NELSON v. COLVIN

Filing 28

ORDER on Plaintiff's brief in support of appeal-Nelson has not demonstrated that the ALJ committed reversible error. The Court denies Nelson's brief in support of appeal 21 and affirms the Commissioner's decision. Signed by Magistrate Judge Tim A. Baker on 11/14/2017.(CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
THERESE NELSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Defendant.

I.

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No. 1:16-cv-03381-TAB-TWP

ORDER ON PLAINTIFF’S BRIEF IN SUPPORT OF APPEAL
Introduction
Plaintiff Theresa B. Nelson appeals the Commissioner’s denial of her application for

supplemental security income. Nelson, due to her age of fifty-five, is in the “advanced age”
category for purposes of Social Security benefits. She completed high school and some college
and has worked as a waitress, lab technician, and bill collector. Over the years, Nelson has
experienced severe deterioration in her knee joints, which has led to “episodes of going stiff and
then shaking all over.” [Filing No. 16-8, at ECF p. 53, R. at 438–39.] Based upon these jointmobility issues, Nelson sought Social Security Disability benefits. Nelson argues that the
Administrative Law Judge erred at step four by giving great weight to testimony from Dr. Besen.
Nelson asserts that Dr. Beson’s testimony is not substantial evidence because it conflicted with
other medical sources and did not allow the ALJ to establish the necessary logical bridge
between the evidence and his decision. However, the Court finds the ALJ did not err by relying
on Dr. Besen’s expert opinion, and the ALJ developed a logical bridge between the evidence and
his conclusions. Therefore, the Commissioner’s decision is affirmed.

II.

Background
Nelson filed an application for supplemental security income, alleging disability

beginning on September 28, 2013. The agency denied the claim initially and upon review. As a
result of Nelson’s request, a hearing was held and Nelson testified regarding her mobility issues,
after which the ALJ found Nelson was not disabled.
At step one, the ALJ determined that Nelson had not engaged in substantial gainful
employment since the alleged disability onset. At step two, the ALJ found that Nelson’s severe
impairments were seizure disorder, major dysfunction of bilateral knees, and degenerative disc
disease of the lumbar spine. At step three of the evaluation, the ALJ concluded that Nelson’s
impairments did not meet or medically equal any of the listed impairments. At step four, the
ALJ concluded Nelson had the residual functional capacity to perform light work but cannot
climb ladders, ropes or scaffolds, must avoid concentrated exposure to unprotected heights, and
must avoid the operation of commercial vehicles. Relying on the testimony of a vocational
expert, the ALJ then found that Nelson was capable of performing substantial gainful activity
such as past relevant work as a bill collector and lab technician. Thus, the ALJ determined
Nelson was not disabled.
III.

Discussion
The Court’s role is limited, and it is not permitted to reweigh the facts or evidence. Elder

v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). The Court must affirm the ALJ’s decision when it
is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Summers v.
Berryhill, 864 F.3d 523, 526 (7th Cir. 2017). The decision must reflect that the ALJ built a
“logical bridge from the evidence to his conclusion.” Minnick v. Colvin, 775 F.3d 929, 935 (7th

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Cir. 2015). The ALJ’s decision will lack sufficient evidentiary support and require remand if it
is clear that the ALJ “cherry-picked” the record to support a finding of non-disability. Wilson v.
Colvin, 48 F. Supp. 3d 1140, 1147 (N.D. Ill. 2014).
Nelson argues the ALJ’s decision was not based upon substantial evidence because it
relied on the opinion of evaluating medical expert Dr. Besen. Nelson claims that Dr. Besen’s
opinion was not based upon the entire medical record and was inconsistent with the other expert
medical testimony. Nelson asserts that Dr. Besen’s opinion could not be based upon substantial
evidence because Dr. Besen was ignorant of critical x-ray evidence. Furthermore, Nelson
contends Dr. Besen’s opinion was inconsistent with both examining and non-examining medical
sources, including the testimony of examining physician Dr. Thomas. Therefore, Nelson argues
the ALJ could not have developed a logical bridge between the evidence and his conclusion.
Contrary to these arguments, the Court finds that the ALJ adequately supported his reliance on
Dr. Besen.
Nelson argues that the ALJ’s reliance on Dr. Besen’s testimony constituted reversible
error because the hearing transcript shows that, at the time of the hearing, Dr. Besen was
unaware of crucial evidence in Nelson’s file. Specifically, Nelson claims that Dr. Besen’s
testimony failed to adequately address the evidence related to the damage and deterioration in
her knees, and her difficulty in standing and walking without a cane or walker. [Filing No. 21, at
ECF p. 12.] Nelson argues that despite evidence in the record that medical scans showed severe
joint damage, Dr. Besen’s testimony suggested that he did not know whether x-rays had been
performed and assumed that any results would have shown minimal findings. [Id.] Dr. Besen
concluded that Nelson was “minimally limited” in her ability to perform normal functions.
[Filing No. 16-2, at ECF p. 54, R. at p. 53.] However, Nelson states that clinical examination of

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her knees showed several indications of functional problems, which would cause her difficulty
with standing and walking.
The ALJ gave great weight to Dr. Besen’s opinion for two reasons. First, Dr. Besen’s
conclusions were based upon a more comprehensive review of the medical record than any of the
other expert witnesses, and he offered a thorough analysis of the medical evidence based upon
his medical expertise. Second, Dr. Besen’s conclusions were consistent with the other
examining and evaluating medical experts. For example, the ALJ also gave significant weight to
the opinion of examining expert Dr. Gilpatrick, who also concluded that Nelson was capable of
performing normal movements. Further, the ALJ developed a logical and accurate bridge
between the evidence and his conclusion based upon not only Dr. Besen’s comprehensive review
of the entire medical record [Filing No. 16-2, at ECF p. 55, R. at 54], but also the opinions of
several other treating and examining medical experts including Drs. Gilpatrick, Sands, and Brill.
Nelson further asserts that the consulting physicians noted limitations and restrictions that
were not included in Dr. Besen’s opinion. However, as previously discussed, the ALJ noted that
Dr. Besen had the opportunity to review the “entire medical record.” [Filing No. 16-2, at ECF p.
55, R. at p. 54.] The medical consultants, to whom Nelson refers, were unable to review the full
medical record and lacked sufficient impartiality, especially as compared with the “independent
medical experts.” [Id.] Because of this, the ALJ did not err by giving partial weight to the other
consulting physicians’ opinions.
Next, Nelson maintains that the evidence indicating that she required the use of a cane or
walker was substantial, despite Dr. Besen’s opinion to the contrary. However, the ALJ
supported Dr. Besen’s opinion by citing Dr. Gilpatrick, who indicated that Nelson “could

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perform normal movement” and made no indication of the need for an assistive device. [Filing
No. 16-2, at ECF p. 54, R. at p. 53.] The Court will not reweigh this evidence.
Finally, Nelson argues that the ALJ erred by ignoring the expert opinion of examining
physician Dr. Thomas and giving great weight to Dr. Besen without a sufficient explanation for
doing so. Nelson further asserts that the rejection of Dr. Thomas’s opinion was more troubling
because Dr. Thomas was the Social Security Administration’s own consultative examiner, and
the opinion should have been given great weight. However, the ALJ explained that Dr.
Thomas’s opinion was given only partial weight because it was “not consistent internally or with
the record as a whole.” [Filing No. 16-2, at ECF p. 54, R. at p. 53.]
As an example an internal inconsistency, the ALJ pointed to the fact that Dr. Thomas first
concluded that Nelson could not perform normal movements without assistance, but then
indicated that he “found no clinical evidence [Nelson] required an ambulatory assistive device.”
[Id.] In addition, the ALJ found that Dr. Thomas’s opinion was inconsistent with the record,
because, in contrast to the opinions of Drs. Besen and Gilpatrick, Dr. Thomas indicated that
Nelson could not perform normal movement. Further, the ALJ gave only partial weight to Dr.
Thomas’s opinion because it was based upon “the claimant’s subjective complaints rather than
objective medical evidence.” [Filing No. 16-2, at ECF p. 54, R. at p. 53.]
Nelson fails to demonstrate that the ALJ erred in weighing the evidence and expert
testimony, that Dr. Besen’s testimony was inconsistent with the record, or that Dr. Thomas’s
opinion deserved more than partial weight in light of its internal inconsistencies and
inconsistencies with the record. The ALJ justified the weights he assigned to each medical
source in accordance with the established standards. Although he gave great weight to Dr.

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Besen’s opinion, the ALJ used all of the evidence to reach his conclusion, which the ALJ
thoroughly documented. Therefore, remand is not appropriate.
IV.

Conclusion
For these reasons, Nelson has not demonstrated that the ALJ committed reversible error.

The Court denies Nelson’s brief in support of appeal [Filing No. 21] and affirms the
Commissioner’s decision.
Date: 11/14/2017

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

Distribution:
Nicholas Thomas Lavella
KELLER & KELLER
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Joseph R. Wambach
KELLER & KELLER
[e-mail]
Jameson A. Young
KELLER & KELLER
[e-mail]

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