Mackie, Brian v. Colvin, Carolyn

Filing 16

ORDER affirming Commissioner decision regarding Social Security benefits re: 11 Social Security Hearing Transcript. Signed by District Judge James D. Peterson on 11/18/2015. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

BRIAN WILLIAM MACKIE,

v.

Plaintiff,

ORDER
14-cv-788-jdp

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

Plaintiff Brian William Mackie seeks judicial review of a final decision of defendant
Carolyn W. Colvin, Acting Commissioner of Social Security, finding him not disabled as
defined in the Social Security Act. The court heard oral argument in this case on November
3, 2015. For reasons discussed during the hearing and summarized here, the court will deny
Mackie’s motion and affirm the Commissioner’s decision.
Mackie contends that the ALJ erroneously discounted treating source opinions by
William F. Schnell, MD. When determining Mackie’s residual functional capacity (RFC), the
ALJ discussed relevant medical records and weighed the medical opinion evidence. R. 18-19. 1
The ALJ specifically discounted Dr. Schnell’s opinion that Mackie should not perform “heavy
work” because Dr. Schnell did not define “heavy work,” and, as a result, the opinion was not
specific enough to be meaningful. R. 18. The ALJ also recognized that on numerous
occasions, Dr. Schnell summarily opined that Mackie was totally and permanently disabled
and that Mackie was unable to sustain gainful employment. R. 19.

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Record cites are to the administrative transcript, located at Dkt. 11.

The ALJ ultimately declined to afford Dr. Schnell’s opinions any weight for two
reasons. First, the ALJ determined that Dr. Schnell’s own treatment notes did not support his
conclusory opinions. The ALJ discussed Dr. Schnell’s treatment notes at length, citing to
several records and pointing out that Dr. Schnell described Mackie as a “healthy, vigorous
man who was in no acute distress.” R. 20. Dr. Schnell noted that Mackie did not experience
any range of motion limitations, that he had excellent grip and shoulder strength, and that
Mackie had not experienced any significant joint destruction. R. 20. (citing Exs. 30F, 8F, and
11F). Second, the ALJ determined that Mackie’s daily activities undermined Dr. Schnell’s
opinions. R. 20. The ALJ discussed Mackie’s function reports and, to a lesser extent, Mackie’s
hearing testimony. R. 20.
Mackie has been through a lot in terms of his musculoskeletal health, including
multiple surgeries and a previous period of disability. However, the ALJ’s decision is carefully
crafted and well articulated. The ALJ specifically identified and discussed contradictory
objective evidence in the record—primarily Dr. Schnell’s own treatment notes—before
declining to afford Dr. Schnell’s opinion controlling weight. The ALJ afforded Dr. Steiner,
the IME, great weight, “based on his expertise in physical rehabilitative medicine, his ability
to review the entire record and the consistency with the record.” R. 18. The ALJ cited to
specific exhibits throughout his discussion. In short, the ALJ identified and applied the
pertinent regulatory factors, as required under 20 C.F.R. § 404.1527. See Clifford v. Apfel, 227
F.3d 863, 870 (7th Cir. 2000), as amended, (Dec. 13, 2000) (citing 20 C.F.R.
§ 404.1527(d)(2)). Substantial evidence in the record as a whole supports the ALJ’s decision
to decline to afford Dr. Schnell’s conclusory opinions any weight.

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Mackie also contends that the ALJ erroneously discounted his testimony concerning
his subjective symptoms. The ALJ determined that although Mackie’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms, Mackie’s
statements concerning the intensity, persistence, and limiting effects of the symptoms were
not credible to the extent that they were not consistent with the objective medical evidence
in the record. R. 20. Despite this unfortunate phrasing, the ALJ carefully articulated the
inconsistent evidence. Mackie collected unemployment benefits, performed work around his
home, drove, camped, and played board games. The ALJ noted that Mackie’s own doctor
observed that he was healthy, vigorous, and in no acute distress.
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.” Murphy v. Colvin,
759 F.3d 811, 816 (7th Cir. 2014), as amended, (Aug. 20, 2014), reh’g denied, (Oct. 10, 2014).
The court affords ALJ credibility determinations deference because ALJs are in the unique
position to hear, see, and assess witnesses. Id. at 815 (citing Shideler v. Astrue, 688 F.3d 306,
311 (7th Cir. 2012)).
As an initial point, Mackie did not sufficiently develop a credibility argument in his
brief, and the court could disregard this argument as waived. See United States v. Lanzotti, 205
F.3d 951, 957 (7th Cir. 2000) (“[P]erfunctory and undeveloped arguments, and arguments
that are unsupported by pertinent authority, are waived.”). But even if the argument were
not waived, it is nonetheless unpersuasive. The ALJ gave several satisfactory reasons for
discrediting Mackie’s hearing testimony. The ALJ referred to Mackie’s daily activities, the
fact that he applied for unemployment, and Dr. Schnell’s treatment notes. R. 20-21.
Although the ability to perform daily activities is not necessarily indicative of Mackie’s ability

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to return to full-time work, such evidence does go to his credibility, which is how the ALJ used
that evidence here. The ALJ’s determination was not patently wrong.

ORDER
IT IS ORDERED that the decision of Carolyn W. Colvin, Acting Commissioner of
Social Security, denying plaintiff Brian William Mackie’s application for disability benefits
and supplemental security income is AFFIRMED and Mackie’s appeal is DISMISSED. The
clerk of court is directed to enter judgment in favor of defendant and close this case.
Entered November 18, 2015.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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