GARZA v. COLVIN
ENTRY ON JUDICIAL REVIEW - For the reasons set forth above, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Entry (SEE ENTRY). Signed by Judge William T. Lawrence on 9/29/2017.(DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
TAMMY L. GARZA,
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
) Cause No. 2:15-cv-271-WTL-MJD
ENTRY ON JUDICIAL REVIEW
Plaintiff Tammy L. Garza requests judicial review of the final decision of the Defendant,
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration
(“Commissioner”), denying Garza’s applications for Disability Insurance Benefits (“DIB”) under
Title II of the Social Security Act (“the Act”). The Court, having reviewed the record and the
briefs of the parties, rules as follows.
Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that her physical or mental limitations prevent her from doing not only her previous
to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill automatically
became the Defendant in this case when she succeeded Carolyn Colvin as the Acting
Commissioner of Social Security on January 23, 2017.
work, but any other kind of gainful employment which exists in the national economy,
considering her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. 2 At step one, if the claimant is engaged in substantial gainful activity, she is
not disabled, despite her medical condition and other factors. 20 C.F.R. § 404.1520(b). At step
two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits her
ability to perform basic work activities), she is not disabled. 20 C.F.R. § 404.1520(c). At step
three, the Commissioner determines whether the claimant’s impairment or combination of
impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d). At
step four, if the claimant is able to perform her past relevant work, she is not disabled. 20 C.F.R.
§ 404.1520(f). At step five, if the claimant can perform any other work in the national economy,
she is not disabled. 20 C.F.R. § 404.1520(g).
In reviewing the Administrative Law Judge’s (“ALJ”) decision, the ALJ’s findings of
fact are conclusive and must be upheld by this court “so long as substantial evidence supports
them and no error of law occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).
“Substantial evidence means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion,” id., and this Court may not reweigh the evidence or substitute
its judgment for that of the ALJ. Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). In order
to be affirmed, the ALJ must articulate his analysis of the evidence in his decision; while he “is
Code of Federal Regulations contains separate sections relating to DIB and SSI that
are identical in all respects relevant to this case. For the sake of simplicity, this Entry contains
citations to DIB sections only.
not required to address every piece of evidence or testimony presented,” he must “provide an
accurate and logical bridge between the evidence and [his] conclusion that a claimant is not
disabled.” Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012). “If a decision lacks evidentiary
support or is so poorly articulated as to prevent meaningful review, a remand is required.” Id.
Garza applied for Disability Insurance Benefits and Supplemental Security Income
benefits in November 2006, alleging disability since March 13, 1997. The Agency denied
Garza’s claims initially on February 15, 2007. On March 27, 2008, following a hearing requested
by Garza, ALJ Dale Garwal found that Garza became disabled as of November 3, 2006, but was
not disabled prior to that date. As Garza’s insured status had expired on December 31, 1997, the
ALJ’s finding precluded an award of Disability Insurance Benefits, and Garza requested review,
which the Appeals Council denied on April 14, 2010. Garza appealed to the United States
District Court for the Central District of California, which remanded the case on June 13, 2011,
concluding that the ALJ erred in evaluating the medical evidence and erred in applying res
judicata since there was no evidence of a prior decision. Following a second hearing and a third
supplemental hearing, ALJ William Sampson issued a decision on April 18, 2013, which Garza
appealed to the Appeals Council. This time the Council remanded the case, noting that ALJ
Sampson had not evaluated the treating physician opinion of Dr. Taban. After a fourth hearing,
ALJ Sampson again denied benefits for the period prior to October 2010. As the Appeals
Council did not assume jurisdiction, the ALJ’s decision became the final decision of the
Commissioner. See 20 C.F.R. § 404.984. Garza filed this timely appeal.
THE ALJ’S DECISION
At step one of the sequential evaluation, the ALJ determined that Garza had not engaged
in substantial gainful activity since the alleged onset date. At steps two and three, the ALJ
concluded the claimant suffered from the following severe impairments: effects of multi-level
lumbar fusions, with degenerative changes and obesity, with an additional severe impairment
after October 1, 2010, of listing level rheumatoid arthritis.
At step four, the ALJ determined that, prior to October 1, 2010, Garza could perform
sedentary work with: occasional climbing of ramps and stairs; no climbing of ladders, ropes, or
scaffolding; occasionally balancing, stooping, kneeling, crouching, or crawling; frequent
handling; avoiding concentrated exposure to extreme temperatures, wetness, humidity, and
vibrations; no work at unexposed heights or dangerous moving machinery; occasionally
operating foot controls; and the option to alternate between sitting and standing at least once
every thirty minutes for at least five minutes at a time. Id. The ALJ concluded that prior to
October 1, 2010, Garza could not perform her past work but could perform a significant number
of other jobs. Accordingly, the ALJ concluded that, prior to October 1, 2010, Garza was not
disabled as defined by the Act.
EVIDENCE OF RECORD
The medical evidence of record is aptly set forth in Garza’s brief (Dkt. No. 20) and need
not be recited here. Specific facts are set forth in the discussion section below where relevant.
In her brief in support of her complaint, Garza advances several objections to the ALJ’s
decision; each is addressed below.
A. Weight Given to Treating Physicians
Garza argues that the ALJ failed to properly assess the treating physician opinions of Drs.
Nagalberg and Taban. These arguments are addressed, in turn, below.
Under the law as it existed at the time of the ALJ’s decision, 3 a treating source’s opinion
is entitled to controlling weight if the “opinion on the issue(s) of the nature and severity of [the
claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence” in the
record. 20 C.F.R. § 404.1527(c)(2); see Bates v. Colvin, 736 F.3d 1093, 1099 (7th Cir. 2013).
The ALJ must “minimally articulate his reasons for crediting or rejecting evidence of
disability.” Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000) (quoting Scivally v. Sullivan, 966
F.2d 1070, 1076 (7th Cir. 1992)); see 20 C.F.R. § 404.1527(c)(2) .
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 record.” Elder
v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008) (citing 20 C.F.R. § 404.1527(c)(2)). If the ALJ finds
that the opinion is not entitled to controlling weight, the ALJ must still assess the proper weight
to give to the opinion. See id. This requires consideration of several factors, including the
“length, nature, and extent of the physician and claimant’s treatment relationship, whether the
physician supported his or her opinions with sufficient explanations, and whether the physician
specializes in the medical conditions at issue.” Id. (citations omitted).
claims filed on or after March 27, 2017, 20 C.F.R. § 404.1520c applies. Under that
provision, no special or evidentiary weight is given to medical opinions or prior administrative
Garza first argues that the ALJ failed to give adequate weight to the opinion of treating
physician Dr. Steven Nagelberg and failed to comply with all provisions of 20 C.F.R. § 404.1527
in evaluating the treating physician’s opinion.
With respect to Dr. Nagelberg’s opinion, the ALJ found the following:
For example, after this most recent surgery the claimant was seen by Dr.
Nagelberg in January 2004 leaving a gap in care; there was no evidence of
emergency room care or symptom exacerbation, but on the follow up the
claimant’s lumbar flexion was now limited to 40º, her extension to 10º, and she
complained of ongoing pain (Exhibit 12F). Conversely, the claimant’s motor
function remained intact, she continued to be able to heel/toe walk despite
decreased reflexes in her lower extremities, and her straight leg raise test (SLR)
was now negative (Id.). At the March exam, the claimant’s flexion had increased
by 20º to 60º, her extension remained the same at 10º (Id.). The claimant
continued to have reduced lower extension reflexes but her sensations remained
intact (Id.). At her April 2004 revaluation, the claimant endorsed severe pain but
surprisingly she had near full flexion (Id.). The physician was able to appreciate
tenderness over the paraspinal muscles, but he found no neurologic deficits in the
lower extremities (Id.). Again, without much clinical evidence, and based
apparently on the claimant’s subjective reports, the physician opined throughout
the foregoing period that the claimant was “temporarily totally disabled” (Exhibit
5F, 12F). Doctors Nagelberg and Gitter saw the claimant during this period
establishing a treating relationship with claimant, but there was little clinical
evidence to support the foregoing opinions. To the contrary, the claimant’s range
of movement increased, she was not neurologically deficient, and her straight leg
raise test (SLR) was afforded little deference. This was well supported as the
limitations noted by the examining physicians did not match the actual claimant’s
functionality (Id.). In fact, the only abnormality noted, the claimant’s subjective
allegations of severe pain as her range of movement was generally within normal
limits (Id). Furthermore, as noted throughout this decision, these workers’
compensation physician opinions touched on issues clearly reserved for the
Commissioner, and appeared to have been based on State law, not the laws and
regulations that govern this Agency.
In June of that same year, during another follow up with Nagelberg, the
claimant reported low back pain with radiation into the legs; the accompanying
exam notes remained consistent through February 2005 (Id.). During these exams,
the claimant continued to subjectively report ongoing severe pain, claiming that at
times she was essentially bedridden due to pain (Id.). While she was found tender
in the paraspinal region bilaterally on exam with decreased spinal ranges of
movement, she remained neurologically intact (Id.). There were no objective
references to sensory deficits, the claimant’s reflexes were now intact and
symmetrical, and her straight leg raise test (SLR) remained negative at 90º
suggesting that despite the foregoing fusion, she had no residual range of
movement limitations (Id.). The claimant was also able to stand and heel/toe walk
without difficulty (Id.). The only continuing course of treatment at this was
medication based (Exhibit 12F).
The claimant did undergo an injection in December after reporting
radicular symptomology, and her workers’ compensation physician again opined
that she remained 100% disabled under the “California Worker’s Compensation
Laws” (Id.). Yet, as noted above, it is clear that the physician was not basing these
opinions in Social Security Law, and as explained throughout this decision and
incorporated by reference herein, little weight was afforded to this statement as the
determination of disability is for the Commissioner. Interestingly, at the time of
this assessment, the same physician noted that the claimant was at maximum
medical improvement, but that she needed a referral for a detoxification program
due to her prolonged use of narcotic pain medications (Id.). Other issues included
the claimant’s noncompliance with her ordered weight loss program and a
subsequent “no show” in March 2005 (Id.). As previously stated, there is likely a
financial aspect to this lack of follow up, but throughout the period of adjudication,
including the period after the established onset date, it is clear that the claimant
was not complaint with her physicians’ orders for weight loss, noting specific
references in Exhibit 51F where the treating clinician documented the implications
of the claimant’s weight and ongoing smoking.
Dkt. No. 1-1 at 22-23.
Specifically, Garza points to Dr. Nagelberg’s conclusion that Garza had reached
permanent and stationary status and his opinion that she was limited to part-time sedentary work,
no more than four hours per day. Nagelberg further opined that if her mental limitations were
factored in she would be unable to engage even in part-time work because of her difficulties with
concentration and attention. Garza argues that the ALJ did not acknowledge or assess this
treating specialist’s opinion limiting Garza to part-time sedentary work.
Garza is correct that the ALJ did not address this one particular finding by Dr. Nagelberg.
However, the ALJ’s detailed analysis of Dr. Nagelberg’s findings thoroughly explains his
reasons for discounting Dr. Nagelberg’s opinions and is supported by substantial evidence in the
record. “The ALJ is not required to mention every piece of evidence but must provide an
‘accurate and logical bridge’ between the evidence and the conclusion that the claimant is not
disabled, so that ‘as a reviewing court, we may assess the validity of the agency’s ultimate
findings and afford [the] claimant meaningful judicial review.’” Craft v. Astrue, 539 F.3d 668,
673 (7th Cir. 2008) (quoting Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir. 2004)).
Accordingly, the Court finds that the ALJ did not err with regard to Dr. Nagelberg’s opinion.
Next, Garza also argues that the ALJ did not set forth a rationale for assigning more
weight to the opinion of a non-examining source than the opinion of an examining specialist, Dr.
With respect to Dr. Taban’s opinion, the ALJ found the following:
Nevertheless, in early 2007, the claimant reported increasing back pain, but
interestingly she remained capable of flexing to 70º with her extension being to 15º,
due to increased complaints of pain, there were medication increases and she was
scheduled for another MRI the results of which revealed moderate L3-L4 vertebral
level spinal stenosis secondary to mild degenerative changes (Exhibits 22F, 23F, and
39F). Following a number of sessions for unsubstantiated knee allegations (Exhibit
22F and 23F), the claimant was told she needed to lose weight and attend physical
therapy, subsequently, she started another round of epidural steroid injections (ESI)
that continued through January 2008 (Exhibit 23F). At this exam, the claimant’s
psychological status was normal, and her only noted abnormality, paravertebral
Concurrently, the claimant was evaluated for ongoing low back pain that she
reported radiated into the left buttock, interestingly, she denied further radiation,
which as discussed above was not consistent with her claims of pain radiation into the
feet (Exhibit 13F). On exam, the attending physician, Dr. Taban, noted no
neurological dysfunction, the claimant’s cervical range of movement was full, and her
Spurling’s was negative (Id.). The claimant had no appreciable upper extremity
weakens, her deep tendon reflexes were trace, but there were no sensory deficits (Id.).
The claimant’s gait was found somewhat antalgic, but she remained capable of
heel/toe walking with normal flexion range of movement (Id.). There were no gross
motor deficits, but the claimant’s straight leg raise test (SLR) was positive at 45º,
based upon these findings, the physician felt it necessary for further diagnostics,
suggesting that she undergo electromyography testing and obtain an x-ray to
determine if there was any appreciable instability to her hardware (Id.).
Shortly after this one-time exam, Dr. Taban completed a solicited medical
source statement (Exhibit 24F). In this assessment, Dr. Taban included diagnoses
that included radiculopathy failed back syndrome, obesity hypertension (HTN), and
bilateral carpal tunnel syndrome (CTS) (Id.). The one-time examining physician also
opined that the claimant had been incapable of working since the first surgery, and
that she had never experienced pain improvement (Id.). There was mention of
transcutaneous electrical nerve stimulation unit, and he further limited the claimant
opining that she had limitations to almost all postural activities (Id.). The claimant
was found capable of sitting less than 30 minutes at a time, but incapable of sitting for
more than 2 hours in an 8-hour period (Id.). Lastly, the physician found the claimant
in need of constant breaks, i.e. as many as needed, with limitations to her overhead
lifting, reaching, and pushing/pulling (Id.).
Despite these limitations and the contentions of the representative, the
undersigned found this opinion worthy of little weight. First, it was based on a onetime exam; moreover, this physician in the actual records indicated that further testing
was necessary to determine if the claimant was in fact experiencing any hardware
complications, which she did not undergo prior to the opinion. There was also ample
evidence as noted above that the claimant at times did in fact experience symptom
relief; in fact, she worked at times during which this physician opined she would be
incapable, which was addressed above in Finding 2 and throughout this portion of the
sequential evaluation. Also, the physician found no clear evidence of canal or
neuroforaminal compromise at any level, noting that the claimant was neurologically
unremarkable documenting that her claims of low back pain were “unexplained” (see
generally Exhibit 13F). This is important, as SSR 96-4p, precludes the undersigned
from relying on this assessment as it appeared to be based in large part on the
uncritical acceptance of the claimant’s subjectively reported symptoms. Moreover,
while some imagery abnormalities were noted at the L3-L4 vertebral level, Dr. Taban
opined that these were a “more recent condition,” making his assessment inapplicable
back to the alleged onset date. Lastly, this physician never examined the claimant
prior to September 2007, approximately 10 years after the alleged onset date; this
significant gap left the undersigned questioning whether this physician could have
knowledge of the claimant’s functionality at all times relevant, as there is no
indication that he/she had reviewed the claimant’s entire longitudinal record, as the
medical experts had. For these reasons, the undersigned rejected the representative’s
argument that this assessment should be afforded controlling weight.
Dkt. No. 1-1 at 25-26.
Again, the ALJ’s detailed analysis of Dr. Taban’s findings thoroughly explains his
reasons for discounting Dr. Taban’s opinions and is supported by substantial evidence in the
record. Accordingly, the Court finds that the ALJ did not err with regard to Dr. Taban’s opinion.
B. Opinion of Medical Expert
Garza also argues that the ALJ erred in rejecting the portion of specialist Dr. Lorber’s
opinion that Garza satisfied Listing 1.04. With regard to Dr. Lorber’s opinion, the ALJ found the
Despite the claimant’s diagnosed impairments, the medical evidence did
not document Listing level severity. At the first hearing, Dr. Lorber opined that
between the alleged onset date and March 31, 2001, the claimant’s back disorder
met Listing 1.04(A). (Hearing testimony). However, at the second hearing, Dr.
Hutson opined that the claimant’s condition(s), either singly or in combination, did
not meet or medically equal the severity of any of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 prior to the established onset date as the
record lacked evidence of the requisite neurological deficits needed to establish
such a meeting (Hearing Testimony citing exhibits 6F and 32 F, in which the
examining physician noted any neurological limitations). Dr. Hutson based the
aforementioned opinion on a thorough review of the claimant’s complete record as
it existed at the time of the review as well as the testimony elicited at the hearing.
As such, the undersigned finds that Dr. Hutson had particular and detailed
knowledge of the facts in this case as well as the standards set forth in the
disability laws and Regulations; moreover, since that hearing, there has been no
new and material evidence to contradict Dr. Hutson’s opinion submitted regarding
the foregoing period (see generally Exhibits 48F-57F). As such, the undersigned
concludes that this independent medical opinion remains appropriate. Based upon
this information, the undersigned afforded great weight to Dr. Hutson’s opinion.
Accordingly, the claimant did not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 prior to the established
The undersigned does recognize that the claimant’s attorney argued that
she met Listing 1.04(A), yet at the foregoing hearing when given the opportunity
to cross-examine Dr. Hutson, the attorney did not pursue this particular issue (i.e.
the lack of all neurological deficits). Thus, the undersigned finds no reason not to
afford great weight to this orthopedic surgeon’s testimony.
Dkt. No. 1-1 at 15-16. Further,
As for the opinion evidence not already discussed, two independent and
board certified medical experts, doctors Arthur Lorber and Richard A Hutson,
provided opinions concerning the claimant’s severe impairments and functionality.
At the first hearing, Dr. Lorber noted a number of inconsistencies regarding the
claimant’s compliance with her treatment regimens (as noted above), and after
listening to the claimant’s testimony opined that the claimant’s condition met
listing 1.04(A) from the alleged onset date through March 31, 2001, the year
following the most recent surgical intervention (Hearing Testimony). However,
the undersigned afforded this assessment very little weight for one major reason,
at the second hearing, and based on a more complete record, Dr. Hutson noted
(which is extensively discussed above in the medical history review), that the
claimant lacked the neurological deficits needed for a meeting of a listing
(Hearing Testimony). The undersigned found Dr. Hutson's testimony well
supported by the exhibits noted previously, which documented the absence of
Following this period (i.e. after the final surgery), both medical experts
opined that the claimant’s objective medical records were consistent with a
sedentary residual functional capacity (Hearing Testimony). These assessments
were very consistent, and the assessed residual functional capacity noted above,
incorporated limitations consistent with both experts’ opinions. However, at the
first hearing, Dr. Lorber also noted that as of the claimant’s referral in October
2010 to the rheumatologist , that the claimant medically equaled listing 14.09
(Hearing Testimony). This is addressed below and was afforded significant weight,
which is consistent with the later onset portion of this decision. Therefore, the
undersigned afforded lesser weight to Dr. Hutson’s opinion concerning this later
At the first hearing, the claimant’s attorney contended that Dr. Lorber’s
testimony that he had over 7 pages of notes that he derived from his review of the
record. Moreover, the undersigned repeatedly questioned Dr. Hutson who
affirmed was based on an incomplete record, which should have made it less
persuasive. While the undersigned does recognize that Dr. Lorber only reviewed
through Exhibit 29F, the additional objective magnetic resonance imaging (MRI)
test results were read into the record, and he was present for the claimant’s
testimony, which the attorney had ample opportunity to develop as she saw fit. At
the later hearing, in closing, the claimant’s attorney then contended that the
testimony of Dr. Hutson should be disqualified as he only considered “7 pages of
records” and that his review considered only the evidence prior to 2006. However,
this is an incorrect assertion. Dr. Hutson noted on a number of occasions that he
had in fact considered the complete record as it existed at the time of the hearing,
including the very recently submitted records from the attorney (see generally
Exhibits 1F-47F). Thus, the undersigned found little merit in the attorney’s
arguments at that prior time; more specifically, that the medical experts' testimony
should have been ignored when assessing the claimant’s residual functional
capacity. In sum, although the claimant’s impairments were severe, they did not
preclude her from completing basic work related activities prior to October 1,
2010. The assessed residual functional capacity is supported by the objective
findings and the other factors discussed above.
Dkt. No. 1-1 at 28-29. Both Dr. Lorber and Dr. Hutson were impartial medical experts. Dr.
Lorber provided testimony at the June 7, 2012, hearing, and Dr. Hutson provided testimony at
the second hearing on March 4, 2013. Contrary to Garza’s assertion, the ALJ set forth his
rationale for the weight given to both Lorber’s and Hutson’s testimony. Accordingly, he did not
Garza also argues that the ALJ committed factual and legal errors when explaining why
he discredited her testimony regarding her subjective symptoms. As the ALJ correctly
acknowledged under the standard that applied at the time, 4 with regard to subjective symptoms
such as pain, if a claimant has a medically determinable impairment that is reasonably expected
to produce pain, then the ALJ must evaluate the credibility of the claimant’s testimony regarding
the extent of that pain. “In determining credibility an ALJ must consider several factors,
including the claimant’s daily activities, his level of pain or symptoms, aggravating factors,
medication, treatment, and limitations,” see 20 C.F.R. § 404.1529(c); S.S.R. 96-7p, and justify
96-7p has been superseded by S.S.R. 16-3p, which the Agency explained
“eliminate[d] the use of the term ‘credibility’ from our sub-regulatory policy, as our regulations
do not use this term” and “clarif[ied] that subjective symptom evaluation is not an examination
of an individual’s character.”
the finding with specific reasons. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). The
regulations further provide that “we will not reject your statements about the intensity and
persistence of your pain or other symptoms or about the effect your symptoms have on your
ability to work solely because the available objective medical evidence does not substantiate
your statements.” 20 C.F.R. § 404.1529(c)(2). Additionally, because the ALJ evaluates
credibility by questioning and observing a live witness, not simply a cold record, an ALJ’s
credibility determination is reviewed deferentially and should be overturned only if it is “patently
wrong.” See Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008). However, “[t]he determination of
credibility must contain specific reasons for the credibility finding” and “must be supported by
the evidence and must be specific enough to enable the claimant and a reviewing body to
understand the reasoning.” Id. (citing Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir. 2007)).
Garza objects to several specific reasons that the ALJ gave for finding that she was not
credible. First, she alleges that the ALJ improperly considered her failure to quit smoking in
assessing her credibility. As the Seventh Circuit has found, given how difficult it is for many
people to quit smoking, smoking “is an unreliable basis on which to rest a credibility
determination.” Shramek v. Apfel, 226 F.3d 809, 813 (7th Cir. 2000).
Next, she objects to the ALJ’s basing his credibility determination in part on her failure to
seek additional medical treatment. An ALJ must not draw an adverse inference about treatment
without properly assessing the underlying reasons. See, e.g., Beardsley v. Colvin, 758 F.3d 834,
840 (7th Cir. 2014). Here, the ALJ did recognize the fact that there was “likely a financial aspect
to the claimant’s limited follow up,” Dkt. No. 1-1 at 21, but nonetheless appeared to have
considered her failure to seek treatment as a factor in his credibility determination.
Garza also alleges that the ALJ erred when considering evidence that she attempted to
return to work part time. The ALJ found the following:
Regardless of this finding, the undersigned notes that this work activity
weighed heavily on the persuasiveness of the claimant’s allegations regarding the
severity and limiting nature of her impairments during the period prior to the
established onset date, as this work was evidence that during periods relevant to
the issue of total disability, the claimant’s activities of daily living were not as
limited as alleged. The irreconcilable nature of her claims and work activity
eroded the credibility of her allegations.
Dkt. No. 1-1 at 10. Garza is correct that failed efforts to work support rather than detract from
credibility. See Larson v. Astrue, 615 F.3d 744, 752 (7th Cir. 2010).
Likewise, the ALJ’s consideration of Garza’s activity of being the primary caregiver for
her elderly father and dependent sister is not supported by the record as cited by the ALJ. While
the progress note indicates that “She is taking care of her Dad and Sister” (Dkt. No. 1359), the
ALJ uses this statement to find that Garza was the “primary caregiver.” Nor does the ALJ
explain or explore what “taking care of” entailed.
What remains of the ALJ’s credibility determination is as follows:
The claimant asserts that she was unable to perform any work prior to the
established onset date primarily because of the late effects of her back
injury/surgeries and her obese body habitus (Exhibits 3E and 8E). The claimant
alleged that she could not sit, stand, or walk for prolonged periods due to
“intractable” pain (Id.). Furthermore, the claimant alleged that her range of
movement was very limited after her fusions and that she had trouble sleeping
and with the completion of normal activities of daily living, all due to pain (Id.).
At each consecutive hearing, the claimant further contended that there were
times when she “could not move” and that she was essentially bedridden
(Hearing Testimony). The claimant testified that there were times where she had
to be carried into her physician's visits, noting further that she “could not stand
at all” (Id.). Throughout the period of adjudication, the claimant continually
reiterated all of her previous limitations, further noting at times that she lacked
feeling in either lower extremity, and that her pain was never controlled,
reporting radiating pain from her low back down to her feet, bilaterally (Id.). In
addition to the foregoing, the undersigned recognizes that an individual’s
symptoms may suggest a greater level of impairment severity than what is
shown by the longitudinal medical record that is discussed below. As such, the
undersigned has also considered other evidence in assessing the credibility of the
claimant’s statements regarding their limitations and restrictions. 20 CFR
404.1529(c) and 416.929(c) provide guidance on the kinds of evidence that may
be considered when additional information is needed to assess the claimant’s
credibility. These may include, and are not limited to the claimant’s daily
activities, their pain or other symptoms, aggravating factors, their treatment
regimen including medications, any measures other than treatment they use to
help alleviate their symptoms, and any other factors concerning the individual’s
functional limitations and restrictions due to pain or other symptoms (See
generally SSR 96-7p).
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely
credible prior to October 1, 2010, for the reasons explained in this decision.
The claimant’s allegations of symptoms consistent with her severe
impairments, including the limitations noted immediately above, were not
accepted as alleged because those allegations were not consistent with the
available objective medical evidence prior to the established onset date. The
undersigned recognizes that the record is lengthy noting further that additional
records were recently submitted, as was additional testimonial evidence from the
However, even after reviewing the objective and subjective reports, the
undersigned found the claimant’s allegations during the foregoing period less than
persuasive. In support, the undersigned does recognize that in October I 997 the
claimant was involved in pain management after reporting that she was injured at
work, shortly after having a child, testifying that she went back to work too soon
(Exhibits IF, 5F, Hearing Testimony).
At the time of these early exams, the claimant endorsed ongoing low back
pain and radicular symptoms; on exam, the attending physician noted that the
claimant was in noticeable distress and tender along the L4-S I vertebral levels
with spasms and pain to palpation (Id.). The claimant’s straight leg raise test
(SLR) was positive at 20°, however, the physician noted no sensory deficits, and
the claimant’s strength remained within normal limits in both lower extremities
(Id.). At the most recent hearing, the representative contended that these early
records established that the claimant was so severely incapacitated by pain that
she would have been incapable of sustained work; however, the objective findings
noted here did not fully support the claimant’s reported level of dysfunction.
Moreover, SSR 96-4p states that no symptom or combination of symptoms can be
the basis for a finding of disability, no matter how genuine the individual’s
complaints may appear to be, unless there are medical signs and laboratory
findings demonstrating the existence of a medically determinable physical or
mental impairment. As noted here, while there were some abnormalities noted,
the claimant’s strength, sensations, and ability to ambulate were not limited to the
extent alleged (see generally Exhibits IF-5F).
The claimant was referred for imagery; a magnetic resonance imaging
(MRI) test revealed L4-L5 vertebral level disc issues with narrowing and
impingement of the L5 left nerve root (Id.). As a result, the physician
recommended that the claimant undergo a discogram due to her reported
unresponsiveness to her previous conservative treatment regimens (see generally
Exhibits IF, I5F). The discogram was completed and the results were negative at
L3-L4 vertebral level, but positive at the L4-L5 vertebral level with noted pain
and a disc tear, but as testified to by Dr. Huston, there were no noted
neurological deficits (Exhibit I5F, 33F).
Subsequently, a follow up magnetic resonance imaging (MRI) test
confirmed no L5-SI vertebral level abnormalities but that there remained a
herniated disc at the L4-L5 vertebral level with moderate left lateral stenosis and
mild spinal canal stenosis (Exhibit 4F). However, there was no right lateral
recess or neural foramina issues, consistent with degenerative disc disease (Id.).
This was problematic, as the undersigned found it difficult to reconcile the
claimant’s subjective allegations of severe ongoing pain with the minimal
objective findings outlined here, which was a factor used when assessing the
weight afforded to her subjective claims of pain as well as the limiting nature of
her impairment, at that time. Most recently, the representative indicated that the
post-discogram period was plagued by severe ongoing pain.
The record was clear that in early 1998 that the claimant underwent a L4L5 vertebral level posterolateral fusion, hemi-laminotomy, and discectomy
(Exhibit 16F). Yet, follow up records indicated that the claimant’s therapeutic
regimen had improved her condition, as the June 1998 records documented
reports to the treating physician indicating that the claimant ’s condition had
improved, despite continued reports of lumber pain (Exhibit 33F). In response,
the claimant was ordered to follow her home exercise program (HEP) (Id.).
Unfortunately, the following month, the clinical notes documented increased
muscle spasms and pain that the claimant attributed to the ongoing therapy (Id.).
Interestingly, these same records included endorsements by the claimant that the
therapy was “helping to a degree” (Id.). Objectively, the claimant remained
tender to palpation, with appreciable muscle tightness to the left (less so on the
right); however, she denied leg pain (Id.). This was problematic as the claimant
testified on numerous occasions that her pain radiated into her legs, but even in
comparing these complaints with earlier records, it was clear that the claimant’s
pain was limited to her low back region, radiating no further than the buttock (see
generally Exhibits 13F, 33F).
Secondary to the reported benefit, the claimant’s treating physician at that
time opined that the claimant needed a more structured therapeutic regimen at a
facility (Exhibit 33F/ 10). However, at her August 1998 follow up the claimant
continued to report increasing pain, which prompted an injection and instructions
to continue therapy (Id.). The claimant did indicate that at one point, her pain
was so severe that she was going to go to the emergency room, but there were no
supportive records to corroborate this (Id.). Moreover, throughout this period,
while complaining of severe ongoing pain, the claimant never reported
incontinence issues or other symptoms that warranted emergency care/treatment
(Id.). In September, the claimant reported, after her previous reports of
improvement, that she was no longer getting relief from her physical therapy
regimen; perplexingly, at this same exam, the only objectively noted abnormality
included tenderness to palpation along the lumbar spine (Id.). Despite this
unremarkable clinical evidence, the worker’s compensation physician continued
to excuse her from working as an apartment manager (Id.). This assessment is
not refuted, and is consistent with Finding 6, noted below.
Immediately thereafter in October 1998, the claimant consulted with Dr.
Henry for electromyography testing due to radicular-type symptoms (Exhibit 44F).
At this time, the claimant endorsed bilateral leg numbness, and upon exam, the
physician did note decreased sensations at a number of vertebral levels, which
equated to a diagnosis of mild left radiculopathy without evidence of denervation
(Id.). The physician also found the claimant’s symptoms consistent with mild
bilateral LS radiculopathy without denervation based upon the absence of peroneal
and/or tibial neuropathy (Id.). At her December 1998 follow up, the claimant’s
physician considered her previous operative intervention unsuccessful/failed and
she was therefore scheduled for follow up surgery that was to include hardware
removal and a new fusion (Exhibits 2F and 6F). Upon discharge following the
foregoing surgery, the claimant was found to be doing well; in fact, she was
ambulatory at discharged shortly after the surgery with instructions to control her
diet to assist in weight loss (Id.). The claimant continued to follow a narcotic
based medication regimen, with orders to increase her physical activity (Id.). This
physician recommendation was difficult to reconcile with the claimant’s
allegations as this is not a course of treatment one would expect if the claimant’s
treating physician felt her condition was so severe as to leave her almost bedridden
as testified to the hearings (see generally Exhibit 2F, 36F, Hearing Testimony).
Moreover, during the operation, it was noted by the surgeon that the claimant’s
hardware was loose, but thereafter, the claimant tolerated her medical care well
Following her second surgery, the claimant treated with Dr. Rah in 1999;
in March, the physician noted that the claimant could not return to her past
position as an apartment manager position (Exhibit 36F). Again, despite the fact
this opinion touched on the claimant’s status as disabled, which is an issue
reserved for the Commissioner (see generally 20 CFR 404.1527 and 416.927),
the undersigned did find it consistent with this decision’s assessment (see
generally Finding 6 in which it was found the claimant was precluded from her
past relevant work). However, little weight was given to the general opinions by
the numerous workers’ compensation physicians that the claimant was disabled
under the California worker’s compensations laws for the following reason: 20
CFR 404.1504 and 416.904 both dictate that a decision by any nongovernmental
or governmental agency about whether a claimant is disabled/blind, is based upon
its rules and is not this Agency’s decision. This Agency must make a disability
determination based upon Social Security Law and the sequential evaluation
process outlined herein. Therefore, any determination made by another agency
that a claimant is disabled, is not binding on the undersigned. As such, the
undersigned afforded very little weight to these worker’s compensation opinions
because they were not based upon an assessment of a residual functional capacity.
Nevertheless, the opinions were considered under SSR 06-3p, as required, and
used as additional evidence of the impact the claimant’s conditions had on her
ability to function prior to the established onset date.
Fortunately, but in stark comparison to her claims that she never
experienced symptom relief, the April 1999 records documented post-operative
pain improvement (Exhibit 36F). Contrary to the previously discussed failure, a
new May 1999 computerized tomography (CT) scan of the spine revealed that the
claimant’s hardware was stable despite evidence of a L5-S 1 vertebral level disc
protrusion as there was no L4-L5 disc pathology, or compromise of the spinal
canal, lateral recess, or foramina (Exhibits 4F and 36F). At her July evaluation,
the claimant’s forward flexion remained limited but improved, and she continued
to report low back pain improvement (Id.).
Dkt. No. 1-1 at 17-19.
However, this analysis, while lengthy, essentially points to nothing other than the fact
that the ALJ believed that her symptoms were inconsistent with the objective medical evidence.
As noted above, the regulations provide that “we will not reject your statements about the
intensity and persistence of your pain or other symptoms or about the effect your symptoms have
on your ability to work solely because the available objective medical evidence does not
substantiate your statements.” 20 C.F.R. § 404.1529(c)(2). Therefore, this case must be
remanded yet again for the Commissioner to reevaluate Garza’s subjective symptoms.
Exacerbating Effects of Obesity
Garza also argues that the ALJ failed to properly assess the exacerbating effects of
Garza’s obesity. The Court disagrees. As the ALJ noted,
Most recently, the representative contended that the undersigned failed to
adequately consider the claimant's body habitus throughout the period of alleged
disability (see generally Exhibit 26B). This is not an accurate assessment, as the
prior decision clearly references SSR 02-lp, which deals directly with obesity, as
well as Dr. Hutson’s testimony, which considered the exacerbatory impact of this
claimant’s obese state in determining whether her impairments were of such
severity as to meet or medically equal the relevant Listings.
Dkt. No. 1-1 at 16.
Further, the ALJ discussed this factor, finding it to be a severe impairment. Moreover,
the ALJ expressly instructed medical expert Dr. Lorber to consider the effect of her obesity on
Garza’s other impairments. Notably, the ALJ based his RFC finding, in part, on the opinion of
a state agency reviewing doctor who took Garza’s obesity into account. See Sienkiewicz v.
Barnhart, 409 F.3d 798, 802 (7th Cir. 2005) (“But the ALJ found that Sienkiewicz was obese
and nothing suggests that he then disregarded that finding when evaluating whether her various
medical conditions met the severity of the listed impairments.”). As such, the Court finds that
the ALJ properly assessed the impact of Garza’s obesity.
Limited Lumbar Flexion
Garza also argues that the ALJ failed to consider Garza’s limited lumbar function. In fact,
the ALJ did recognize and discuss this factor. Further, the jobs identified by the VE at the
January 16, 2008, hearing—an addressor doing clerical work, DOT number 209.587-010, and
fino assembler in the optical goods industry, DOT number 713.687-018—did not require
climbing, bending, or stooping. Dkt. No. 13-2 at 44. Accordingly, any error was harmless.
For the reasons set forth above, the decision of the Commissioner is REVERSED AND
REMANDED for further proceedings consistent with this Entry.
SO ORDERED: 9/29/17
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
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