WILSON v. ASTRUE

Filing 23

ENTRY on Judicial Review. Signed by Judge Richard L. Young on 8/1/2012.(TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
CAROL S. WILSON
(Social Security No. XXX-XX-2676),

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Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,
Defendant.

3:11-cv-71-RLY-WGH

ENTRY ON JUDICIAL REVIEW
I. Background
Carol S. Wilson, seeks judicial review of the final decision of the Commissioner of
Social Security (“Commissioner”), which found her not disabled and, therefore, not
entitled to Disability Insurance Benefits (“DIB”) under the Social Security Act (“the
Act”). 42 U.S.C. §§ 416(i), 423(d); 20 C.F.R. § 404.1520(f). The court has jurisdiction
over this action pursuant to 42 U.S.C. § 405(g).
Wilson filed an application for DIB on October 17, 2007, alleging that she became
disabled on December 25, 2005. (R. 111-13). The agency denied her application both
initially and upon reconsideration. (R. 76-79, 81-83). On April 9, 2009, an
Administrative Law Judge (“ALJ”) held a hearing during which Wilson, who was
represented by counsel, and a vocational expert testified. (R. 36-73). On May 28, 2009,

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the ALJ issued her opinion finding that Wilson was not disabled because she retained the
residual functional capacity (“RFC”) to perform a significant number of jobs in the
regional economy. (R. 17-25). The Appeals Council denied her request for review,
leaving the ALJ’s decision as the final decision of the Commissioner. (R. 1-3). 20 C.F.R.
§§ 404.955(a), 404.981. Wilson then filed a Complaint on June 8, 2011, seeking judicial
review of the ALJ’s decision.
Wilson was 52 years old when the ALJ rendered her decision. She has a high
school education, and no past relevant work. (R. 24).
II. Legal Standards
An ALJ’s findings are conclusive if they are supported by substantial evidence. 42
U.S.C. § 405(g). Substantial evidence is defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.E.2d 842 (1971); see also Perkins v.
Chater, 107 F.3d 1290, 1296 (7th Cir. 1997). This standard of review recognizes that it is
the Commissioner’s duty to weigh the evidence, resolve material conflicts, make
independent findings of fact, and decide questions of credibility. Richardson, 402 U.S. at
399-400. Accordingly, this court may not re-evaluate the facts, weigh the evidence anew,
or substitute its judgment for that of the Commissioner. See Butera v. Apfel, 173 F.3d
1049, 1055 (7th Cir. 1999). Thus, even if reasonable minds could disagree about whether
or not an individual was “disabled,” the court must still affirm the ALJ’s decision denying
benefits. Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000).
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In order to qualify for disability benefits under the Act, Plaintiff must establish that
she suffers from a “disability,” as defined by the Act. “Disability” is defined as the
“inability to engage in any substantial gainful activity by reason of a medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A). The Social Security regulations set out a sequential
five-step test the ALJ is to perform in order to determine whether a claimant is disabled.
See 20 C.F.R. § 404.1520. The ALJ must consider whether the claimant: (1) is presently
employed; (2) has a severe impairment or combination of impairments; (3) has an
impairment that meets or equals an impairment listed in the regulations as being so severe
as to preclude substantial gainful activity; (4) is unable to perform her past relevant work;
and (5) is unable to perform any other work existing in significant numbers in the national
economy. Id. The burden of proof is on Plaintiff during steps one through four, and only
after Plaintiff has reached step five does the burden shift to the Commissioner. Clifford v.
Apfel, 227 F.3d 863, 868 (7th Cir. 2000).
III. The ALJ’s Decision
The ALJ’s decision included the following findings: (1) Wilson met the insured
status for DIB through June 30, 2010 (R. 19); (2) Wilson had not engaged in substantial
gainful activity since the alleged onset date (R. 19); (3) in accordance with 20 C.F.R. §
404.1520, Wilson had three impairments that are classified as severe: chronic active
autoimmune hepatitis with cirrhosis of the liver; osteoarthritis of the knees; and obesity
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(R. 19); (4) these impairments did not meet or substantially equal any of the impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R. 21); (5) Wilson’s allegations regarding
the extent of her limitations were not fully credible (R. 22-23); (6) Wilson retained the
RFC for light work with the need to shift from sitting or standing for a minute or two after
maintaining a position for 30 or 35 minutes; can occasionally balance, stoop, kneel,
crouch, crawl, and climb ramps and stairs; can never climb ladders, ropes, or scaffolds;
and must avoid even moderate exposure to hazards such as unprotected heights (R. 2122); and (7) Wilson has no past relevant work (R. 24); however, she retained the RFC to
perform a significant number of jobs in the regional economy (R. 24). The ALJ
concluded by finding that Wilson was not under a disability. (R. 25).
IV. Issues
The court has examined Plaintiff’s brief and concludes that Plaintiff has essentially
raised three issues:
1. Whether the ALJ should have found Wilson’s depression to be severe.
2. Whether the ALJ failed to consider the combination of all of Wilson’s
impairments.
3. Whether the ALJ’s credibility determination was patently wrong.
Issue 1: Whether the ALJ should have found Plaintiff’s depression to be severe.
Wilson’s first argument is that the ALJ committed error at step two of the five-step
sequential evaluation process by finding that Wilson’s depression was not a severe
impairment. As discussed above, 20 C.F.R. § 404.1520 provides a five-step evaluation
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process. Step two of that process involves determining if an individual has a severe
impairment. Step two is simply an initial screening device to eliminate consideration of
individuals who have only slight impairments. Taylor v. Schweiker, 739 F.2d 1240, 1243
n.2 (7th Cir. 1984). As then District Judge David Hamilton has explained:
As long as the ALJ proceeds beyond step two, as in this case, no reversible
error could result solely from his failure to label a single impairment as
‘severe.’ The ALJ’s classification of an impairment as ‘severe’ or ‘not
severe’ is largely irrelevant past step two. What matters is that the ALJ
considers the impact of all of the claimant’s impairments – ‘severe’ and ‘not
severe’ – on her ability to work.
Gordon v. Astrue, 2007 WL 4150328 at *7 (S.D. Ind. 2007).
In this instance, the ALJ conducted a very thorough analysis of Wilson’s mental
impairments and found that Wilson’s combination of mental impairments, including
depression and anxiety, were not severe at step two because they caused no more than a
minimal impact on Wilson’s ability to do work-related activities. (R. 20-21).1 The ALJ
then proceeded beyond step two and incorporated all of the limitations that the medical
evidence supported into Wilson’s RFC. The ALJ reasonably concluded that Wilson’s
mental impairments did not cause any additional limitations beyond those caused by
Wilson’s severe impairments. Therefore, the ALJ’s decision finding Wilson’s depression
to be a non-severe impairment was not an error that requires remand.2
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The ALJ’s discussion of Wilson’s mental impairments clearly indicates that it was not
only a step-two determination, but that the findings applied to step three as well. (R. 21).
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Wilson also alleges that the ALJ committed error at step two by failing to properly
address the opinion of Severin Wellinghoff, Ph.D., who saw Wilson on May 5, 2009, for a
psychological evaluation. (R. 369). Dr. Wellinghoff’s assessment was major depression,
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Issue 2: Whether the ALJ failed to consider the combination of all of Plaintiff’s
impairments.
Wilson also argues that the ALJ failed to take into consideration the combination
of all of Wilson’s impairments, both severe and non-severe, in formulating a residual
functional capacity. Specifically, Wilson alleges that the ALJ failed to consider her
obesity and her depression. However, the ALJ did specifically indicate that she
considered Wilson’s obesity. (R. 23). While there are references in the medical records
of Wilson being obese, no doctor in the record ever opined that Wilson’s obesity caused
any additional functional limitations beyond those limitations caused by Wilson’s other
severe impairments. As for Wilson’s depression, at least one doctor examining Wilson
and two doctors that reviewed the medical records concluded that Wilson had no
limitations from any mental impairment. The ALJ’s decision to give great weight to these
opinions is supported by substantial evidence, and the ALJ was, therefore, not obligated
to consider any additional limitations caused by Wilson’s depression. Because the ALJ
indicated that she considered all of Wilson’s impairments, including obesity, in
formulating Wilson’s RFC, and because there is substantial evidence in the record that
Wilson’s obesity and depression did not cause any limitations beyond those found by the
recurrent, moderate to severe. (R. 369). The ALJ reviewed Dr. Wellinghoff’s report and
concluded that nothing in the report changed the ALJ’s conclusion that Wilson’s mental
impairments were not severe. (R. 20). The ALJ’s evaluation of Dr. Wellinghoff’s report was
not improper. Dr. Wellinghoff did not provide an assessment of how a diagnosis of “major
depression, recurrent, moderate to severe” affected Wilson’s RFC. Furthermore, there was
substantial evidence in the record that Wilson did not suffer from a severe mental impairment,
including the opinions of two state agency psychologists and a mental status exam by Albert H.
Fink, Ph.D. Consequently, the ALJ was free to reject the opinion of Dr. Wellinghoff.
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ALJ, the ALJ’s decision must be affirmed.
Issue 3: Whether the ALJ’s credibility determination was patently wrong.
Finally, Wilson finds fault in the ALJ’s credibility determination. Wilson testified
at her administrative hearing that she was unsteady on her feet, that she suffered from
pain and difficulty ambulating because of arthritis in her knees, and that she had low
stamina and fell asleep often. The ALJ determined that Wilson was not fully credible.
An ALJ’s credibility determination will not be overturned unless it is “patently
wrong,” because the ALJ “is in the best position to determine a witness’s truthfulness and
forthrightness.” Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004). The court may,
however, override the great deference usually afforded an ALJ if the credibility
determination includes “errors of fact or logic.” Allord v. Barnhart, 455 F. 3d 818, 821
(7th Cir. 2006).
In this instance, the ALJ conducted a thorough credibility determination in
accordance with SSR 96-7p and 20 C.F.R. § 404.1529. (R. 22-23). While Wilson alleges
that the ALJ relied too heavily on Wilson’s activities of daily living in making a
credibility determination, the record reflects that this was not the case. The ALJ did rely
on Wilson’s ability to “carry out most of her daily activities” as one factor in finding
Wilson not fully credible. (R. 22). However, the ALJ also referred to medical records
that indicated that Wilson’s hepatitis and cirrhosis were stable on medication. (R. 22).
Additionally, the ALJ noted that Wilson’s complaints were inconsistent with the opinions
of two state agency physicians, the findings of consultative examiner Anne Butsch, M.D.,
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and also records from Wilson’s treating physicians, Gary Erdy, M.D., and Bruce W.
Schneider, M.D. (R. 23-24). Therefore, contrary to Wilson’s claims, the ALJ’s
credibility determination did not rely too heavily on Wilson’s activities of daily living and
certainly was not patently wrong.
V. Conclusion
The ALJ did not err at step two of the five-step sequential evaluation process when
she concluded that Wilson’s depression was not a severe impairment. The ALJ also did
not improperly fail to take into consideration the combination of all of Wilson’s
impairments, including obesity and depression, in formulating Wilson’s RFC. Finally,
the ALJ’s credibility determination was not patently wrong. The final decision of the
Commissioner is, therefore, AFFIRMED. Judgment consistent with this entry shall now
issue.

SO ORDERED the 1st day of August 2012.

RICHARD L. YOUNG, CHIEF JUDGE
__________________________________
United States District Court
RICHARD L. YOUNG, CHIEF JUDGE
Southern District of Indiana
United States District Court
Southern District of Indiana

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Electronic Copies to:
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]
Lane C. Siesky
SIESKY LAW FIRM, PC
[e-mail]

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