O'Donnell, Annette v. Astrue, Michael
ORDER that the decision of defendant Carolyn Colvin, Acting Commissioner of Social Security, is AFFIRMED and plaintiff Annette O'Donnell's appeal is DISMISSED. The clerk of court is directed to enter judgment in favor of defendant and close this case. Signed by District Judge William M. Conley on 12/17/2013. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ANNETTE K. O’DONNELL,
OPINION AND ORDER
CAROLYN W. COLVIN,
Acting Commissioner Social Security,1
This is an action for judicial review of an adverse decision of the Commissioner of
Social Security brought pursuant to 42 U.S.C. § 405(g). Plaintiff Annette O’Donnell, now
proceeding pro se,2 seeks reversal of that decision, which found her ineligible for disability
insurance benefits and supplemental security income because she is not disabled. O’Donnell
contends that the administrative law judge (ALJ) erred when she rejected her treating
physician’s opinion that she could not work because of Lyme disease. O’Donnell also has
submitted an additional opinion from her treating physician that was not before the ALJ.
Because there is substantial evidence in the record to support the decision, and no reversible
error, the court will affirm the Commissioner’s decision and dismiss this case.
The court has revised the caption to reflect the fact that Carolyn Colvin replaced
Michael Astrue as the Acting Commissioner of Social Security after this case was filed.
O’Donnell was represented by counsel at the administrative hearings held in this case.
The following facts are drawn from the administrative record (AR).
Plaintiff Annette O’Donnell was born on July 24, 1965. She had a high school
education and past relevant work as a hair stylist and a receptionist. AR 18. O’Donnell filed
an application for disability insurance benefits and supplemental security income (SSI) on
February 13, 2007, alleging disability as of November 9, 1999 because of shoulder and neck
pain, migraines, Lyme disease, fibromyalgia and chronic fatigue. AR 110, 138. After the
local disability agency denied O’Donnell’s application initially and upon reconsideration, she
requested a hearing, which was held on October 14, 2009, before Administrative Law Judge
Gail Reich. The ALJ heard testimony from O’Donnell and two neutral medical experts. AR
30-40. On the recommendation of one of the medical experts, she continued the hearing to
allow O’Donnell to undergo a consultative examination. AR 41. On January 22, 2010, the
ALJ reconvened the hearing and heard additional testimony from O’Donnell, a medical
expert and vocational expert. AR 45-55.
The ALJ issued her decision on February 8, 2010. In reaching her conclusion that
O’Donnell was not disabled, the ALJ performed the required five-step sequential analysis.
See 20 C.F.R. §§ 404.1520, 416.920. She found that although O’Donnell had severe
impairments of bilateral shoulder osteoarthritis, scoliosis, chronic migraine headache
disorder, chronic pain syndrome and post traumatic stress disorder, none of her impairments
or a combination of impairments met or medically equaled any impairment listed in 20
C.F.R. 404, Subpart P, Appendix 1.
The ALJ also found that O’Donnell retained the residual functional capacity to
perform sedentary work, except for work involving climbing ladders, ropes or scaffolds and
exposure to hazards, including unprotected heights and dangerous machinery. She found
that O’Donnell occasionally could climb stairs and ramps, balance, stoop, kneel, crouch,
crawl and reach overhead and push or pull with the upper extremities. The ALJ noted that
O’Donnell could not work in a high stress environment and could have only brief and
superficial contact with others, including supervisors, co-workers and the public. AR 13.
Relying on the testimony of the vocational expert, the ALJ concluded that O’Donnell
was not disabled because there were jobs in significant numbers in the national economy
that O’Donnell could perform. AR 20. O’Donnell appealed the decision, and the Appeals
Council acknowledged receipt of a brief from O’Donnell’s representative4 and additional
medical records. AR 4, 207-12. The ALJ’s decision became the final decision of the
commissioner on December 23, 2010, when the Appeals Council denied O’Donnell’s request
for review. AR 1-3.
B. Medical Evidence
O’Donnell believes that she contracted Lyme disease as a result of a tick bite when
she was nine years old. AR 190-91. She had a spinal fusion for scoliosis when she was a
teenager, arthroscopic surgery on her right shoulder in 2001 and arthroscopic surgery on her
left shoulder in 2004. AR 240-41, 372-73. Although O’Donnell recovered well from her
shoulder surgeries, she still complained of shoulder pain. Her treating physician at the time
O’Donnell was no longer represented by an attorney at this point, but her sister-in-law,
who is an attorney, prepared the brief on her behalf.
noted that although her shoulder was at the plateau of healing, she had “symptom
magnification.” AR 242-43. Despite demonstrating good strength and range of motion after
her second should surgery in 2004, O’Donnell told her provider that she was convinced that
she would not be able to work for the rest of her life due to what she described as the
disabling problems with her shoulders and neck. AR 651-52. Although she returned to work
in 2004, O’Donnell eventually stopped working in June 2006. AR 30-32, 653.
On December 1, 2005, Dr. J. Greg Hoffman wrote in a progress note that O’Donnell
had experienced multiple symptoms for years and he was concerned about Lyme disease.
AR 570. A note from November 22, 2006, identified O’Donnell’s symptoms as extreme
fatigue, with exacerbations of symptoms every fourth week, including brain fog. AR 572.
On the same date, Dr. Hoffman completed a medical examination and capacity form
concerning O’Donnell’s work limitations.
He listed her impairments as chronic
fibromyalgia, chronic fatigue syndrome, impingement syndrome shoulders, chronic
migraines, anxiety disorder and neuropathy in the upper extremities. Hoffman noted that
she could sit, walk or stand less than two hours a day and concluded that she was unable to
work. AR 573-74. On April 2, 2007, Hoffman completed a second form listing the same
diagnoses and limitations, again concluding that she was unable to work. AR 575-76.
Progress notes show that O’Donnell saw Dr. Hoffman for her chronic pain on June
14, 2007, April 23, 2008, August 18, 2008, October 20, 2008 and January 29, 2009.
Although the notes are difficult to read, Hoffman wrote on April 23, 2008, that he had
prescribed antibiotics for O’Donnell, who was feeling better. AR 577-81.
On February 16, 2009, Dr. Hoffman completed a medical statement and functional
capacity questionnaire for O’Donnell. He listed her impairments as fibromyalgia, chronic
fatigue syndrome, scoliosis, impingement syndrome shoulders, chronic migraines, anxiety
disorder and chronic disseminated Lyme disease. AR 583. He estimated that she could
stand or walk for 15 minutes at a time and for one hour total in an eight hour day, and that
she could sit for 30 minutes at a time and for a total of 2 hours in an eight hour day. AR
585-6. Hoffman indicated that O’Donnell needed frequent rest periods to lie down and
could only lift less than ten pounds occasionally. AR 587. He also reported that she could
neither raise or reach her arms overhead or even above her shoulder, nor push or pull leg
controls. AR 588. Finally, he noted that she would miss more than four days of work a
month. AR 591. As a result of these limitations, Hoffman concluded that O’Donnell could
not sustain gainful employment. AR 594.
On September 24, 2009, Hoffman wrote a letter, stating he had treated O’Donnell
since 2005. He explained that O’Donnell’s symptoms suggested the “distinct possibility of
exposure to Tick-Borne Illness-Lyme Disease.” He stated that the diagnosis of Lyme disease
is primarily based on clinical evidence. Hoffman noted that he treated O’Donnell with
antibiotics. He concluded that although O’Donnell had improved with treatment, she was
still unable to pursue gainful employment. AR 596.
C. Consulting Physician Reports
On May 30, 2007, state agency physician Michael Baumblatt completed a physical
residual functional capacity assessment for O’Donnell, listing diagnoses of myalgias,
arthralgias, back disorder, status post rod fusion for scoliosis, migraines and status post
bilateral rotator cuff repair. AR 480. Baumblatt found that O’Donnell could lift 20 pounds
occasionally and 10 pounds frequently, stand or walk six hours in an eight-hour workday and
sit six hours in an eight-hour workday with occasional climbing ladders, ropes and scaffolds
and no exposure to hazards. AR 481-84. He disagreed with the treating source’s opinion
that O’Donnell could perform only light work for two hours and determined that she could
perform light work for an eight-hour workday. AR 486.
On September 24, 2007, state agency physician Pat Chan completed a physical
residual functional capacity assessment for O’Donnell, listing diagnoses of status post
bilateral shoulder arthroscopies, neck discomfort, myalgias and migraines. AR 502. Chan
found that O’Donnell could lift 20 pounds occasionally and 10 pounds frequently, stand or
walk six hours in an eight-hour workday and sit six hours in an eight-hour workday with
limited reaching in all directions, including overhead. AR 503, 505.
On November 16, 2009, Dr. Michael Lockheart examined O’Donnell at the request
of the ALJ. Dr. Lockheart noted that she was taking an antibiotic, as well as over-thecounter pain medications, and that “She answers positively for every question.” AR 659.
O’Donnell asked if she could have African sleeping sickness because she sleeps 14 to 18
hours a day. AR 660. Upon examination, Lockheart found that O’Donnell had full range
of motion in her neck and decreased range of motion of back. AR 660. He concluded that
she had chronic pain syndrome, major depressive disorder, chronic migraine headaches,
chronic neck and back pain with no evidence of radiculopathy, history of shoulder
impingement and history of documented symptom magnification. AR 661.
Dr. Lockheart also completed a form concerning O’Donnell’s work-related limitations,
finding that she could lift and carry up to 20 pounds occasionally and could lift up to 20
pounds continuously. AR 663. Lockheart also indicated that she could sit for 20 minutes
at one time, stand 15 minutes at one time and walk for 20 minutes at one time. In an eighthour workday, Lockheart found her capable of sitting a total of six hours, standing for two
hours and walking for one hour.
AR 664. Finally, Lockheart found she could reach
overhead and operate foot controls only occasionally. AR 665.
D. Hearing Testimony
At the first hearing, O’Donnell testified that she had last worked in 2006 as a hair
stylist for two-and-a-half hours every other day. She quit working because holding her arms
up was hurting her and she would become fatigued standing on her feet for that period of
time. O’Donnell also testified that she started experiencing severe migraines after her
shoulder surgeries. AR 32-33.
At that time, O’Donnell lived with her husband and five-month old baby. She
testified that on many days, she sleeps 12 to 17 hours a day and is essentially bed-ridden
with Lyme disease. On good days, she is able to drive and help out around the house. AR
34. O’Donnell testified that she has taken an antibiotic for Lyme disease since 2006 or
2007, except when she was pregnant. AR 35. O’Donnell’s doctor told her that during her
pregnancy, the hormones killed off the bacteria from the Lyme disease. O’Donnell testified
that she has seen some improvement in her symptoms with the antibiotic because she can
read a little bit better. AR 36.
The ALJ called Dr. Thomas Maxwell to testify as a neutral medical expert about
O’Donnell’s physical impairments. When Maxwell asked O’Donnell if she was still drinking,
she responded that she had stopped 13 years ago and did not take anything besides
prescribed medication. AR 37. Maxwell recommended that O’Donnell have a consultative
medical examination to obtain clinical findings about her physical impairments because there
is no physical examination in the record showing what her limitations would be. AR 38-39.
Dr. Michael Lace testified as a neutral medical expert concerning O’Donnell’s mental
impairments. He opined that O’Donnell had post-traumatic stress disorder and would be
limited to working in a low stress environment with only brief and superficial contact with
coworkers, supervisors and the public. AR 40.
At the second hearing, O’Donnell testified that she is bedridden three weeks a month.
One week a month, she is able to go to the YMCA and walk a half a mile around the track.
She also goes to daily mass. AR 46-47. She testified that Dr. Hoffman had treated her for
Lyme disease, chronic fatigue syndrome and fibromyalgia since 2005. AR 47.
Dr. Maxwell testified again at the second hearing, noting that O’Donnell had past
surgeries for rotator cuff impingement in both shoulders, scoliosis of the spine with
placement of a rod in her spine, chronic pain syndrome and headaches. Maxwell testified
that there was no specific diagnosis of fibromyalgia and no identification of any trigger
points. Maxwell also indicated that a better diagnosis would be chronic pain syndrome
because there are no clinical findings of any other disease. Maxwell testified that there was
no clinical evidence in the record to support a diagnosis of Lyme disease. He also pointed
out that (1) Dr. Hoffman acknowledged there were no lab tests confirming Lyme disease and
(2) the clinical evidence that Hoffman refers to is not part of the record. AR 48-49.
Maxwell further testified that O’Donnell’s impairments singly and in combination did
not meet a listed impairment. AR 49. He then opined that O’Donnell’s impairments limited
her to sedentary work with (1) no climbing of ladders, ropes and scaffolds, (2) no exposure
to unprotected heights and hazardous machinery, (3) occasional posturing, pushing and or
pulling with upper and lower extremities, and (4) occasional reaching overhead with both
upper extremities. AR 50.
O’Donnell’s lawyer questioned Maxwell about Dr. Lockheart’s limitations on
O’Donnell’s activities, which were sitting for 20 minutes, standing for 15 minutes and
walking for 20 minutes at a time. Maxwell did not agree with these limitations because it
was more helpful to speak in terms of the total length of time that O’Donnell could perform
each activity in a workday. He noted that Lockheart had also found O’Donnell could stand
a total of two hours, walk a total of one hour and sit a total of six hours in an eight-hour
work day. AR 51.
Finally, the ALJ called Gregory Stuart Dohms to testify as a neutral vocational expert,
asking him whether an individual who is limited to work with superficial contact with others
and in a low stress environment could perform O’Donnell’s past work as a hair stylist and
receptionist. Dohms responded “no.” AR 52. When the ALJ then asked if the hypothetical
individual could perform jobs that existed in the national economy, Dohms identified the
unskilled, sedentary jobs of ticket counter, call-out operator, sock mender, and food and
beverage order clerk. AR 53-54. Dohms also testified that a requirement that the individual
alternate between sitting, standing and walking after some minutes would not change the
jobs identified. AR 54-55.
A federal court reviews an administrative disability determination with deference and
will uphold a denial of benefits unless the ALJ’s decision is not supported by substantial
evidence or is based on an error of law. 42 U.S.C. § 405(g); Terry v. Astrue, 580 F.3d 471,
475 (7th Cir. 2009). Substantial evidence means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971). “Where conflicting evidence allows reasonable minds to differ about whether
a claimant is disabled, the responsibility for that decision falls on the [C]ommissioner, or the
[C]ommissioner’s designate, the ALJ.” Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990)
(quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987) (citation omitted). Thus, a
reviewing court cannot reconsider facts, re-weigh the evidence, decide questions of credibility
or otherwise substitute its own judgment for that of the ALJ. Clifford v. Apfel, 227 F.3d 863,
869 (7th Cir. 2000).
O’Donnell states that she is renewing her arguments made before the Appeals
Council, as well as challenging the ALJ’s findings related to her Lyme disease and the opinion
of her treating physician, Dr. Hoffman. See Pltf’s Br., dkt. 8. Her arguments generally relate
to the ALJ’s assessment of her impairments and residual functional capacity. In addition,
O’Donnell has filed a letter from Dr. Hoffman that was not before the ALJ at the time of the
hearing. These issues are addressed in turn below.
A. Lyme Disease
O’Donnell argued to the Appeals Council and in her briefs to this court that the ALJ
erred in failing to find that her Lyme disease constituted a severe impairment that prevents
her from working. Under the Social Security Act, 42 U.S.C. § 223(d)(3), an impairment
must result from “anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” A
claimant’s statements alone cannot establish an impairment. 20 C.F.R. § 404.1508, §
404.1528(a). In addition, “[t]he mere presence of some impairment [in the medical records]
is not disabling per se.” Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983); see also Garmon
v. Apfel, 210 F.3d 374, at *4 (Table) (7th Cir. Mar. 22, 2000) (rejecting claimant’s argument
that he had severe impairment because he sought medical treatment for various symptoms).
O’Donnell relies on the progress notes and opinions of Dr. Hoffman as medical
evidence that she suffers from late-stage, chronic disseminated Lyme disease. In Social
Security cases, a treating physician’s opinion is entitled to controlling weight if it is “well
supported by medical findings and not inconsistent with other substantial evidence in the
Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003) (citing 20 C.F.R. §
404.1527(d)(2)). Further, even when the treating physician's opinion is not entitled to
controlling weight, the administrative law judge must give a “sound explanation” for rejecting
that opinion and discuss the weight given to the various other medical opinions in the
Punzio v. Astrue, 630 F.3d 704, 709-10 (7th Cir. 2011); 20 C.F.R. §§
404.1527(e)(2)(ii); 416.927(e)(2)(ii). Factors the ALJ should consider in evaluating a
treating physician opinion include the length, nature, and extent of the treatment
relationship; the frequency of examination; the physician’s specialty; the types of tests
performed; and the consistency and supportability of the physician’s opinion with the record
as a whole. 20 C.F.R. §§ 404.1527(c), 416.927(c); Scott v. Astrue, 647 F.3d 734, 740 (7th
In this case, the ALJ extensively reviewed Dr. Hoffman’s records, as well as those of
the designated medical expert and the examining and non-examining consulting physicians.
The ALJ ultimately rejected Dr. Hoffman’s opinion that O’Donnell was severely impaired
by Lyme disease and could not work more than two hours a day because it was completely
unsubstantiated by evidence in the record. Although Hoffman wrote that he had treated
O’Donnell since 2005 and expressed his opinion about her functional limitations, the ALJ
correctly noted that it was unclear from the medical records whether Hoffman ever examined
O’Donnell. Both the ALJ and the medical expert, Dr. Maxwell, pointed out that Hoffman
did not cite any laboratory findings or clinical signs of O’Donnell’s Lyme disease and
prescribed antibiotics for O’Donnell based on the fact that she reported exposure to ticks as
a child and exhibited “a number of symptoms associated” with the disease. AR 16. Because
Dr. Maxwell found Hoffman’s notes medically insufficient to permit him to form an opinion
about O’Donnell’s functional capacity, he requested that the ALJ order a consultive
examination. AR 17.
The consulting physician, Dr. Lockheart, found that O’Donnell could sit for 20
minutes, stand for 15 minutes and walk for 20 minutes at one time, but that in an eighthour day, she could also sit for a total of six hours, stand for a total of two hours and walk
for one hour. Although O’Donnell interprets these findings to mean that she can not
perform full-time sedentary work, the ALJ did not find the minutes per position to be
dispositive because Lockheart found O’Donnell capable of sitting and standing the total
number of hours in an eight hour day necessary to perform sedentary work. As the ALJ
noted in his opinion, the vocational expert testified that alternating between sitting, standing
and walking after some minutes would not change the number or type of jobs available in
the national economy to someone with O’Donnell’s limitations. In addition, no physician
other than Dr. Hoffman found that O’Donnell could not perform limited sedentary work
on a full-time basis. As a result, the ALJ articulated good reasons for her rejecting the
opinion of Dr. Hoffman in favor of the opinions of Dr. Maxwell, Dr. Lockheart and the
other state agency physicians.
The ALJ also considered O’Donnell’s testimony that Lyme disease caused her
disabling fatigue, but found the testimony not entirely credible.
Generally, an ALJ’s
determinations regarding credibility are entitled to deference because the ALJ has the ability
to see and hear the testimony, but that deference does not excuse an ALJ from explaining the
reasons for her determination. Castile v. Astrue, 617 F.3d 923, 929 (7th Cir. 2010). The ALJ
must build an "accurate and logical bridge" between the evidence and his decision. Id. Still,
a credibility determination will be overturned only if it is "patently wrong." Eichstadt v.
Astrue, 534 F.3d 663, 668 (7th Cir. 2008); Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir.
2008) ("It is only when the ALJ's determination lacks any explanation or support that we will
declare it to be 'patently wrong.'").
In this case, the ALJ noted that O’Donnell had reported activities of daily living that
were inconsistent with being bed-ridden, including taking a number of out-of-town trips with
others to Chicago and Minneapolis, routinely performing self-care, regularly walking on the
track at the YMCA, attending daily mass, preparing small meals, shopping for groceries with
her husband, and assisting in the care of her infant child, who was born in 2008. The ALJ
noted that even if O’Donnell remained in bed all day, it was difficult to attribute that to a
disabling condition based on the scant evidence before her. The ALJ also pointed out that
in 2001 and 2004, O’Donnell’s health care providers had noted she was prone to symptom
magnification and was convinced that her shoulder conditions would prevent her from
working, even though the surgeries had gone well and she had good strength and range of
motion. AR 14-15. Because the court finds the ALJ’s credibility determination to be wellreasoned and supported by the record, this is not one of those rare instances requiring
reversal because the ALJ’s findings were patently wrong.
In sum, the ALJ built a sufficiently accurate and logical bridge from the evidence to
her conclusion that O’Donnell was not severely impaired from Lyme disease and did not
suffer disabling limitations from the condition. Further, even though she found no evidence
of Lyme disease, the ALJ did credit at least some of O’Donnell’s complaints of pain and
fatigue in finding that she was severely impaired with chronic pain syndrome and limited to
B. Additional Evidence
As previously noted, O’Donnell submitted a letter dated April 2, 2010, in which Dr.
Hoffman explains why he diagnosed O’Donnell with chronic fatigue syndrome and
fibromyalgia when he had stated in previous correspondence that chronic disseminated Lyme
disease is often misdiagnosed as those conditions. See Attachment to dkt. 8. Because this
evidence was not part of the record before the original ALJ and was not considered by the
Appeals Council in a decision on the merits, this court cannot consider it in reviewing the
ALJ’s decision. See 42 U.S.C. § 405(g); Wolfe v. Shalala, 997 F.2d 321, 322 n.3 (7th Cir.
1993); Eads v. Secretary of Dep’t of Health and Human Services, 983 F.2d 815, 817 (7th Cir.
Under sentence six of § 405(g), however, a district court may remand in light of
additional evidence without considering the correctness of the commissioner’s decision, but
only if the evidence is new and material and there is good cause for the failure to produce
the evidence before the ALJ. See Melkonyan v. Sullivan, 501 U.S. 89, 100-01 (1991).
Evidence is “new” if it was “not in existence or available to the claimant at the time of the
administrative proceeding.” Schmidt v. Barnhart, 395 F.3d 737, 742 (7th Cir. 2005); Perkins
v. Chater, 107 F.3d 1290, 1296 (7th Cir. 1997). New evidence is “material” if there is a
“reasonable probability” that the ALJ would have reached a different conclusion had the
evidence been considered. Id. (citing Johnson v. Apfel, 191 F.3d 770, 776 (7th Cir. 1999)).
Thus, new evidence is material only if it is relevant to the claimant's condition “during the
relevant time period encompassed by the disability application under review.” Id. (citing
Kapusta v. Sullivan, 900 F.2d 94, 97 (7th Cir. 1990)).
Although Dr. Hoffman composed his letter after the hearing, he fails to discuss any
“new” findings that were not in existence at the time of the hearing. The letter is essentially
Hoffman’s rebuttal to the ALJ’s decision and includes an opinion he formed before the
hearing took place. O’Donnell could have submitted a similar letter from Hoffman at the
time of the hearing. Further, O’Donnell was represented by an attorney at the hearing, and
an applicant represented by counsel is presumed to have made her “strongest case for
benefits.” Glenn v. Secretary of Health and Human Services, 814 F.2d 387, 391 (7th Cir. 1987).
Accordingly, this court will not remand this case pursuant to sentence six of § 405(g) for
consideration of the additional evidence submitted by O’Donnell alone.
IT IS ORDERED that the decision of defendant Carolyn Colvin, Acting
Commissioner of Social Security, is AFFIRMED and plaintiff Annette O’ Donnell’s appeal
is DISMISSED. The clerk of court is directed to enter judgment in favor of defendant and
close this case
Entered this 17th day of December, 2013.
BY THE COURT:
WILLIAM M. CONLEY
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