Emery v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

VAUGHN E.1, )

)

Plaintiff, )

)

v. ) CIVIL NO. 1:21cv26

)

KILOLO KIJAKAZI, Acting )

Commissioner of Social Security, )

)

Defendant. )

OPINION AND ORDER

This matter is before the court for judicial review of a final decision of the defendant

Commissioner of Social Security Administration denying Plaintiff's application for Disability

Insurance Benefits (DIB) under Title II of the Social Security Act. 42 U.S.C. § 423(a), and

Supplemental Security Income (SSI) under Title XVI of the Act. 42 U.S.C § 1383(c). Section

205(g) of the Act provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a

certified copy of the transcript of the record including the evidence upon which the findings and

decision complained of are based. The court shall have the power to enter, upon the pleadings

and transcript of the record, a judgment affirming, modifying, or reversing the decision of the

[Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he

findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be

conclusive. . . ." 42 U.S.C. §405(g).

The law provides that an applicant for disability benefits must establish an "inability to

engage in any substantial gainful activity by reason of any medically determinable physical or

1 For privacy purposes, Plaintiff’s full name will not be used in this Order.

mental impairment which can be expected to last for a continuous period of no less than 12

months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment

is "an impairment that results from anatomical, physiological, or psychological abnormalities

which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques."

42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an impairment exists. It

must be shown that the impairment is severe enough to preclude the plaintiff from engaging in

substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372

U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that

the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds

v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).

Given the foregoing framework, "[t]he question before [this court] is whether the record

as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.

Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786

(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere

scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting

Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,

552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,

42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also

Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).

In the present matter, after consideration of the entire record, the Administrative Law

Judge ("ALJ") made the following findings:

2

1. The claimant met the insured status requirements of the Social Security Act

through December 31, 2019.

2. The claimant has not engaged in substantial gainful activity since July 23, 2018,

the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: degenerative disc disease of

the thoracic and lumbar spine; T12-L1 disc bulge; status post fusion of L4-L5;

laminectomy of L3-L5; and discectomy of L5-S1 (20 CFR 404.1520(c) and

416.920(c)).

4. The claimant does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,

416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds the claimant

has the residual functional capacity to perform light work as defined in 20 CFR

404.1567(b) and 416.967(b) except stand and/or walk for two hours and sit for six

hours out of an eight-hour workday; can occasionally climb stairs or ramps,

balance, stoop, kneel, or crouch; and can never climb ladders, ropes or scaffolds

or crawl.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and

416.965).

7. The claimant was born on September 6, 1972 and was 45 years old, which is

defined as a younger individual age 18-49, on the alleged disability onset date (20

CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to communicate in

English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a finding

the claimant is “not disabled”, whether or not the claimant has transferable job

skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national

economy the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and

416.969(a)).

3

11. The claimant has not been under a disability, as defined in the Social Security Act,

from July 23, 2018, through the date of this decision (20 CFR 404.1520(g) and

416.920(g)).

(Tr.17 -25).

Based upon these findings, the ALJ determined that Plaintiff was not entitled to benefits,

leading to the present appeal.

Plaintiff filed his opening brief on August 20, 2021. On November 10, 2021 the

defendant filed a memorandum in support of the Commissioner’s decision to which Plaintiff

replied on November 18, 2021. Upon full review of the record in this cause, this court is of the

view that the Commissioner’s decision should be affirmed.

A five step test has been established to determine whether a claimant is disabled. See

Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 2290-

91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test

as follows:

The following steps are addressed in order: (1) Is the claimant

presently unemployed? (2) Is the claimant's impairment "severe"?

(3) Does the impairment meet or exceed one of a list of specific

impairments? (4) Is the claimant unable to perform his or her

former occupation? (5) Is the claimant unable to perform any other

work within the economy? An affirmative answer leads either to

the next step or, on steps 3 and 5, to a finding that the claimant is

disabled. A negative answer at any point, other than step 3, stops

the inquiry and leads to a determination that the claimant is not

disabled.

Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162

n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). In the present

4

case, Step 5 was the determinative inquiry.

On December 31, 2018 Plaintiff filed an application for a period of disability and DIB, as

well as for SSI. He alleged disability beginning July 23, 2018, due to problems with a pinched

nerve and bulging discs in the lower back, degenerative disc disease, and rheumatoid arthritis.

After denials at the initial and reconsideration levels, Plaintiff filed a request for a hearing before

an ALJ. A telephone hearing was held on April 14, 2020, by ALJ Kathleen Winters. On April 23,

2020, the ALJ issued a decision denying benefits. On November 23, 2020, the Appeals Council

denied the request for review and upheld the ALJ’s decision.

Plaintiff was 45 years old as of the alleged onset date. He has a high school education. He

has past relevant work as a salvage laborer, injection mold machine operator, and boat outfitter.

On the alleged onset date Plaintiff went to the emergency room for lumbar and left sciatic pain.

(Tr. 345). He has a history of chronic back problems and has had multiple episodes of sciatic

nerve pain. Id. He had been using Flexeril and Naprosyn for the pain, and was using crutches

because it hurt when he walked. Id. The pain was sharp, 9/10 in severity, and radiated to his left

lower extremity. Id. Exacerbating factors included movement and bending over, relieving factors

included analgesics. Id. On examination there was decreased range in the lumbar spine and

moderate tenderness in the left lateral lumbar. (Tr. 347). Two days later, Plaintiff returned to the

ER with worsening severe pain in his lower back and down the left leg. (Tr. 351). On

examination he was tender over the lumbar area with palpation and there was minimal sacroiliac

tenderness bilaterally. Id. A lumbar CT revealed bilateral pars defects at L4 with grade 1

anterolisthesis of L4 on L5; diffuse disc bulge at this level resulting in mild narrowing of the

central canal and severe bilateral neuroforaminal stenosis, greater on the left than on the right.

5

(Tr. 352). Plaintiff was diagnosed with pars defect, spondylolisthesis, and radicular leg pain and

prescribed hydrocodone for pain. Id.

Plaintiff established treatment with Dr. Renfroe as his new primary care physician. (Tr.

448). He reported being unable to mow the yard, he had difficulty with dressing, is unable to bend

forward, has slow movement, and is unable to stand or sit for long periods of time. Id. He was

most comfortable when lying on the couch, with the back of the couch supporting his back. Id. He

has numbness and tingling in his left leg, leg spasms, and needs support for standing. Id. A

lumbar spine x-ray revealed degenerative spondylosis and suspected pars defect at L4 with grade

1 spondylolisthesis. (Tr. 367).

Plaintiff was seen for a physical therapy (PT) initial evaluation. (Tr. 362). He presented

with chronic low back pain along with difficulty sitting, bending forward, walking, and holding

his children. Id. He also reports having tingling and numbness going down his bilateral lower

extremities, left worse than right. Id. On examination he had paraspinal tenderness over the lower

lumbar and sacral region; his flexibility was impaired in the hip flexors and gastro-soleus; and he

had reduced strength in the bilateral hips, knees, and ankles, worse on the left than right. (Tr.

363). He had hyper reflexes in the bilateral knees and ankles. (Tr. 364). He walked with an

antalgic gait, uneven cadence, decreased weight-bearing on the left, decreased stride length on the

right, and lateral trunk lean to the right. Id. Plaintiff attended eight sessions of PT for his back.

(Tr. 360). He reported that traction did help his mid-back, but his low back was still painful with

9/10 severity and continuous tightness. Id. He was discharged from PT to return to his doctor for

further work-up. Id. He saw Dr. Renfroe reporting PT helped his middle back, but he had no relief

in his lower back. (Tr. 441). He had difficulty with walking, sitting, and lying. Id. He was given a

6

referral to neurosurgery. (Tr. 442).

Plaintiff saw Dr. Phookan for evaluation of his chronic low back pain. (Tr. 396). His pain

had gradually worsened, especially since the alleged onset date. Id. The pain was in the midline

lumbosacral region and radiated to the left and down the left leg laterally. Id. The pain radiated all

the way to his foot and was associated with tingling and numbness. Id. His pain was worsened

with activity including walking and standing. Id. Plaintiff took Flexeril and ibuprofen, and had

undergone six weeks of PT. Id. He had previously undergone anterior cervical fusion and

shoulder surgery. Id. He walked with an antalgic gait. Id. MRI of the lumbar spine showed

moderate central stenosis at L3-4; diffuse disc bulge and moderate central stenosis at L4-5; grade

1 spondylolisthesis; and left paracentral disc herniation at L5-S1. (Tr. 397). As he had failed

conservative management, surgical intervention was recommended. Id.

Plaintiff attended a consultative examination by an Agency examiner. (Tr. 380). He

reported his sitting is limited to a few minutes, and standing and walking is limited requiring

frequent position changes and use of a cane/walker. Id. He reported left lower extremity pain as

well as numbness/tingling. Id. He has muscle spasms frequently causing falls and/or inability to

move. Id. Physical examination was normal except he required assistance on to and off the scale;

he required assistance with shoes; he had to use a cane and assistance of another person to get

on/off the exam table; and he turned his full body due to neck pain and stiffness. (Tr. 381). He

had been using a cane/walker since the alleged onset date that was prescribed by his doctor due to

falls and instability. Id. Without an assistive device he had an antalgic gait, unsteady, sustained

gait, normal station, and was unable to perform maneuvers. Id. With his cane he still had an

antalgic gait, unsteady, non-sustained, and wide-base station. Id. He was dependent on the cane,

7

and had white knuckles from pressure. Id. He was able to squat a quarter of the way only with the

cane. Id. With a walker he was steady, sustained, and had normal station. Id. He was able to stand

on toe/heel on the right, able to tandem walk, and squat half way. Id. It was determined a walker

was medically necessary for mobility. Id. His left lower extremity is one inch shorter than the

right. Id. He had tremors at rest which increased with activity, as well as spasticity. Id. He had

reduced range of motion throughout the cervical spine with flexion, extension, bilateral lateral

flexion and bilateral rotation; the lumbar spine with forward flexion, extension, and bilateral

lateral flexion; and in the left shoulder with abduction, adduction, forward elevation, and external

rotation. (Tr. 379). The examiner found that Plaintiff was able to sit non-prolonged; able to walk

and stand thirty minutes with assistance; and was able to lift and carry objects less than ten

pounds. (Tr. 382).

State agency record reviewers at the initial and reconsideration levels found Plaintiff to

have degenerative disc disease and osteoarthritis. (Tr. 70, 79, 90, 100). His impairments were

considered under listings 1.02 for major joint dysfunction, 1.04 for spine disorders, and 14.09 for

inflammatory arthritis. Id. Initially it was opined he has a residual functional capacity (RFC) to

lift and/or carry ten pounds occasionally and frequently; stand and/or walk for a total of two

hours; sit for a total of about six hours in an eight hour workday; a cane is required for all

standing and prolonged walking; he can never climb ladders, ropes, or ladders; never kneel or

crawl; occasionally climb ramps or stairs; and occasionally balance, stoop, and crouch. (Tr.

71-72, 80-81). On reconsideration, it was opined Plaintiff can lift and/or carry ten pounds

occasionally and twenty pounds frequently; stand and/or walk for a total of two hours; sit for a

total of about six hours in an eight hour workday; never climb ladders, ropes, or scaffolds; and

8

occasionally climb ramps or stairs, balance, stoop, kneel, crouch, or crawl. (Tr. 92, 102).

Plaintiff was diagnosed with lumbar canal stenosis with neurogenic claudication, L3-4 and

L4-5; lumbar spondylolisthesis, L4-5; and left L5-S1 paracentral disk herniation. (Tr. 393). After

failing conservative management, Plaintiff underwent a L3-L5 laminectomy with medical

facetectomies and foraminotomies, TLIF, and posterior fusion L4-5 and a left L5-S1 discectomy.

(Tr. 389).

Plaintiff returned to Dr. Phookan a few weeks after the surgery. (Tr. 387). He reported

feeling well, his left leg pain had resolved, and for the first time in years he had been able to bear

significant weight on his left leg. Id. A lumbar spine x-ray revealed posterior fusion that spans the

L3, L4, and L5 intervertebral disc space and mild anterolisthesis of L4 on L5. (Tr. 386). He saw

his primary care physician, Dr. Renfroe in follow-up.(Tr. 438). He reported he was able to walk

by himself, but he was still healing. Id. Plaintiff’s neurologist completed a form two months after

surgery documenting that Plaintiff continues to be totally disabled indefinitely. (Tr. 403).

Three months after surgery Plaintiff was instructed to start weaning off hydrocodone. (Tr.

436). He continued to undergo withdrawal from opiates. (Tr. 430, 433). He noted Flexeril made

him tired yet unable to sleep. Id. He was still having some back pain, chronic neck pain, stiffness,

and soreness. Id. He did not want to move due to his back and neck pain. Id. He had persistent

pain in the left buttocks/hip, and persistent neck pain with a grinding sensation and tight muscles.

(Tr. 431). A new lumbar spine x-ray was unchanged from the prior exam showing fusion at L4-5

with anterior listhesis. (Tr. 452). He told Dr. Phookan he had a little bit of pain in the left upper

gluteal region around the sacroiliac joint area. (Tr. 459). He was still wearing the LSO brace for

comfort, but was told he could wean off it if he wanted. Id.

9

Plaintiff continued to attend PT. (Tr. 424). He noted increased level of activity and

improved level of ambulation. Id. He still had some back pain when riding in the car, and had

three episodes of severe neck pain. Id. He was taking Tylenol 3 for his pain. Id. He was treated for

opioid dependence with withdrawal. (Tr. 425). He was started on gabapentin, to reduce the need

for Tylenol #3. Id. He had increased pain level for a couple weeks, and stated that he was unable

to move and had decreased level of activity. (Tr. 421). He reported swelling in his back and neck

as well. Id. Plaintiff returned to Dr. Renfroe stating that his neck is still spasming, tingling, and

causing pain. (Tr. 419). He had been referred to water therapy to promote muscle relaxation. Id.

He had recently had four days when he needed to stay on the couch, and on other days he was

able to get out of the house and go to the grocery store. Id. He had pain when riding in a car, but

his goal was to drive again. Id. His medications were continued. (Tr. 420). At his next follow-up,

Plaintiff reported he had constant nerve tingle that was worse with lying down or sitting up all the

time, as well as decreased mobility, but some slow improvement. (Tr. 417). He did note that his

level of function had improved with tramadol. Id. He was continued on diclofenac and tramadol,

and his gabapentin was increased. (Tr. 418).

Plaintiff returned to Dr. Renfroe for follow up. (Tr. 414). He had been having problems

with his insurance as they did not pay for his aquatherapy. Id. He was having pain in his low back

and neck. Id. He could not get comfortable in bed, and was unable to stand and help with dishes

or fold laundry. Id. On examination there was increased tenderness to palpation over the midline

and paraspinal musculature over the lumbar spine. (Tr. 415). He was instructed to stop Doxepin,

continue diclofenac and gabapentin, start tramadol, cyclobenzaprine, duloxetine, and

acetaminophen-codeine. Id. Plaintiff told Dr. Renfroe at his next visit he was doing better

10

regarding his pain management with improved level of function. (Tr. 411). He found good relief

with the combination of diclofenac four times a day and a muscle relaxer twice a day. Id. He did

note he was sleeping more, but he was ok with that. Id. He had not had muscle spasms since he

was on the muscle relaxer. Id. He also felt the PT was helping with increased mobility. Id.

Plaintiff saw Dr. Renfroe for his continuing neck and middle back pain and asked for

another PT referral. (Tr. 408). He reported being able to go to the grocery store; increased

ambulation; able to do some simple housework, but not on a consistent basis; and he had

increased neck pain in the afternoons. Id. Physical examination was normal. (Tr. 409). Plaintiff

was continued on diclofenac, gabapentin, cyclobenzaprine, duloxetine, and hydroxyzine. Id.

At the hearing, Plaintiff testified he had not driven since the alleged onset date, except one

time three weeks prior to take his wife to the ER. (Tr. 43). He does not feel safe driving because

of the lack of rotation in his neck and lack of response time. (Tr. 44). He feels the medication is

effective to an extent. (Tr. 46). Some days it works, some days it does not. Id. He had side effects

from his medications including moodiness (changing from happy to depressed to angry). (Tr. 47).

He last went to PT in December 2019, but his insurance refused to pay for any more after that.

(Tr. 48). He does his own at home exercises. Id. He walks with a cane when he has to walk more

than two blocks. Id. He has been put on anxiety medication. (Tr. 49). He sometimes has a hard

time doing simple tasks, like getting dressed. (Tr. 50). He does not do any chores at home, his

wife and children do all the cooking, dusting, and sweeping. (Tr. 51). If he is having a good day

he occasionally helps dry dishes or fold clothes. Id. He sometimes goes to the grocery with his

wife, and can walk for a little while, then has to lean on the cart, but if the cart is too full he

cannot push it and has to go sit at the front of the store until his wife is finished shopping. (Tr.

11

52). His wife has to help him shower and he has a safety bar in the shower, but he cannot reach

down to clean his feet. (Tr. 56). About fifteen days out of thirty he is having a bad day where he

cannot help with any of the small chores. Id.

The ALJ asked the vocational expert (VE) to consider an individual of Plaintiff’s age,

education, and past work experience. (Tr. 60). In the first hypothetical, the ALJ asked the VE to

assume this individual could perform work at the light exertional level; can stand and/or walk for

two hours and can sit for six hours out of an eight hour workday; can occasionally climb stairs or

ramps, balance, stoop, and kneel or crouch; can never climb ladders, ropes, or scaffolds, or crawl.

(Tr. 60-61). The VE testified this individual could not perform any of the past work but could do

work as a sorter, assembler, or inspector. (Tr. 61). If the individual needed a cane to ambulate

more than fifty feet, this would not impact the availability of those jobs. Id. If the work needed to

be learned in thirty days or less with simple, routine tasks, this would also not impact those jobs.

Id. Employees may be off task no more than ten percent of the day. Id. Most employers will

tolerate one to two absences in a month, but not on a consistent basis. (Tr. 62). If an individual

needs more frequent or longer breaks than the normally scheduled ones, there would be no jobs.

Id. If the range of motion of the neck with inability to look up, down, or side to side, there would

be no jobs. (Tr. 63).

In support of remand, Plaintiff argues that the ALJ’s RFC assessment is not supported by

substantial evidence. Plaintiff contends that the ALJ focused on statements by Plaintiff that he

was was doing well and made improvements. Plaintiff asserts that his pain and limited mobility

waxed and waned and that the ALJ ignored that he had episodes of decreased ability. However,

Plaintiff relies almost exclusively on his own subjective complaints, which are not supported by

12

objective evidence.

Judicial review of the ALJ’s decision rests on whether substantial evidence supports the

RFC finding, which represents the most a claimant can do and takes all relevant evidence into

account, including objective medical evidence, treatment, physicians’ opinions and observations,

and Plaintiff’s own statements about his limitations. 20 C.F.R. § 404.1545; Diaz v. Chater, 55

F.3d 300, 306, n.2 (7th Cir. 1995). “The ALJ [need] only . . . include limitations in [the] RFC

determination that [are] supported by the medical evidence and that the ALJ [finds] to be

credible.” Outlaw v. Astrue, 412 F. App’x 894, 898 (7th Cir. 2011) (citing Simila v. Astrue, 573

F.3d 503, 520-21 (7th Cir. 2009)). It is the ALJ’s prerogative to formulate the RFC based on the

medical and non-medical evidence as a whole. 20 C.F.R. §§ 404.1545(a)(1), (3), 404.1546(c);

Diaz, 55 F.3d at 306 n.2. Accordingly, the ALJ is tasked with weighing evidence, resolving

conflicts in the record, and deciding issues of credibility, and the Court will not substitute its own

judgment if the ALJ’s findings are supported by substantial evidence. Young v. Barnhart, 362

F.3d 995, 1001 (7th Cir. 2004).

Here, the ALJ found that Plaintiff could perform light work, except that Plaintiff could

stand and walk for only two hours in an eight-hour workday, could sit for up to six hours in a

workday, could balance, stoop, kneel, crouch, and climb stairs or ramps occasionally, and could

not crawl or climb ladders, ropes, or scaffolds. (Tr. 19). The ALJ acknowledged Plaintiff’s

testimony that his medication was somewhat effective, working on some days but not others, and

that he had taken narcotic pain medication for about two months following surgery in 2019. (Tr.

20-21, Tr. 46). The ALJ also noted that Plaintiff had been referred for physical therapy for his

neck and back pain and had continued to perform neck and back exercises after he stopped

13

attending physical therapy in January 2020, when it was no longer covered by his insurance. (Tr.

20, Tr. 47-48). The ALJ also considered Plaintiff’s testimony that he used a cane at times and that

he could walk without the cane for about two blocks. (Tr. 20, Tr. 48).

Contrary to Plaintiff’s argument, the ALJ also considered Plaintiff’s testimony regarding

his neck pain. The ALJ noted that Plaintiff testified that he generally did not drive because he did

not feel safe driving due to issues with rotation of his neck and back, although Plaintiff

acknowledged that no medical source had advised him against driving. (Tr. 20, Tr. 44). The ALJ

also noted Plaintiff’s statement that he had trouble turning his head to the side and that he helped

with household chores on “good days” but often needed assistance. (Tr. 20, Tr. 44, 51). The ALJ

also acknowledged Plaintiff’s statements to consultative examiner, Dr. French, that he had

problems moving his neck. (Tr. 20, Tr. 380).

Despite Plaintiff’s testimony regarding the limitations caused by his neck and back

impairments, the ALJ explained that clinical records did not document significant functional

deficits beyond those accounted for in the RFC for a range of light work. (Tr. 21). The ALJ

acknowledged that, at the March 2019 consultative examination with Dr. French, Plaintiff was

using a cane, required assistance getting on and off the examination table, and turned his full body

due to his alleged neck pain and stiffness. (Tr. 22, Tr. 381). At that examination, Plaintiff

exhibited a reduced range of motion in his cervical and lumbar spine and left shoulder, as well as

an antalgic gait, and tremors, and spasticity, but he nevertheless had a negative straight leg raise

test, full strength (5/5), normal sensation, full grip strength, normal dexterity, a normal station,

and no edema or muscle atrophy. (Tr. 22, Tr. 379, 381). The ALJ noted that although Plaintiff

testified that he used a cane, his medical records showed that, in November 2018, he reported he

14

had stopped using a quad cane in July of that year and that the consultative examination was the

only instance in the record in which Plaintiff was observed to be using an assistive device. (Tr.

21, Tr. 363, 381). The ALJ also noted that Plaintiff’s presentation at the consultative examination

was not consistent with his presentation throughout the treatment record. (Tr. 23).

Although Plaintiff recites various subjective complaints from his testimony and the

treatment record, he fails to point to significant objective findings suggesting that he was more

limited than the RFC determination. Aside from the consultative examination results, the only

objective finding that Plaintiff cites is one positive finding of paraspinal tenderness to palpation.

(Tr. 415). The ALJ, however, cited numerous examples of objective physical examination

findings indicating minimal limitations. For example, in July 2018, Plaintiff went to the

emergency department for sciatic pain, but physical examination results showed normal

alignment, a normal straight leg raise test, normal musculoskeletal range of motion, normal

sensation and motor function, and no swelling or deformity. (Tr. 21, Tr. 347). Notably, there was

no indication of neck pain or range of motion restrictions. (Tr. 347).

Likewise, at an examination with primary care provider, Dr. Renfroe, regarding his back

pain in October 2018, Plaintiff’s neck was supple and non-tender and he exhibited no spinal

tenderness, swelling, or deformity. (Tr 21, Tr. 449). His gait and stance were normal, his motor

strength was normal, and he had normal sensation. (Tr. 21, Tr. 449). Dr. Renfroe referred Plaintiff

to physical therapy and, after completing a course of physical therapy in December 2018, Plaintiff

was noted to have decreased pain and increased mobility. (Tr. 21, Tr. 360). When Dr. Renfroe

examined Plaintiff again in January 2019, although Plaintiff reported continued low back pain,

his neck was supple, and he exhibited no motor or sensory deficits and normal reflexes. (Tr. 21,

15

Tr. 441-42).

Plaintiff then saw a neurologist, Dr. Phookan, in February 2019 for his back pain. (Tr.

396). Dr. Phookan’s examination results showed that Plaintiff was in no acute distress, he

exhibited a supple and non-tender neck, had no swelling of the extremities, and had full motor

strength, normal sensation, normal reflexes, and negative straight leg raise testing, although he

did have an antalgic gait. (Tr. 22, Tr. 396).

Due to his continued complaints of pain, Plaintiff underwent a decompressive lumbar

laminectomy in March 2019. (Tr. 397, 438). At a postoperative visit with Dr. Phookan two weeks

after the surgery, Plaintiff said he was feeling well, that his left leg pain had resolved, and that he

was able to bear significant weight on his left leg for the first time in years. (Tr. 22, Tr. 387).

Several weeks after the surgery, in April 2019, Dr. Renfroe observed that Plaintiff was walking

by himself even though he was still healing; on examination, Plaintiff’s back was non-tender and

he had no edema. (Tr. 22, Tr. 438). When Plaintiff returned to Dr. Phookan in July 2019, Plaintiff

reported only a small amount of pain in the left upper gluteal region, but no distal leg pain and no

significant midline back pain. (Tr. 22, Tr. 455). Plaintiff continued to wear a back brace for

comfort, but Dr. Phookan said that he could begin to wean from the brace. (Tr. 22, Tr. 455). Dr.

Phookan noted that further follow up would be as-needed, and there is no indication that Plaintiff

returned to Dr. Phookan. (Tr. 22, Tr. 455).

As the ALJ explained, Plaintiff’s physical examination results throughout the rest of 2019

and 2020 generally continued to show unremarkable findings, with no motor or sensory deficits,

normal straight leg raise testing, and no back tenderness. (Tr. 22, 408-09 (non-tender back, no

misalignment or palpable defect), 411-12, 414-15 (some back tenderness noted), 417-18 (back

16

non-tender, no focal abnormalities), 419-20 (back non-tender, no focal abnormalities), 421-22

(back non-tender), 424, 427-28 (supple neck), 431 (supple neck), 433-34, 436 (supple neck),

443-44). During this period, Plaintiff reported improvement at various times, stating, for example,

in November 2019 that physical therapy was helping and had increased his mobility and that he

had found good pain relief with his medications and an improved level of functioning. (Tr. 22, Tr.

411). In January 2020, Plaintiff reported that he was no longer wearing a brace for his back. (Tr.

22, Tr. 408). He was capable of increased ambulation and could go to the grocery store and do

some simple housework intermittently, although he experienced increased neck pain in the

afternoon. (Tr. 22, Tr. 408). When Plaintiff saw Dr. Renfroe in February 2020 for flu-like

symptoms, he did not report any musculoskeletal complaints. (Tr. 22, Tr. 405-06).

Clearly, the ALJ acknowledged Plaintiff’s subjective complaints of waxing and waning

symptoms, but correctly noted that the objective evidence of record did not support Plaintiff’s

allegations that he was more functionally limited than provided for in the RFC assessment.

Additionally, the ALJ also relied on State agency medical consultant Dr. Brill’s prior

administrative medical finding. (Tr. 23, Tr. 91-93, 101-03). At the reconsideration level, after

Plaintiff’s lumbar spine surgery, Dr. Brill found that Plaintiff could perform light work but could

stand or walk for two hours in an eight-hour workday and sit for up to six hours in an eight-hour

workday, with additional postural limitations, consistent with the RFC assessment. (Tr. 23, Tr.

91-93, 101-03). The ALJ found Dr. Brill’s opinion persuasive, noting that it was consistent with

the evidence of record reflecting mostly normal examination findings. Tr. 23; 20 C.F.R. §

404.1520c(c)(2). The regulations expressly note that “Federal or State agency medical or

psychological consultants are highly qualified and experts in Social Security disability

17

evaluation.” 20 C.F.R. § 404.1513a(b)(1). Moreover, Dr. Brill’s prior administrative medical

finding was based upon a review of the record through April 9, 2019, which included Plaintiff’s

March 2019 laminectomy. Dr. Brill’s assessment, therefore, provided further support for the

ALJ’s RFC assessment. See Schmidt v. Barnhart, 395 F.3d 737, 745 (7th Cir. 2005) (ALJ was

justified in relying on opinion of State agency medical consultant).

Noting a handful of instances in which Plaintiff complained of neck pain to Dr. Renfroe,

Plaintiff argues that the ALJ did not adequately account for his cervical spine impairment or for

the combined impact of all his impairments. (Tr. 408, 414, 419, 421, 424, 431). However, the

objective physical examination findings at those appointments fail to demonstrate any abnormal

findings with respect to Plaintiff’s neck. (Tr. 408-09, 414-15, 419-20, 424-25, 431). As the ALJ

correctly noted, the clinical evidence did not demonstrate the disabling symptomatology that

Plaintiff alleged, and Plaintiff cites no objective evidence, aside from the consultative

examination, to support his statements that he had significant limitations in his neck range of

motion. (Tr. 21-23). “The ALJ’s failure to address [certain] specific findings . . . does not render

his decision unsupported by substantial evidence because an ALJ need not address every piece of

evidence in his decision.” Sims v. Barnhart, 309 F.3d 424, 429 (7th Cir. 2002). As discussed

above, the ALJ reasonably concluded that the consultative examination results and, consequently,

Dr. French’s opinion, were not reliable indications of Plaintiff’s capabilities because they were

inconsistent with the other record evidence showing generally normal physical examination

findings and no limitations on Plaintiff’s neck movement. (Tr. 23, Tr. 379). See Young v.

Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) (it is the ALJ’s role to resolve conflicts in the

evidence of record).

18

Plaintiff also argues that the ALJ did not properly evaluate a May 2019 statement from

Goodman Campbell Brain and Spine stating that Plaintiff was indefinitely “totally disabled.” (Tr.

403). The ALJ found this statement to be unpersuasive, noting that it was only temporary, and did

not provide specific functional limitations or provide any supportive clinical findings or

diagnostic imaging. (Tr. 23). As the Commissioner argues, the ALJ’s evaluation of this statement

was in line with the regulatory requirements concerning such statements. The applicable

regulations provide that statements “that you are or are not disabled” or not “able to work” are

inherently neither valuable nor persuasive. 20 C.F.R. § 404.1520b(c)(3). Under those regulations,

the ALJ was not even required to explain how this statement was considered or to address it at all.

20 C.F.R. § 404.1520b(c). Nevertheless, the ALJ provided Plaintiff with an explanation as to why

the statement was unpersuasive.

“[A]n ALJ need only ‘minimally articulate’ his or her justification for rejecting or

accepting specific evidence of a disability.” Rice, 384 F.3d at 371 (quoting Stewart v. Bowen, 858

F.2d 1295, 1299 (7th Cir. 1988)). Here, the ALJ adequately explained her reasoning for the RFC

finding, citing substantial objective evidence of record as well as Dr. Brill’s expert opinion in

support of the RFC determination. Because substantial evidence supports the RFC finding,

remand is not warranted.

Plaintiff also argues that the ALJ did not properly analyze the consistency of his

subjective complaints with the evidence of record, alleging that the ALJ did not specifically

discuss the factors set forth in Social Security Ruling (SSR) 16-3p. As the Commissioner points

out, however, the absence of an explicit enumeration of those factors does not mean that the ALJ

did not properly consider Plaintiff’s subjective statements. The ALJ explained that, although

19

treatment records confirmed Plaintiff’s complaints of pain, the records did not substantiate

functional deficits beyond what was accounted for in the RFC. (Tr. 21). The ALJ then discussed

the facts relevant to the analysis of Plaintiff’s subjective complaints. For example, the ALJ noted

that, although Plaintiff had reported using a cane, the objective evidence did not corroborate

ongoing cane usage. (Tr. 21, Tr. 363, 381); SSR 16-3p (ALJ may consider measures other than

treatment that an individual uses to relieve pain or other symptoms). The ALJ also noted that

Plaintiff’s mobility improved following his lumbar spine laminectomy. (Tr. 21,Tr. 387, 408, 411);

20 C.F.R. § 404.1529(c)(3)(v) (ALJ may consider the treatment an individual has received to

alleviate pain); SSR 16-3p (relevant evidence includes a record of any treatment and its success or

failure). The ALJ also considered Plaintiff’s testimony, acknowledging his statements that he did

not like to drive due to concerns with turning his head, that he could help with household chores

on good days but still needed assistance, that he could walk around a store to shop but had to lean

on a grocery cart, and that he could hardly do anything for himself anymore and had trouble

standing due to his back pain. (Tr. 20, Tr. 51-53); 20 C.F.R. § 404.1529(c)(3)(i).

However, the ALJ explained throughout the decision that the objective medical evidence,

which repeatedly showed benign physical examination results, did not support the degree of

limitation that Plaintiff alleges. See Tr. 21-23 (discussing objective evidence and noting

repeatedly that the evidence did not show functional deficits); 20 C.F.R. § 404.1529(c)(2)

(“Objective medical evidence . . . is a useful indicator to assist us in making reasonable

conclusions about the intensity and persistence of your symptoms and the effect those symptoms,

such as pain, may have on your ability to work.”); SSR 16-3p (“We must consider whether an

individual’s statements about the intensity, persistence, and limiting effects of his or her

20

symptoms are consistent with the medical signs and laboratory findings of record.”).

Plaintiff argues that the ALJ improperly assessed his credibility by noting that Plaintiff

had stopped taking pain medications at times and that he smoked marijuana for pain relief. (Tr.

21). There is no indication, however, that the ALJ held Plaintiff’s admitted marijuana use against

him; rather, the ALJ merely observed that marijuana was among the ways that Plaintiff managed

his pain, as contemplated by 20 C.F.R. § 404.1529(c)(3). And Plaintiff’s statement that “there

were no times [he] was not taking pain medications” is incorrect, as the ALJ cited an October

2018 appointment note in which Plaintiff told Dr. Renfroe that he was not taking any oral

medication and that he smoked marijuana for pain relief. (Tr. 448). In any event, these

observations by the ALJ were only a small part of the ALJ’s overall analysis of Plaintiff’s

subjective complaints compared to objective evidence of record.

Although Plaintiff argues that the ALJ failed to create an “accurate and logical bridge”

between the evidence and her determination that Plaintiff’s subjective complaints were not totally

consistent with the record, the ALJ clearly stated that “a careful review of the record does not

document sufficient objective medical evidence to substantiate the severity of the pain and degree

of functional limitations alleged by the claimant.” (Tr. 20). Thus, although Plaintiff had some

limitations, as reflected in the RFC, the objective evidence, which was discussed by the ALJ, did

not support the degree of functional limitations alleged. This was more than sufficient to meet the

requirement that the ALJ “minimally articulate” her reasoning. Filus v. Astrue, 694 F.3d 863, 869

(7th Cir. 2012) ([W]e require only that the ALJ ‘minimally articulate’ his reasoning.”). Therefore,

the decision will be affirmed.

21

Conclusion

On the basis of the foregoing, the Decision of the Commissioner is hereby AFFIRMED.

Entered: November 22, 2021.

s/ William C. Lee

William C. Lee, Judge

United States District Court

22