KNEEVES v. COLVIN

Filing 31

ORDER AFFIRMING COMMISSIONER'S DECISION - For reasons explained in this Order, there is no finding of an error of law made by the ALJ. Therefore, the decision of the Acting Commissioner is AFFIRMED, and this case is DISMISSED. Final judgment shall be entered in favor of the Acting Commissioner. Signed by Magistrate Judge William G. Hussmann, Jr., on 1/31/2014.(NRN)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

TRACY L. KNEEVES,
Plaintiff,
v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

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2:13-cv-180-WGH-JMS

ORDER AFFIRMING COMMISSIONER’S DECISION
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, on Plaintiff’s Complaint seeking Social Security
disability benefits. The parties consented to Magistrate Judge jurisdiction (Dkt.
12, 17), and an Order of Reference was entered by District Judge Jane
Magnus-Stinson on August 8, 2012 (Dkt. 18). The parties filed briefs, and the
Magistrate Judge conducted oral argument on January 8, 2014, at which
Plaintiff, Tracy L. Kneeves, was present by telephone with her counsel and
Defendant, Acting Commissioner Colvin, was represented by counsel by
telephone.
Findings of Fact
Material portions of the ALJ’s findings in dispute are as follows:
(a)

Plaintiff has only one severe impairment – that of
degenerative disc disease (R. 13-16);

(b)

Plaintiff has the residual functional capacity to perform light
work (R. 16-19); and

(c)

Plaintiff is capable of performing her past relevant work as a
bartender (R. 19).

Each of these findings will be discussed individually.1
(a)

The ALJ’s findings concerning severe impairments:
In this case, the ALJ found that Plaintiff had one severe and several non-

severe impairments. At oral argument, Plaintiff’s counsel for the first time
argued that it was error for the ALJ to find Plaintiff’s vision was not a severe
impairment. Because this was not argued in the parties’ briefs, the Court
concludes that Plaintiff has waived this argument. See, e.g., Waite v. Bowen,
819 F.2d 1356, 1360 n.1 (7th Cir. 1987). However, even if this argument was
not waived, the ALJ discussed not only the vision records from Dr. David
Zauel, but also a physical consultative examination occurring the month before
where the consultative examiner found normal fields of vision. (R. 288.) The
Court concludes that substantial evidence would support a finding that
Plaintiff’s vision problem was not severe, even though another ALJ might have
found it to be severe. The Court therefore concludes that there is no error
properly raised by Plaintiff at this time requiring remand because of the failure
of the ALJ to find Plaintiff’s vision condition to be severe.

Plaintiff initially argued that her mental impairments might satisfy Listing
1.04. However, at oral argument Plaintiff’s counsel conceded that Plaintiff’s mental
impairments did not satisfy that Listing.
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(b)

The ALJ’s residual functional capacity determination:
The ALJ concluded that Plaintiff has the residual functional capacity to

perform light work. Plaintiff argues that the ALJ failed to give controlling
weight to the opinion of Plaintiff’s treating physicians, Dr. Sturman, Nurse
Practitioner Hutchinson, and Dr. Harber. A review of the records of Dr.
Sturman, Ms. Hutchinson, and Dr. Harber shows that the ALJ reasonably
summarized those records and did not “cherry pick” from them. None of those
records of treating physicians show more than episodic issues of pain. Dr.
Harber found some decreased sensation in Plaintiff’s thighs and tenderness in
her spine, but otherwise a stable gait, and prescribed medication. (R. 596-98.)
This Court does not find that the treating physicians are inconsistent with the
RFC found by the ALJ—an ability to perform light work where the claimant can
never climb ladders, ropes, or scaffolds; can only occasionally climb ramps and
stairs; and can only occasionally balance, stoop, kneel, croutch, and crawl.
There is no error in failing to give greater weight to the treating physicians’
opinions in this case.
Plaintiff argues that under 20 C.F.R. § 1527(e)(1) an ALJ may be required
to recontact treating physicians regarding work-related limitations not
addressed in their report. The Court concludes in this case that the doctors’s
records were not unclear and did not fail to address Plaintiff’s conditions, and
there was no error on the part of the ALJ in not recontacting the treating
physicians.

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Plaintiff also argues that the ALJ erred by relying on evidence of gaps in
treatment as evidence that Plaintiff’s lumbar condition was not more severe.
Under S.S.R. 96-7p at 7 (1996), and under the authority of such cases as Moss
v. Astrue, 555 F. 3d 556, 562 (7th Cir. 2009), an ALJ may rely on infrequency
or gaps in treatment as evidence undermining a claimant’s credibility.
However, a more recent case, Shauger v. Astrue, 675 F. 3d 690, 696 (7th Cir.
2012), indicates that an ALJ may not draw an adverse inference from
infrequency or gaps in treatment without first considering the Plaintiff’s
explanation for them or other evidence in the record that would explain them.
If there is error in this record, it may be in the fact that the ALJ did not
ask for a clarification as to the reasons for these gaps. The ALJ did discuss the
fact that “[t]he claimant has sought only conservative care for her back pain,
and she noted improvements with it,” citing to certain exhibits. (R. 19.) The
Court notes that in this particular case Plaintiff’s back condition was treated
conservatively throughout the course of her medical treatment. There is no
opinion in the Record that Plaintiff needed significant back surgery or anything
other than conservative care with respect to her back condition. Under these
specific circumstances, the Court concludes that the ALJ did not error in
failing to ask more clearly the reason for the lack of further treatment. An
ALJ’s failure to explore the reasons why surgical treatment was not pursued
might amount to error; however, the failure to inquire concerning why more
conservative treatment was not pursued does not appear to be error in this
case.
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Plaintiff also argues that the ALJ erred by giving too much weight to
Plaintiff’s ability to perform rudimentary household chores in the discussion of
her residual functional capacity. The Seventh Circuit has held repeatedly that
an ALJ errs by placing too much weight on a claimant’s performance of
everyday activities in determining credibility or residual functional capacity.
See Roddy v. Astrue, 705 F. 3d 631, 639 (7th Cir. 2013); Kraft v. Astrue, 539
F.3d 668, 680 (7th Cir. 2008). In this case, the ALJ comes close to crossing
the line in his discussion of residual functional capacity at page 18 of the
Record. However, in that discussion the ALJ considered not only the Plaintiff’s
activities of daily living, but the findings of her physicians and other evidence
from the medical records before the ALJ. In this case, the ALJ has not unduly
exaggerated the Plaintiff’s ability to perform activities of daily living and has not
specifically equated those activities with an ability to perform full-time work.
Although it is a close call as to this issue, the Court concludes that there is
substantial evidence to support the residual functional capacity determination.
Therefore, the ALJ has not improperly “cherry picked” evidence,
disregarded the opinions of Plaintiff’s treating physicians, or given undue
emphasis to the Plaintiff’s ability to perform activities of daily living in reaching
his conclusion.
(c)

Whether Plaintiff is capable performing past relevant work as a
bartender:
Plaintiff argues that with ten years or more experience as a bartender,

her opinion that she can no longer perform this work should be accepted and

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the ALJ’s determination that she could perform past relevant work as a
bartender should be overturned. However, given the fact that a proper
hypothetical question was raised to the vocational expert, and the vocational
expert testified that a person with the Plaintiff’s capabilities could perform the
job as it is defined in the Dictionary of Occupational Titles (see R. 66), the
Court concludes that there is no error.
Conclusion
As in many of the cases that appear before the Magistrate Judge, the
facts before the Court present a close case for the awarding of benefits.
Another ALJ might have concluded that the Plaintiff’s vision was a severe
impairment and with that severe impairment in place might have concluded
that she was unable to perform her past relevant work as a bartender. Had
that been the case, further exploration of other jobs which might have been
available for Plaintiff to perform would have been required. However, the Court
concludes that it may not reweigh the evidence in this case, and substantial
evidence supports the conclusions reached. There is no finding of an error of
law made by the ALJ. Therefore, the decision of the Acting Commissioner is
AFFIRMED, and this case is DISMISSED. Final judgment shall be entered in
favor of the Acting Commissioner.
SO ORDERED the 31st day of January, 2014.
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana

Served electronically on all ECF-registered counsel of record.
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