Schmidt v. Colvin

Filing 23

DECISION AND ORDER AFFIRMING the decision of the Commissioner, signed by Chief Judge William C Griesbach on 03/07/2014. The Clerk is directed to enter judgment in favor of the Commissioner forthwith. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAY SCHMIDT,
Plaintiff,
v.

Case No. 13-C-0174

CAROLYN W. COLVIN,
Defendant.

DECISION AND ORDER

This is an action for review of the final decision of the Commissioner of Social Security
denying plaintiff’s application for disability insurance benefits under Title II of the Social Security
Act. Plaintiff Jay Schmidt challenges the decision by the Administrative Law Judge (ALJ) denying
him benefits because the ALJ failed to follow Social Security Administration (SSA) rulings and
regulations. In particular, Schmidt argues that the ALJ erred by failing to give the proper weights
to the opinions of Schmidt’s treating physician and an examining consultative physician. For the
reasons stated in this opinion, the Commissioner’s decision will be affirmed.

BACKGROUND
Schmidt filed an application for benefits on July 8, 2011, alleging he became disabled on
May 31, 2009. (Tr. 180.) He amended his onset date to December 1, 2011, after the hearing before
the ALJ. (Tr. 170.) The record reveals that Schmidt has a variety of health problems, including
degenerative disc disease, diabetes, depression, anxiety, post-traumatic stress disorder, anger

management, and neuropathy. Some of these problems are of long-standing. For example, Schmidt
was diagnosed with diabetes in 1995 (Tr. 443) and has struggled with anger management for most
of his life. (Tr. 538–43.) He also has a history of head trauma, which he alleges has caused some
of his mental health problems. Although Schmidt reports he was hit in the head some 400 times
(Tr. 624, 687), the only two instances of head trauma evidenced in the record are in 2003 and 2010.
In 2003, Schmidt was hit in the head with a baseball bat that required reconstructive surgery for
multiple facial fractures. (Tr. 362–80.) Scans in October and December 2003 revealed no evidence
of a skull fracture or intracranial hemorrhage. (Tr. 374, 380.) In August 2010, Schmidt received
treatment at an emergency department for a three centimeter laceration to his head, but the treating
physician noted no neurological problems. (Tr. 402–04, 473–75.) An MRI of his brain in 2011 was
normal. (Tr. 729.)
As for his other complaints, Schmidt has generally received a conservative course of
treatment. His treatment for his back problems consists of medication and physical therapy before
and after his alleged onset date (Tr. 390–92, 405–08, 437–41, 443–44, 467–72, 476, 499–505, 554,
615–16, 621–28, 698–703, 709, 712) except for a cyst removal and possibly a lumbar laminectomy
in 2000 to which his doctors occasionally refer. (Tr. 408, 428, 476, 627.) The actual medical
records of these procedures are not in the administrative transcript. Even though physical therapy
improved his symptoms, Schmidt failed to keep his appointments and was discharged from
treatment on more than one occasion as a result. (Tr. 405–07, 439–41, 469–72, 499–501, 841–45.)
Doctors also conservatively treated his shoulder problems and arm pain due to neuropathy with
medication, though surgery was contemplated at some point. (Tr. 390–92, 409, 416–17, 427–30,
463–66, 477, 483, 489–92, 550–54, 621–24, 702–06, 712–14.) In connection with his back and
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extremity problems, his various doctors have ordered imaging numerous times between 2009 and
2012. (Tr. 177–79, 417, 433, 505–510, 646–47, 729, 734, 754, 792, 855–56, 858–59.) The results
of these tests have shown some degenerative changes, but even the most recent MRI of Schmidt’s
back in July 2012 indicates mild problems with small protrusions or tears and no significant changes
from earlier tests. (Tr. 855–56.) His diabetes appears uncontrolled throughout his medical records
for a variety of reasons, such as his failure to take the medications as prescribed, consistently
monitor and record his blood sugar, and inability to maintain a healthy diet. (Tr. 382–84, 390–95,
410–11, 423–24, 431–32, 434–38, 443–44, 463–66, 478–79, 487–88, 493–98, 502–03, 550–54,
614, 630–34, 698–99, 704–06, 714, 806–13.)

Treatment for his mental health

problems—depression, anger management, and poor memory—consists mainly of intermittent
counseling and medication. (Tr. 390–95, 423–24, 531–46, 567–69, 607–12.) A 2011 brain MRI
was normal. (Tr. 729.) Schmidt’s medical problems, particularly his diabetes, are exacerbated by
his heavy smoking habit, as his doctors have repeatedly advised. (Tr. 391, 393, 410, 621.)
Of particular note for this appeal, are the reports by Dr. Gregory Thatcher, a treating
physician, and Dr. Dennis Elmergreen, an examining consultative physician. Dr. Thatcher,
Schmidt’s most recent primary care physician, established care with Schmidt in May 2011. (Tr.
331.) He saw Schmidt eight times after establishing care until mid-2012 when records from his
visits ends. (Tr. 550–51, 554, 618, 630–31, 633–34, 698–99, 704–06, 709.) Schmidt’s complaints
during this period varied but often included symptoms relevant here: back pain, shoulder pain,
numbness, neuropathic pain, poor memory, and difficulty controlling his blood sugar. (Id.) Dr.
Thatcher prescribed a variety of medications and referred him to an anesthesiologist, Dr. Paul T.

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Hoell, to manage pain and a neurologist, Dr. David Kaufman, to assess his mental health
complaints. (Tr. 554, 621–22, 624–28, 630–31, 698–99, 702–09, 729.)
Dr. Thatcher provided an opinion in the form of a five page questionnaire, dated February
20, 2012, opining that Schmidt suffered from diabetes, chronic back pain, depression, and cognitive
impairment with a “fair” prognosis. (Tr. 331.) According to Dr. Thatcher, Schmidt’s impairments
would constantly interfere with his attention and concentration. (Tr. 332.) Schmidt could walk zero
city blocks without rest or severe pain, sit for only ten minutes before needing to get up, and stand
for only ten minutes at a time. (Tr. 332–33.) In an eight-hour working day, Dr. Thatcher opined
that Schmidt could sit or stand/walk for less than two hours, must be able to shift positions at will,
and must walk for two minutes every ten minutes. (Tr. 333.) Schmidt would also need to take
multiple 30-minute breaks during the day. (Id.) Although he had an abnormal gate and positive
straight leg test, Schmidt does not need an assistive device to ambulate. (Tr. 332–33.) Schmidt was
also unable to twist, stoop, crouch, climb ladders, and climb stairs. (Tr. 334.) Dr. Thatcher
identified significant manipulation restrictions: Schmidt could grasp, turn, or twist objects with his
hands just five percent of an eight-hour day, manipulate objects with his fingers five percent of the
day, and never reach with his arms. (Id.) Dr. Thatcher’s opinion further stated that Schmidt could
occasionally lift 10 pounds or less, but he could never lift 20 pounds or more. (Id.) Based on these
impairments, Dr. Thatcher determined that Schmidt is likely to be absent from work more than four
days per month. (Id.) Finally, Dr. Thatcher concluded that the description of symptoms and
limitation in the questionnaire “existed before my first visit 5/2011.” (Id.)
Dr. Dennis Elmergreen, a psychologist, examined Schmidt upon referral by the Department
of Social Security Disability for a mental status and memory evaluation. He completed a disability
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report dated March 10, 2012. (Tr. 659–63.) In addition to the exam, Dr. Elmergreen reviewed a
psychological evaluation by Sandra King, Schmidt’s memory testing indicating low average to
extremely low memory functioning, and his medical records from Langlade Hospital General Clinic.
(Tr. 660.) According to Dr. Elmergreen’s report, Schmidt presented with poor grooming and
hygiene, seemed “very upset emotionally,” and disturbed by the mental status evaluation. (Tr. 661.)
Schmidt informed Dr. Elmergreen that he was “not crazy” and felt “happy,” though “his doctor told
him he was depressed.” (Id.) Schmidt reported that he had a quick temper, a negative view toward
life, and had difficulty focusing. (Id.) Schmidt also complained of nightmares and intrusive
visualizations related to the 2003 assault. (Id.) Dr. Elmergreen concluded that Schmidt was
oriented to time, place, and person with generally organized thinking and good social skills, but he
had difficulty focusing on mental tasks, his intellectual capacity was estimated to be below average,
and his poor temper and emotional outbursts would likely affect his ability to maintain relationships.
(Id.) Dr. Elmergreen administered the Wechsler Memory Scale-III Edition test that indicated
extremely low to average range of memory, with his lowest scores in visual related subtests. (Tr.
662.) He concluded that Schmidt’s ability to understand, remember, and carry out simple
instructions was moderately impaired, ability to respond to supervisors and coworkers moderately
to markedly impaired, ability to maintain concentration, attention, and pace moderately impaired,
and ability to withstand routine work stressors and adapt to changes moderately to markedly
impaired. (Id.)
Dr. Kyla King, a non-examining consulting psychologist, completed a review of the record
and came to a different conclusion regarding Schmidt’s mental capacity. (Tr. 664–81.) She
concluded that Schmidt was not significantly limited in ability to understand and remember short
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and simple instructions, moderately limited in his ability to interact with supervisors and coworkers,
and moderately limited in his ability to respond to changes in the workplace. (Tr. 664–65.) Dr.
King gave “partial consideration” to Dr. Elmergreen’s assessment but concluded that Schmidt’s
“‘severe’ anger issues are not illustrated anywhere in file, other than what he reports.” (Tr. 667.)
In fact, an employer questionnaire indicated that his performance was satisfactory with no corrective
actions or incidents. (Tr. 666.) Similarly, Dr. King determined that Schmidt’s “sudden onset” of
memory problems in June 2010 was not consistent with a head injury in 2003 absent other
documented injuries or illness to his head before Dr. Elmergreen’s assessment. (Tr. 667)
Ultimately, Dr. King concluded that Schmidt has “the capacity to withstand the demands of
unskilled work as defined by SSA.” (Id.)
Dr. Mina Khorshidi, a non-examining consulting physician, also conducted a review of the
record and concluded that Schmidt was capable of work at the light exertional level with certain
limitations in her report dated March 27, 2012. (Tr. 689.) Her conclusions sharply differed from
those given by Dr. Thatcher just one month earlier. According to Dr. Khorshidi, Schmidt could
occasionally lift 20 pounds and frequently lift 10 pounds. (Tr. 683.) Schmidt was also capable of
standing or walking for a total of six hours and sit for a total of six hours in an eight-hour workday
with normal breaks. (Id.) She also concluded that Schmidt had no manipulative limitations despite
his shoulder and hand problems aside from reducing his exertional level to light. (Tr. 685.) Dr.
Khorshidi did agree that Schmidt had postural limitations in that he should only occasionally climb
a ladder, stoop, crouch, or crawl because of his uncontrolled diabetes and back pain. (Tr. 684.) Her
report also indicated that Schmidt was able to sustain employment after his injury in 2003 without
special considerations and incidents. (Tr. 687.) Finally, Dr. Khorshidi found that Dr. Thatcher’s
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severe limitations were not supported because imaging revealed only mild degenerative disc disease,
“slight anterior compression of T12,” “tiny osteophytes between L4-5,” well maintained disc space,
and normal alignment and physical exams revealed no weakness, sensory, or reflex loss. (Tr. 683,
688.)
SSA denied Schmidt’s initial application and on reconsideration. (Tr. 108–09.) After his
application was denied upon reconsideration, Schmidt requested an administrative hearing. (Tr.
127–28.) A hearing was held before an ALJ on September 13, 2012. (Tr. 53.) Schmidt and a
vocational expert testified at the hearing. (Tr. 53–107.)
The ALJ determined that Schmidt was not disabled. (Tr. 20–31.) He found that Schmidt
met the insured status requirements and had not engaged in substantial gainful activity since
December 1, 2011. (Tr. 22.) Also, the ALJ found Schmidt had eight severe impairments: mild
degenerative disc disease, left upper extremity ulnar neuropathy, right shoulder impingement,
diabetes mellitus, depressive disorder, personality disorder, post traumatic stress disorder, and mild
neurocognitive disorder. (Id.)
At step three, the ALJ determined that Schmidt’s impairments did not meet or medically
equal any listed impairments under 20 C.F.R. § 404, Subpt. P, App. 1. (Tr. 22–23) and determined
Schmidt’s residual functional capacity (RFC) as follows:
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform medium work as defined in 20 CFR
[§] 404.1567(c) except for the following restrictions. The claimant is limited to
frequent climbing of ramps or stairs. He can only occasionally stoop, crouch, crawl,
and climb ladders, ropes or scaffolds. Additionally he is limited to frequent bilateral
reaching and only occasional bilateral overhead reaching. He also must avoid
moderate use of moving machinery and exposure to unprotected heights. Further,
he is limited to work in a low stress job, defined as having only occasional decision

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making required and only occasional changes in the work setting. Finally, he is
limited to only occasional interaction with co-workers and the general public.
(Tr. 24.) With this RFC, the ALJ found at step four that Schmidt was unable to perform past
relevant work. (Tr. 29.) Finally, the ALJ found that “[c]onsidering the claimant’s age, education,
work experience, and residual functional capacity, there are jobs that exist in significant numbers
in the national economy that the claimant can perform.” (Tr. 30.) These jobs included laundry
operator, dishwasher, and industrial cleaner. (Id.)
Based on these findings, the ALJ concluded that Schmidt was not disabled within the
meaning of the Social Security Act. (Id.) The ALJ’s decision became the final decision of the
Commissioner when the Appeals Council denied Schmidt’s request for review on November 26,
2012. (Tr. 1–5.) Schmidt then commenced this action for judicial review.

STANDARD OF REVIEW
On judicial review, a court will uphold the Commissioner’s decision if the ALJ applied the
correct legal standards and supported the decision with substantial evidence. 42 U.S.C. § 405(g).
“Substantial evidence is ‘such relevant evidence as a reasonable mind could accept as adequate to
support a conclusion.’” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)). Although a decision denying benefits need not discuss every
piece of evidence, remand is appropriate when an ALJ fails to provide adequate support for the
conclusions drawn. Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). The ALJ must provide
a “logical bridge” between the evidence and conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th
Cir. 2000).

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The ALJ is also expected to follow the Agency’s own rulings and regulations in making a
determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v.
Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). In reviewing the entire record, the court does not
substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence,
resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel, 152 F.3d 636,
638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered by the ALJ.
Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80,
93–95 (1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).

ANALYSIS
I.

Assessment of Treating Physician Opinions
Schmidt contends that the ALJ failed to give the proper weight to the opinion of his treating

physician, Dr. Thatcher. He presents two arguments. First, Schmidt contends that the ALJ failed
to provide “good reasons” for rejecting Dr. Thatcher’s statements as required by SSA regulations.
He argues that Dr. Thatcher’s opinion was entitled to controlling weight because it was based upon
objective findings and test results and was consistent with his treatment notes and other medical
evidence of record. Second, even if the ALJ was correct that Dr. Thatcher’s opinion is not entitled
to controlling weight, the ALJ erred in assigning his opinion “little weight” because the ALJ failed
to consider the factors set forth in 20 C.F.R. §§ 404.1527 and 414.927. According to Schmidt, if
the ALJ had properly weighed Dr. Thatcher’s opinion, the ALJ would have concluded that Schmidt
was disabled.

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An ALJ must give controlling weight to treating source opinions that are “well supported
by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with
other substantial evidence in the case record.” 20 C.F.R. § 404.1527(c)(2); see also Punzio v.
Astrue, 630 F.3d 704, 710 (7th Cir. 2011). “Not inconsistent” carries a specific definition according
to the SSA:
This is a term used to indicate that a well-supported treating source medical opinion
need not be supported directly by all of the other evidence (i.e., it does not have to
be consistent with all the other evidence) as long as there is no other substantial
evidence in the case record that contradicts or conflicts with the opinion.
SSR 96-2p, 1996 WL 374188, *3 (July 2, 1996). More weight is given to the opinions of treating
physicians because they have greater familiarity with the claimant’s conditions and circumstances.
Clifford, 227 F.3d at 870. If the ALJ discounts the opinion of a claimant’s treating physician, the
ALJ must offer “good reasons” for doing so. Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010).
“A finding that a treating source medical opinion is not well-supported by medically
acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial
evidence in the case record means only that the opinion is not entitled to ‘controlling weight,’ not
that the opinion should be rejected.” SSR 96-2p, 1996 WL 374188, *4 (July 2, 1996). Noncontrolling treating source medical opinions still “must be weighed using all of the factors” in 20
C.F.R. §§ 1527 and 416.927. Id. The required factors are “length, nature, and extent of the
treatment relationship; frequency of examination; the physician’s specialty; the types of tests
performed; and the consistency and support for the physician’s opinion.” Campbell, 627 F.3d at
308 (quoting Larson, 615 F.3d at 751); see also 20 C.F.R. §§ 404.1527(c), 416.927(c).

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Dr. Thatcher established care with Schmidt in May 2011. (Tr. 331.) As Schmidt’s primary
care physician, he saw Schmidt eight times after establishing care. (Tr. 550–51, 554, 618, 630–31,
633–34, 698–99, 704–06, 709.) As noted above, Schmidt presented with multiple complaints and
received a variety of treatments over those eight visits. The treatment notes consistently reflect that
Schmidt complained of back pain, pain in his extremities, depression, anger management issues,
and difficulty controlling his diabetes. (Id.) He prescribed a variety of medications for Schmidt’s
symptoms, including Glucophage and insulin for his diabetes and Gabapentin for pain. (Tr.
554–55.) He also referred Schmidt to two specialists. (Tr. 554, 621–22, 624–28, 630–31, 698–99,
702–09, 729.)
On February 20, 2012, Dr. Thatcher completed a five page questionnaire opining that
Schmidt suffered from diabetes, chronic back pain, depression, and cognitive impairment with a
“fair” prognosis. (Tr. 331.) As detailed above, in Dr. Thatcher’s opinion Schmidt’s impairments
would constantly interfere with his attention and concentration, he was unable to walk, sit, or stand
for any significant length of time, he required multiple breaks throughout the day, was unable to
manipulate objects with his hands for much of an eight-hour workday, and he could only
occasionally lift 10 pounds or less. (Tr. 332–34.) Dr. Thatcher also noted that Schmidt’s
impairments would cause more than four absences per month. (Tr. 334.) And, importantly for this
case, Dr. Thatcher stated that the description of symptoms and limitation in the questionnaire
“existed before my first visit 5/2011.” (Id.)
In this case, the ALJ gave “little weight” to the opinions of Dr. Thatcher because his
conclusions were inconsistent with the record and there was no evidence to support the severity of
the restrictions or his rapid decline. (Tr. 28.) That is, the ALJ found Dr. Thatcher’s opinions were
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both not well supported by “medically acceptable clinical and laboratory diagnostic techniques” and
were inconsistent with other “substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2);
Punzio, 630 F.3d at 710. .
Schmidt contends that the ALJ’s opinion failed to abide by the SSA regulations regarding
treating physician opinions. According to Schmidt, the ALJ rejected Dr. Thatcher’s opinion for
only two reasons: Dr. Thatcher did not explain what objective evidence had changed since Schmidt
stopped working and no evidence supported the severity of the restrictions given Schmidt’s work
and daily activities. He elaborates on these two basic points by contending that the ALJ’s findings
are contrary to the record, are not sufficiently articulated to enable the court to trace the path of
reasoning, are the result of the ALJ “playing doctor,” and are otherwise not justified with good
reasons. (Pl. Br. 29–35, ECF No. 14.)
Contrary to Schmidt’s assertions, the ALJ gave several good reasons for the weight he
assigned Dr. Thatcher’s opinion and provided a clear logical bridge to allow the Court to trace his
reasoning. Most significantly, the ALJ noted that Dr. Thatcher opined that Schmidt’s symptoms
and limitations pre-dated May 2011. (Tr. 28.) But prior to May 2011, Schmidt was working full
time in a job that, according to Dr. Thatcher, should have been impossible for him. (Id.) As the
ALJ explains at length, “the record reveals that the claimant’s allegedly disabling impairments were
present at approximately the same level of severity prior to the alleged onset date. He sustained an
injury to his thoracic spine in October 2003, he was diagnosed with diabetes in about 1995, and he
attributes his memory and anger due to his childhood or his October 2003 head trauma.” (Tr. 25.)
These conclusions are fully supported by the record. The ALJ went on to explain that “the record
indicates that the claimant stopped working due to a business-related layoff rather than because of
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the allegedly disabling impairments” in May 2009 and again in April 2011 (Id.) Schmidt himself
acknowledged that he was laid off and not fired due to any of his disabilities. (Tr. 65, 305.) The
ALJ then tied the significance of Schmidt’s ability to work full-time with these same medical
conditions in 2009 and 2011 to his current ability to work:
This is significant because there is no evidence of a deterioration in the claimant’s
medical condition since that layoff that would cause limitations beyond those in the
residual functional capacity. . . Objective testing of the claimant’s lumbar spine has
shown no significant deterioration since 2009; he continues to have only mild
lumbar degenerative disease.
(Tr. 25–26.) The ALJ conducted a similarly detailed analysis of Schmidt’s other health problems,
noting the inconsistencies between the limitations described by Dr. Thatcher and Schmidt’s work
history, failure to follow doctors’ orders, and objective testing. (Tr. 26–28.)
For example, the ALJ noted that Schmidt failed to pursue physical therapy for any length
of time because he “failed to show up for his appointments.” (Tr. 26.) In fact, the ALJ understated
Schmidt’s unwillingness to attend physical therapy or follow his at home exercise program. (Tr.
405–07, 439–41, 469–72, 499–501, 841–45.) The ALJ also highlighted Schmidt’s failure to take
his medication as prescribed and turned down more aggressive interventions. (Tr. 26.) The ALJ
did inquire into the reasons for this limited treatment, as he must do. While Schmidt claimed that
the lack of treatment was due to lack of insurance and money, the record suggests otherwise as
Schmidt failed to show up for scheduled appointments. (Tr. 405–07, 439–41, 469–72, 499–501,
841–45.) The ALJ also considered that Schmidt also chose to continue spending money to fund his
smoking habit which worsened his medical conditions (Tr. 391, 393, 410, 621), was contrary to the
recommendations of several doctors (Id.), and strained his already precarious financial position.
(Tr. 26.)
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The ALJ also relied on the objective testing done in connection with Schmidt’s back,
shoulder, and cognitive problems in rejecting Dr. Thatcher’s opinion. (Tr. 177–79, 417, 433,
505–510, 646–47, 729, 734, 754, 792, 855–56, 858–59.) The results of objective tests of his lumbar
and thoracic spine do show some degenerative conditions but nothing that would support the
severity of his symptoms or that his condition significantly worsened after Schmidt was laid off in
2011. (Tr. 26, 683.) For example, the most recent MRI of Schmidt’s back in July 2012 indicated
mild problems: “mild bilateral facet arthropathy and ligamentum flavum hypertrophy,” “mild broadbased disc bulge with tiny to small superimposed central disc protrusion,” “mild to moderate central
canal stenosis,” and “small central to right paracentral disc protrusion.” (Tr. 855–56.) The results
of this MRI ordered by Dr. Hoell notes “no significant interval change” and an “unchanged” mild
chronic compression fracture at T12. (Id.) The 2012 MRI of his shoulder had similar results: “mild
supraspinatus tendinosis with a very small partial-thickness tear of the very anterior margin of the
supraspinatus tendon. No tendon retraction or muscle atrophy.” (Tr. 858–59.) Further, a 2011
brain MRI was normal. (Tr. 729.)
The Commissioner’s brief further identifies the extent of the conflicts between Dr.
Thatcher’s opinion and Schmidt’s work history by citing the evidence in the record of some of the
work activities in which Schmidt actually engaged. (Def. Br. 6–7, ECF No. 19.) In reply, Schmidt
argues that the Commissioner’s brief runs afoul of the Seventh Circuit’s “Chenery doctrine” by
citing evidence in the record not explicitly referenced in the ALJ’s decision. (Pl. Reply 8–9, ECF
No. 22.) He accuses the Commissioner of making findings regarding his specific work activities
that were not made by the ALJ. But the Commissioner didn’t make findings; she merely cited
evidence, namely, Schmidt’s own testimony and his work activity report, where he described his
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work activity. Schmidt suggests that because the ALJ did not explicitly cite the same evidence in
his decision, the Commissioner is barred from doing so under the Chenery doctrine.
This is a misreading of SEC v. Chenery Corp., 318 U.S. 80 (1943). Chenery holds, based
on principles governing judicial review of administrative proceedings, an agency may not ask the
court to uphold its action on a ground different from that on which the agency acted. 318 U.S. at
87–88, 92–93. It does not hold that the agency cannot cite evidence in the record that supports the
actual findings that were made. Here, for example, the Commissioner is not asking the court to
affirm the ALJ’s decision on a ground not relied upon by the ALJ. Instead, the Commissioner has
cited to evidence contained in the record that further supports the specific findings that the ALJ
made. The ALJ found that Schmidt had actually engaged in work activity that was more strenuous
than his own doctor claimed he was capable of performing at the time. (Tr. 28.) The Commissioner
merely pointed the court to the evidentiary support for the ALJ’s finding that exists in the
administrative record. Given the fact that the central issue on judicial review of a decision of the
Commissioner of Social Security is whether the Commissioner’s factual findings are supported by
substantial evidence, 42 U.S.C. § 405(g), this is entirely appropriate. To prohibit citation to any
evidence in the record that was not expressly cited by the ALJ would reduce judicial review to a
matter of cite checking the ALJ’s decision. It would also confer an unfair advantage on the
claimant. After all, the claimant in such cases cites to evidence not referenced by the ALJ that he
thinks is contrary to the Commissioner’s decision. What possible principle could justify barring the
Commissioner from pointing to other evidence in the same record that supports the ALJ’s finding?
If there is one, Schmidt does not identify it.

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While the ALJ’s decision did not contain the level of detail found in the Commissioner’s
brief in comparing Schmidt’s most recent employment with Dr. Thatcher’s limitations, the ALJ is
not held to the standard of articulation that Schmidt would demand. The ALJ’s decision will be
upheld if “substantial evidence” supports it and I am able to trace the ALJ’s path of reasoning to
conduct meaningful review. Clifford, 227 F.3d at 874. In this case, the ALJ provided ample
explanation of the reasons for not affording Dr. Thatcher’s opinion controlling weight. The ALJ
found Schmidt’s work history and treatment regimen to be inconsistent with Dr. Thatcher’s opinion.
He also concluded that the imaging of Schmidt’s shoulder, back, and brain failed to support
Schmidt’s incapacities because they were unchanged after Schmidt’s alleged onset date. The ALJ’s
expressed justifications for discounting Dr. Thatcher’s opinion are “good reasons” to deny the
treating physician’s opinions controlling weight. Larson, 615 F.3d at 751. Because the ALJ
provided “‘an accurate and logical bridge’ between the evidence and his conclusions,” the ALJ’s
opinion will be upheld. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (quoting Craft v. Astrue,
539 F.3d 668, 673 (7th Cir. 2008); McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011)).
As to Schmidt’s second argument about the weight afforded to Dr. Thatcher’s opinion, the
ALJ is required to apply the SSA’s regulations after determining that the opinion is not entitled to
controlling weight. See 20 C.F.R. § 404.1527(d)(2); see also Moss v. Astrue, 555 F.3d 556, 561
(7th Cir. 2009) (“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.”). Schmidt is correct that the ALJ did
not individually articulate the factors in § 404.1527(d)(2). But there is no requirement that the ALJ
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provide a separate analysis of each factor or provide a perfect opinion.

See 20 C.F.R.

§ 404.1527(d)(2); Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir.1989) (“No principle of
administrative law or common sense requires us to remand a case in quest of a perfect opinion
unless there is reason to believe that the remand might lead to a different result.”).
Here, the ALJ’s lengthy explanation of the significant inconsistencies between Dr.
Thatcher’s opinion and Schmidt’s actual work activities, as well as the results of the MRI’s and
X-rays, fully support the ALJ’s decision to afford the opinion little weight. While the ALJ could
have discussed Dr. Thatcher’s specialty, the length, nature, and extent of the treatment relationship,
and the frequency of examination, the record indicates that these factors would not alter the
determination: Dr. Thatcher was not a specialist, he had treated Schmidt for less than a year when
he provided the opinion, and he had seen Schmidt just five times. (Tr. 550–51, 554, 618, 630–31,
633–34).

II.

Assessment of Examining Consulting Physician Opinion
Schmidt next argues that the ALJ erred in failing to evaluate the medical opinion proved by

Dr. Elmergreen, an examining consulting physician. Schmidt contends that the ALJ ignored the
opinion and “failed to indicate any consideration of it.” (Pl. Br. 40–41, ECF No. 14.) According
to Schmidt, because the ALJ did not consider Dr. Elmergreen’s opinion, there can be no meaningful
judicial review and the case should be remanded.
To the extent that Schmidt contends that the ALJ completely ignored Dr. Elmergreen, he is
mistaken and his argument is rejected. As the Commissioner notes, the ALJ did discuss Dr.
Elmergreen’s opinion in his decision, though he does not reference the doctor by his name. (Tr. 23,
17

27–29.) Most importantly, the ALJ assigned “some weight” to the opinion. (Tr. 29.) Thus,
Schmidt’s argument in his opening brief that the opinion was ignored is inaccurate.
In reply, Schmidt advances a slightly different argument. He argues that although the ALJ
did make some references to Dr. Elmergreen’s report, “[o]ther than saying that he gave it ‘some
weight’ this court has no ability to determine what weight was given, how the ALJ arrived at his
finding, what factors played into his decision and whether those findings were based upon
substantial evidence.” (Pl. Reply 15, ECF No. 22.) Schmidt also criticizes the ALJ’s decision
because “the decision does not actual [sic] provide any articulation of Dr. Elmergreen’s opinion.”
(Id.) As a result, it appears that Schmidt has abandoned his argument that Dr. Elmergreen’s opinion
was not considered at all and now argues that the ALJ failed to provide an adequate explanation to
allow meaningful judicial review. I disagree.
The argument that the case should be remanded because the court has no ability to determine
what weight was given to Dr. Elmergreen’s opinion extends a metaphor too far. In fact, opinions
do not have weight; they consist of abstract ideas. We talk of the weight given an opinion as a way
of describing how convincing it is. The kind of precision that measuring a body’s weight allows is
not possible when talking about the weight of an opinion. The ALJ adequately explained his reasons
for discounting portions of Dr. Elmergreen’s opinion. As explained above, the ALJ provided a
detailed explanation of the significant inconsistencies between Schmidt’s long-standing limitations,
like his poor memory, and his ability to work despite these limitations for much of the past ten years.
(Tr. 25–27, 29.) The ALJ gave only some weight to Dr. Elmergreen’s opinion in 2012 because there
is no decline in Schmidt’s cognitive or mental abilities when it is compared to the earlier exam in
2010. (Tr. 29.) As the ALJ notes, Schmidt has “demonstrated his ability to sustain full-time work
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despite any deficits.” (Id.) While Schmidt claimed he had poor stress tolerance and coping skills,
the ALJ concluded based on his work history and treatment that “he has volitional control over those
symptoms to a degree that allows him to sustain full-time work.” (Tr. 29.) The ALJ’s conclusion
is supported by substantial evidence in the form of Schmidt’s own testimony at the hearing regarding
his work history (Tr. 64–69), even with his cognitive limitations, as well as the essentially normal
MRI of his brain in 2011. (Tr. 729.) Thus, the ALJ provided sufficient explanation of the weight
he afforded Dr. Elmergreen’s opinion and the reasons for this determination.

CONCLUSION
Accordingly, and for the reasons set forth above, the Commissioner’s decision is affirmed.
The Clerk is directed to enter judgment in favor of the Commissioner forthwith.*
SO ORDERED this

7th

day of March, 2014.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

*

Counsel for Schmidt is strongly advised to comply with the page limits set forth in the
court’s briefing order, or seek leave to be excused from those limits, in the future.
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