Koonce v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION

PENNY KOONCE, )

)

Plaintiff, )

)

v. ) No. 18-cv-3095

)

ANDREW SAUL, Commissioner )

of Social Security,1 )

)

Defendant. )

OPINION

TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE:

Plaintiff Penny Koonce appeals from the denial of her application for

Social Security Disability Insurance Benefits (DIB) under Title II and

Supplemental Security Income (SSI) under Title XVI of the Social Security

Act (collectively Disability Benefits). 42 U.S.C. §§ 416(i), 423, 1381a and

1382c. This appeal is brought pursuant to 42 U.S.C. §§ 405(g) and

1383(c). Koonce filed a Motion for Summary Reversal (d/e 19). The

Defendant Commissioner filed a Motion for Summary Affirmance (d/e 24).

The parties have consented to proceed before this Court. Consent to the

Exercise of Jurisdiction by a United States Magistrate Judge and

1 The Court takes judicial notice that Andrew Saul is now Commissioner of Social Security. As a result,

Commissioner Saul is automatically substituted in as the appropriate party. Fed. R. Civ. P. 25(d).

Reference Order entered May 14, 2018 (d/e 8). For the reasons set forth

below, the Decision of the Commissioner is AFFIRMED.

STATEMENT OF FACTS

Koonce was born on March 7, 1973. She completed the 10th grade.

She previously worked at a Subway restaurant, two gas stations, and a

retail store. She worked as a cashier, sandwich maker, and baker at these

places. She has not worked at any substantial gainful activity since

January 18, 2013.2 She suffers from obesity, diabetes, degenerative disc

disease, degenerative joint disease, sleep apnea, migraine headaches,

fibromyalgia, depression, bipolar disorder, and anxiety disorder. R. 18, 24,

31, 350, 363.

On November 27, 2013, Koonce saw Nurse Practitioner Sandra

Brummet, FNP-BC, in the office of Dr. Manjeshwar B. Prabhu, M.D. R.

545-46. Koonce said that she hurt her left knee getting out of her van. She

said her knee had been hurting for a while. She said that it gave way and

she often had to catch herself to keep from falling. She reported that she

had a knee injury when she was in high school. She wore a splint and said

that it helped. She tried ice and ibuprofen but that did not help much. On

2 Koonce filed prior applications for Disability Benefits on July 24, 2008, and May 23, 2011. The

adjudications of the prior applications determined that she was not disabled through January 17, 2013.

R. 119-39, 144-69, 350.

examination, Koonce weighed 217 pounds with a body-mass-index of

39.93. Koonce had some crepitus with extension of the left knee. She was

“not overly tender with palpation.” Brummet saw no sign of injury to the

knee. R. 545. Brummet prescribed meloxicam for pain and recommended

an MRI and physical therapy. Brummet said she could not afford an MRI

and, in the past, physical therapy did not work and made things worse. R.

546.

On March 31, 2014, Koonce saw Nurse Practitioner Brummet. R.

541. Koonce reported that she woke up about 4:00 a.m. with a migraine

headache. She was somewhat nauseous. She said that she got one

migraine a month. She normally got through a migraine with some

ibuprofen. She said she also had been taking Depakote and propranolol.

Koonce requested a Toradol injection and Brummet gave her the shot.

Brummet told Koonce to go home and rest. R. 542.

On June 2, 2014, Koonce saw Dr. Prabhu at an office visit for a

medication check. Koonce reported problems sleeping. On examination,

Koonce had normal strength, gait, and stance. She had intact sensation.

Dr. Prabhu renewed her medications. He recommended avoiding caffeine

and recommended an insomnia class. R. 538-39.

On June 9, 2014, Koonce went to the emergency room at Taylorville

Memorial Hospital (Taylorville Memorial) in Taylorville, Illinois. R. 433. She

saw Dr. Anna McCormick, M.D. She complained of a headache that had

lasted three days. She reported that she had her last migraine headache

over a month earlier. Her migraine medication of Diproxen and Propranolol

did not help. She said that lights and sound bothered her. She also said

she was nauseous. She rated her pain at an 8 out of 10. R. 433. Her

neurological examination was normal. Her strength was 5/5. Dr.

McCormick administered Toradol, Reglan, and Benadryl intravenously

followed by morphine and Zofran. Dr. McCormick discharged her with a

prescription of Zofran and Imitrex. Koonce had a normal gait at discharge.

Dr. R. 434.

On June 19, 2014, Koonce saw Dr. Prabhu for a follow up after

insomnia class. She reported getting up at night to go to the bathroom and

get a drink, but she said she fell back asleep. She reported some daytime

sleepiness. Dr. Prabhu said her bipolar medication Seroquel could cause

the daytime sleepiness. On examination, she had normal, strength, gait,

and stance. Dr. Prabhu advised her on improving her sleep habits. R. 536.

On August 1, 2014, Koonce saw Dr. Mark Stern, M.D. Koonce

reported lower back pain with pain into the right buttock and into both legs

for the last four months. She reported that she had difficulty with balance

and that her legs gave out on her. She said she fell four or five times. If

she stood for 10 minutes, she started having pain in her legs. She had

pain sweeping and mopping. Dr. Stern said x-rays showed narrowing of

the L5 neural foramina. He said an MRI had already been done that

showed degenerative disc disease. Dr. Stern suggested surgery or

epidural steroid injections. On examination, Koonce could walk on both her

heels and her toes. Straight leg test was negative. Her reflexes were 0/4

in knees and ankles. Dr. Stern recommended that her primary care

physician Dr. Prabhu refer Koonce for epidural steroid injections and a

surgical consultation. R. 527-28.

On August 6, 2014, Koonce went to the emergency room at

Taylorville Memorial complaining of stress. She saw Dr. Paul R. Pfeiffer,

D.O. She denied any suicidal or homicidal ideations and reported that she

had chronic bipolar depression. She did not have a headache, but said she

had migraines on and off for the last couple of days. She refused to see a

counselor and indicated she would talk to Dr. Prabhu later. She asked for

something to sleep and go home. The doctor gave her Benadryl

intravenously and discharged her. R. 482-83.

On the same day, August 6, 2014, Koonce also saw Dr. Prabhu for

chronic low back pain and frequent falls. R. 525-26. Koonce said her left

knee was giving way. R. 525. On examination, Koonce had no swelling in

her legs and her motor strength, gait, and strength were normal. The range

of motion of her knees and her back were preserved. She had crepitus in

her left knee, but no fluid. Dr. Prabhu stated that Dr. Stern gave Koonce a

cane for ambulation, but she was not using it. Dr. Prabhu cited non-use of

the cane as one reason she may be falling. Dr. Prabhu ordered x-rays and

scheduled an EMG/nerve conduction study of her back. R. 525-26.

On August 19, 2014, neurologist Dr. Claude Fortin, M.D., performed

an EMG/nerve conduction study. The study showed mild left L5

radiculopathy. R. 524.

On August 29, 2014, Koonce saw Physician’s Assistant Nicole

Venvertloh, PA-C in the offices of orthopedic surgeon Dr. Diane Hillard-

Sembell, M.D. R. 521-23. Koonce saw Venvertloh for left knee pain.

Koonce said she had the pain for the preceding month and periodically

since she was a child. She said she tried physical therapy, but that made it

worse. She tried the heat and medication Dr. Stern prescribed, but they did

not work. She said the knee gave way. She denied numbness or tingling

down her legs. She said the knee popped and caught on her. On

examination, the left knee was tender to palpation. The patella

demonstrated crepitus and lateral tracking. Range of motion was normal

with pain with extension. Stress testing was stable. Sensation was intact.

No foot drop was present. Pulses were 2+. Koonce had a positive patellar

apprehension. X-rays and MRI showed a laterally tracking patella.

Venvertloh administered an injection into the knee. Venvertloh prescribed

physical therapy to strengthen and stretch Koonce’s leg muscles. R. 522.

On September 15, 2014, Koonce went to the emergency room at

Taylorville Memorial. R. 586-87. She said she had elevated blood sugars

in the 300s. She reported diarrhea and fatigue. She denied any vomiting

or fevers. R. 586. Her examination was unremarkable except for blood

sugar level of 228. Dr. McCormick gave Koonce insulin and discharged

her. She was feeling better. R. 587.

On September 19, 2014, Koonce saw a physical therapist for an

initial evaluation for left knee pain and acute low back pain. Koonce

reported that she hurt her knee at age 13. She said she fell six times in the

past twelve months. She told the therapist that her knee was “growing in”

probably because a disc in her lower back was gone, and her hip was

growing into her vertebra. Koonce reported that an MRI and x-ray were

both negative. R. 579, 582. On examination, she had an antalgic gait, but

she did not use her cane when she walked. Koonce had limited range of

motion in her trunk. She had poor strength in her abdominal muscles. Her

left hip strength was 4-/5, her left knee strength was 4/5 and her left ankle

strength was 4+/5. R. 579-81.

The physical therapist scheduled a course of four weeks of outpatient

physical therapy. R. 583. Koonce did not return for any of the scheduled

physical therapy appointments. After three consecutive absences without

any calls to cancel or reschedule, the planned physical therapy sessions

were discontinued. R. 584-85.

On September 25, 2014, Koonce saw Nurse Practitioner Brummet.

Koonce reported a migraine headache that started the day before. Koonce

said her insurance would not pay for Imitrex. Koonce also had Depakote.

Koonce asked about changing medications. R. 624. Brummet gave

Koonce a Toradol injection and prescribed Imitrex to see if the insurance

would now cover the medication. R. 626.

On September 30, 2014, Koonce saw Physician’s Assistant

Venvertloh for a follow up. R. 623-24. Koonce said the injection she

received at the last visit on August 29, 2014, helped with the pain slightly.

Koonce said the shot lowered the pain from 10/10 to 7/10. Koonce denied

any numbness or tingling; popping, catching, or locking; giving out or giving

way. On examination, Koonce’s left knee was not inflamed, but was tender

to palpation. Her patella demonstrated crepitus with a positive patellar

apprehension test. Stress testing was stable. Other tests were normal.

Venvertloh recommended viscosupplementation. R. 624.

On October 4, 2014, Koonce saw state agency psychologist Dr.

Delores Trello, Psy.D., for a mental status examination. R. 557-61. Dr.

Trello found that Koonce had bipolar disorder and was depressed. Dr.

Trello also found that she had anxiety disorder and a history of drug and

alcohol abuse. Koonce stopped all illegal drug use in 1998. Dr. Trello

found that Koonce did well on her mental status examination. R. 561.

On October 28, 2014, Koonce saw Physician’s Assistant Venvertloh,

for her third Hyalgan injection into her knee.3 Koonce reported some mild

improvement from the injections. Koonce had no post-injection

inflammation. R. 617-18.

On October 29, 2014, Koonce saw state agency physician Dr. Vittal

Chapa, M.D., for a consultative examination. Koonce said that she had

back pain. She said she had narrowing of the spine. She reported having

no cartilage in her left knee. She said that she used a cane because her

3 Hyalgan is brand name of hyaluronan, a visco supplementation medication injected into affected joints.

See Dorland’s Illustrated Medical Dictionary (32d ed. 2012), at 875.

left knee gave out on her. Koonce stated she was told not to walk without a

cane. She said she had headaches two to three times a month and they

lasted for three days. On examination, Dr. Chapa asked her to walk

without a cane. She limped and complained of left knee pain. Dr. Chapa

stated that it appears that she needs a cane for ambulation. Koonce’s

knee and ankle reflexes were absent. Her triceps, biceps, and brachial

radialis reflexes were 1+. Koonce had no joint redness or heat. She had

crepitation on palpation of the left knee joint. The joint appeared to be

stable. Koonce’s hand grip was 5/5 bilaterally and she could perform fine

and gross manipulation with both hands. Her lumbosacral range of motion

was limited. Koonce had full range of motion in all other joints including her

knees. Dr. Chapa said that subjectively Koonce said she could not feel

pinprick sensation in her extremities and also her chest. Dr. Chapa

assessed internal derangement of the left knee. R. 562-64.

On October 8, 2014, state agency psychologist Dr. Ronald Havens,

Ph.D., completed a Psychiatric Review Technique and Mental Residual

Functional Capacity Assessment. R. 177-78, 181-83. Dr. Havens opined

that Koonce had affective disorders and anxiety disorders. He opined that

these disorders resulted in mild restrictions on daily living and moderate

difficulties in maintaining social functioning and concentration, persistence

or pace. Dr. Havens opined that Koonce did not have any episodes of

decompensation of extended duration. R. 177. Dr. Havens opined:

Claimant is fully oriented, free of thought disorder, free of

cognitive deficits, able to competently complete [activities of

daily living]. Claimant would have no difficulty understanding

and remembering well enough to engage in detailed

assignments but can only persist adequately enough to perform

repetitive, routine tasks. Claimant has adequate, though limited,

social skills but reports being anxious around groups of people

and should not be expected to deal with the general public.

Claimant can adjust to minor routine changes in a routine work

environment.

R. 183.

On November 6, 2014, state agency physician Dr. Towfig Arjmand,

M.D., prepared a Physical Residual Functional Assessment of Koonce. R.

179-81, 192-94. Dr. Arjmand opined that Koonce could occasionally lift 10

pounds and frequently lift 10 pounds; stand and/or walk two hours in an

eight-hour workday; sit for six hours in an eight-hour workday; occasionally

stoop, crouch, and crawl; and never climb ladders, ropes, and scaffolds;

and she should avoid concentrated exposure to hazards such as

machinery or heights. R. 180-81.

On November 10, 2014, Koonce saw orthopedic surgeon Dr. Stephen

Pineda, M.D., for an evaluation due to low back pain. R. 613-17. Koonce

said she had back pain that went into her legs. She had to use a cane to

walk. She said the pain was so bad she could barely move her leg. She

said she received injections from Dr. Stern, but they did not help. Dr.

Pineda said that her x-rays showed mild degenerative changes at L5-S1.

He noted, “There is a question of a L5 radiculopathy identified by Dr. Fortin

on EMG.” R. 615. On examination, Koonce could stand and walk. She

fired her hip, knee, and ankle flexion. She had intact light touch sensation.

Movement of her left leg generated pain. She had 4/5 strength. Dr. Pineda

ordered an MRI. R. 616.

On November 19, 2014, Koonce had an MRI of her lumbar spine. It

showed a mild disc bulge and hypertrophic facet progression at L4-5, now

with mild canal stenosis. R. 577.

On November 24, 2014, Koonce saw Dr. Pineda for follow up on an

MRI of her lumbar spine. R. 609-11. Dr. Pineda said that the MRI did not

show any major canal or foraminal stenosis. He said that good disc height

was present. Dr. Pineda said that the MRI was “nearly normal.” Dr. Pineda

said that her pain was not due to spinal etiology. He did not know the

source of her pain. He recommended seeing Dr. Fortin for pain

management. R. 612.

On January 21, 2015, Koonce saw Dr. Fortin for back and leg pain.

Koonce reported that she had back and leg pain since 2003. She said that

the pain had slowly worsened over time. She was getting numbness and

tingling in her foot. She had heavy use of her cane in the past year. Her

leg gave out and she fell at times. Dr. Fortin reviewed a prior EMG study

and MRI. The EMG showed left L5 radiculopathy, and the MRI showed

mild spinal stenosis at L4-5. R. 606. On examination, Koonce had normal

muscle tone and bulk; 5/5 strength in all four extremities without

pathological reflexes; absent biceps, triceps, brachiaroadialis and patellar

reflexes; intact sensation to pin touch; intact toe, heel gait; and normal

neurological examination. Dr. Fortin prescribed a lumbar epidural steroid

injection and another EMG study. R. 609.

On January 27, 2015, Dr. Fortin gave Koonce a lumbar epidural

steroid injection. R. 573-74.

On January 30, 2015, Koonce saw Physician’s Assistant Venvertloh

for left knee pain. R. 603-05. Koonce reported that she was doing well

after a course of Hyalgan injections completed in October 2014. She

reported that she started having pain after her consultative examination.

She said she felt something pop while the doctor manipulated her knee

during the examination. She said she had intermittent popping and

catching. She denied any numbness and tingling down her leg. She also

denied that her leg was giving way. R. 604. On examination, sensation

was intact, no drop foot noted, tender to palpation, normal range of motion,

stress test was stable, and hip range of motion was normal without pain.

Venvertloh gave Koonce a steroid injection in her knee. R. 604-05.

On February 18, 2015, Dr. Fortin performed an EMG/nerve

conduction study of Koonce. Dr. Fortin said that the study was

unremarkable with no evidence of any lumbar radiculopathy, lumbosacral

plexopathy or polyneuropathy. R. 602. Dr. Fortin commented that her

symptoms were suspicious for lumbar facet syndrome. R. 602.

On February 24, 2015, Dr. Fortin performed a facet block at L4-5 and

L5-S1. R. 571-72.

On March 6, 2015, Koonce saw Physician’s Assistant Venvertloh for

left knee pain. R. 599-601. Koonce reported that an injection in her knee

that she received in January 2015 did not provide any relief. She reported

that a course of Hyalgan injections and physical therapy did not provide

any relief. She denied any numbness or tingling down her leg. Venvertloh

stated that an MRI showed no meniscal tearing or ligament tears in her

knee. R. 600. An x-ray of her both of her knees showed mild osteoarthritis

and no acute abnormalities. R. 658-59. On examination, her knee was not

inflamed and was mildly tender on palpation. Range of motion was normal

and did not produce pain. Sensation was intact. Stress test was stable,

and no foot drop was present. Venvertloh assessed knee pain. R. 600.

Venvertloh prescribed a knee brace. Venvertloh recommended a follow up

with Dr. Hillard-Sembell to discuss treatment options. R. 601.

On April 15, 2015, Koonce saw Nurse Practitioner Kristina Rexroad,

N.D. for an office visit in the offices of endocrinologist Dr. Kevin Hazard,

M.D. Koonce saw Nurse Practitioner Rexroad for a consultation on her

uncontrolled diabetes type 2. Koonce reported that she had peripheral

neuropathy. On examination, Koonce had diminished sensation in her feet

with monofilament and vibratory testing. R. 668-72.

On April 21, 2015, Koonce saw orthopedic surgeon Dr. Hillard-

Sembell for a recheck of her left knee pain. R. 674-75. Koonce reported

walking a lot in the prior few days. She reported that her pain was 9/10. R.

674. Dr. Hillard-Sembell stated that Koonce completed a course of three

visco supplementation injections. Koonce said the injections did not work.

She reported pain with stairs. On examination, Koonce was obese with an

antalgic gait. She had crepitus and pain with palpation of the left knee.

Her strength was intact and she had poorly developed quad musculature

with hip weakness. Dr. Hillard-Sembell assessed osteoarthritis with knee

pain. Dr. Hillard-Sembell told her she was not a candidate for surgery

because of her age and weight. Dr. Hillard-Sembell recommended

physical therapy and corticosteroid injections when necessary. Dr. Hillard-

Sembell stated she needed formal guidance from Dr. Prabhu for weight

loss and possibly a dietitian or bariatric program. R. 675.

On May 14, 2015, state agency psychologist Dr. Lionel Hudspeth,

Psy.D., prepared a Psychiatric Review Technic and Mental Residual

Functional Capacity Assessment. Dr. Hudspeth arrived at the same

opinions Dr. Havens did in October 2014. R. 207-09, 212-14.

On May 15, 2015, state agency physician Dr. Reynaldo Gotanco,

M.D., prepared a Physical Residual Functional Capacity Assessment. R.

210-12. Dr. Gotanco opined that Koonce could lift 20 pounds occasionally

and 10 pounds frequently; stand and/or walk for six hours in an eight-hour

workday; sit for six hours in an eight-hour workday; frequently stoop,

crouch, and crawl; never climb ladders, ropes, or scaffolds; and she should

avoid concentrated exposure to hazards such as machinery or heights. R.

210-11.

On December 12, 2015, Koonce saw Dr. Prabhu for a check-up.

Koonce reported problems sleepwalking. She said, however, she was

sleeping better at night. She denied taking day-time naps. On

examination, she had normal motor strength, gait, and stance. Dr. Prabhu

adjusted her medications and discussed insomnia management. R. 705-06.

On January 16, 2016, Koonce saw Dr. Prabhu for a check-up.

Koonce reported that her grandmother died shortly after Christmas. She

experienced some depression and weight gain. On examination, Koonce

had normal motor strength, gait, and stance. Dr. Prabhu adjusted her

insulin and reviewed insomnia management. R. 703.

On February 19, 2016, Koonce saw Dr. Prabhu. Koonce complained

of feeling tired and exhausted. She said she slept through the night “with

consolidated sleep.” She denied taking naps during the day. She said,

though, that she started to work on her diet. She had improvement in her

energy level. R. 697. On examination, Koonce had no swelling in her feet

and ankles. Her pulses and sensations were preserved in both feet, but

she had some symptoms of numbness and tingling with neuropathy.

Koonce’s musculoskeletal examination was normal with no swelling; her

motor strength was normal, and her gait and stance were normal. R. 698-

99. Dr. Prabhu adjusted her medications and discussed behavioral and

dietary changes to address her diabetes and weight loss. R. 700.

On March 21, 2016, Koonce saw Dr. Prabhu for a follow up on her

diabetes. She was not following instructions of behavioral changes to

reduce her blood sugar. On examination, Koonce had normal motor

strength, gait, and stance. R. 695. Dr. Prabhu recommended diet,

exercise, and hydration to lower blood sugar. Dr. Prabhu also

recommended seeing a counselor. R. 696.

On April 1, 2016, Koonce had an MRI of her lumbar spine. The MRI

showed mild degenerative disc disease and facet arthropathy, worst at L4-

05, not significantly changed from the MRI in 2014. R. 741.

On April 12, 2016, Dr. Fortin gave Koonce a lumbar epidural steroid

injection. R. 802-04.

On June 30, 2016, Koonce went to Taylorville Memorial with

complaints of back pain. She saw Dr. David Harvey, M.D. She said the

pain was moderate and radiated into her left thigh. She said it started two

days earlier. She said she had no sensory loss or motor loss. On

examination, Koonce had moderate tenderness in her upper and mid

lumbar region. She had painless range of motion. Dr. Harvey found no

muscle spasm or limitation of range of motion. Koonce’s upper extremities

had normal range of motion and no tenderness. R. 801. Dr. Harvey

assessed a muscle strain of the lower back. He prescribed pain medication

and recommended follow up in three days with Koonce’s primary care

physician. R. 802.

On July 25, 2016, Koonce saw Nurse Practitioner Brummet for a

follow up of an emergency room visit. Koonce reported pain in her left arm

that went into her chest and neck. Brummet said that she sent Koonce to

the emergency room. All of the emergency room tests came back

negative. On examination, Koonce could not raise her left arm more than

30 degrees before the movement caused pain. She was tender to

palpation of her shoulder and into her chest. Brummet ordered x-rays of

Koonce’s left shoulder. R. 689-700. The x-ray showed a normal left

shoulder. R. 771.

On August 21, 2016, Koonce went to Taylorville Memorial

complaining of moderate left shoulder pain. Koonce saw Nurse Practitioner

Susan Willer, N.P. Koonce said she had been unable to sleep for two

nights because of the pain. On examination, Koonce had moderate

tenderness in her left shoulder. Her left shoulder range of motion was

limited due to pain. Koonce was able to perform all ranges of motion

except raising her arm above her head due to the pain. Koonce’s

sensation was intact. Willer prescribed Toradol tablets for pain. She

instructed Koonce to follow up with Dr. Prabhu. R. 796-97.

On September 16, 2016, Koonce had an MRI of her left shoulder.

The MRI showed a prominent labral cyst creating a risk of impingement.

The cyst implied a labral tear but no tear could be seen. R. 794.

On October 19, 2016, Koonce saw Dr. Fortin. For a follow up.

Koonce reported that medical cannabis use reduced her limb pain but did

not affect her headaches. Dr. Fortin said Koonce was using a left knee

brace and a cane. R. 1064. On examination, Koonce’s strength was 5/5

throughout. Dr. Fortin assessed that Koonce’s fibromyalgia improved with

cannabis and her migraines improved with medication. He told her to

continue her current regimen. R. 1065-66.

On November 10, 2016, Dr. Fortin completed a Physical Residual

Functional Capacity Questionnaire. R. 1053-56. Dr. Fortin opined that

Koonce could tolerate working at a low stress job. He said she could walk

two blocks without pain. He opined that she could sit or stand for one hour

straight, could sit for a total of six hours in an eight-hour workday, and

could stand for a total of two hours in an eight-hour workday. He opined

that Koonce would need to stand every hour and walk for 10 minutes

before sitting again. R. 1054. Dr. Fortin opined that Koonce could

occasionally lift 20 pounds and frequently lift 10 pounds. R. 1055. He

opined that Koonce could never crouch, squat, or climb ladders; and could

rarely twist, stoop, or climb stairs. He opined that she had no limitations on

her ability to use her hands for fine and gross motor skills. He said that she

was limited to reaching with both arms to 50% of the time in an eight-hour

workday. Last, Dr. Fortin opined that Koonce had good days and bad days

and would be absent from work more than four days a month. R. 1055-56.

THE EVIDENTIARY HEARING

On November 8, 2016, the Administrative Law Judge (ALJ)

conducted an evidentiary hearing. R. 39-82. Koonce appeared with her

attorney. Vocational expert James Lanier also appeared. R. 41. The ALJ

gave Koonce 14 days after the hearing to file additional evidence. R. 42.

During this 14-day period, Koonce filed Dr. Fortin’s November 10, 2016,

Physical Residual Functional Capacity Questionnaire.

Koonce testified at the Evidentiary Hearing. Koonce was 43 at the

time of the hearing. She weighed 220 pounds. She was right-handed and

lived with her husband in a house. No one else lived in the house. R. 44.

Koonce testified she was on the County Board. She was paid $75 a month

to attend monthly meetings. She had a 10th grade education. Koonce did

not drive. She was in special education classes throughout her education,

including in high school. Koonce testified that she had dyslexia. She had

not worked since January 18, 2013, except for her duties on the County

Board. R. 45-46.

Koonce testified that she could not work because she could not stand

without her cane and she could not sit for very long. She said her

medication sometimes helped and sometimes did not. R. 48-49. Her knee

and back pain were constant. Her knees hurt worse than her back. The

right knee hurt worse than the left. She had injections in both her knees

and her back. The first ones helped a little, but it was temporary. R. 52-53.

She testified that she had physical therapy, but her therapist told her not to

come to the last session because the therapy was not helping. She said

that she used a cane and a knee brace. She testified that both were

prescribed. She thought the cane was prescribed by Dr. Prabhu.

R. 50. She said heat sometimes helped with the pain. R. 54.

Koonce said her legs became stiff while she slept overnight. She

had to sit on the side of the bed for 10 minutes before standing up. She

said that her legs took an hour thereafter to feel back to normal. Her feet

were always swollen. R. 69-70. Koonce said that she had tingling in her

legs all the time, and numbness in her back most of the time. R. 71. The

tingling on her right leg went from her knee down to her foot. Koonce said,

“The left [leg] is like all in one, pain, tingling, numbness.” R. 72.

Koonce testified that moving made her pain worse. She said nothing

made the pain better. Her best position was “slouched over sitting.” R. 53.

She indicated she could sit for an hour. She said she would have to “walk

it out” before she could sit down again. She could possibly walk half a

block. She had pain lifting a gallon of milk with her left arm. Her shoulder

and elbow were weak. R. 55. She held her cane in her right hand. R. 56.

She said she could not lift her left arm above her shoulder without it hurting.

She dropped items such a pitcher of tea. R. 67. Physical therapy made

her arm worse. R. 69.

Koonce said that she could sweep only one room before her back

would start to hurt. She could wash “a little bit of dishes” and then her back

would hurt, so she would lean on the sink. R. 56. She could not do laundry

or run a vacuum. She tried planting in the garden. She also picked

vegetables from the garden with her granddaughter. She did not do other

gardening or yard work. R. 57. Koonce did grocery shopping with her

husband. She leaned on the cart while they were in the grocery store. R.

58.

Koonce indicated she had trouble taking care of her hair and getting

dressed by herself. Her problems with her left arm limited her ability to do

these things and her husband helped her with these tasks. R. 60-61.

Koonce said that she used the cane to keep steady when walking.

She also needed the cane to stand for any length of time. She said:

My left hip is growing in sideways and my right knee is growing

in sideways, so I'm off balance, but the left knee does give out

and it comes without, you know, without warning. I can just be

standing there. I mean, I fell down my house -- my stairs at my

house, I fell down my daughter 's stairs at her house.

R. 68.

Koonce said that her grandchildren visited her at her home. She said

the grandchildren stayed if her husband was home. They did not stay with

her alone. R. 57-58. She visited her mother. Her mother lived 20 to 25

minutes away. Her husband drove her there. R. 58. Koonce said that she

watched television and moved around to try to get comfortable. She did

not use a computer. R. 59.

She did not go out in public often because she was embarrassed

about using a cane. R. 61. She also became anxious in large groups.

She said that she had anxiety attacks when she worked at the Subway

restaurant. She said that she had anxiety attacks twice a month. R. 62.

Koonce had migraine headaches once a week. She then said that

her migraine headaches usually lasted an hour and that her prescribed

medication worked “pretty good.” Once a month, the medication did not

work. She said that in that case she usually had to go to the emergency

room for a Toradol injection. She last got a Toradol injection a year before

the hearing. R. 72.

Koonce said that she also had diarrhea three times a week. She said

that when she had diarrhea, she usually made about 10 trips to the

bathroom. R. 73.

Vocational expert Lanier then testified. The ALJ asked Lanier the

following question:

I would like you to consider a hypothetical claimant of the

same age, education, and having the same past work as this

claimant limited to a range of light work with no climbing

ladders, ropes, or scaffolds; occasional ramps and stairs;

occasional stooping; avoid concentrated exposure to hazards.

Limited to simple routine repetitive tasks of unskilled

work; occasional interaction with coworkers and supervisors; no

interaction with the public; occasional overhead reaching

bilaterally; no concentrated exposure to fumes, odors, dust,

gases, poor ventilation, or temperature extremes; no

concentrated exposure to loud factory level noise or bright

focused lighting such as a spotlight.

Based on this residual functional capacity, could she

perform her past work as a cashier, assistant manager, or

sandwich maker?

R. 76-77. Lanier opined that the person could not do Koonce’s prior work.

R. 77. Lanier opined that the person with Koonce’s RFC could perform the

jobs of router, with 3,415 such jobs in Illinois and 74,463 in the nation; mail

sorter, with 1,200 such jobs in Illinois and 32,000 in the nation; routing

clerk, with 1,700 such jobs in Illinois and 112,000 in the nation; addresser,

with 500 such jobs in Illinois and 18,829 in the nation; surveillance system

monitor, with 1,604 such jobs in Illinois and 55,747 in the nation; and

document preparer, with 3,248 such jobs in Illinois and 66,430 in the

nation. Lanier opined that all of these jobs would have a sit/stand option;

the person could change position between sitting and standing while

working. R. 77-78.

Lanier opined that the person could be off-task 5 to 10 percent of the

workday and could miss one and one-half days of work a month. Lanier

opined that the person could perform the representative jobs identified if

she was limited to occasional reaching with her non-dominant left arm.

Lanier opined that even if the person could not use her left arm at all, the

person could perform the addresser job. Lanier could not say whether the

person could work if she was limited to lifting five pounds. R. 80.

Koonce’s attorney asked the following question about use of a cane

and received the following answer:

Q Okay. Would the claimant's -- or the hypothetical

individual' s need to use a cane when standing or walking,

which would mean that I think she's - - if the person used it in

their dominant hand, so they couldn't use their dominant hand

for anything while walking or standing, how would that affect the

ability to do those jobs?

A Well, the thing of is it's going to be difficult answering

that question because I do not know how much of walking

these jobs are going to entail. They may not entail very much.

R. 80-81. The hearing ended.

THE DECISION OF THE ALJ

The ALJ issued her decision on February 9, 2017. R. 16-33. The

ALJ followed the five-step analysis set forth in Social Security

Administration Regulations (Analysis). 20 C.F.R. §§ 404.1520, 416.920.

Step 1 requires that the claimant not be currently engaged in substantial

gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If true, Step 2

requires the claimant to have a severe impairment. 20 C.F.R. §§

404.1520(c), 416.920(c). If true, Step 3 requires a determination of

whether the claimant is so severely impaired that he is disabled regardless

of his age, education and work experience. 20 C.F.R. §§ 404.1520(d),

416.920(d). To meet this requirement at Step 3, the claimant's condition

must meet or be equal to the criteria of one of the impairments specified in

20 C.F.R. Part 404 Subpart P, Appendix 1 (Listing). 20 C.F.R. §§

404.1520(d), 416.920(d). If the claimant is not so severely impaired, the

ALJ proceeds to Step 4 of the Analysis.

Step 4 requires the claimant not to be able to return to his prior work

considering his age, education, work experience, and Residual Functional

Capacity (RFC). 20 C.F.R. §§ 404.1520(e) and (f), 416.920(e) and (f). If

the claimant cannot return to his prior work, then Step 5 requires a

determination of whether the claimant is disabled considering his RFC,

age, education, and past work experience. 20 C.F.R. §§ 404.1520(g),

404.1560(c), 416.920(g), 416.960(c). The claimant has the burden of

presenting evidence and proving the issues on the first four steps. The

Commissioner has the burden on the last step; the Commissioner must

show that, considering the listed factors, the claimant can perform some

type of gainful employment that exists in the national economy. 20 C.F.R.

§§ 404.1512, 404.1560(c); Weatherbee v. Astrue, 649 F.3d 565, 569 (7th

Cir. 2011); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir.

2005).

The ALJ found that Koonce met her burden at Steps 1 and 2.

Koonce had not engaged in substantial gainful activity since January 18,

2013. The $75 per month as a member of the County Board was not

substantial gainful activity. Koonce also suffered from the severe

impairments of obesity, diabetes, degenerative disc disease, degenerative

joint disease, sleep apnea, migraine headaches, fibromyalgia, depression,

bipolar disorder, and anxiety disorder. R. 18. At Step 3, the ALJ found

that Koonce’s impairments or combination of impairments did not meet or

equal any Listing. R. 19-23.

At Step 4, the ALJ found that Koonce had the following RFC:

After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to

perform sedentary work as defined in 20 CFR 404.1567(a) and

416.967(a) except she cannot climb ladders, ropes, or

scaffolds; she can occasionally climb ramps and stairs; she

must avoid concentrated exposure to hazards. She is limited to

simple, routine, repetitive tasks of unskilled work. She is limited

to occasional interaction with coworkers and supervisors, and

no interaction with the public. She is limited to occasional

overhead reaching with the left arm. She can have no

concentrated exposure to fumes, odors, dust, gases, poor

ventilation, or temperature extremes. She cannot have

concentrated exposure to loud factory level noise or bright

focused lighting such as a spotlight.

R. 23. The ALJ relied on the repeated findings in medical examinations of

normal strength, gait, stance, and range of motion. The ALJ relied on the

September 2016 MRI of her shoulder and the August 21, 2016 emergency

room visit in which she had full range of motion with her arms except for

reaching overhead to limit her ability to reach overhead with her left arm.

She relied on the x-rays and MRIs of her back that showed mild

degenerative changes. She relied on the August 2014 X-ray and MRI of

her knee that showed only a small joint effusion but no tears or other

problems with her knee. She also relied on the February 2015 EMG/nerve

conduction study that showed no evidence of radiculopathy, plexopathy, or

neuropathy. She additionally relied on Dr. Fortin’s opinion of Koonce’s

lifting and standing limitations but gave little weight to the rest of his

opinions because they were not supported by the record or were

inconsistent with other evidence in the record. The ALJ gave limited weight

to the state agency physician opinions because they did not consider the

evidence of her condition after the dates of the opinions. The ALJ

specifically said that finding of an ability to perform light work was not

appropriate given Koonce’s problems with her shoulder. The ALJ found

that a limited range of sedentary work was appropriate. R. 23-31.

The ALJ found that Koonce’s statements about the degree of

functional limitations caused by her symptoms were not consistent with the

other evidence in the record and so were not given weight to the extent her

statements were not consistent with the other evidence. The ALJ

explained that her statements were inconsistent with the numerous findings

of normal strength, normal gait, normal stance, normal grip, and full range

of motion in all her joints. The ALJ indicated that she had crepitus in her

left knee, but the limitation to sedentary work addressed that concern. R.

24, 28.

The ALJ found that Koonce did not need a cane to ambulate. The

ALJ found that a need for a cane was inconsistent with the fact that she

rarely used a cane when she went to see her medical providers, numerous

examinations showed full strength in her lower extremities, the EMG testing

was normal, and she had no muscle atrophy. The ALJ found that her

prescription for a cane “appear[ed] to be result of sympathetic medical

sources acceding to her request.” The ALJ noted that she reported falls,

but did not receive any treatment for falls, and she had full range of motion

in her legs, normal strength in her legs, and only mild degenerative

changes in her back. The ALJ finally relied on the fact that Dr. Fortin

opined in his November 10, 2016, opinions that she did not need a cane to

ambulate. R. 28-29; see R. 1055 (Dr. Fortin’s opinion that Koonce did not

need a cane to ambulate).

Based on the RFC, the ALJ determined at Step 4 that Koonce could

not perform her prior work. R. 31. At Step 5, the ALJ found that Koonce

could perform a significant number of jobs in the national economy. The

ALJ relied on the Medical-Vocational Guidelines, 20 C.F.R. Part 404,

Subpart P, Appendix 2, and the opinions of vocational expert Lanier that a

person with Koonce’s RFC could perform the jobs of addresser,

surveillance systems monitor, and document preparation worker. The ALJ

relied on Lanier’s opinions that even if the person could not reach overhead

at all she could still perform these jobs, but also noted that the evidence did

not support that level of limitation on the use of Koonce’s left arm. The ALJ

concluded that Koonce was not disabled. R. 32.

Koonce appealed the ALJ’s decision. On March 2, 2018, the Appeals

Council denied her request for review. The decision of the ALJ then

became the final decision of the Defendant Commissioner. R. 1. Koonce

then brought this action for judicial review.

ANALYSIS

This Court reviews the Decision of the Commissioner to determine

whether it is supported by substantial evidence. Substantial evidence is

“such relevant evidence as a reasonable mind might accept as adequate”

to support the decision. Richardson v. Perales, 402 U.S. 389, 401 (1971).

This Court must accept the findings if they are supported by substantial

evidence and may not substitute its judgment or reweigh the evidence.

Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003); Delgado v. Bowen, 782

F.2d 79, 82 (7th Cir. 1986). This Court will not review the ALJ’s evaluation

of statements regarding the intensity, persistence, and limiting effect of

symptoms unless the evaluation is patently wrong and lacks any

explanation or support in the record. See Pepper v. Colvin, 712 F.3d 351,

367 (7th Cir. 2014); Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008);

SSR 16-3p, 2016 WL 1119029, at *1 (2016) (The Social Security

Administration no longer uses the term credibility in the evaluation of

statements regarding symptoms). The ALJ must articulate at least

minimally her analysis of all relevant evidence. Herron v. Shalala, 19 F.3d

329, 333 (7th Cir. 1994). The ALJ must “build an accurate and logical

bridge from the evidence to his conclusion.” Clifford v. Apfel, 227 F.3d 863,

872 (7th Cir. 2000).

Substantial evidence supported the ALJ’s decision. The numerous

examinations that found normal strength, range of motion, gait, and stance

supported the RFC. The imaging and EMG/nerve conduction studies that

had either normal findings or mild impairments supported the finding. The

decision was supported by the opinions of Drs. Havens, Arjmand,

Hudspeth, and Gotanco supported the RFC finding, and Dr. Fortin’s lifting

and sitting restriction opinions supported the RFC finding. The August 21,

2016 emergency room examination supported the finding that Koonce was

only limited in reaching overhead with her left arm.

Koonce argues that the ALJ improperly concluded the Plaintiff did not

require a cane. The Seventh Circuit has held that an ALJ’s failure to

address a claimant’s need for a cane may require a remand. Thomas v.

Colvin, 534 Fed.Appx. 546 (7th Cir., 2013). However, in Thomas, the Court

noted that the ALJ ignored virtually all the evidence in the record

demonstrating the need for a cane. The ALJ made a “lone” mention of a

cane in reference to a doctor’s note that the claimant “ambulates with a

cane for support and confidence”. Additionally, in Thomas the vocational

expert testified that Thomas could not perform any light work jobs as she

needed to be using a cane. The factors which necessitated a remand in

Thomas do not exist in this case. The ALJ cited substantial evidence to

support her finding that the Plaintiff’s allegation of the need to use a cane

was not consistent with the medical records. The ALJ noted that the

Plaintiff rarely had any type of assistive device with her when she sought

medical treatment and that her muscle strength in the lower extremities

was 5/5. The ALJ noted that Plaintiff obtained a cane after alleged falls

even though no treatment for a fall was mentioned in her medical reports

and the reports showed full range of motion in her extremities, normal

strength of extremities, and mild degenerative changes. Additionally, the

ALJ noted that the Plaintiff’s doctor had specifically noted that she did not

need a cane to walk. R. 28-29. Unlike the facts in Thomas, the record in

this case contained no vocational expert’s opinion that the sedentary work

recommended by the ALJ could not be performed by the Plaintiff if she

needed to use a cane. The ALJ’s finding that the Plaintiff did not require

the use of a cane is supported by substantial evidence. The Court declines

the Plaintiff’s invitation to re-weigh the evidence as the Court may not

substitute its judgment for that of the ALJ or re-weigh the evidence in this

proceeding. See Jens, 347 F.3d at 212; Delgado, 752 F.2d at 82.

The fact that Koonce often walked without a cane and Dr. Fortin’s

opinion that she did not need a cane to walk supported the RFC finding.

The lack of consistency between Koonce’s statements and the findings

discussed above supported the decision not to give weight to her

statements.

The RFC finding and the opinions of vocational expert Lanier

supported the ALJ’s determination at Step 5 that Koonce could perform a

significant number of jobs in the national economy. Substantial evidence

supported the decision.

Koonce argues that the ALJ erred in failing to consider Dr. Fortin’s

opinions properly. Koonce argues that the ALJ erred by failing to give any

weight to Dr. Fortin’s opinions that she could rarely or never perform

postural maneuvers such as kneeling, crouching, and crawling; she needed

a sit/stand option; that she would miss four days of work a month; and that

she was limited to reaching bilaterally 50 percent of the time at work. The

Court disagrees. The ALJ must give the opinions of a treating physician

controlling weight if the opinions are supported by objective evidence and

are not inconsistent with other evidence in the record. 20 C.F.R. §

404.1527(d)(2); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008).4 The

ALJ found that these opinions either were not supported by objective

medical evidence or were inconsistent with other evidence in the record.

The ALJ cited many examinations that found normal strength, range of

motion, gait, and stance; and the imaging and EMG/nerve conduction

studies that had either normal findings or mild impairments. This evidence

supported the opinions of Drs. Arjmand and Gotanco that Koonce was not

so severely limited in her ability to make postural maneuvers or that she

could sit for six hours in an eight-hour workday.

The ALJ said that the finding that she would miss four days a month

at work was not supported by the record. The Court agrees that the

objective evidence did not support this finding. There were many

subjective reports by Koonce about her headaches or her other conditions,

but the ALJ could reasonably conclude that the objective evidence did not

indicate that she would miss four days a month. Dr. Fortin’s opinion,

therefore, was not entitled to controlling weight.

4 The Commissioner amended the regulations regarding the interpretations of medical evidence. The

amendments apply prospectively to claims filed on or after the amendment’s effective date of March 27,

2017. Revisions to Rule Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, at 5844-

45 (January 18, 2017). As such, the amendments do not apply here.

Substantial evidence also supported the conclusion that she was not

limited to reaching bilaterally to only 50 percent of the time. The ALJ

correctly noted that no evidence supported any limitations in Koonce’s use

of her dominant right arm. The August 21, 2016 emergency room

examination showed that she could reach in every direction without pain

except for reaching overhead. This evidence provided substantial support

for the ALJ’s decision to reject this opinion of Dr. Fortin. Koonce also

argues that the ALJ failed to address all of Dr. Fortin’s opinions. The Court

finds that the ALJ adequately addressed the material substance of Dr.

Fortin’s opinions. The Court finds no error in not dissecting each sentence

in the four-page questionnaire that Dr. Fortin completed. See Shideler v.

Astrue, 688 F.3d 306, 310 (7th Cir. 2012) (An ALJ “need not provide a

complete written evaluation of every piece of testimony and evidence.”

(quoting Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)).

Koonce argues that the ALJ erred in giving any weight to the opinions

of Drs. Arjmand, Havens, Gotanco, and Hudspeth because they did not

review a complete record and were inconsistent with the ALJ’s RFC

determination. The Court disagrees. The ALJ recognized the fact that

these doctors and psychologists reviewed only the record up to the dates of

their opinions and adjusted the weight given to them accordingly. The

Court sees no error.

Koonce argues that the ALJ erred because each aspect of the RFC is

not reflected by a specific opinion from an appropriate medical or

psychological professional. The Court again disagrees. The ALJ is the

finder of fact. See 20 C.F.R. §§ 404.1546(c), 404.1527(e) (Commissioner

determined ultimate issue of disability, and ALJ is responsible to assess

RFC). As such, the ALJ must consider all the evidence in formulating the

RFC, not just opinion evidence. Schmidt v. Astrue, 496 F.3d 833, 845 (7th

Cir. 2007). The ALJ is also authorized to resolve conflicts between

conflicting opinions and other evidence. Diaz v. Chater, 55 F.3d 300, n.2

(7th Cir. 1995). In this case, the ALJ reasonably looked at all the evidence

and concluded that Koonce’s RFC was more limited than found by Drs.

Arjmand and Gotanco, but less limited than found by Dr. Fortin. The ALJ

adequately explained the reasons for the conclusions. The ALJ did not

“play doctor”. There was no error.

Koonce argues that the ALJ failed to support the RFC finding. The

Court explained above the substantial evidence that supported the RFC

finding. Koonce’s argument to the contrary is not persuasive.

Koonce argues that the ALJ erred in making her credibility finding.

The ALJ did not make a credibility finding. The Commission has instructed

ALJs not to make credibility findings. SSR 16-3p, 2016 WL 1119029, at *1

(2016); see Mendenhall v. Colvin, 2016 WL 4250214 (C.D. Ill. August 10,

2016) (SSR 16-3p applies retroactively to claims pending at the time of its

effective date). Rather, the ALJ determined the weight to be given to

Koonce’s statements in light of all the other evidence in the record. As

explained above, substantial evidence in the record supported the ALJ’s

conclusion. Koonce cites to other evidence in the record that she claims

did not support the decision. The Court, however, does not reweigh the

evidence. See Jens, 347 F.3d at 212; Delgado, 782 F.2d at 82. The ALJ

must explain the basis for her decision in light of all the material evidence,

and the Court must affirm if the ALJ adequately explained the basis for the

decision and substantial evidence supports the decision. Here, the ALJ

carefully discussed all the material evidence including medical evidence

cited by Koonce. See R. 19-30. The ALJ explained the reasons she

concluded that the evidence as a whole supported her findings. See R. 24,

28-31. As the Court has explained, substantial evidence supported the

ALJ’s conclusions. The Court will not reweigh the evidence. There was no

error.

THEREFORE, IT IS ORDERED that the Defendant Commissioner

Motion for Summary Affirmance (d/e 24) is ALLOWED, the Plaintiff Penny

Koonce’s Motion for Summary Reversal (d/e 19) is DENIED, and the

decision of the Defendant Commissioner is AFFIRMED. All pending

motions are denied as moot. THIS CASE IS CLOSED.

ENTER: November 21, 2019

s/ Tom Schanzle-Haskins

TOM SCHANZLE-HASKINS

UNITED STATES MAGISTRATE JUDGE