RUSSELL v. COLVIN

Filing 22

ENTRY ON JUDICIAL REVIEW - For the reasons set forth above, the final decision of the Commissioner is AFFIRMED. Russell's appeal is DISMISSED. See Entry for details. Signed by Judge Tanya Walton Pratt on 3/31/2017. (MAT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
HIRAM J. RUSSELL,
Plaintiff,
v.
NANCY A. BERRYHILL, 1 Acting Commissioner
of the Social Security Administration,
Defendant.

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) Case No. 4:15-cv-00069-TWP-DML
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ENTRY ON JUDICIAL REVIEW
Plaintiff Hiram J. Russell (“Russell”) requests judicial review of the final decision of the
Commissioner of the Social Security Administration (the “Commissioner”), denying his
application for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act (“the Act”). For the following reasons, the Court AFFIRMS the decision of the
Commissioner.
I.
A.

BACKGROUND

Procedural History
On March 12, 2013, Russell filed an application for DIB, alleging a disability onset date

of December 27, 2012, due to chronic lymphocytic leukemia. Russell’s claim was initially denied
on April 12, 2013, and upon reconsideration on June 14, 2013. Russell filed a written request for
hearing on August 16, 2013. On December 12, 2014, a hearing was held before Administrative
Law Judge Dwight D. Wilkerson (the “ALJ”). Russell was present and represented by counsel.

Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Commissioner Carolyn W. Colvin as
the defendant in this suit.

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William R. Harpool, an impartial vocational expert, appeared and testified at the hearing. On
January 8, 2015, the ALJ denied Russell’s application for DIB. Following this decision, Russell
requested review by the Appeals Council. On May 13, 2015, the Appeals Council denied Russell’s
request for review of the ALJ’s decision, thereby making the ALJ’s decision the final decision of
the Commissioner for purposes of judicial review. On June 10, 2015, Russell filed this action for
judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
B.

Factual Background
At the time of his alleged disability onset date, Russell was 59 years old, and he was 61

years old at the time of the ALJ’s decision. Russell reported receiving a ninth grade education and
obtaining his GED when he was 18 years old. Prior to the onset of his alleged disability, Russell
had been employed as an equipment operator and laborer, operating bucket trucks and cranes and
carrying heavy steel.
On December 27, 2012 (Russell’s alleged disability onset date), Russell presented to the
Schneck Medical Center (“Schneck”) in Seymour, Indiana, after experiencing progressive fatigue.
He had been experiencing fatigue for about eight to twelve months, but in the previous week, his
fatigue significantly worsened. Russell’s wife reported that he had been pale for six to seven
months. Russell reported that he had not been able to do his outdoor physical labor for employment
for a number of months because he did not have energy. He attributed this to depression, for which
he was being treated by his primary care physician with no improvement. On the day Russell
reported to Schneck, he was experiencing a high fever of 102 degrees for two days, hot flashes,
and generalized weakness. Blood tests revealed that Russell had a hemoglobin count of 3.8.
Russell was diagnosed with severe anemia (Filing No. 17-7 at 3–4).

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After being hospitalized overnight at Schneck, Russell was transferred to Indiana
University Health’s University Hospital (“University Hospital”) in Indianapolis, Indiana where he
was diagnosed with chronic lymphocytic leukemia (“leukemia”) after a bone marrow biopsy and
examination of the bone marrow. Russell reported that, immediately prior to presenting to
Schneck, his symptoms were acutely worse. He complained of throbbing in his ears, which he
claimed worsened when he stood or sat up. Once at University Hospital, Russell was admitted to
the inpatient hematology service. He received blood transfusions and medication to address his
anemia and leukemia. Russell was given his first dose of chemotherapy while at University
Hospital, and afterward, he reported that he felt much better and stronger without fatigue. He was
counseled regarding his ongoing treatment plan, which included chemotherapy. Russell was
discharged from University Hospital on January 4, 2013, in stable condition and with no
complaints. Upon discharge, he had a follow-up oncology appointment scheduled with Dolores
C. Olivarez, M.D. (“Dr. Olivarez”) on January 7, 2013, to address and treat his leukemia (Filing
No. 17-7 at 4–15, 44–47).
Russell began his out-patient chemotherapy and oncology treatment with Dr. Olivarez at
Schneck on January 9, 2013. Russell received six cycles of chemotherapy, with the last cycle
being administered on May 30, 2013. Dr. Olivarez continued to monitor Russell through a series
of follow-up appointments. Dr. Olivarez’s treatment notes record that Russell was tolerating the
chemotherapy well, that he was feeling better and better over time, and his conditions were
objectively improving. Dr. Olivarez noted that Russell’s vital signs and weight were stable, and
he was looking well. At the time of his May 1, 2013 visit with Dr. Olivarez, Russell’s hemolysis
had completely resolved. At the follow-up appointment on September 11, 2013, Dr. Olivarez
noted that Russell’s hemolysis was resolved, his last blood transfusion was required on February

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1, 2013, there was no need for continued treatment, and Russell was clinically stable. Although
his leukemia was in remission, Russell sometimes complained of having difficulties with
concentration and memory issues, which was thought to be related to his anemia and
chemotherapy. Dr. Olivarez opined that these concentration and memory issues would resolve
themselves as more time passed from the last round of chemotherapy (Filing No. 17-7 at 76–86,
94–98; Filing No. 17-8 at 2–3, 6–11).
Approximately six months prior to his alleged disability onset date, Russell presented to
St. Vincent Physician Network in July 2012, where his blood tests indicated abnormal results. It
appears that no follow-up was undertaken. In September 2012, it was noted that Russell presented
for “chronic anxiety? mild depression due to not working.” (Filing No. 17-7 at 101.) Russell
returned to St. Vincent Physician Network in September 2013 for a rash covering parts of his body
and bug bites. Id. at 105.

Russell presented again in February 2014 (almost a year after

chemotherapy was completed) to be evaluated for dementia because he had concerns about his
memory and focus, and he felt unsafe operating a crane. However, upon examination, all signs
and symptoms were normal. Id. at 107–08. On March 13, 2014, Russell presented for follow-up
regarding his memory issues, and a Folstein Mini Mental Examination was conducted, which
produced normal results. Id. at 110–12.
On June 9, 2014, Russell presented to Daniel R. Anderson, M.D. (“Dr. Anderson”) with
complaints of a skin lesion and memory issues. Dr. Anderson noted a normal mood and repetitive
questions. On September 10, 2014, Russell returned for a follow-up with Dr. Anderson, and his
conditions were noted as unchanged (Filing No. 17-8 at 14–17, 22–25).

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II.

DISABILITY AND STANDARD OF REVIEW

Under the Act, a claimant may be entitled to DIB only after he establishes that he is
disabled. Disability is defined as the “inability to engage in any substantial gainful activity by
reason of any 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 12 months.” 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that his physical or mental limitations prevent him from doing not only his previous
work but any other kind of gainful employment which exists in the national economy, considering
his age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).
The Commissioner employs a five-step sequential analysis to determine whether a claimant
is disabled. At step one, if the claimant is engaged in substantial gainful activity, he is not disabled
despite his medical condition and other factors. 20 C.F.R. § 416.920(a)(4)(i). At step two, if the
claimant does not have a “severe” impairment that meets the durational requirement, he is not
disabled. 20 C.F.R. § 416.920(a)(4)(ii). A severe impairment is one that “significantly limits [a
claimant’s] physical or mental ability to do basic work activities.” 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. Part 404, Subpart P, Appendix 1, and whether the impairment meets the twelve month
duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 416.920(a)(4)(iii).
If the claimant’s impairments do not meet or medically equal one of the impairments on
the Listing of Impairments, then his Residual Functional Capacity (“RFC”) will be assessed and
used for the fourth and fifth steps. RFC is the “maximum that a claimant can still do despite his
mental and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675–76 (7th Cir. 2008) (citing 20

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C.F.R. § 404.1545(a)(1); SSR 96-8p). At step four, if the claimant is able to perform his past
relevant work, he is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). At the fifth and final step, it must
be determined whether the claimant can perform any other work in the relevant economy, given
his RFC and considering his age, education, and past work experience. 20 C.F.R. §
404.1520(a)(4)(v). The claimant is not disabled if he can perform any other work in the relevant
economy.
The combined effect of all the impairments of the claimant shall be considered throughout
the disability determination process. 42 U.S.C. § 423(d)(2)(B). The burden of proof is on the
claimant for the first four steps; it then shifts to the Commissioner for the fifth step. Young v. Sec’y
of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992).
Section 405(g) of the Act gives the court “power to enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). In
reviewing the ALJ’s decision, this Court must uphold the ALJ’s findings of fact if the findings are
supported by substantial evidence 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. Further, 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). While the Court reviews the ALJ’s decision deferentially, the Court cannot uphold
an ALJ’s decision if the decision “fails to mention highly pertinent evidence, . . . or that because
of contradictions or missing premises fails to build a logical bridge between the facts of the case
and the outcome.” Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010) (citations omitted).
The ALJ “need not evaluate in writing every piece of testimony and evidence submitted.”

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Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993). However, the “ALJ’s decision must be
based upon consideration of all the relevant evidence.” Herron v. Shalala, 19 F.3d 329, 333 (7th
Cir. 1994). The ALJ is required to articulate only a minimal, but legitimate, justification for her
acceptance or rejection of specific evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700
(7th Cir. 2004).
III.

THE ALJ’S DECISION

The ALJ first determined that Russell met the insured status requirement of the Act for
DIB through December 31, 2017. The ALJ then began the five-step analysis. At step one, the
ALJ found that Russell had not engaged in substantial gainful activity since December 27, 2012,
the alleged disability onset date. At step two, the ALJ found that Russell had the “following
medically determinable impairments: chronic lymphocytic leukemia in remission, resolved
autoimmune hemolytic anemia secondary to chronic lymphocytic leukemia, depression, anxiety,
osteoarthritis, leg length discrepancy, cellulitis, insect bites, dermatitis, and cystic skin lesion left
face.” (Filing No. 17-2 at 22.) However, after the ALJ carefully reviewed each of these medically
determinable impairments, the ALJ determined that none of these impairments had or would
“significantly limit[] [Russell’s] ability to perform basic work activities.” Id. at 28. Thus, the ALJ
concluded that Russell did not have any severe impairments. Because Russell did not have any
severe impairments that were expected to last for a twelve-month duration, the ALJ concluded that
Russell was not disabled at Step 2 of the sequential evaluation process. As a result, the ALJ did
not proceed to Steps 3 through 5 or the RFC determination, and the ALJ denied Russell’s
application for DIB because he was not disabled.

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IV.

DISCUSSION

In his request for judicial review, Russell asserts two bases for remanding this case to the
ALJ for further consideration. First, Russell argues that the ALJ erred in determining he lacked an
impairment or combination of impairments that would significantly limit his ability to do basic
work activities (i.e., a severe impairment). Second, Russell argues that the ALJ did not give
sufficient weight to the report of physical therapist Belinda Hays (“Ms. Hays”) concerning
Russell’s RFC. The Court will address each argument in turn.
A.

The ALJ appropriately determined that Russell lacked a severe impairment.
Russell asserts that the ALJ’s finding that he did not have any severe impairments was

erroneous; he argues that the ALJ’s Step 2 analysis was flawed. Pointing to Bowen v. Yuckert, 482
U.S. 137 (1987), Russell claims that his ability to perform physical activities such as lifting,
reaching, pushing, and pulling were relevant to the ALJ’s determination of severity, and the
evidence that was admitted supported a finding of a severe impairment. In his opening brief,
Russell also asserted that the ALJ erred by cutting short the questioning during the administrative
hearing and not allowing Russell to permit additional testimony regarding his physical limitations
(Filing No. 19 at 11–12).
Quoting Thorps v. Astrue, 873 F. Supp. 2d 995, 1004 (N.D. Ill. 2012), Russell argues that
“[t]he severe impairment requirement is a de minimis requirement designed to weed out frivolous
claims,” and his claim was not frivolous. Therefore, his claim should not have been “weeded out”
at Step 2. He asserts that his depression, life-threatening anemia, and the several months of
chemotherapy and leukemia support his claim for disability and should be considered severe.
Russell also asserts that his Eastern Cooperative Oncology Group (“ECoG”) score was

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mischaracterized by the ALJ. He claims that his ECoG score of 1 during his chemotherapy
treatment supports a finding of a severe impairment.
In response, the Commissioner explains that Russell failed to demonstrate he suffered from
a severe impairment that met the twelve-month durational requirement to qualify as a severe
impairment. The Commissioner points out that the ALJ properly determined the medical records
established that Russell had numerous medical impairments, but the impairments did not
significantly limit Russell’s work-related activities for twelve consecutive months, and thus, they
were not severe. See Castile v. Astrue, 617 F.3d 923, 927 (7th Cir. 2010) (the existence of a
medically determinable impairment does not always equate to the existence of a severe
impairment). The Commissioner asserts that the ALJ considered and analyzed Russell’s anemia,
leukemia, chemotherapy, and other diagnoses, but then logically and fully explained that these
impairments did not limit Russell’s activities based on the record evidence. Russell’s ability to do
significant activities such as riding a bike, chopping and carrying wood, driving, and mowing grass
were noted in the decision. Additionally, the ALJ noted that state agency physicians opined that
Russell had no severe impairment since his leukemia went into remission in less than twelve
months—from Russell’s alleged disability onset date of December 27, 2012, when he presented to
the hospital and was diagnosed with leukemia until remission and final chemotherapy treatment in
May 2013.
The Commissioner further explains that the ALJ addressed Russell’s allegation that he
experienced cognitive difficulty. The ALJ thoroughly reviewed and discussed the evidence that
indicated no cognitive issues, noting that Russell was observed to be alert, had normal recent and
remote memory, and also scored in the normal range on the Folstein Mini Mental Examination.
The ALJ also addressed Russell’s diagnoses of depression and anxiety, finding them to be not

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severe because Russell no longer took medication for the impairments and had never sought
counseling or therapy. The medical evidence supported good mental health, and the ALJ
adequately addressed the paragraph “B” criteria for mental impairments.
Finally, the Commissioner responds that, contrary to Russell’s assertion that the ALJ erred
by cutting short the questioning during the administrative hearing and not allowing Russell to
permit additional testimony regarding his physical limitations, the ALJ allowed Russell to provide
as much testimony as he desired at the hearing.
Replying to the Commissioner’s arguments, Russell’s counsel acknowledges that he was
mistaken (based on another case) when drafting the opening brief regarding the ALJ’s allowance
of testimony during the hearing. Therefore, Russell withdrew his arguments related to the ALJ’s
allowance of testimony regarding his physical limitations at the hearing (Filing No. 21 at 1).
Russell further asserts that his impairment should date back to June 2012 when he began to
experience paleness and fatigue and when he stopped working at his job.
Upon review of the ALJ’s decision and the record, the Court determines that the
Commissioner’s characterization of the decision and record is accurate and that the ALJ’s decision
was supported by substantial evidence, with the conclusions logically flowing from the evidence.
The ALJ reasonably articulated all of the reasons for his determination that Russell did not have a
severe impairment, and those reasons were supported by substantial evidence. Based on the record
evidence, the ALJ noted that Russell’s leukemia was in full remission within nine months of the
diagnosis and the alleged disability onset date. Based on the evidence, Russell was clinically
stable. His vital signs were normal. The ALJ discussed the various assessments and tests that
were completed regarding Russell’s alleged memory and cognitive issues, and all the tests
indicated normal findings. The ALJ accurately noted that no treating source set forth any

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functional limitations based on Russell’s impairments. The ALJ further discussed Russell’s daily
activities based on his testimony and the other record evidence. The evidence supports the ALJ’s
conclusion that Russell’s impairments did not cause any significant functional limitation to
perform basic work-related activities.
The Court also notes that the ALJ appropriately relied on state reviewing physicians who
determined that Russell did not have an impairment that significantly limited his ability to perform
basic work-related activities for twelve consecutive months. Concerning Russell’s assertion that
his impairment should date back to June 2012—rather than December 2012—when he began to
experience paleness and fatigue and when he stopped working at his job, the Court notes that it
was Russell himself who alleged a disability onset date of December 27, 2012, when he applied
for DIB. Additionally, the ALJ considered the timing of when Russell stopped working, and the
ALJ specifically explained in his decision that Russell stopped working in June 2012 only because
of a business-related layoff, not because of his health challenges. This conclusion is logically
supported by the evidence. The evidence shows that on Russell’s disability report he responded
that his medical condition was “leukemia,” and further responded:
When did you stop working? 06/01/2012
Why did you stop working? Because of other reasons.
Please explain why you stopped working . . . I was laid off.
Even though you stopped working for other reasons, when do you believe your
condition(s) became severe enough to keep you from working? 12/27/2012
Did your condition(s) cause you to make changes in your work activity? . . . No[.]
(Filing No. 17-6 at 6.)
After a review of the ALJ’s decision and the evidence, the Court determines the ALJ’s
decision is supported by substantial evidence, his reasoning is sufficiently explained, and his
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conclusions logically follow the evidence and his rationale. The record evidence more than
adequately supports the ALJ’s decision that Russell’s medically determinable impairments did not
and could not be expected to significantly limit Russell’s ability to perform basic work activities
for twelve consecutive months. Thus, Russell’s argument for remand on this basis is unavailing.
B.

The ALJ gave sufficient weight to the report of physical therapist Ms. Hays.
Russell next asserts that the ALJ erred in the amount of weight given to the opinion of Ms.

Hays, the physical therapist who conducted a functional capacity evaluation of Russell after the
administrative hearing. Russell points to 20 C.F.R. 404.1513(d), which states,
In addition to evidence from the acceptable medical sources listed in paragraph (a)
of this section, we may also use evidence from other sources to show the severity
of your impairment(s) and how it affects your ability to work. Other sources
include, but are not limited to— (1) Medical sources . . . for example . . . therapists.”
Russell argues that this section of the Code of Federal Regulations directs that “therapists” are
considered “other sources” who can offer opinions about the severity of a claimant’s impairment
and how it affects the individual’s ability to work.
Russell then argues that the ALJ erred by not giving sufficient weight to Ms. Hays’ report.
Russell explains the ALJ based his decision regarding Ms. Hays’ report on a lack of objective and
clinical findings and corroborating testing and treatment as well as the extensive activities that
Russell continued to engage in, such as riding a bicycle, mowing grass, chopping and carrying
wood, driving a car, and using a computer. The ALJ also explained that Ms. Hays’ report was
inconsistent with the other substantial evidence in the record. Russell further complains that the
ALJ based his decision on the fact that Ms. Hays’ evaluation was conducted at the request of
counsel after the hearing in an effort to generate evidence rather than in an attempt to seek
treatment for symptoms. Russell also complains that the ALJ based his decision on the fact that

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the payment for the report was presumably made by counsel. The ALJ noted that all these facts
were relevant when determining the weight to give to Ms. Hays’ report.
In response to Russell’s argument, the Commissioner explains that the ALJ is entitled to
and should consider the fact that Ms. Hays was not “an acceptable medical source” under the
regulations; rather, she was an “other source.” The Commissioner asserts that the ALJ sufficiently
explained why Ms. Hays’ opinions were given very little weight. The Commissioner explains that,
as an “other source,” Ms. Hays’ opinions are assessed according to SSR 06-03p by considering
the consistency of the opinion with other evidence, how much support the source provides for the
opinion, how well explained the opinion is, the details of the relationship between the source and
the claimant, and the area of expertise of the source. The Commissioner points out that the ALJ
explained the inconsistencies between Ms. Hays’ report and the other evidence from Russell and
his treating physicians regarding muscle strength, lack of pain, and physical activities. The ALJ’s
decision noted that Ms. Hays’ report was particularly lacking in support from objective and clinical
findings and was offered at the request of Russell’s counsel not for the purpose of treatment but to
support Russell’s application for disability. The Commissioner also asserts that the ALJ properly
considered the context in which Ms. Hays offered her opinions, noting that the report was likely
paid for by Russell’s counsel.

The Commissioner asserts that all of these were proper

considerations, and the ALJ fully and sufficiently supported his decision by explanation and
evidence.
The Court notes that it may not reweigh the evidence or substitute its judgment for that of
the ALJ. Overman, 546 F.3d at 462. In reviewing the ALJ’s decision, the Court must uphold the
ALJ’s findings of fact if the findings are supported by substantial evidence. Dixon, 270 F.3d at

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1176. At its core, Russell’s argument is an invitation for the Court to reweigh the evidence to
provide additional weight to the report of Ms. Hays. This the Court cannot do.
Upon review of the decision and the evidence, the Court determines that the ALJ
sufficiently supported his decision regarding the weight to be given to Ms. Hays’ opinion. He
adequately explained the rationale for discounting Ms. Hays’ factual findings regarding Russell’s
pain and any functional limitations. The ALJ pointed to inconsistencies between Ms. Hays’
opinion and the findings of the treating physicians. The ALJ also accurately described the physical
activities that Russell continued to undertake. It also was noted that many of Ms. Hays’ findings
supported a determination of no limitations. The ALJ further explained that Ms. Hays’ own report
noted that a “Spinal Sort Test indicated that the claimant’s subjective views of his abilities to
perform various activities were lower than his actual objective abilities to perform those tasks.”
(Filing No. 17-2 at 25.) Additionally, it was appropriate for the ALJ to consider the context in
which Ms. Hays offered her opinion.
The ALJ sufficiently explained the bases for why he gave very little weight to the opinion
of Ms. Hays, and that decision was supported by substantial evidence. Therefore, Russell’s
argument for remand on this basis also is unavailing.
V.

CONCLUSION

For the reasons set forth above, the final decision of the Commissioner is AFFIRMED.
Russell’s appeal is DISMISSED.
SO ORDERED.
Date: 3/31/2017

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DISTRIBUTION:
Daniel L. Brown
DANIEL L. BROWN LAW OFFICE, P.C.
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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