DENISE K. LaRUE, Magistrate Judge.
The Commissioner of Social Security denied Tracy Trittin's applications for disability-insurance and supplemental-security-income benefits under Titles II and XVI of the Social Security Act. Ms. Trittin now sues for judicial review of that denial.
Judicial review of the Commissioner's factual findings is deferential: courts must affirm if her findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). Substantial evidence is more than a scintilla, but less than a preponderance, of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). If the evidence is sufficient for a reasonable person to conclude that it adequately supports the Commissioner's decision, then it is substantial evidence. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758 (7th Cir. 2004). This limited scope of judicial review derives from the principle that Congress has designated the Commissioner, not the courts, to make disability determinations:
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758. While review of the Commissioner's factual findings is deferential, review of her legal conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
The Social Security Act defines disability as the "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 12 months. . . ." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). A person will be determined to be disabled only if his impairments "are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). 20 C.F.R. §§ 404.1505, 404.1566, 416.905, and 416.966. The combined effect of all of an applicant's impairments shall be considered throughout the disability determination process. 42 U.S.C. §§ 423(d)(2)(B) and 1382c(a)(3)(G). 20 C.F.R. §§ 404.1523 and 416.923.
The Social Security Administration has implemented these statutory standards in part by prescribing a "five-step sequential evaluation process" for determining disability. If disability status can be determined at any step in the sequence, an application will not be reviewed further. At the first step, if the applicant is currently engaged in substantial gainful activity, then he is not disabled. At the second step, if the applicant's impairments are not severe, then he is not disabled. A severe impairment is one that "significantly limits [a claimant's] physical or mental ability to do basic work activities." Third, if the applicant's impairments, either singly or in combination, meet or medically equal the criteria of any of the conditions included in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, Part A, then the applicant is deemed disabled. The Listing of Impairments are medical conditions defined by criteria that the Social Security Administration has pre-determined are disabling. 20 C.F.R. § 404.1525. If the applicant's impairments do not satisfy the criteria of a listing, then her residual functional capacity ("RFC") will be determined for the purposes of the next two steps. RFC is an applicant's ability to do work on a regular and continuing basis despite his impairment-related physical and mental limitations and is categorized as sedentary, light, medium, or heavy, together with any additional non-exertional restrictions. At the fourth step, if the applicant has the RFC to perform his past relevant work, then he is not disabled. Fifth, considering the applicant's age, work experience, and education (which are not considered at step four), and his RFC, the Commissioner determines if he can perform any other work that exists in significant numbers in the national economy. 42 U.S.C. § 416.920(a)
The burden rests on the applicant to prove satisfaction of steps one through four. The burden then shifts to the Commissioner at step five to establish that there are jobs that the applicant can perform in the national economy. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004). If an applicant has only exertional limitations that allow her to perform the full range of work at her assigned RFC level, then the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the "grids"), may be used at step five to arrive at a disability determination. The grids are tables that correlate an applicant's age, work experience, education, and RFC with predetermined findings of disabled or not-disabled. If an applicant has non-exertional limitations or exertional limitations that limit the full range of employment opportunities at his assigned work level, then the grids may not be used to determine disability at that level. Instead, a vocational expert must testify regarding the numbers of jobs existing in the economy for a person with the applicant's particular vocational and medical characteristics. Lee v. Sullivan, 988 F.2d 789, 793 (7th Cir. 1993). The grids result, however, may be used as an advisory guideline in such cases.
An application for benefits, together with any evidence submitted by the applicant and obtained by the agency, undergoes initial review by a state-agency disability examiner and a physician or other medical specialist. If the application is denied, the applicant may request reconsideration review, which is conducted by different disability and medical experts. If denied again, the applicant may request a hearing before an administrative law judge ("ALJ").
In her applications, Ms. Trittin reported that she suffers from fibromyalgia, a heart condition (possible bradycardia), nausea, and asthma. (R. 182, 215.) Later, she alleged that she suffers from chronic obstructive pulmonary disease, migraines, and pain disorders, as well. She asserts that she suffers nausea, vomiting, dry heaves, diarrhea, irritable bowl syndrome, fatigue, and weakness as side effects of her fibromyalgia, which render her unable to maintain the stamina, persistence, and pace to perform substantial gainful activity. At most, she contends that she could perform a part-time job two to three days a week, lying down every day. (Brief of Plaintiff [doc. 28] at 5-6.) Ms. Trittin has been represented by current counsel from her application to the present. (R. 215.)
Ms. Trittin's claims were denied on initial and reconsideration reviews, (R. 87-108), and she received a hearing before an ALJ, (R. 38-86). Ms. Trittin, her boyfriend with whom she has co-habited for one and one-half years, and a vocational expert testified. Ms. Trittin's counsel submitted emergency-room notes on the day before the hearing, (R. 501-09 (Exhibit 22F)), and the ALJ held open the record to receive additional evidence, (R. 17, 41, 45-46, 48, 85).
At step one, the ALJ determined that Ms. Trittin has not engaged in substantial gainful activity since her alleged disability-onset date in March 2010. At step two, the ALJ found that she suffers from the following severe impairments: fibromyalgia, asthma/chronic obstructive pulmonary disease, bradycardia, migraines, depression, pain disorder associated with both psychological factors and a general medical condition, and history of cannabis use. The ALJ found that seizure, nausea, diarrhea, and hypertension are not severe impairments. At step three, the ALJ found that Ms. Trittin does not have impairments, severe and non-severe, singly or in combination, that satisfy any of the conditions in the listing of impairments. She examined the listings for chronic pulmonary insufficiency (3.02), asthma (3.03), cardiovascular system (4.00 series), affective disorders (12.04), and substance-addiction disorders (12.09).
For steps four and five, the ALJ determined Ms. Trittin's RFC. She found that Ms. Trittin has the RFC to perform at the sedentary, light, and medium levels of exertion with the following additional restrictions: she must avoid certain environmental conditions;
At step four, the ALJ found that this RFC prevents Ms. Trittin performing her past relevant work. At step five, relying on the testimony of the vocational expert, the ALJ found that a significant number of jobs exists in the national economy with Ms. Trittin's RFC, age (younger individual age 18 to 49), transferability of skills (unskilled), and education (limited, with the ability to communicate in English). Therefore, the ALJ found that Ms. Trittin is not disabled and denied her benefits claims.
Ms. Trittin asked the Appeals Council to review the ALJ's decision and submitted additional records from Joseph Dominik, M.D., to it. (R. 6, 9, 10, 673-710 (Exhibit 26F).) After reviewing the additional evidence, the Appeals Council denied review, (R. 6), which rendered the ALJ's decision the Commissioner's final decision on Ms. Trittin's claims and the one that the Court reviews.
Ms. Trittin argues that the ALJ's decision is erroneous on several grounds.
Ms. Trittin fails to identify the specific opinions of her treating physicians to which she contends the ALJ failed to give controlling weight. Instead, she describes criteria for a diagnosis of fibromyalgia and the findings of these physicians showing that certain of these criteria were present, and she emphasizes that they all diagnosed her with fibromyalgia. But the ALJ accepted their diagnoses and specifically found that Ms. Trittin has the severe impairment of fibromyalgia; thus, she gave their opinions controlling weight to that extent. The ALJ's significant finding was that Ms. Trittin's functional limitations resulting from her impairments, including fibromyalgia, did not amount to disability and, with regard to this finding, Ms. Trittin fails to identify any contradictory opinions by her treating physicians. When the Commissioner pointed this out in her response " that diagnosis does not equal functional disability " Ms. Trittin replied by simply repeating her assertions that the ALJ "failed to acknowledge or recognize the severity of her fibromyalgia" and that her physicians have diagnosed fibromyalgia.
In her reply, Ms. Tritten adds that her physicians treated her for fibromyalgia and that "none of them disputed her allegations of pain, the severity of the pain, of migraines, of nausea and vomiting associated with any of the doctors' diagnosis [sic]." (Reply at 1, 2.) But her physicians' treatments of her fibromyalgia, while confirming their diagnoses, still do not address the degree of functional limitation caused thereby. In addition, the absence of an opinion disputing any of Ms. Trittin's allegations does not constitute an opinion fully confirming her allegations.
The Court will not search through the evidence originating from Drs. Hague, Pfeifer, and Dominik for an opinion on Ms. Trittin's functional limitations to which the ALJ should have given controlling weight. If such opinions exist in the record, and they are helpful to Ms. Trittin's assertion that she is disabled, then the Court assumes that they would have been cited by her.
Ms. Trittin has not shown error in the ALJ's according of weight to her treating physicians.
Ms. Trittin asserts conclusorily that the ALJ ignored evidence of fibromyalgia and its effects and/or should have devoted more time to discussing her treating physicians' records. But, again, she fails to identify specific items of evidence in the record that the ALJ was required to explicitly address and the specific effects of that evidence on showing disability. She asserts that the ALJ failed to discuss the many pages of the physicians' reports regarding her fibromyalgia, including her trigger-point tests and the impairments side effects, (id. at 13), but, other than the trigger-point tests, she does not identify specific evidence in those reports that are significant enough to have required explicit address by the ALJ. Because the ALJ accepted the diagnosis of fibromyalgia as a severe impairment, it is not evident that specific discussion of the trigger-point tests was required. Ms. Trittin has not shown that the ALJ prejudged her RFC, evaluated the record evidence against that RFC, or ignored evidence relevant to RFC.
The Court will not reweigh Dr. Bangura's opinion against Dr. Whitley's. It was Ms. Trittin's burden to show that the ALJ's weighing of their reports is not supported by substantial evidence or is the result of legal error and she has not done so. The ALJ discussed Dr. Bangura's examination report, (R. 25-26), and then evaluated her opinion, (R. 29). The ALJ gave Dr. Bangura's opinion regarding Ms. Trittin's functional limitations "[o]nly some weight" because she found that it was not consistent with the overall record or Dr. Bangura's own findings. (R. 29.) She found that few findings were indicated to support Dr. Bangura's opinions and most of the findings were normal, which was consistent with the normal results found by Dr. Harris, one of Ms. Trittin's treating physicians, during his examination a few months later. The ALJ concluded that Dr. Bangura's opinion apparently was based on Ms. Trittin's self-reports of limitations rather than her examination findings. The ALJ wrote that, "[t]o the extent that this was during a period of exacerbation of fibromyalgia, the frequency and intensity of the flare is not corroborated to the extent alleged and does not appear to meet the durational requirements of the Act." (R. 29.) There is no support here for Ms. Trittin's argument that the ALJ discounted Dr. Bangura's opinion simply because it was inconsistent with her predetermined RFC.
In her opening brief, Ms. Trittin argues that the ALJ's inference was erroneous because, since she had been working only part-time beforehand, the doctors were releasing her only to the type of work that she performed before, not full-time work or substantial gainful activity. (Brief of Plaintiff at 14-15.) In her reply, Ms. Trittin adds the assertion that both doctors "recognized that [she] was working part time at McDonalds. No explanation of any restriction was necessary except that she could attempt to go back to doing what she was doing." (Reply at 3.) Thus, Ms. Trittin argues that the only reasonable inference is that both doctors' releases were for part-time work and do not indicate they believed that she had no restrictions inconsistent with full-time work.
The problem with Ms. Trittin's argument is that the work releases, on their faces, are not limited to part-time work and she fails to cite evidence that the doctors were aware that she was working only part-time and that they intended to limit her to return to no more than the part-time work that she had been performing.
S.S.R. 96-7p requires adjudicators' decisions to "contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." A credibility finding "cannot be based on an intangible or intuitive notion about an individual's credibility. The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision." Credibility findings may be informed by the claimant's testimonial demeanor:
S.S.R. 96-7p. However:
Id.
Because an ALJ is in the best position to determine a witness's credibility, courts should not overturn such a determination unless it is patently wrong, meaning that it lacks any explanation or support. Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012); Skarbek v. Barnhart, 390 F.3d 500, 505 (7th Cir. 2004); Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
Ms. Trittin argues that the ALJ's credibility finding is erroneous for several reasons.
"Credibility determinations can rarely be disturbed by a reviewing court, lacking as it does the opportunity to observe the claimant testifying." Curvin v. Colvin, ___ F.3d ___, 2015 WL 542847, *4 (7th Cir., Feb. 11, 2015). The ALJ specifically found that Ms. Trittin's testimonial credibility was poor, based on her personal observation of Ms. Trittin's testimony " "her demeanor, the way she answered questions, and all of the other factors that go into assessing a witness' credibility." (R. 26.) This type of credibility determination, based on direct personal observation, is almost impossible to find erroneous. See Bates v. Colvin, 736 F.3d 1093, 1098 (7th Cir. 2013) ("An ALJ's credibility determination is entitled to deference, and we will overturn a credibility finding only if it is `patently wrong.' . . . But when a credibility finding rests on `objective factors or fundamental implausibilities,' rather than on a claimant's demeanor or other subjective factors, we have greater leeway to evaluate the ALJ's determination." (Citations omitted)); Connor ex rel. I. C. v. Astrue, No. 11-C-8736, Memorandum Opinion and Order, 2012 WL 6720542, *6 n. 4 (N.D. Ill., Dec. 27, 2012) (". . . demeanor can rarely be effectively determined on review."). Ms. Trittin's belief that she testified respectfully and forthrightly is merely a disagreement with the ALJ's impressions, but does not show error. In addition, the ALJ gave sufficient reasons for this "demeanor" component of her credibility finding to enable review. Ms. Trittin cited no authority requiring an ALJ to catalog the multifarious and often indefinable and indescribable elements of a witness's demeanor and manner before a court may defer to the ALJ's personal observations. See Snyder v. Louisiana, 552 U.S. 472, 477 (2008); United States v. Raddatz, 447 U.S. 667, 679 (1980) ("`The most careful note ["of witnesses' prior testimony"] must often fail to convey the evidence fully in some of its most important elements. . . . It cannot give the look or manner of the witness: his hesitation, his doubts, his variations of language, his confidence or precipitancy, his calmness or consideration; . . . the dead body of the evidence, without its spirit; which is supplied, when given openly and orally, by the ear and eye of those who receive it.'" (Quoting Queen v. Bertrand, 4 Moo.P.C.N.S. 460, 481, 16 Eng.Rep. 391, 399 (1867))).
Ms. Trittin's reliance on physicians' opinions that she put forth her best efforts on examinations and did not exaggerate her symptoms are, in essence, credibility determinations by the physicians and, while the ALJ should, and did, consider them, she was not bound by them. The physicians' impressions do not show that the ALJ's independent credibility finding, which was based also on evidence and factors not considered by the physicians, was erroneous. Likewise, the ALJ was not bound by Mr. Wilkes' and Ms. Worley's statements that (Ms. Trittin contends) confirm her own. The ALJ gave reasons for not fully crediting these witnesses' accounts, (R. 29),
The Court does not find that ALJ misinterpreted the evidence regarding Ms. Trittin's drug-test results or the evidence that she was not completely honest with her physicians regarding her drug use. Ms. Trittin's arguments again improperly ask the Court to reweigh the evidence and draw different inferences than the ALJ did.
Ms. Trittin's argument that the ALJ's discounting of her statements based on her cigarette smoking and acquisition of a cat is erroneous because neither is related to her inability to work due to fibromyalgia because the ALJ cites those facts not as direct indicators of Ms. Trittin's ability to work in general or of the severity of her fibromyalgia in particular, but as indicators of her overall credibility and, thus, only indirect indicators of the credibility of her subjective statements regarding the functional limitations that her impairments, including her fibromyalgia, impose.
Finally, Ms. Trittin argues that the ALJ improperly equated her ability to perform activities of daily living to the ability to perform the demands of a full-time job, which the Court of Appeals for the Seventh Circuit has cautioned courts against. However, Ms. Trittin again misreads the ALJ's decision. The ALJ did not equate Ms. Trittin's activities of daily living with the ability to perform a full-time job; rather, she found that Ms. Tritten's reported activities of daily living are not inconsistent with the ALJ's defined
RFC. The ALJ considered the entire record to define that RFC and to determine that there are jobs that Ms. Trittin can perform.
Ms. Trittin has not shown that the ALJ erred in her credibility finding.
Because Ms. Trittin has not shown that the ALJ's decision is not supported by substantial evidence or the product of legal error, the Commissioner's denial of her claims for disability benefits will be affirmed.
Ms. Trittin argues that lay witnesses, by definition, do not have medical training, yet the regulations and rules require ALJs to consider their statements, and an assumption that "interested" witnesses are not telling the truth is insupportable because witnesses who are closest to a claimant can be the best witnesses of her symptoms and limitations. However, it is evident that the ALJ did consider these witnesses' statements but she also considered factors that tended to discount their credibility. The ALJ also observed Mr. Wilkes's testimony at the hearing. Arguing that the ALJ should have given the witnesses' statements more weight than she did is asking the Court to reweigh the evidence, which the Court cannot do. It also asks the Court to not defer to the ALJ's credibility findings, which the Court will not do based solely on Ms. Trittin's argument.