Aldeman v. Commissioner of SSA

IN THE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

ROCK ISLAND DIVISION

ANTOINETTE A.,

Plaintiff,

v. Case No. 4:20-cv-04205-JEH

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

Order

Now before the Court is the Plaintiff Antoinette A.’s Motion for Summary

Judgment (Doc. 16) and the Commissioner’s Motion for Summary Affirmance

(Doc. 19).1 For the reasons stated herein, the Court DENIES the Plaintiff’s Motion

for Summary Judgment and GRANTS the Commissioner’s Motion for Summary

Affirmance.2

I

Antoinette A. filed applications for disability insurance benefits (DIB) and

supplemental security income (SSI) on July 31, 2018, alleging disability beginning

on April 10, 2018. Her DIB and SSI applications were denied initially on September

20, 2018 and upon reconsideration on January 14, 2019. Antoinette filed a request

for hearing concerning her applications which was held on September 17, 2019

before the Honorable Susan F. Zapf (ALJ). At the hearing, Antoinette was

represented by an attorney, and Antoinette and a vocational expert testified.

1 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 14, 15).

2 References to the pages within the Administrative Record will be identified by AR [page number]. The Administrative Record

appears at (Doc. 10) on the docket.

Following the hearing, Antoinette’s claims were denied on November 8, 2019. Her

request for review by the Appeals Council was denied on July 23, 2020, making

the ALJ’s Decision the final decision of the Commissioner. Antoinette timely filed

the instant civil action seeking review of the ALJ’s Decision on September 24, 2020.

II

On her Form SSA-3368, Antoinette claimed the following conditions limited

her ability to work: rheumatoid arthritis (RA); fibromyalgia; and irritable bowel

syndrome with constipation etiology. AR 240. At the time of the hearing,

Antoinette was 45 years old and previously worked in home daycare and as a

certified medical assistant. Antoinette testified that she felt she could not work

because walking was very painful, sitting down for long periods of time caused

swelling in her legs and her skin became tight and burned, and the medication she

took to keep the swelling down caused her to use the bathroom between two to

three times per hour. She sat in a recliner most of the day and got up for “maybe”

a half hour at a time to eat or do laundry and then would return to the recliner.

AR 51. Her medications included Plaquenil3 and etodolac4, and she took over-the-

counter extra strength Tylenol whenever she was in a lot of pain.

Antoinette saw an orthopedist, Dr. Andrew Bries, and a rheumatologist, Dr.

Michael Miniter. She testified that Dr. Miniter diagnosed her with fibromyalgia in

her 20s. She said early menopause when she was 37 made her body tenderness

worse. When she experienced flare-ups, Kenalog steroid shots “calm[ed]

everything down.” AR 55. As for her knee pain, Antoinette said she just dealt with

it by walking less and climbing less steps. She continued with physical therapy

and did “little exercise[s]” with a band while sitting in a chair at home. AR 57.

3 Used for, among other things, RA. Prescribers’ Digital Reference, https://www.pdr.net/drug-

summary/Plaquenil-hydroxychloroquine-sulfate-1911 (last visited Feb. 23, 2022).

4 “[U]sed to treat mild to moderate pain, osteoarthritis, or [RA].” Drugs.com,

https://www.drugs.com/search.php?searchterm=etodolac (last visited Feb. 23, 2022).

Antoinette also explained that “with the fibromyalgia you get a lot of

depression[.]” AR 58. She said duloxetine5 helped with her depression, though she

still experienced “major depression” during a flare-up. Id. She said she had trouble

with her memory. She did not see a therapist.

Antoinette further testified that her biggest sources of pain were all over,

including in her hands and knuckles. She found relief for her pain by laying in bed

with several blankets, including an electric blanket. Upon questioning by her

attorney, Antoinette explained there was “not really much [she] can do for long

periods of time” with her hands. AR 70. She could make simple sandwiches, feed

herself, and do laundry. She limited actions with her hands so she could reserve

energy and stated she would be able to use her hands to hold, grip, and handle

things for three to four hours in a 24-hour period. She stated she would be able to

spend time on her feet for four hours, with breaks, in a 24-hour period.

III

At Step Two of the five-step disability analysis, the ALJ found Antoinette

had the following severe impairments: inflammatory arthritis; inflammatory

bowel disease; osteoarthritis; migraines; and asthma. AR 29. The ALJ

acknowledged that Antoinette had been treated for fibromyalgia, but ultimately

determined it could not be considered as a medically determinable impairment

(MDI). Id. At Step Four, the ALJ made the following residual functional capacity

(RFC) finding:

[T]he claimant as the [RFC] to perform sedentary work as defined in

20 CFR 404.1567(a) and 416.967(a) except she can only occasionally

climb ramps and stairs, and can never climb ladders, ropes, or

scaffolds. She can occasionally balance, stoop, kneel, crouch and/or

crawl. The claimant is limited to frequent but not constant handling

5 “Indicated for depression . . . and chronic musculoskeletal pain in adults; approved for fibromyalgia in

adults[.]” Prescribers’ Digital Reference, https://www.pdr.net/drug-summary/Cymbalta-duloxetine-

288 (last visited Feb. 23, 2022).

and fingering bilaterally. She must avoid concentrated exposure to

extreme cold, loud noise, such as industrial machinery, and bright,

focused lighting, such as a spotlight. Finally, the claimant must be

permitted to take an unscheduled 10-minute break once a day to use

the bathroom.

AR 30.

The ALJ detailed Antoinette’s hearing testimony, history of orthopedic

treatment for left knee patellar instability with multiple daily dislocations,

physical therapy records, treatment by an orthopedist for bilateral knee pain,

history of treatment for abdominal pain, history of rheumatoid arthritis from 2013

onward, the State medical consultants’ opinions, and primary care physician Dr.

Nancy Short’s statement in November 2018. The ALJ specifically identified

medical records dated between May 2017 and March 2019. The ALJ detailed

instances when Antoinette complained of lower back pain caused by lifting a

couch, twisting her left knee while mowing the lawn, and injuring her left knee

when climbing a fence (rather than during law mowing as she originally

described). Dr. Short wrote that she “would have to ask [Antoinette] and go by

[what Antoinette told her]” as to Antoinette’s difficulties in terms of limitations in,

among other things, standing, walking, lifting or carrying, and the ability to use

her hands. AR 815.

The ALJ ultimately explained that Antoinette’s reported symptoms of pain,

fatigue, and limited mobility were consistent with the objective and other evidence

to the extent that she could not perform more than sedentary work. She included

particular postural limitations in Antoinette’s RFC due to the latter’s pain in her

knees, back, and hands as well as her limited mobility. The ALJ included a

limitation to only frequent bilateral handling and fingering in the RFC because of

Antoinette’s limited use of her hands due to RA.

IV

Antoinette argues the ALJ’s findings of mental and residual functional

capacity are affected by error and are not supported by substantial evidence.

A

The Court's function on review is not to try the case de novo or to supplant

the ALJ's findings with the Court's own assessment of the evidence. See Schmidt v.

Apfel, 201 F.3d 970, 972 (7th Cir. 2000); Pugh v. Bowen, 870 F.2d 1271 (7th Cir. 1989).

Indeed, "[t]he findings of the Commissioner of Social Security as to any fact, if

supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g).

Although great deference is afforded to the determination made by the ALJ, the

Court does not "merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297 F.3d

589, 593 (7th Cir. 2002). The Court's function is to determine whether the ALJ's

findings were supported by substantial evidence and whether the proper legal

standards were applied. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986).

Substantial evidence is defined as such relevant evidence as a reasonable mind

might accept as adequate to support the decision. Richardson v. Perales, 402 U.S.

389, 390 (1971), Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999).

In order to qualify for disability insurance benefits, an individual must show

that his inability to work is medical in nature and that he is totally disabled.

Economic conditions, personal factors, financial considerations, and attitudes of

the employer are irrelevant in determining whether a plaintiff is eligible for

disability. See 20 C.F.R. §§ 404.1566; 416.966.6 The establishment of disability under

the Act is a two-step process.

First, the plaintiff must be suffering from a medically determinable physical

or mental impairment, or combination of impairments, which can be expected to

6 The standards for establishing a disability in order to receive DIB and SSI are materially the same. Compare 20 C.F.R. §

404.1501 et seq. (DIB) with 20 C.F.R. § 416.901 et seq. (SSI). Thus, the Court may at times only cite to the DIB regulations.

result in death, or which has lasted or can be expected to last for a continuous

period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). Second, there must be

a factual determination that the impairment renders the plaintiff unable to engage

in any substantial gainful employment. McNeil v. Califano, 614 F.2d 142, 143 (7th

Cir. 1980). The factual determination is made by using a five-step test. See 20 C.F.R.

§§ 404.1520; 416.920. In the following order, the ALJ must evaluate whether the

claimant:

1) currently performs or, during the relevant time period, did

perform any substantial gainful activity;

2) suffers from an impairment that is severe and meets a

durational requirement, or suffers from a combination of

impairments that is severe and meets the durational

requirement;

3) suffers from an impairment which meets or equals any

impairment listed in the appendix and which meets the

duration requirement;

4) is unable to perform her past relevant work which includes an

assessment of the claimant’s residual functional capacity; and

5) is unable to perform any other work existing in significant

numbers in the national economy.

Id. An affirmative answer at steps 3 or 5 leads to a finding that the plaintiff is

disabled. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).

The plaintiff has the burdens of production and persuasion on steps 1

through 4. Id. However, once the plaintiff shows an inability to perform past work,

the burden shifts to the Commissioner to show ability to engage in some other

type of substantial gainful employment. Weatherbee v. Astrue, 649 F.3d 565, 569 (7th

Cir. 2011).

In the instant case, Antoinette claims error on the ALJ’s part at Steps Two,

Four, and Five.

B

1

SSR 12-2p provides two ways of proving fibromyalgia is a MDI: the 1990

American College of Rheumatology (ACR) Criteria for the Classification of

Fibromyalgia and the 2010 ACR Preliminary Diagnostic Criteria. Both require the

claimant to show a history of widespread pain in all quadrants of the body that

has persisted for at least three months. The first way also requires at least 11

positive tender points on physical examination found bilaterally and both above

and below the waist and evidence that other disorders that could cause the

symptoms or signs were excluded. SSR 12-2p at *2-3. The second way also requires

the claimant to show: repeated manifestations of six or more fibromyalgia

symptoms, signs, or co-occurring conditions, especially manifestations of fatigue,

cognitive or memory problems, waking unrefreshed, depression, anxiety disorder,

or irritable bowel syndrome; and evidence that other disorders that could cause

those repeated manifestations of symptoms, signs, or co-occurring conditions

were excluded. SSR 12-2p at *3. SSR 12-2p also provides that an ALJ cannot rely

upon a licensed physician’s diagnosis of fibromyalgia alone. Id. at *2.

At Step Two, the ALJ determined that Antoinette’s “medical records do not

establish a diagnosis of fibromyalgia utilizing the appropriate diagnostic criteria

from either [the 1990 or 2010] ACR.” AR 29. Thus, the ALJ found that Antoinette’s

fibromyalgia could not be considered as a MDI. Antoinette argues that her

“eminent” rheumatologist, Dr. Miniter, provided the relevant medical evidence of

her fibromyalgia in his treatment notes. She cites to pages in the record where she

complained of widespread pain and where she had 11 positive tender points on

physical examination. She also contends that given Dr. Miniter’s expertise, he

could not have reasonably reached a diagnosis of fibromyalgia had he not

excluded other impairments as a cause.

The ALJ failed to articulate how, exactly, the evidence or record failed to

“establish a diagnosis of fibromyalgia utilizing the appropriate diagnostic

criteria.” There is accordingly nothing for the Court to review to ensure that the

ALJ sufficiently considered the record evidence and reached a supportable

conclusion with regard to fibromyalgia. Though Antoinette essentially invites the

Court to do so, it will not delve into the evidence to find support or the lack thereof

for the ALJ’s fibromyalgia conclusion. See Young v. Barnhart, 362 F.3d 995, 1001 (7th

Cir. 2004) (explaining that in reviewing an ALJ’s decision, the court cannot

reweigh evidence, resolve conflicts in the record, decide questions of credibility,

or otherwise substitute its own judgment for that of the Commissioner). Moreover,

to find as Antoinette argues – that the ALJ made no efforts to obtain information

she deemed necessary but lacking – the Court would have to assume that was the

ALJ’s reason for rejecting fibromyalgia as a MDI. The ALJ committed error in the

first instance by failing to articulate exactly how the evidence failed to establish a

fibromyalgia diagnosis. See Minnick v. Colvin, 775 F.3d 929, 938 (7th Cir. 2015)

(stating that an ALJ “must adequately articulate her analysis so that [a reviewing

court] can follow her reasoning”). The Commissioner nevertheless argues the

ALJ’s failure to find fibromyalgia to be a MDI was harmless error. See McKinzey v.

Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (explaining that administrative error may

be harmless and thus a court ought not remand a case to the ALJ where it is

convinced that the ALJ would reach the same result). The Court agrees the ALJ’s

error was harmless, especially when considered in the context of Antoinette’s

ultimate contention that absent the limiting effects of Antoinette’s fibromyalgia,

the ALJ’s findings of physical and mental RFC are not supported by substantial

evidence. The Court addresses the ALJ’s RFC finding infra.

2

Antoinette asserts that because the ALJ found her fibromyalgia was not a

MDI, the ALJ simply stopped the assessment of it at all steps of the disability

analysis. The Commissioner questions what limits were left out as a result of the

ALJ finding fibromyalgia was not a MDI. The Court likewise wonders. Antoinette

points to the following evidence as symptoms of her fibromyalgia which presented

limitation in her ability to work: increased pain and sensitivity to her skin and

joints; problems with stiffness getting up and moving around; pain and stiffness

in her hands; pain and stiffness in her ankles and hips; extreme fatigue; and back

pain. She emphasizes her record statements that she limited the use of her hands

due to pain and stiffness in them, and she highlights her testimony that

fibromyalgia led to depression and decreased concentration.

In her Decision, the ALJ considered Antoinette’s statements that: she was

unable to work because of constant chronic pain in her hands, back, and knees;

that she could only use her hands for 20-30 minutes at a time without pain and

could only use them for a total of three to four hours in a day; and that it was

difficult to grasp and hold things for long periods of time due to pain and stiffness

in her hands. The ALJ also considered Dr. Miniter’s treatment notes which

indicated Antoinette saw him for joint pain and RA. The ALJ considered that

Antoinette saw an orthopedist for bilateral knee pain in August 2018 and x-rays

showed bone-on-bone osteoarthritis in her bilateral patellofemoral joints. In

August 2019, during and orthopedic follow up, Antoinette reported her knees felt

“really good” and her right knee had normal, painless range of motion and normal

strength and tone whereas her left knee had full extension and was not unstable

but showed some pain and crepitus with patellar grind with limited mobility.

Specifically, with regard to Antoinette’s history of RA, the ALJ observed that

physical examination showed she moved easily without problems with gait or

balance, was found to have full range of motion in all joints with some tenderness

in her shins and right shoulder, and was found to have no weakness in her upper

or lower extremities. The ALJ further observed that Antoinette’s RA was treated

with Plaquenil and injections which she reported “helped her overall pain

significantly,” and Antoinette rated her RA as impacting her on a level of only two

out of 10 (zero representing the patient was “very well” considering all the ways

her arthritis affected her) whereas her provider rated it at a zero and her overall

disease activity score was in the lowest range in January 2019. The ALJ also

discussed physical examinations in January and March 2019 which showed the

presence of Heberden’s7 and Bouchard’s8 nodes with occasional tenderness but

which also revealed full range of motion in both hands.

The ALJ’s explicit consideration of the foregoing evidence contradicts

Antoinette’s assertion that the ALJ failed to consider limitations her fibromyalgia

caused. Certainly, the ALJ considered the complained of limitations as stemming

from her RA and osteoarthritis (rather than fibromyalgia), but the evidence was

one and the same. Thereafter, the ALJ built a logical bridge to her conclusions. For

example, the ALJ reiterated Antoinette’s complaints of back, knee, and joint pain

and juxtaposed them with physical exams that showed “a relatively mild

limitation of motion of the knee and lumbar spine, and were otherwise within

normal limits.” AR 33. The ALJ juxtaposed Antoinette’s complaints with evidence

that her conditions were stable with treatment, that she was able to perform

activities such as lifting furniture, mowing her lawn, and climbing a fence, and

7 “Hard nodules or enlargements of the distal interphalangeal joints of the fingers; seen in osteoarthritis.”

Taber’s Online, https://www.tabers.com/tabersonline/view/Tabers-

Dictionary/743198/0/Heberden_nodes?q=heberden%27s+nodes (last visited Feb. 23, 2022).

8 “Bony enlargements or nodules, located at the proximal interphalangeal joints and resulting from

osteoarthritis or degenerative joint disease.” Taber’s Online,

https://www.tabers.com/tabersonline/view/Tabers-

Dictionary/766339/0/Bouchard_nodes?q=bouchard%27s+nodes (last visited Feb. 23, 2022).

that exacerbations were successfully resolved with conservative treatments such

as physical therapy. As for Antoinette’s knees and hands, the ALJ noted that she

had no surgeries for them and none had been recommended to her within the

records. An “RFC assessment must incorporate all of the claimant’s limitations

supported by the medical record[.]” Lothridge v. Saul, 984 F.3d 1227, 1233 (7th Cir.

2021). Here, it is apparent the ALJ did as was required of her; the relevant authority

speaks of limitations, not a particular diagnosis in and of itself. See, e.g., Estok v.

Apfel, 152 F.3d 636, 640 (7th Cir. 1998) (“It is not enough to show that [the claimant]

had received a diagnosis of fibromyalgia with a date of onset prior to the

expiration of the insured period, since fibromyalgia is not always (indeed, not

usually) disabling”). Antoinette does not cite to any authority for the proposition

that an ALJ reversibly errs by failing to find a claimant has a particular MDI but

nevertheless considers all the complained-of symptoms and evidence pertaining

to that MDI.

That the ALJ sufficiently considered the full extent of limitation posed by

Antoinette’s impairments is bolstered by the ALJ’s consideration of the State

medical consultants’ opinions. As the Commissioner highlights, the State medical

consultants were aware that Antoinette alleged RA and fibromyalgia and

nevertheless opined that she remained capable of a range of unskilled light work

with postural and environmental limitations. The ALJ concluded that those

opinions were generally consistent with and supported by the medical evidence

as presented at the time they were rendered, but she found the “full, longitudinal

medical record and other evidence to be more persuasive of a lesser degree of

exertional ability.” AR 34. In explaining where she departed from the State medical

consultants’ opinions, the ALJ provided a further glimpse into her reasoning as to

why she included certain limitations and omitted others from her RFC finding. See

Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (stating the “ALJ’s analysis must

provide some glimpse into the reasoning behind her decision to deny benefits”).

Lastly, the Court is unconvinced that the ALJ committed reversible error

insofar as Antoinette’s mental RFC is concerned. In her brief, Antoinette makes

only passing reference to her testimony that her fibromyalgia led to depression

and decreased concentration. At the hearing, Antoinette did not even go so far as

to say she suffered from decreased concentration. Instead, the ALJ asked her if she

told her doctor she was having difficulties with her memory (given her earlier

testimony that she had trouble with her memory), and Antoinette responded that

her doctor said “one of the side effects is – of fibromyalgia is concentration and

focusing.” AR 63. The Disability Determination Explanations at the initial level

explicitly stated that the “medical evidence does not establish an MDI for any

mental limitations” and that a “mental impairment has been ruled out.” AR 86, 97.

In contrast, Antoinette points only to her testimony as to mental difficulties, and

she does not challenge the ALJ’s subjective symptom evaluation. As the

Commissioner argues, Antoinette does not point to any limits assessed by the

rheumatologist or any other medical source that the ALJ failed to include in the

RFC finding.

Though the ALJ erred at Step Two, that error was rendered harmless at Step

Four where she considered the wide array of Antoinette’s alleged symptoms and

limitations stemming from the latter’s impairments, albeit without explicitly

identifying fibromyalgia as a MDI. Furthermore, the ALJ’s consideration of the

record evidence at Step Four was articulated clearly enough to enable the Court to

“assess the validity of the ALJ’s ultimate findings and afford [Antoinette]

meaningful judicial review.” Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008). The

ALJ formulated a RFC that was responsive to Antoinette’s complaints of limitation

while also reflective of substantial medical and other evidence of record. Remand

is not warranted.

V

For the foregoing reasons, the Plaintiff’s Motion for Summary Judgment

(Doc. 16) is DENIED and the Defendant’s Motion for Summary Affirmance (Doc.

19) is GRANTED. The Clerk of Court is directed to enter judgment as follows: “IT

IS ORDERED AND ADJUDGED that the decision of the Defendant, Kilolo

Kijakazi, Acting Commissioner of Social Security, denying benefits to the Plaintiff,

Antoinette A., is AFFIRMED.” This matter is now terminated.

It is so ordered.

Entered on February 24, 2022.

s/Jonathan E. Hawley

U.S. MAGISTRATE JUDGE