic is noted as the
cause of some physical symptoms. However, the ALJ noted inconsistencies with the alleged
severity of her symptoms. Furthermore, the ALJ discussed the consultative psychologist’s report
that Sleek’s depiction of panic attacks is not credible because she did not report having the
physical symptoms associated with them. [Filing No. 14-2, at ECF p. 29.] Overall, Sleek’s
argument that the RFC is erroneous fails. Remand is therefore not appropriate on this issue.
C.

The weight given to medical evidence is proper

The ALJ afforded little weight to Sleek’s primary care physician, Dr. Smith. [Filing No.
14-2, at ECF p. 29.] Sleek argues the ALJ should have given Dr. Smith controlling or great
weight. Sleek contends the ALJ failed to point to inconsistencies or provide an analysis for her

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determination. However, the Court disagrees. The ALJ discussed Dr. Smith’s 2013 letter, in
which she opined that Sleek is unable to work due to multiple medical problems. [Filing No. 1415, at ECF p. 20.] The ALJ also discussed Dr. Smith’s treatment notes that Sleek’s condition
was improving and that Sleek denied having chest pain or dyspnea. [Filing No. 14-2, at ECF p.
27.] The ALJ found Dr. Smith’s statements are inconsistent when weighing her opinion. [Filing
No. 14-2, at ECF p. 29.] The ALJ explained her decision to afford little weight to Dr. Smith, and
the evidence supports the ALJ’s conclusion that Dr. Smith’s statements are inconsistent. Thus,
the Court finds no error.
The ALJ also afforded little weight to Sleek’s social worker, Michael Kenny. [Filing No.
14-2, at ECF p. 29-30.] Sleek argues the ALJ fails to point out inconsistencies or provide an
analysis. This argument falls flat. The ALJ concluded that Kenny’s notes were inconsistent with
his opinion that Sleek could not work. [Filing No. 14-2, at ECF p. 29-30.] The ALJ remarked
that Sleek attended monthly therapy sessions and that she was being treated for depressive
disorder and panic disorder. Id. The ALJ discussed Kenny’s treatment notes that Sleek needs to
work on coping skills. Id. The ALJ remarked that while Kenny noted Sleek’s complaints of
anxiety, he did not refer her for more aggressive treatment. Id. This analysis allows the Court to
trace the ALJ’s reasoning, and Sleek does not convince the Court that the ALJ erred. Thus,
remand is not appropriate on this issue.
V.

Conclusion
For these reasons, the Commissioner’s decision is affirmed. Sleek’s brief in support of

appeal [Filing No. 24] is denied.
Date: 8/9/2017

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana
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Distribution:
Annette Lee Rutkowski
LAW OFFICES OF ANNETTE RUTKOWSKI
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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