The opinion
BRUCE D.,1 )
)
Plaintiff, )
)
vs. ) Civil No. 18-cv-2047-DGW2
)
COMMISSIONER OF SOCIAL )
SECURITY, )
)
Defendant. )
MEMORANDUM and ORDER
WILKERSON, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff seeks judicial review of the
final agency decision denying his application for Disability Insurance Benefits (DIB)
pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for DIB in January 2015, alleging a disability onset date of
December 30, 2013. After holding an evidentiary hearing, an ALJ denied the
application on September 19, 2017. (Tr. 13-20). The Appeals Council denied
plaintiff’s request for review, making the ALJ’s decision the final agency decision
subject to judicial review. (Tr. 1). Plaintiff exhausted administrative remedies
and filed a timely complaint with this Court.
Issues Raised by Plaintiff
1 Plaintiff’s full name will not be used in this Memorandum and Order due to privacy concerns.
See, Fed. R. Civ. P. 5.2(c) and the Advisory Committee Notes thereto.
2 This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Docs. 10, 13.
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1 . Tcahree ApLhJys dicidia nn,o tD pr.r oSpcehrelny eewvaelruka. te the opinion of his primary
2. The ALJ’s analysis of plaintiff’s subjective symptoms is legally
insufficient.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes. Under the Social Security Act, a person is disabled if he has
an “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not
less than twelve months.” 42 U.S.C. § 423(d)(1)(a).
To determine whether a plaintiff is disabled, the ALJ considers the following
five questions in order: (1) Is the plaintiff presently unemployed? (2) Does the
plaintiff have a severe impairment? (3) Does the impairment meet or medically
equal one of a list of specific impairments enumerated in the regulations? (4) Is the
plaintiff unable to perform her former occupation? and (5) Is the plaintiff unable to
perform any other work? 20 C.F.R. § 404.1520.
An affirmative answer at either step 3 or step 5 leads to a finding that the
plaintiff is disabled. A negative answer at any step, other than at step 3, precludes
a finding of disability. The plaintiff bears the burden of proof at steps 1–4. Once
the plaintiff shows an inability to perform past work, the burden then shifts to the
Commissioner to show the plaintiff’s ability to engage in other work existing in
significant numbers in the national economy. Zurawski v. Halter, 245 F.3d 881,
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This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that the scope of review is limited. “The 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). Thus, this Court must
determine not whether plaintiff was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003). The Supreme Court defines substantial evidence as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations
omitted).
In reviewing for “substantial evidence,” the entire administrative record is
taken into consideration, but this Court does not reweigh evidence, resolve
conflicts, decide questions of credibility, or substitute its own judgment for that of
the ALJ. Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). However,
while judicial review is deferential, it is not abject; this Court does not act as a
rubber stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d 920, 921
(7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
The ALJ followed the five-step analytical framework described above. She
determined that plaintiff had not worked at the level of substantial gainful activity
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The ALJ found that plaintiff had severe impairments of osteoarthritis of both knees,
degenerative disc disease, heart disease, sleep apnea, obesity, and COPD.
The ALJ found that plaintiff had the RFC to do light work, which requires
lifting up to 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. He was able to stand/walk or sit for 6 out of 8 hours a day. He
was limited frequent climbing of stairs; no climbing of ladders, ropes, or scaffolds;
occasional stooping, kneeling, crouching, and crawling; and occasional exposure to
extreme temperatures, humidity, fumes, odors, dusts, and poor ventilation.
Based on the testimony of a vocational expert, the ALJ found that plaintiff
was not able to do his past relevant work. However, he was not disabled because
he was able to do other jobs that exist in significant numbers in the national
economy.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by plaintiff.
1. Agency Forms
Plaintiff was born in 1962 and turned 55 years old about two months after
the date of the ALJ’s decision. (Tr. 204). He said he was disabled because of a
bad back, bad knees, bad hands, and borderline diabetes. He was 5’ 7” tall and
weighed 259 pounds. He stopped working in December 2013 because of his
condition and because he was “laid off.” (Tr. 208). He had worked in the past as
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In March 2015, plaintiff said pain limited his ability to walk, lift, sit, reach,
and bend. He had shortness of breath. He cooked every day, sometimes
sandwiches and sometimes “regular complete meals.” He did laundry, but it took
3 days because the machines were in the basement. He mowed the lawn with a
riding mower, but it took 2 days. He shopped for groceries about once a week.
(Tr. 215-222). In June 2015, he reported that he only cooked microwave meals
and he did no household chores or yard work. (Tr. 252-253).
2. Evidentiary Hearing
Plaintiff was represented by an attorney at the hearing in July 2017. (Tr.
31).
Plaintiff testified that he had stabbing pains in his hip area and back when
moving or doing anything. He lost strength in his hands and it was hard to grip.
He had shortness of breath from COPD. Injections in his back gave him temporary
relief. He took Percocet, Ibuprofen, and muscle relaxers. His medications made
him a little drowsy. (Tr. 42-45). The surgery on his knee helped. (Tr. 46).
Plaintiff lived with his mother. His father died about a year and a half
earlier. He made sure his mother took her medications and helped her in and out
of the shower when she needed it. He cooked meals and went grocery shopping.
Doing the dishes put pressure on his back and he had to lie down after doing them.
He did laundry in small loads; folding clothes hurt his back. He mowed the lawn
with a riding mower. It took about one hour. (Tr. 46-47). He had to lay down
for about an hour twice a day. Pain kept him awake at night. (Tr. 50-51).
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plaintiff’s RFC assessment could not do plaintiff’s past work, but she could do other
jobs such as retail marker, electronics sub-assembler, and small parts assembler.
(Tr. 53-54).
3. Relevant Medical Records
Dr. Christopher Schenewerk was plaintiff’s primary health care provider.
Plaintiff alleges that he became disabled as of December 30, 2013. Dr.
Schenewerk saw him in May 2012 for right arm pain. (Tr. 353). The next visit
was in July 2014, for ankle swelling and possible sleep apnea. (Tr. 352). The
doctor’s notes in this period are on preprinted forms and are not very detailed.
Plaintiff was seen in August 2014; he said he needed more pain pills. Dr.
Schenewerk circled “osteoarthritis” but did not indicate what part of the body was
involved. There are no notes of physical exam. Hydrocodone was prescribed.
(Tr. 351).
Dr. Schenewerk referred plaintiff to a pain management specialist, Dr.
Anderson, for treatment of bilateral knee pain. In October 2014, plaintiff
complained of lumbar pain as well as knee pain. Dr. Anderson noted that
plaintiff’s mother was alive and had dementia; his father was alive and had a history
of cardiac stents. He diagnosed chronic lumbar pain and degenerative changes of
the knees, and prescribed Mobic and hydrocodone/acetaminophen. (Tr.
405-407).
In November 2014, a lumbar MRI showed desiccation throughout the lumbar
spine with loss of disc height at L5-S1. At L4-5, there was an annular bulge with
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was an annular bulge with very small right paracentral protrusion. There was no
spinal canal stenosis. Disc material abutted but did not displace the transiting
right S1 nerve root within its lateral recess. There was mild bilateral foraminal
narrowing. (Tr. 383).
In January 2015, Dr. Anderson began a course of epidural steroid injections
at L5-S1. He noted that plaintiff complained of “pain demonstrating dysfunction
that outweighs his observed pathology.” He recommended physical therapy for
core strengthening and conditioning. He also wrote that plaintiff “should not
require daily narcotic analgesics based upon his findings.” He wanted plaintiff to
taper to no more than 60 hydrocodone tablets per month. (Tr. 396-397). He
again noted in March 2015 that plaintiff related “pain and dysfunction that
outweighs his objective findings.” He also wrote that plaintiff “does not
demonstrate pathology based upon our present database to suggest the need for
long-term narcotic therapy.” (Tr. 391).
In March 2015, Dr. Baumer performed arthroscopic surgery for a torn
meniscus in the left knee. (Tr. 394).
Dr. Anderson saw plaintiff on March 21, 2016. He had administered several
nerve root blocks. Plaintiff denied gait abnormality. On exam, Dr. Anderson
noted no abnormal gait. He ordered another MRI due to plaintiff’s complaints of
pain radiating down the left leg. He planned to taper hydrocodone-acetaminophen
and to stop it completely. (Tr. 498-502).
There is no indication that Dr. Schenewerk saw plaintiff between August
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Anderson and Baumer are in Dr. Schenewerk’s notes. Dr. Schenewerk saw
plaintiff on March 29, 2016. The reason for the visit was “Disability.” The doctor
completed a form for disability. On exam, plaintiff had muscle spasms in the
paraspinal muscles and straight leg raising was positive. There was swelling of the
left knee. (Tr. 591-592.)
Dr. Schenewerk completed a form entitled “Medical Source Statement.”
Among other limitations, he indicated that plaintiff could sit for less than 2 hours
total a day and stand for less than 2 hours total a day. He said that plaintiff’s
diagnoses were lumbago and osteoarthritis of the knees. He identified clinical
findings and objective signs of “Abnormal gait, slow to stand, has to move
constantly.” He needed to be able to shift positions at will. He would be likely to
miss work more than 4 days per month. (Tr. 452-454).
The next month, Dr. Anderson again noted no gait abnormality. Straight leg
raising was negative. The dosage of hydrocodone-acetaminophen was reduced.
(Tr. 493-496). In July 2016, plaintiff took a Percocet tablet that had been
prescribed for his friend. As this was a breach of the opiate agreement, Dr.
Anderson wrote that he would no longer prescribe hydrocodone-acetaminophen for
plaintiff. The recent MRI showed stable lumbar spondylosis; stable to slight
retraction of the right paracentral disc protrusion; and mild bilateral foraminal
narrowing at L5-S1. On exam, gait was normal, straight leg raising was negative,
and sensation was normal. Dr. Anderson recommended another epidural steroid
injection. (Tr. 483-486).
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behavior.” He wrote that plaintiff “continues to demonstrate pain and dysfunction
that far outweighs his objective findings.” He recommended EMG and nerve
conduction studies. (Tr. 481-482). In September 2016, Dr. Anderson said he
would consider an L3-S1 facet block and that, if plaintiff did not respond to that
treatment, he would not have much to offer him for long-term care. Plaintiff was
not “an appropriate candidate for narcotic use” and demonstrated “questionable
and likely poor motivation towards participating in his own care and/or
improvement.” (Tr. 472-473).
Dr. Schenewerk did not see plaintiff between March and August 2016. On
August 31, 2016, plaintiff came in asking for pain medication because Dr.
Anderson would no longer prescribe it for him. He admitted using marijuana for
pain. Dr. Anderson had prescribed Gabapentin, but he did not want to take it. A
PA in Dr. Schenewerk’s office noted that Dr. Anderson was taking care of plaintiff’s
back. He refused to prescribe pain medication. (Tr. 587-590). In September
2016, a PA in Dr. Schenewerk’s office agreed to prescribe Tramadol. There were
no positive findings noted on exam. There was no edema in the extremities. (Tr.
584-585).
Plaintiff was seen a few more times by a PA in Dr. Schenewerk’s office
through January 2017. He was diagnosed with diabetes. There were no positive
findings noted on physical exam. (Tr. 623-629).
In May 2017, Dr. Anderson noted that plaintiff had failed 2 drug screens and
he recommended that plaintiff consider drug rehab. He noted that plaintiff’s
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degree of dysfunction he manifests.” He ordered another MRI and noted that, if it
did not show “objective findings to support his presenting symptoms,” he would be
discharged from care. (Tr. 643). A few days later, an MRI showed mild
degenerative change at L5-S1, “grossly stable compared to the prior exam with
minimal spinal canal stenosis and mild to moderate bilateral neural foraminal
stenosis.” (Tr. 657).
Analysis
Plaintiff first argues that the ALJ erred in rejecting Dr. Schenewerk’s’
opinion.
Dr. Schenewerk treated plaintiff, but the ALJ was not required to fully credit
his opinion because of that status; “while the treating physician’s opinion is
important, it is not the final word on a claimant’s disability.” Books v. Chater, 91
F.3d 972, 979 (7th Cir. 1996)(internal citation omitted). A treating source’s
medical opinion is entitled to controlling weight only where it is supported by
medical findings and is not inconsistent with other substantial evidence in the
record. Brown v. Colvin, 845 F.3d 247, 252 (7th Cir. 2016), citing Clifford v.
Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
Plaintiff’s application was filed before March 27, 2017. The applicable
regulation, 20 C.F.R. § 404.1527(c)(2), provides, in part:
Generally, we give more weight to opinions from your treating sources,
since these sources are likely to be the medical professionals most able
to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
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substantial evidence in your case record, we will give it controlling
weight. [Emphasis added]
If the ALJ decides not to give the opinion controlling weight, he is to weigh it
applying the factors set forth in § 404.1527(c)(1)-(6). Supportability and
consistency are two important factors to be considered in weighing medical
opinions. In a nutshell, “[t]he regulations state that an ALJ must give a treating
physician's opinion controlling weight if two conditions are met: (1) the opinion is
supported by ‘medically acceptable clinical and laboratory diagnostic techniques [,]’
and (2) it is ‘not inconsistent’ with substantial evidence in the record.” Schaaf v.
Astrue, 602 F.3d 869, 875 (7th Cir. 2010).
Here, the ALJ explained that she gave little weight to Dr. Schenewerk’s
opinion because the “recent medical records and objective findings do not support
such a significantly limiting assessment.” She referenced the May 2017 MRI,
which showed that the degenerative change at L5-S1 was “grossly stable” and
showed minimal spinal and canal stenosis and “mild to moderate” foraminal
stenosis. She pointed out that Dr. Schenewerk did not treat plaintiff’s back pain
but referred him to Dr. Anderson. And, Dr. Anderson, the pain management
specialist, had concluded that plaintiff’s pain “far outweighs any objective findings”
and had recorded that plaintiff exhibited drug seeking behavior and had breached
an opiate agreement. (Tr. 18).
Plaintiff argues that the ALJ’s decision fails to identify evidence that is
inconsistent with Dr. Schenewerk’s opinion, but then goes on to argue that the very
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Anderson’s observations that his pain is out of proportion to the objective findings
and that he exhibited drug seeking behavior are not inconsistent because they
actually demonstrate that plaintiff is in a great deal of pain. While that may be a
possible interpretation of the evidence, is not the only permissible interpretation.
The ALJ could reasonable conclude that the MRI results and Dr. Anderson’s
observations are inconsistent with the extreme limitations assessed by Dr.
Schenewerk. Plaintiff’s argument is nothing more than a plea to this Court to
reweigh the evidence and come to a different conclusion, which is not the Court’s
role. L.D.R. by Wagner v. Berryhill, 920 F.3d 1146, 1153 (7th Cir. 2019).
Considering the deferential standard of judicial review, the ALJ is required
only to “minimally articulate” her reasons for accepting or rejecting evidence, a
standard which the Seventh Circuit has characterized as “lax.” Berger v. Astrue,
516 F.3d 539, 545 (7th Cir. 2008); Elder v. Astrue, 529 F.3d 408, 415 (7th Cir.
2008). The ALJ easily met the minimal articulation standard here.
Plaintiff’s only other argument is a challenge to the ALJ’s finding that his
subjective complaints were not supported by the record. He argues that the ALJ
failed to explain how plaintiff’s activities are inconsistent with his allegations.
SSR 16-3p supersedes the previous SSR on assessing the reliability of a
claimant’s subjective statements. SSR 16-3p became effective on March 28, 2016
and is applicable here. 2017 WL 5180304, at *1.
SR 16-3p eliminates the use of the term “credibility,” and clarifies that
symptom evaluation is “not an examination of an individual’s character.” SSR
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applicable regulation, 20 C.F.R. § 404.1529. ., at *10.
The new SSR does not purport to change the standard for evaluating the
claimant’s allegations regarding his symptoms. Thus, prior Seventh Circuit
precedents continue to apply.
The findings of the ALJ as to the accuracy of the plaintiff’s allegations are to
be accorded deference, particularly in view of the ALJ’s opportunity to observe the
witness. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). However, Social
Security regulations and Seventh Circuit cases “taken together, require an ALJ to
articulate specific reasons for discounting a claimant's testimony as being less than
credible, and preclude an ALJ from ‘merely ignoring’ the testimony or relying
solely on a conflict between the objective medical evidence and the claimant's
testimony as a basis for a negative credibility finding.” Schmidt v. Barnhart, 395
F.3d 737, 746-747 (7th Cir. 2005), and cases cited therein.
The ALJ observed that plaintiff can mow his lawn on a riding mower, shop,
cook meals, and wash dishes. Further, in February 2016, plaintiff told his doctor
that he was “under enormous stress” and he was “taking care of his parents.” (Tr.
17).
The ALJ was certainly entitled to consider plaintiff’s daily activities.
Alvarado v. Colvin, 836 F.3d 744, 750 (7th Cir. 2016). The ALJ did not
impermissively equate his daily activities with the ability to work full-time. Rather,
she used his “reported activities to assess the credibility of [his] statements
concerning the intensity, persistence, or limiting effects of [his] symptoms. . . .”
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In addition to plaintiff’s activities, as required by § 404.1529 and SSR 16-3p,
the ALJ considered the medical evidence including Dr. Anderson’s observations,
the course of treatment, the findings of the various doctors on physical exams,
plaintiff’s own statements to his treating doctors, and the medical opinions. The
ALJ’s conclusion as to the accuracy of plaintiff’s statements was supported by the
evidence and was not “patently wrong;” it must therefore be upheld. Schmidt v.
Astrue, 496 F.3d 833, 842 (7th Cir. 2007).
Plaintiff’s arguments are little more than an invitation for this Court to
reweigh the evidence. He has not identified a sufficient reason to overturn the
ALJ’s conclusion. Even if reasonable minds could differ as to whether plaintiff
was disabled at the relevant time, the ALJ’s decision must be affirmed if it is
supported by substantial evidence, and the Court cannot substitute its judgment for
that of the ALJ in reviewing for substantial evidence. Burmester, 920 F.3d at 510;
Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012).
Conclusion
After careful review of the record as a whole, the Court is convinced that the
ALJ committed no errors of law, and that her findings are supported by substantial
evidence. Accordingly, the final decision of the Commissioner of Social Security
denying plaintiff’s application for disability benefits is AFFIRMED.
The Clerk of Court is directed to enter judgment in favor of defendant.
IT IS SO ORDERED.
DATE: December 4, 2019.
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DONALD G. WILKERSON
U.S. MAGISTRATE JUDGE
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