BUMGARDNER v. BERRYHILL

Filing 22

ENTRY REVIEWING THE COMMISSIONER'S DECISION - The court can find no legal basis presented by Mr. Bumgardner to reverse the ALJ's decision that he was not disabled during the relevant time period. Therefore, the decision below is AFFIRMED. Final judgment will issue accordingly. SEE ORDER. Signed by Judge Richard L. Young on 2/9/2018.(JRB)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
JOHN J. BUMGARDNER,

)
)
Plaintiff,
)
)
v.
)
)
NANCY BERRYHILL, Acting Commissioner )
of the Social Security Administration,
)
)
Defendant.
)

No. 3:17-cv-00081-RLY-MPB

ENTRY REVIEWING THE COMMISSIONER’S DECISION
Plaintiff John Bumgardner applied for disability insurance benefits from the Social
Security Administration (“SSA”) on January 22, 2014, alleging an onset date of October
24, 2013. [Filing No. 8-5 at 2.] His application was initially denied on May 28, 2014,
[Filing No. 8-4 at 4], and upon reconsideration on August 19, 2014, [Filing No. 8-4 at 14].
The Administrative Law Judge (the “ALJ”) held a hearing on February 18, 2016. [Filing
No. 8-2 at 37-72.] The ALJ issued a decision on April 29, 2016, concluding that Mr.
Bumgardner was not entitled to receive disability insurance benefits. [Filing No. 8-2 at
11.] The Appeals Council denied review on April 21, 2017. [Filing No. 8-2 at 2.] On May
12, 2017, Mr. Bumgardner timely filed this civil action, asking the court to review the
denial of benefits pursuant to 42 U.S.C. § 405(g). [Filing No. 1.]
I.
STANDARD OF REVIEW
“The Social Security Act authorizes payment of disability insurance benefits … to
individuals with disabilities.” Barnhart v. Walton, 535 U.S. 212, 214 (2002). “The
1

statutory definition of ‘disability’ has two parts. First, it requires a certain kind of inability,
namely, an inability to engage in any substantial gainful activity. Second, it requires an
impairment, namely, a physical or mental impairment, which provides reason for the
inability. The statute adds that the impairment must be one that has lasted or can be
expected to last … not less than 12 months.” Id. at 217.
When an applicant appeals an adverse benefits decision, this court’s role is limited
to ensuring that the ALJ applied the correct legal standards and that substantial evidence
exists for the ALJ’s decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004)
(citation omitted). For the purpose of judicial review, “[s]ubstantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. (quotation omitted). Because the ALJ “is in the best position to determine the credibility
of witnesses,” Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008), this court must afford the
ALJ’s credibility determination “considerable deference,” overturning it only if it is
“patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (quotations
omitted).
The ALJ must apply the five-step inquiry set forth in 20 C.F.R. § 404.1520(a)(4)(i)(v), evaluating the following, in sequence:
(1) whether the claimant is currently [un]employed; (2) whether the claimant
has a severe impairment; (3) whether the claimant’s impairment meets or
equals one of the impairments listed by the [Commissioner]; (4) whether the
claimant can perform [his] past work; and (5) whether the claimant is capable
of performing work in the national economy.

2

Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in
original). “If a claimant satisfies steps one, two, and three, [he] will automatically be found
disabled. If a claimant satisfies steps one and two, but not three, then [he] must satisfy step
four. Once step four is satisfied, the burden shifts to the SSA to establish that the claimant
is capable of performing work in the national economy.” Knight v. Chater, 55 F.3d 309,
313 (7th Cir. 1995).
After Step Three, but before Step Four, the ALJ must determine a claimant’s
residual functional capacity (“RFC”) by evaluating “all limitations that arise from
medically determinable impairments, even those that are not severe.” Villano v. Astrue,
556 F.3d 558, 563 (7th Cir. 2009). In doing so, the ALJ “may not dismiss a line of evidence
contrary to the ruling.” Id. The ALJ uses the RFC at Step Four to determine whether the
claimant can perform [his] own past relevant work and if not, at Step Five to determine
whether the claimant can perform other work. [See 20 C.F.R. § 404.1520(iv), (v).] The
burden of proof is on the claimant for Steps One through Four; only at Step Five does the
burden shift to the Commissioner. See Clifford, 227 F.3d at 868.
If the ALJ committed no legal error and substantial evidence exists to support the
ALJ’s decision, the court must affirm the denial of benefits. Barnett, 381 F.3d at 668.
When an ALJ’s decision is not supported by substantial evidence, a remand for further
proceedings is typically the appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425
F.3d 345, 355 (7th Cir. 2005). An award of benefits “is appropriate where all factual issues
have been resolved and the record can yield but one supportable conclusion.” Id. (citation
omitted).
3

II.
BACKGROUND
Mr. Bumgardner was 39 years old at the time he applied for disability insurance
benefits. [Filing No. 8-5 at 2.] He has completed high school. [Filing No. 8-2 at 28.] 1
The ALJ followed the five-step sequential evaluation set forth by the Social Security
Administration in 20 C.F.R. § 404.1520(a)(4) and ultimately concluded that Mr.
Bumgardner is not disabled. [Filing No. 8-2 at 29.] The ALJ found as follows:
• At Step One, the ALJ found that Mr. Bumgardner has not engaged in substantial
gainful activity2 since October 24, 2013, the alleged onset date. [Filing No. 8-2 at
16.]
• At Step Two, the ALJ found that Mr. Bumgardner has the following severe
impairments: Wegener’s granulomatosis/vasculitis, anemia, pulmonary
hypertension, degenerative joint disease/osteoarthritis, obesity, hypertension, stage
III chronic kidney disease, deep venous thrombosis of the left lower extremity,
pericarditis, neuropathy, depressive disorder (not otherwise specified), and anxiety
disorder (not otherwise specified). [Filing No. 8-2 at 16.]
• At Step Three, the ALJ found that Mr. Bumgardner does not have an impairment or
combination of impairments that meets or medically equals the severity of one of
the listed impairments. [Filing No. 8-2 at 18.]
• After Step Three but before Step Four, the ALJ found that Mr. Bumgardner has the
RFC to “perform sedentary work as defined in 20 CFR 404.1567(a) except he could
lift and/or carry 10 pounds occasionally and less than 10 pounds frequently; sit for
at least six hours in an eight-hour period and stand and/or walk for about two hours
in an eight-hour period. He needs to be permitted to utilize a cane when ambulating
within the workplace and can never climb ladders, ropes, or scaffolds. The claimant
1

Both parties provided a detailed description of Mr. Bumgardner’s medical history and
treatment in their briefs. [Filing No. 12; Filing No. 18.] Because that discussion implicates
sensitive and otherwise confidential medical information concerning Mr. Bumgardner, the
court will simply incorporate those facts by reference and only detail specific facts as
necessary to address the parties’ arguments.
2
Substantial gainful activity is defined as work activity that is both substantial (i.e.,
involves significant physical or mental activities) and gainful (i.e., work that is usually
done for pay or profit, whether or not a profit is realized). 20 C.F.R. § 404.1572(a).
4

could occasionally climb ramps and stairs with a handrail and also occasionally
balance, stoop, kneel, crouch, and crawl. The claimant could frequently but not
constantly use his bilateral upper extremities for handling, fine fingering, feeling,
pushing/pulling, and operating hand controls. He could occasionally use the
bilateral upper extremities for overhead reaching. The claimant could occasionally
use his left lower extremity for pushing/pulling and operating foot controls. He
should avoid even moderate exposure to dangerous workplace hazards such as
exposed moving machinery and unprotected heights, vibration, and wetness due to
a history of foot drop and fatigue. The claimant should avoid concentrated exposure
to fumes, dusts, odors, gases, areas of poor ventilation, temperature extremes of heat
and cold, and humidity. The claimant could understand and remember simple
instructions and carry out simple, routine tasks that require little independent
judgment or decision-making, completed in two-hour segments at a time with a
short 10-15 minute rest break between two-hour segments. The claimant can have
no more than occasional public interaction.” [Filing No. 8-2 at 22.]
• At Step Four, the ALJ concluded that Mr. Bumgardner is unable to perform any past
relevant work. [Filing No. 8-2 at 28.]
• At Step Five, the ALJ found that considering Mr. Bumgardner’s age, education, and
RFC, there were jobs that existed in significant numbers in the national economy
that Mr. Bumgardner could perform as a sorter, weight tester and inspector. [Filing
No. 8-2 at 28-29.]
III.
DISCUSSION
Mr. Bumgardner makes two broad assertions of error regarding the ALJ’s decision,
with many sub-issues included, each of which the court will consider in turn.
A. Whether the ALJ Failed to Properly Assess Multiple Impairment Listings
1. Listing 4.11
Mr. Bumgardner initially argues that the ALJ performed a perfunctory analysis of
listing 4.11 of the listed impairments at 20 C.F.R. Pt. 404, Subp. P, App 1. [Filing No. 12
at 7 (citing Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015)).] Mr. Bumgardner asserts
the analysis is “problematic because there are numerous references to edema throughout
5

[Mr.] Bumgardner’s medical records which may give rise to a finding of [disability] under
[the listing].” [Filing No. 12 at 8 (emphasis added).] Mr. Bumgardner notes “[w]hile it is
true that none of the medical records specifically note brawny edema, at least one record
noted the presence of pitting edema.” [Filing No. 12 at 8 (emphasis in original) (citing
Filing No. 8-21 at 71).] Mr. Bumgardner further asserts that “[a]t the very least, it was
incumbent upon the ALJ to further develop the record to determine the presence of edema
by simple questions about how [Mr.] Bumgardner’s edema presented itself and his
symptoms.” [Filing No. 12 at 8 (citing Shauger v. Astrue, 675 F.3d 690, 698 (7th Cir.
2012)).]
The Commissioner argues generally that the ALJ’s Step Three finding is supported
by substantial evidence and in particular with regard to listing 4.11 that Mr. Bumgardner
has the burden of proof to show that his chronic venous insufficiency included one of the
following:
a. Extensive brawny edema (see 4.00G3) involving at least two-thirds of the
leg between the ankle and knee or the distal one-third of the lower extremity
between the ankle and hip; OR
b. Superficial varicosities, stasis dermatitis, and either recurrent ulceration or
persistent ulceration that has not healed following at least 3 months of
prescribed treatment.
[Filing No. 18 at 7-8 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1).] The Commissioner
concludes that the ALJ determined that Mr. Bumgardner did not satisfy the listing because
he could not demonstrate the above criteria. [Filing No. 18 at 8.] The Commissioner
further points out that the regulations explain that pitting edema does not satisfy the listing.
[Filing No. 18 at 9.]
6

In order to meet or equal an impairment identified in the listings, a claimant must
establish, with objective medical evidence, all of the criteria specified in the listing. See
20 C.F.R. §§ 404.1525, 404.1526; Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990); Rice v.
Barnhart, 384 F.3d 363, 369 (7th Cir. 2004) (“The applicant must satisfy all of the criteria
in the Listing in order to receive an award of” benefits at Step Three).
For starters, Mr. Bumgardner does not supply the criteria specified in the listing, let
alone attempt to demonstrate for the court how the evidence establishes all of the criteria 3.
By referencing medical evidence showing edema, the court assumes that he meant to assert
that the record demonstrates “a. Extensive brawny edema (see 4.00G3) involving at least
two-thirds of the leg between the ankle and knee or the distal one-third of the lower
extremity between the ankle and hip.” However, the court finds the argument unavailing.
The listing contemplates not just edema, but edema of a specific type (brawny edema),
severity (extensive), and location (described above). Mr. Bumgardner admits that none of
the evidence shows brawny edema. He attempts to excuse that failure by citing one
reference to pitting edema. However, the regulations define “What is brawny edema? […]
It is not the same thing as pitting edema. Brawny edema generally does not pit (indent on
pressure), and the terms are not interchangeable. Pitting edema does not satisfy the
requirements of 4.11A.” [20 C.F.R. Pt. 404, Subpt. P, App. 1, 400(G)(3).] Moreover, the
other evidence he cites shows edema at varying levels from trace to plus two, while the

3

Mr. Bumgardner actually never even positively asserts that the listing is in fact met by
the evidence. [Filing No. 12 at 7-8.] However, the court will reach his argument about
the sufficiency of the ALJ’s given explanation that the listing was not met.
7

listing demands the brawny edema to be extensive in the specified location. The court does
not find the listing criteria to be met by Mr. Bumgardner’s presented evidence or any other
evidence of record and concludes that the ALJ’s finding is supported by substantial
evidence 4.
2. Listing 1.02
Mr. Bumgardner next argues that the ALJ “rejected any substantive analysis”
regarding listing 1.02. [Filing No. 12 at 8.] However, once again Mr. Bumgardner fails to
articulate the criteria required by the listing or demonstrate for the court how the listing is
met by the evidence, focusing rather on the sufficiency of the explanation given by the ALJ
and making arguments about the ALJ’s analysis of one aspect of the listing (the inability
to ambulate effectively), Mr. Bumgardner’s credibility, and his subjective complaints of
pain. [Filing No. 12 at 8-11.]
However, the court starts with the governing standard.

The ALJ noted the

requirements of the listing:

4

Mr. Bumgardner cites Minnick. However, the Court there found an ALJ’s analysis to be
inadequate where there was actual evidence of record to support the listing asserted,
which is notably lacking here. See Minnick, 775 F.3d at 935-36 (See also Kastner v.
Astrue, 697 F.3d 642, 647-48 (7th Cir. 2012) (remanding where the ALJ’s cursory
Listing analysis failed to articulate rationale for denying benefits when record supported
finding in claimant’s favor)). Mr. Bumgardner’s reliance on Shauger is also
distinguishable. That Court found that the ALJ had an obligation to develop expert
testimony that was in conflict with other substantial evidence of record and went beyond
the bounds of a medical opinion to assess the claimant’s credibility. Shauger, 675 F.3d at
698. Here, Mr. Bumgardner did not assert the listing was met at the hearing and the
record fails to support that the listing is actually met. This court is not persuaded that the
ALJ had any obligation to develop testimony further in this instance where no conflict
was apparent.
8

Section 1.02 of the Listing of Impairments is satisfied when an individual
has a major dysfunction of a joint(s) characterized by gross anatomical
deformity and chronic joint pain and stiffness with signs of limitation of
motion or other abnormal motion of the affected joint(s), and findings on
appropriate medically acceptable imaging of joint space narrowing, bony
destruction, or ankylosis of the affected joint with either involvement of one
major peripheral weight-bearing joint resulting in the inability to ambulate
effectively or involvement of one major peripheral joint in each upper
extremity, resulting in the inability to perform fine and gross movements
effectively.
[Filing No. 8-2 at 18-19 (emphasis added)]. The regulations further define involvement of
one major peripheral weight-bearing joint to be specifically limited to “(i.e., hip, knee, or
ankle)”, [20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.02(A)], with the foot or toes notably absent,
compared with the definition of involvement of one major peripheral joint in each upper
extremity which includes “(i.e., shoulder, elbow, or wrist-hand)”, [20 C.F.R. Pt. 404,
Subpt. P, App. 1, 1.02(B) (emphasis added)].
The court acknowledges that the ALJ’s analysis of the listing is rather brief and
appears to focus on the severity of the joints effected. However, the court is satisfied that
the ALJ’s brief explanation and supporting evidence cited is adequate to support his
conclusion that the listing is not met. The ALJ notes with regard to the objective imaging
that “x-rays of the left shoulder performed on September 23, 2013, showed only mild
degenerative change of the acromioclavicular joint (Exhibit 14F/38). The claimant also
complained of right foot pain. However, x-rays of the right foot performed on November
20, 2013, showed only mild degenerative change in the AP joint over the great toe (Exhibit
14F/39).” [Filing No. 8-2 at 19 (citing Filing No. 8-23 at 39 (x-ray of only the left shoulder
showing “no acute abnormality”) and Filing No. 8-23 at 40 (x-ray of right foot showing
9

only mild degenerative change in “the great toe. Elsewhere no bone or joint abnormality is
seen to explain foot pain”)).] Without reaching whether the “mild” degenerative changes
falls short of the requirements of the listing, the court notes that the imaging does not
establish the diagnostic criteria in each of the required joints. The acceptable imaging does
not establish an impairment in a major peripheral weight-bearing joint, limited to one joint
in the great toe, which is not a joint listed as satisfying the listing. The imaging further
does not establish impairment of a peripheral joint in each upper extremity, limited solely
to the left shoulder. Mr. Bumgardner does not provide supporting evidence of record that
would establish impairment in the specifically required joints by acceptable imaging either.
Accordingly, the court finds that substantial evidence supports a finding that the listing is
not met and the ALJ’s brief explanation citing to the available imaging which fails to meet
the listing is adequate.
3. Listing 11.14
Mr. Bumgardner does not expressly argue separately that listing 11.14 is met.
However, in his argument with regard to listing 1.02, he notes that the ALJ analyzed his
inability to ambulate effectively, one of the requirements of each listing that is shared, and
concludes that the ALJ’s “analysis is erroneous for two reasons”, [Filing No. 12 at 10], and
that the evidence supports that “[a]ll of these impairments limit his ability to ambulate
effectively and support a finding that [Mr.] Bumgardner is disabled under Impairment
Listing 1.02, as well as under Impairment Listing 11.14 as applicable at the time of the
decision,” [Filing No. 12 at 11]. The court will reach Mr. Bumgardner’s argument.

10

First, Mr. Bumgardner suggests that opinion evidence supports that he is unable to
ambulate effectively. [Filing No. 12 at 10.] He notes that his “primary care physician, Dr.
Wessel, noted that [Mr.] Bumgarder could not ambulate effectively.” [Filing No. 12 at 10
(citing Filing No. 8-26 at 20).] However, Mr. Bumgardner mischaracterizes the evidence
he cites. On November 7, 2013, Dr. Wessel did make examination findings that included
reference to Mr. Bumgardner’s gait as “slowed and almost with dragging foot type gait.”
[Filing No. 8-26 at 20.] However, the inability to ambulate effectively is a legal conclusion
with a specific definition of which Ms. Bumgardner is obviously aware considering his
next assignment of error below. An examination finding that there was disturbance of gait
is not really a medical opinion at all and even if it were construed liberally to be a medical
opinion there is nothing in the cited exhibit to suggest that Dr. Wessel was making a
conclusion about Mr. Bumgardner’s inability to ambulate effectively as that is defined in
the regulations (or is even aware of the regulatory definition). 5 Similarly, Mr. Bumgardner
cites to examination findings of Dr. Denton. [Filing No. 12 at 10 (citing Filing No. 8-28
at 18).] The court is not really clear what the cited evidence is supposed to demonstrate.
At most, it shows that there is some evidence supporting that Dr. Denton would have issues
with ambulation.

5

Mr. Bumgardner repeatedly confuses examination findings and medical opinions
throughout his brief, which frustrates the court’s legal analysis and will be discussed later
as it pertains to the ALJ’s treatment of opinion evidence.
11

Second, Mr. Bumgardner asserts that the ALJ applied a more narrow definition of
the inability to ambulate effectively than is specified in the regulations. [Filing No. 12 at
10.] Mr. Bumgardner notes the definition:
To ambulate effectively, individuals must be capable of sustaining a
reasonable walking pace over a sufficient distance to be able to carry out
activities of daily living. . .Therefore, examples of ineffective ambulation
include, but are not limited to, the inability to walk without the use of a
walker, two crutches or two canes, the inability to walk a block at a
reasonable pace on rough or uneven surfaces, the inability to use standard
public transportation, the inability to carry out routine ambulatory activities,
such as shopping and banking, and the inability to climb a few steps at a
reasonable pace with the use of a single hand rail. The ability to walk
independently about one’s home without the use of assistive devices does
not, in and of itself, constitute effective ambulation.
[Filing No. 12 at 10-11 (citing 20 C.F.R. Pt. 404, Subpt. P. App. 1, 1.00(B)(2)(b)(2)
(emphasis in original)).]
However, the court can find no error of law as to the definition the ALJ applied.
Mr. Bumgardner seems to be suggesting that the ALJ found it determinative that Mr.
Bumgardner used only a single cane, rather than a walker, two crutches or two canes.
However, the court does not agree. The ALJ noted Mr. Bumgardner’s alleged problems
with ambulation and the ALJ acknowledged evidence that Mr. Bumgardner needed a cane
to ambulate. [Filing No. 8-2 at 20.] However, the ALJ noted Mr. Bumgardner’s own
Functional Report statement that he could walk 100 yards before needing to rest for 15
minutes. [Filing No. 8-2 at 20 (citing Filing No. 8-6 at 32 (completed by Mr. Bumgardner’s
wife on his behalf on April 10, 2014))]. 6 The ALJ further supported his finding that Mr.

6

Mr. Bumgardner argues that the ALJ’s “attempt to support his case” with this statement
is contradicted by his testimony at the hearing establishing that his condition “severely
12

Bumgardner had not demonstrated with the medical evidence of record the inability to
ambulate effectively with the following:
Dr. Ryon noted the claimant ambulated with a cane when he examined him
on June 17, 2014. However, he did note the claimant was ambulating and
that he only required a single cane in order to do so (Exhibit 16F/3-5). In
January 2015, the claimant reported to Ms. Funderburk that he would walk
for a while. In addition, Ms. Funderburk noted the claimant did not have gait
abnormality (Exhibit 20F/3-5). In October 2015, Dr. Tapal noted that the
claimant’s hips, knees, ankles moved normally (Exhibit 22F/34-35). Finally,
when Dr. Evanson saw the claimant in December 2015, he observed that the
claimant had a normal gait and station (Exhibit 24F/4-6).
[Filing No. 8-2 at 20.] The ALJ noted that only one cane was used, but did not rely entirely
on that fact alone, which is clearly relevant under the regulations specifying the need to use
an assistive device in both hands under the examples of the definition. The ALJ also cited
to examination findings of normal gait and station which were some of the most recent
evidence of record at the time of the decision. He also noted that Mr. Bumgardner himself
described the ability to walk 100 yards before needing to rest for 15 minutes. Consideration
of all of this evidence is not at all in conflict with the definition provided in the regulations.
Furthermore, the court finds the ALJ’s conclusion that the record does not
demonstrate the inability to ambulate effectively is supported by substantial evidence. At
the most, Mr. Bumgardner has demonstrated that there is conflicting evidence of record as
to the finding. To determine whether substantial evidence exists, the court reviews the
record as a whole but is not allowed to substitute its judgment for the ALJ’s “by
reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding

deteriorated since that date.” [Filing No. 12 at 9-10.] However, the ALJ did not find Mr.
Bumgardner fully credible.
13

questions of credibility.” Williams v. Apfel, 179 F.3d 1066, 1071-72 (7th Cir. 1999)
(internal quotations omitted). Because Mr. Bumgardner must prove all of the criteria of
the listing, the court finds the ALJ’s finding to be determinative here that the listing is not
met.

4. Mr. Bumgardner’s Credibility
Mr. Bumgardner does not fully develop an argument that the ALJ’s credibility
finding was not supported. He does assert that the ALJ improperly discredited his
testimony concerning subjective complaints of pain under his listing 1.02 argument.
[Filing No. 12 at 9.] Mr. Bumgardner also asserts that the ALJ committed legal error in
that “he did not make any specific findings as to why [Mr. Bumgardner], an individual with
a strong history, was not credible or should be given more weight” requiring reversal and
remand. [Filing No. 12 at 9 (citing Stark v. Colvin, 813 F.3d 684, 689 (7th Cir. 2016)).]
To the extent the issues are raised and implicate the ALJ’s credibility finding generally,
the court will consider whether the ALJ’s finding includes an error of law or is otherwise
unsupported by substantial evidence.
First, the court does not find reversible error simply because the ALJ did not
mention Mr. Bumgardner’s work history. In Stark, the Court noted:
An ALJ is not statutorily required to consider a claimant’s work history, but
“a ‘claimant with a good work record is entitled to substantial credibility
when claiming an inability to work because of a disability.’” Hill v. Colvin,
807 F.3d 862, 868 (7th Cir. 2015) (quoting Rivera v. Schweiker, 717 F.2d
719, 725 (2d Cir. 1983)). In assessing Stark’s credibility about the disabling
effects of her pain, the ALJ should have acknowledged Stark’s efforts to
continue work while experiencing significant pain and undergoing numerous
14

surgeries and other treatments to relieve it. See Pierce, 739 F.3d at 1051
(criticizing ALJ for failing to consider claimant’s “dogged efforts” to work
in deciding claimant’s credibility); Flores v. Massanari, 19 F. App’x 393,
404 (7th Cir. 2001) (criticizing ALJ for failing to acknowledge claimant’s
solid work history of 13 years).

Stark, 813 F.3d at 689. Mr. Bumgardner does not present any evidence to support that his
case is similar to the one in Stark and the related cases above where the Court was
impressed with a long work history after the onset of his impairments and a resilience to
remain working. Furthermore, the court reads the decisions above to find the absence of a
discussion into the claimant’s work history to be one factor in assessing the ALJ’s
credibility analysis. One of the Court’s later decisions makes that clear:
The ALJ did not commit reversible error by failing to explicitly discuss
Summers’s work history when evaluating her credibility. See Stark v.
Colvin, 813 F.3d 684, 689 (7th Cir. 2016) (“An ALJ is not statutorily required
to consider a claimant’s work history[.]”). Although a consistent work
history weighs in favor of a positive credibility finding, it is still just “one
factor among many, and it is not dispositive.” Loveless v. Colvin, 810 F.3d
502, 508 (7th Cir. 2016).
Summers v. Berryhill, 864 F.3d 523, 528-29 (7th Cir. 2017). The court does not find
reversible error here simply because the ALJ did not mention Mr. Bumgardner’s work
history.
The court further finds that the ALJ’s credibility finding is supported by substantial
evidence. The court will only overturn the ALJ’s credibility determination if it is patently
wrong, which means that the decision lacks any explanation or support. Elder v. Astrue,
529 F.3d 408, 413-14 (7th Cir. 2008). In drawing his conclusions, the ALJ must “explain
[his] decision in such a way that allows us to determine whether [he] reached [his] decision
15

in a rational manner, logically based on [his] specific findings and the evidence in the
record.” McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir. 2011). Mr. Bumgardner provides
limited argument that the ALJ’s finding is patently wrong beyond what is noted above and
his criticism of portions of the decision that appear to be boilerplate. However, the court
finds that ALJ supported his findings with a fairly extensive review of each of Mr.
Bumgardner’s allegations, including the degree to which they were supported by objective
evidence, observations of treating providers, his response to treatment, and activities of
daily living. [Filing No. 8-2 at 24-26.] Accordingly, the court declines to disturb the ALJ’s
credibility finding under the deferential standard.
B. Whether the ALJ’s Decision Failed to Include Substantive Functional
Limitations Supported by the Record
Mr. Bumgardner further makes a broad argument that the ALJ’s decision failed to
incorporate substantive functional limitations. [Filing No. 12 at 11.] Mr. Bumgardner
throws an array of related arguments at the court with no particular organization. The court
will attempt to reach them below. However, the court does not find that any of the alleged
errors support reversal and remand.
In particular, Mr. Bumgardner fails to articulate specific functional limitations that
were ignored. For example, he begins by citing evidence that the record is “replete with
the fact that [Mr.] Bumgardner has bilateral foot drop and weakness,” that the decision
does not account for his inability to ambulate effectively, that Dr. Ryon noted he required
the use of the cane, and Dr. Wessel noted a disturbed gate on exam. [Filing No. 12 at 11.]
Mr. Bumgardner argues that an “ALJ cannot simply ignore evidence that does not support
16

his or her ultimate conclusion.” [Filing No. 12 at 11 (citing Meuser v. Colvin, 838 F.3d
905, 910 (7th Cir. 2016)).] The ALJ repeatedly referenced issues with ambulation in the
decision, noted evidence of drop foot, [Filing No. 8-2 at 26], and more importantly limited
Mr. Bumgardner to standing and walking of no more than two hours in an eight hour day
and the need to use a cane to ambulate within the workplace in his RFC finding, [Filing
No. 8-2 at 22.] The ALJ did not give full weight to an opinion of record from Dr. Sands
for failing to include the need to use a cane and the need to avoid working around
workplace hazards due to falls. [Filing No. 8-2 at 27.] Mr. Bumgardner fails to articulate
what if any further limitations should have been included in the ALJ’s RFC finding based
on the evidence he cites. The deficiency is striking. The presence of medical conditions,
examination findings, test results and symptoms are of limited import to the overall
decision beyond Step Three other than to the degree to which they result in functional
limitations in the claimant’s RFC. The Seventh Circuit in Davis recently noted the
potential consequence of a plaintiff’s failure to articulate functional impact:
Davis also argues that the ALJ erred by not including any limitations
regarding fibromyalgia in the RFC, but Davis waived this challenge by not
developing it in her brief. She does not explain how the ALJ’s RFC finding
is incompatible with her fibromyalgia symptoms, nor does she suggest what
limitations should have been included. See Gentle v. Barnhart, 430 F.3d 865,
868 (7th Cir. 2005) (explaining that a diagnosed medical condition does not
necessarily establish decreased capacity to work).
Davis v. Berryhill, 2018 WL 367808 at *4 (7th Cir. Jan. 11, 2018) (unpublished). Potential
of waiver aside, the court again will give Mr. Bumgardner the full benefit of the doubt in
reaching his specific arguments to the degree the court can decipher their implications.

17

1. Dr. Wessel’s Opinion
Mr. Bumgardner argues that the ALJ should have given great weight to his primary
care physician, Dr. Wessel’s “medical opinion and observations” due to his long treatment
history with that provider. [Filing No. 12 at 12 (citing 20 C.F.R. § 404.1527(c)(2)).] Mr.
Bumgardner further contends that while the ALJ acknowledged Dr. Wessel’s opinion and
stated that he declined to give it weight that “the ALJ did not make any analysis necessary
to discredit Dr. Wessel’s medical opinions, only his opinions concerning the ultimate
decision as to whether [Mr.] Bumgardner was disabled under the Social Security Act, a
determination that is reserved for the Commissioner.” [Filing No. 12 at 12 (emphasis in
original) (citing 20 C.F.R. § 404.1527(d)).] Mr. Bumgardner also states “because there is
nothing within the decision to overcome Dr. Wessel’s medical opinions, Dr. Wessel’s
observations regarding Bumgardner’s gait, which occurred on November 7, 2013, or
approximately one month after the discredited opinion, should be given greater weight than
that given by the ALJ.” [Filing No. 12 at 12.] Finally, Mr. Bumgardner argues that
“controlling weight should have been given to both Dr. Wessel’s observations and
opinions.” [Filing No. 12 at 12.]
Mr. Bumgardner’s argument invokes the treating physician rule. In Scott, the Court
described that “[a] treating doctor’s opinion receives controlling weight if it is ‘wellsupported’ and ‘not inconsistent with the other substantial evidence’ in the record.” Scott
v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011) (See Punzio v. Astrue, 630 F.3d 704, 710 (7th
Cir. 2011); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010)). “An ALJ must offer
‘good reasons’ for discounting the opinion of a treating physician.” Id. (citing Martinez v.
18

Astrue, 630 F.3d 693, 698 (7th Cir. 2011); Campbell, 627 F.3d at 306). “And even if there
had been sound reasons for refusing to give [a treating physician’s] assessment controlling
weight, the ALJ still would have been required to determine what value the assessment did
merit.” Id. at 740 (See Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010)). “If an ALJ
does not give a treating physician’s opinion controlling weight, the regulations require the
ALJ to consider the length, nature, and extent of the treatment relationship, frequency of
examination, the physician’s specialty, the types of tests performed, and the consistency
and supportability of the physician’s opinion.” Id. (See Moss v. Astrue, 555 F.3d 556, 561
(7th Cir. 2009)).
Turning to the ALJ’s decision, the ALJ stated in relevant part:
As for the opinion evidence, when Dr. Wessel saw the claimant on October
29, 2013, he reported that he did not feel the claimant was able to work due
to significant pain that was limiting his ability to move and work and due to
his significant stress. However, Dr. Wessel also reported that he needed to
rule out malingering versus conversion disorder versus significant
anxiety/depression (Exhibit 14F/16). The undersigned does not give weight
to this assessment. By merely stating that the claimant could not work, Dr.
Wessel did not give a function-by­function analysis of the claimant’s
limitations. In addition, there is nothing in the record indicating that Dr.
Wessel has the necessary knowledge and expertise of the labor market such
as to qualify him to give an expert opinion on the claimant’s employability.
Finally, the question of whether the claimant can work, that is, whether the
claimant is disabled, is a question that is reserved for the Commissioner.
[Filing No. 8-2 at 26 (citing Filing No. 8-23 at 16).] As Mr. Bumgardner alludes to, Dr.
Wessel’s opinion includes not only a conclusion that he is unable to work, but also a

19

judgment as to why, due to “his sig[nificant] pain that is limiting his ability to move and
work and also [due to] his sig[nificant] stress.” 7 [Filing No. 8-23 at 17.]
As to whether the ALJ should have given the opinion controlling weight, the court
finds that the opinion is not well supported and is otherwise inconsistent with other
substantial evidence of record. On the day of the visit that Dr. Wessel gave his opinion,
October 29, 2013, Mr. Bumgardner alleged serious symptoms that he starts “shaking and
vomiting” whenever “he tells someone what [is] going on with his health.” [Filing No. 823 at 16.] Dr. Wessel observed that Mr. Bumgardner was “very slow in ambulation and
had sig[nificant] trouble getting up on the exam table, took approx[imately] 3 min[utes] to
stand from chair.”

[Filing No. 8-23 at 16.]

In the context of the complaints and

observations, it would appear that there was support for Dr. Wessel’s opinion. However,
the opinion is seriously undermined by Dr. Wessel’s other contemporaneous notes
reflecting the basis of his opinion, that he “personally spent about 15 minutes in direct
discussion with [Dr. Wellinghoff] this [AM] who agreed to see the patient and agreed with
my assessment that his [symptoms] are most suggestive of worsening anxiety/depression
and not a medical cause, his extensive recent med[ical] [work-up] was reviewed again in
office today by myself.” [Filing No. 8-23 at 17.] In fact, Dr. Wessel’s diagnostic
conclusions are fairly illuminating, “Need to [rule out] malingering versus conversion

7

The regulations make clear that the conclusory aspect of Dr. Wessel’s statement that Mr.
Bumgardner is unable to work is an issue reserved to the Commissioner and is not
considered a medical opinion at all. 20 C.F.R. § 404.1527(d)(1)-(2). Furthermore, the
Commissioner correctly points out that controlling weight can never be given to these
types of conclusions. [Filing No. 18 at 19.]
20

[disorder] versus sig[nificant] anxiety/depression.” 8 [Filing No. 8-23 at 17 (emphasis
added).] The court finds it significant that Dr. Wessel was not convinced at the time he
rendered the opinion that Mr. Bumgardner’s symptoms had any physical cause, despite an
extensive work-up, or that Mr. Bumgardner was not faking the symptoms for purposes of
secondary gain. Dr. Wessel’s opinion is not internally consistent within the regulatory
scheme for determining disability that requires symptoms to be attributed to an established
impairment.

The court finds, given the full context of Dr. Wessel’s opinion, that

controlling weight was not appropriate.
However, the court must also evaluate the weight the opinion was given and the
reasons the ALJ provided for the weight. The court does not agree with Mr. Bumgardner
that the ALJ did not give any analysis as to why he declined to give Dr. Wessel’s opinion
weight, beyond the portion reserved to the Commissioner. The ALJ specifically cited the
rule out diagnosis offered of malingering. Again, the diagnosis is of particular importance
in evaluating the “supportability” of the opinion, despite an extensive work-up and long
standing treatment relationship, Dr. Wessel had found no physical cause for Mr.
Bumgardner’s symptoms and was still trying to determine if he was faking them. See 20
C.F.R. § 404.1527(c)(3). Moreover, the ALJ noted the lack of functional limitations

8

The court predominantly is analyzing Dr. Wessel’s opinion that Mr. Bumgardner could
not work due to pain and limited mobility, rather than stress. While Dr. Wessel offers an
opinion as to both physical and mental causes, he is not a mental health specialist,
apparent from his need to consult with one. Mr. Bumgardner did not present significant
allegations of mental health symptoms either at his hearing or in this suit, focusing almost
exclusively on physical issues. The ALJ gave weight to a reviewing specialist as to Mr.
Bumgardner’s mental health functioning and Mr. Bumgardner does not challenge that
determination or the ALJ’s “paragraph B” findings.
21

expressed in the opinion, which is not strictly required by the regulations but relevant to
evaluation of medical opinions generally. See 20 C.F.R. § 404.1527(a)(1). The ALJ also
noted that there was no evidence that Dr. Wessel had the requisite vocational expertise to
render an opinion on employability, which the court does not find particularly persuasive,
but is again relevant. See Alvarado v. Colvin, 836 F.3d 744, 748-49 (citing Loveless, 810
F.3d at 507 (7th Cir. 2016) (whether claimant can perform jobs in the economy is a question
for the Administration not medical experts)). Taken together, the court is satisfied that the
ALJ provided good reasons for declining to give weight to the opinion of Dr. Wessel.
Lastly, Mr. Bumgardner’s argument that the ALJ’s observations regarding his gait
on November 7, 2013, should have been given greater weight by the ALJ is not well taken
by the court. In order to be a medical opinion at all under the regulations, statements from
acceptable medical sources must “reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do
despite impairment(s), and your physical and mental restrictions.”
404.1527(a)(1).

20 C.F.R. §

An observation, like a gait analysis, stretches the definition of a

“judgment” about symptoms. Realizing that Circuit precedent has generally construed
medical opinions rather liberally as to their particular form, this court will consider Mr.
Bumgardner’s characterization arguendo.
However, the analysis would be almost identical to the statement of Dr. Wessel
above. The ALJ “need not provide a written evaluation of every piece of evidence that is
presented.” Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir. 1988). The ALJ is not
required to address every piece of evidence in each section of his decision nor repeat the
22

factual analysis throughout each section. Rice, 384 F.3d at 370 n.5 (7th Cir. 2004) (“it is
proper to read the ALJ’s decision as a whole, and . . . it would be a needless formality to
have the ALJ repeat substantially similar factual analyses”). Again, the contemporaneous
notes of Dr. Wessel on the date of the visit, November 7, 2013, are noteworthy. Dr. Wessel
continued to consider the possibility of malingering, [Filing No. 8-26 at 20], noted that Mr.
Bumgardner had brought in short term disability paperwork with him, and advised him “to
do more around the house, to get up and walk, help with tasks, get more active, laying
around like he is doing is not helping his depression and is likely making things worse,”
[Filing No. 8-26 at 21.] Given Dr. Wessel’s advice, the court is not persuaded that he was
offering an opinion that Mr. Bumgardner was more limited by his gait than the ALJ
credited, which again limited his standing and walking considerably in his RFC. In the
very next visit, Dr. Wessel noted of Mr. Bumgardner that “over past week feeling better
overall,” “feeling more like himself,” “doing more around the house,” had “shooting pain
worse with prolonged standing,” [Filing No. 8-26 at 21], “appears to be improving
clinically,” [Filing No. 8-26 at 22.] On November 20, 2013, Dr. Wessel noted that Mr.
Bumgardner “[m]ay return to light duty tomorrow” and “[f]ull duty on Monday.” [Filing
No. 8-26 at 24.] Given the context, it does not appear to what degree the gait analysis is a
medical opinion meant to limit Mr. Bumgardner’s ability to work either long term or in
conflict with the ALJ’s fairly restrictive RFC for sedentary work. The court finds that the
ALJ was not required to give any particular weight to the observation.

23

2. Dr. Tapal’s Observation
Mr. Bumgardner argues that the ALJ “improperly weighed Dr. Tapal’s observations
and opinion on matters outside his area of expertise” and “improperly gave Dr. Tapal
controlling weight regarding [Mr.] Bumgardner’s neuropathy and foot drop along with his
ability to ambulate effectively.” [Filing No. 12 at 12 (citing Filing No. 8-2 at 26).]
The Commissioner notes that it “is unclear why [Mr. Bumgardner] thinks the ALJ
gave ‘controlling weight’ to Dr. Tapal’s observations about his neuropathy and ability to
ambulate because the doctor did not issue an opinion. Rather, Dr. Tapal noted that [Mr.
Bumgardner’s] ‘hips, knees, and ankles moved normally.’” [Filing No. 18 at 20.]
The court agrees with the Commissioner that Dr. Tapal did not give a medical
opinion by recording examination findings and even if he did the ALJ never assigned the
opinion any weight in the decision, let alone gave it controlling weight. The ALJ did cite
to the observation to support his conclusion that “neuritis and foot drop of the feet” were
not “disabling as in October 2015, Dr. Tapal noted that the claimant’s hips, knees, and
ankles moved normally.” [Filing No. 8-2 at 26.] However, the ALJ goes on to state that
the RFC “addresses this issue by restricting the claimant to standing and/or walking for no
more than two hours in an eight-hour day.” [Filing No. 8-2 at 26.] Irrespective of the
ALJ’s treatment of the observation, he gave Mr. Bumgardner the benefit of the doubt that
his drop foot would be limiting.

Mr. Bumgardner does not present any additional

restrictions here than what the ALJ accommodates in the RFC as to standing and walking
and did not pose any additional restrictions in a hypothetical question to the VE. [See

24

Filing No. 8-2 at 71.] The court finds no error with regard to the ALJ’s treatment of Dr.
Tapal’s observation.
3. Dr. Denton’s Observation
Mr. Bumgardner argues that the ALJ should have given controlling weight
“particularly to the opinions of [Mr.] Bumgardner’s podiatrist, Dr. Denton who also noted
[Mr.] Bumgardner’s neuropathy and foot drop.” [Filing No. 12 at 12.] Mr. Bumgardner
does not cite to any specific opinion(s) given by Dr. Denton at this point in his brief.
However, he refers several times to Dr. Denton’s January 27, 2015, physical examination
that includes:
Musculoskeletal: Pronated foot type bilateral. Patient has decreased
dorsiflexion bilateral consistent with a history of drop foot. Patient does have
decreased muscle strength bilateral. Adequate range of motion to the ankle
and subtalar joint without pain or crepitus. There is some pain to palpation
of the insertion of the plantar fascia bilateral left greater than right extending
to the medial band of the plantar fascia to the arch.
[Filing No. 8-28 at 13.]
The court does not find error in the ALJ’s treatment of this observation. Again, an
observation is not really a judgment at all. However, even if it were a medical opinion, the
ALJ would not have been required to give the opinion controlling weight. As detailed
throughout this entry, there is conflicting evidence about Mr. Bumgardner’s gait and ability
to ambulate. Even if the observation were given controlling weight, the court does not
understand the import on the decision. Dr. Denton diagnosed only plantar fasciitis and
neuritis along with the examination and a history of bilateral drop foot and Wegener’s
Granulomatosis. [Filing No. 8-28 at 13.] Mr. Bumgardner admits Dr. Denton also noted
25

improvement with his drop foot. 9 [Filing No. 8-28 at 14.] Mr. Bumgardner has not
explained in any way the significance of the observation or how it would have affected any
of the ALJ’s findings, making any error that could be imagined harmless.
4. Mr. Bumgardner’s Testimony
Mr. Bumgardner’s sole attempt to explain the significance of the ALJ’s treatment
of his neuropathy and drop foot is to say that the ALJ’s RFC finding that he could stand
and walk for two hours is contradicted by his testimony and medical evidence that he can
“stand for approximately 15-20 minutes before he has to sit and rest.” [Filing No. 12 at
13.] For starters, the ALJ did not give full weight to Mr. Bumgardner’s testimony and his
credibility determination is discussed above. Second, Mr. Bumgardner does not cite to any
medical opinion that obviously contradicts the ALJ’s RFC finding. Lastly, the testimony
itself does not obviously contradict the RFC finding that he could stand and walk for two
hours in an eight hour day. Mr. Bumgardner testified he could stand for “maybe 15
minutes.” [Filing No. 8-2 at 48.] His full testimony on walking was that he could walk
100 feet and when asked how long he needs to rest before he can keep walking was “just a
couple minutes.” [Filing No. 8-2 at 54.] Someone that stands for 15 minute increments

9

Mr. Bumgardner’s arguments about the weight that should have been given a November
7, 2013, gait analysis and a January 27, 2015, examination by Dr. Denton are particularly
undermined by his own Functional Statement April 10, 2014, that he could walk 100
yards before needing to rest for 15 minutes, [Filing No. 8-6 at 32] and evidence his drop
foot improved. His further claim that his condition deteriorated significantly is also
seriously undermined by the same evidence; the conflicting evidence supports that any of
the ALJ’s conflicting findings are supported by substantial evidence.
26

and walks 100 feet before needing to rest a couple minutes and then resumes walking could
conceivably stand and walk for a total of two hours in an eight hour day.
5. Ms. Bumgardner’s Functional Report
Mr. Bumgardner also argues that the ALJ improperly rejected his wife’s statements
in a Functional Report given on April 10, 2014, [Filing No. 8-6 at 25], the same day she
prepared his Functional Report, [Filing No. 8-6 at 34], that corroborate his testimony, in
particular that he can only stand ten minutes before tiring, [Filing No. 8-6 at 20].
The ALJ noted Mrs. Bumgardner’s Functional Report and declined to give
“significant weight to this assessment because the claimant's spouse did not observe the
claimant in a professional capacity (SSR 06- 3p), and because the opinion is not supported
by the evidence of record discussed above. The opinions discussed above have all been
considered pursuant to SSR 06-3p.”
The ALJ’s explanation was adequate. The ALJ had already provided a lengthy
analysis of the medical evidence of record at that point in the decision and provided an
analysis as to why he deemed Mr. Bumgardner to be less than fully credible. The ALJ is
not required to repeat substantially similar analysis in the decision and the court reads the
decision as a whole. Also SSR 06-03p makes it clear that reports from “other sources” are
more persuasive when given by a source that observes the claimant in their professional
capacity. SSR 06-03p. The ruling also addresses the explanation that needs to be given
these opinions:
Although there is a distinction between what an adjudicator must consider
and what the adjudicator must explain in the disability determination or
decision, the adjudicator generally should explain the weight given to
27

opinions from these ‘other sources,’ or otherwise ensure that the discussion
of the evidence in the determination or decision allows a claimant or
subsequent reviewer to follow the adjudicator’s reasoning, when such
opinions may have an effect on the outcome of the case.
Id. Here, it’s not even clear to the court what impact a statement that Mr. Bumgardner
could only stand for ten minutes would have on his ability to perform sedentary work and
he does not develop that here, nor did he develop that during the hearing with VE
testimony. Moreover, the court is able to adequately follow the ALJ’s reasoning and
similar explanations have been found to be sufficient for rejecting even medical source
opinions that are generally given more deference. See Filis v. Astrue, 694 F.3d 863, 869
(7th Cir. 2012). The court does not find the ALJ’s rejection of Mrs. Bumgardner’s
Functional Report to be improper when reading the decision as a whole.
6. Remaining Arguments on Functional Limitations
Mr. Bumgardner makes several other arguments that functional limitations were not
included in the decision that were supported by the record, including the use of his upper
extremities, [Filing No. 12 at 14], off-task behavior, [Filing No. 12 at 16], fatigue, [Filing
No. 16 at 18], and absences, [Filing No. 12 at 17]. None of these arguments have any
substance, predominately because Mr. Bumgardner does not adequately articulate the
actual functional impact or provide any supportive medical opinions for his contentions.
With the use of his upper extremities, Mr. Bumgardner again cites his own
testimony for support, which was not fully credited. The medical evidence he does cite
shows some issues with their use and treatment for his conditions. However, he fails to

28

explain how the ALJ’s RFC does not adequately account for them by limiting manipulative
functions to frequently and overhead reaching to occasionally. [Filing No. 8-2 at 22.]
As to off-task behavior, the ALJ credited that Mr. Bumgardner would need a rest of
10-15 minutes after working for a two hour segment. [Filing No. 8-2 at 22.] The ALJ
included this limitation in a hypothetical to the VE and the VE testified that the jobs found
at Step Five could be performed with the limitation.

[Filing No. 8-2 at 70.]

Mr.

Bumgardner has not provided any persuasive evidence, including a medical opinion, that
would support any greater restriction was warranted or that the ALJ’s finding was not
supported by substantial evidence.
Mr. Bumgardner’s argument that the ALJ should have included fatigue as a severe
impairment is without merit. First, fatigue is a symptom, not a medical condition. Mr.
Bumgardner cites evidence that shows he has anemia to support that fatigue should have
been a severe impairment. However, the ALJ included anemia as a severe impairment.
[Filing No. 8-2 at 16.] Mr. Bumgardner does argue that his anemia met or equaled a listing
or challenge to the ALJ’s contrary finding but he does not develop what functional impact
is supported by his fatigue. Moreover, the ALJ credited his fatigue by including rest breaks
in his RFC as noted above. [Filing No. 8-2 at 28.]
As to absences, again Mr. Bumgardner provides no support for greater restrictions
beyond the RFC other than his own testimony that was not fully credited.

29

IV.
CONCLUSION
“The standard for disability claims under the Social Security Act is stringent.”
Williams-Overstreet v. Astrue, 364 F. App’x 271, 274 (7th Cir. 2010). “Even claimants
with substantial impairments are not necessarily entitled to benefits, which are paid for by
taxes, including taxes paid by those who work despite serious physical or mental
impairments and for whom working is difficult and painful.” Id. at 274. Taken together,
the court can find no legal basis presented by Mr. Bumgardner to reverse the ALJ’s decision
that he was not disabled during the relevant time period. Therefore, the decision below is
AFFIRMED. Final judgment will issue accordingly.

SO ORDERED this 9th day of February 2018.

Distributed Electronically to Registered Counsel of Record.

30