MARY M. ROWLAND, Magistrate Judge.
Plaintiff Kenneth Wright filed this action seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") Benefits under Title XVI of the Social Security Act, 42 U.S.C. Section 1381a et seq. The parties have consented to the jurisdiction of the United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c), and the parties have filed cross motions for summary judgment. For the reasons stated below, the Commissioner's decision is affirmed.
Plaintiff Kenneth Wright ("Wright") applied for Social Security and Supplemental Security Income benefits on January 14, 2011, claiming several combined disabling impairments. His claim was denied on April 1, 2011 (id.), and again on reconsideration on May 23, 2011. (Id. at 85). Wright then filed a timely request for hearing on July 22, 2011. (Id. at 95). On June 7, 2012, Wright, represented by counsel, testified at a hearing before an Administrative Law Judge ("ALJ"). (Id. at 30-83). The ALJ also heard testimony from Richard Hammerson, a vocational expert. (Id. at 78-82).
The ALJ denied Wright's request for benefits on July 13, 2012. (R. at 15-29). Applying the five-step sequential process, the ALJ found, at step one, that Wright had not engaged in any substantial gainful activity since January 14, 2011. (Id. at 20). At step two, the ALJ found that Wright had several severe impairments: osteoarthritis, obesity, gout, sleep apnea, and status-post [sic] left inguinal hernia repair. (Id.) At step three, the ALJ determined that Wright does not have an impairment or combination of impairments that meet or medically equal the severity of one of the listed impairments. (Id.)
The ALJ then assessed Wright's residual functional capacity (RFC) and determined that he could perform light work with the following exceptions:
(R. at 21).
At step four, the ALJ concluded that Wright was unable to perform any of his past work, but at step five, the ALJ found that Wright could perform jobs that exist in the national economy in significant numbers. (R. at 24-25). Accordingly, the ALJ concluded that Wright was not suffering from a disability as defined by the SSA. (Id.).
On July 9, 2013, the Appeals Council denied Wright's request for a review of the ALJ's decision. (R. at 1-4). Wright now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. Villano v. Astrue, 556 F.3d 558, 561-62 (7
To recover Disability Insurance Benefits ("DIB") or Supplemental Security Income ("SSI") under Titles II and XVI of the SSA, a claimant must establish that he or she is disabled within the meaning of the SSA.
Judicial review of the ALJ's final decision is authorized by §405(g) of the SSA. The court affirms the ALJ's decision if it is supported by substantial evidence. Young v. Barnhart, 362 F.3d 995, 1001 (7
Although this Court accords great deference to the ALJ's determination, it "must do more than merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (citation omitted). The Court must critically review the ALJ's decision to ensure that the ALJ has built an "accurate and logical bridge from the evidence to his conclusion." Young, 362 F.3d at 1002. The court remands the case "where the Commissioner's decision lacks evidentiary support or is so poorly articulated as to prevent meaningful review." Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Wright claims that his disability began on January 7, 2009. (R. at 143). On that date, Wright fell while on his way to his seat on a moving bus, and his left quadriceps tendon ruptured. (Id. at 222). Wright was diagnosed with tendon rupture, and left humoral condyle fracture with mild displacement. (R. at 219). The rupture was surgically repaired in March 2009. (Id. at 227-28).
On February 6, 2009, upon exam by his treating physician Dr. Brenda Jefferson-Byrd, Wright reported 10/10 pain for more than one month in his left leg. (R. at 239). He reported a past medical history of hypertension, type 2 diabetes, a previous bleeding ulcer, sleep apnea and his knee injury. (Id.) However, when asked if pain was affecting his activity level, Wright reported that it was not. (Id. at 243).
After the February appointment, Wright's hypertension and diabetes were noted throughout the Komed Health Center records. Wright's blood pressure was elevated at 160/98 on February 6, 2009, and pedal pulse ratings of 2 plus. (Id. at 238, 241).
Wright then was seen regularly from August 2009 to March 2011. (R. at 243-434). Wright's blood pressure was elevated at 140/100 on August 7, 2009, and there was slight diminishment in his foot pulses. (Id. at 243-44). His prescriptions were continued, except for the muscle relaxant. (Id. at 245). Wright's blood pressure continued to be high at 142/88 on August 14, 2009, but the main concern at the appointment was diabetic foot care. Wright suffered from foot fungus related to his diabetes. (Id. at 247-48). On September 11, 2009, Wright had elevated blood pressure at 150/88, and on October 16, 2009, it was elevated again at 150/98, although on November 13, 2009 it was down to 138/94 (Id. at 253-61, 263). A new Prescription for Diovan likely helped reduced the blood pressure. (Id. at 262).
Wright also suffered from other ailments. Wright claimed that sleep apnea was part of his disability. He reported being treated for the disorder, using a CPAP machine and sleeping poorly. (R. 57-58, 239). Another significant issue was Wright's obesity. On August 7 and on September 11, 2009, Wright was found to have a body mass index of 38.66, indicating obesity.
Regardless of the purpose of Wright's clinic visit, the notes from each appointment indicate that Wright was asked whether pain was affecting his activity level.
The first time Wright complained of pain in his right knee was on May 14, 2010, at an appointment with Dr. Jefferson-Byrd. (R. at 294). Wright complained of a "burning" pain, which he stated he had experienced "daily" for a duration of "1-2 days," which was improved by Tylenol. (Id.) He also reported that the pain affected his activity level. (Id.) There is no indication in the records what caused this knee pain. This is the opposite leg than the one injured in the bus incident on January 7, 2009, Mr. Wright's alleged onset date. Wright also visited the doctor on this occasion for the removal of skin tags and moles, and asked for a referral for his varicose veins. (Id. at 294). At Wright's next three appointments, on June 11, July 9, and August 13, 2010, Wright reported to Dr. Jefferson-Byrd that pain was not affecting his activity level. (Id. at 301, 312, 315). On this last visit, Wright complained chiefly of back pain, and asked for refills on his medications. (Id. at 315). He was prescribed ibuprofen and extra-strength Tylenol for the pain. (Id.)
Again on September 10, 2010, Wright stated that pain was not affecting his activity level. (R. at 319). The doctor discussed "Self Management Goals" with Wright regarding his diet, getting exercise and "dealing with stress." There are no notes reflecting discussion of right knee pain. (Id. at 319-22). On October 8, 2010, Wright reported that pain was not limiting his activity level. (Id. at 324). Wright visited the clinic on November 12, 2010 for a refill of his prescriptions for ibuprofen, Metformin, Lovastatin, Diovan and Tenoretic (Altenolol-Chlorthalidone)(a beta-blocker).
In his Function Report, dated February 23, 2011, Wright stated that since his knee injury, he is only able to "walk up stair[s] one step at a time, must hold on to [the] bannister to support my weight, cannot run, must walk very slow. . . ." (R. at 175). Wright stated that he could slip easily on wet surfaces, that it was "hard to kneel to [the] ground and [get] back up," and that long drives were painful for his right knee. (Id.) He reported difficulty walking up stairs, (id. at 180), and that he would wake up with pain in his right knee (id. at 176). Despite the knee pain, Wright reported that one of his daily activities was to go for short walks. (Id. at 178-79). Wright stated that he took medication for his knee pain, and that it did not cause side effects, but he omitted the name of the medicine. (Id. at 182). Wright further reported that he was prescribed a cane and crutches after his injury in January 2009, and a walker after his surgery, but indicated that "I no longer use the cane, crutches or walker." (Id. at 181). He also stated that he cannot carry more than 10 pounds. (Id. at 184). To get up from a chair, Wright stated, he must hold on to the chair arm. (Id. at 185). He also stated that he can sit for only a few minutes before he must stand due to the pain in his right knee. (Id.) His knees cause him a lot of pain "[a]fter a long walk." (Id. at 185).
On March 4, 2011, Wright visited Dr. Jefferson-Byrd and complained of right knee pain, this time at a level of 3 out of 10, having lasted for six months. (R. at 432). Wright described the pain as aching, occurring weekly, intermittently, and improving by use of heat, ice and a knee band. (Id.). Wright stated that the pain was interfering with his activity level. (Id.) Dr. Jefferson-Byrd noted that Wright still rode his bicycle for exercise and that there was no obvious swelling in the knees. (Id.) She also noted that Wright denied sleep disturbances. (Id.) Her assessment does not acknowledge Wright's right knee pain; instead, she assessed Wright with "knee pain, left, chronic as deteriorated," prescribed no additional medications, and told Wright to follow up in a month. (Id. at 433-434).
On behalf of the Commissioner, on March 19, 2011, Dr. Norbert De Biase examined Wright. (R. at 346-54). Wright complained to Dr. De Biase of pain in both knees, but more the right, as well as stiffness and swelling in both. (Id. at 346). Wright also told Dr. De Biase that he could sit for one-half hour, and stand for one hour, and that he preferred standing. (Id. at 347). Wright stated that he could lift and carry 15 pounds. (Id.). Wright also stated that he could walk 10 blocks. (Id.). Dr. De Biase found that Wright was able to walk 50 feet unassisted, without a cane or walker, with a minimal limp on his left side. (Id. at 348). Dr. De Biase also found that Wright had crepitus bilaterally in his knees, (Id.), and he noted that Wright had "mild difficulty performing toe, heel, squatting and tandem gait." (Id.) In compiling his report to the Bureau of Disability Determination Services ("DDS"), Dr. De Biase reviewed all Komed records,
Eleven days later, on March 30, 2011, Dr. Madison, a non-examining DDS physician, completed the Physical Residual Functional Capacity Assessment, and found that Wright could occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, and stand or walk about 6 hours in an 8-hour day. (R. at 364). He based all of these conclusions on the March 19, 2011 report of the consulting physician Dr. De Biase, and the radiology examinations conducted several days later. (Id. at 364). Dr. Madison also found that Wright was capable of occasionally climbing ramps or stairs, although never ropes, ladders or scaffolds, and that he could stoop frequently, and kneel, crouch, and crawl occasionally. (Id. at 365). He found that Wright should avoid concentrated exposure to extreme cold and fumes, but could tolerate unlimited exposure to extreme heat, wetness, humidity, noise and vibration as well as hazards, such as machinery. (Id. at 367). Dr. Madison reviewed (1) Wright's medical records for his hospitalization March 26-28, 2009, for surgery on his quadriceps rupture; (2) one medical record from June 15, 2010; and, (3) Dr. De Biase's report. (Id. at 370). Dr. Madison also noted that Wright walked without use of a cane or walker, based on Dr. De Biase's report. (Id. 364-65).
Wright reported to the SSA Field Office on April 29, 2011 that his disability was based on his obesity, including a weight gain of 25 pounds, and that his "right leg is knee is [sic] weaker" and that "occasionally I have severe back pain that does not allow me to get out of bed." (R. at 206). Wright also reported new limitations that he could not walk up and down stairs, that he could not run and that his "left leg buckles when walking causing me to fall." (Id.) Wright was being prescribed ibuprofen for pain, and Lovastatin (a cholesterol medication), Metformin (for diabetes), Atenolol (beta-blocker), Diovan (a high blood pressure drug) and Bupropion
On May 20, 2011, a non-examining DDS physician Dr. David Mack, affirmed Dr. Madison's opinion. (R. 371-73). Dr. Mack stated that Wright did not allege worsening of knee injury. (Id. at 373). Dr. Mack first observed that there was no medical evidence regarding the right knee, and the x-ray of the left knee showed "minimal narrowing of the medial compartment." (Id.). Dr. Mack then noted that Wright walked without "an assistive device," and concluded that "appropriate limitations were provided" for in Wright's RFC. (Id.). There was no statement from any treating source for Dr. Mack to review. (Id.). Dr. Mack checked the box to indicate that "[t]he prior determination was substantively and technically correct." (Id.)
Plaintiff raises four arguments in support of his request for a reversal and remand: (A) the ALJ's credibility determination was defective; (B) the ALJ disregarded treating physicians' opinions and failed to articulate his reasons for doing so; (C) the ALJ failed to fully and fairly develop the record; and (D) the ALJ improperly relied upon his own inexpert medical opinion and disregarded the opinions found in the medical records. The Court addresses each argument in turn.
The Plaintiff argues that the ALJ's credibility determination was defective because, in evaluating Wright's RFC, the ALJ relied upon the oft-criticized language that "claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." (R. at 22). This is the same language that the Seventh Circuit has repeatedly described as "meaningless boilerplate" because it "fails to inform us in a meaningful, reviewable way of the specific evidence the ALJ considered in determining that claimant's complaints were not credible." Bjornson v. Astrue, 671 F.3d 640, 645 (7
In his decision, the ALJ summarized the findings of the DDS physician who examined Wright, which noted that Wright complained of pain in both knees, that Wright did not require a cane to walk, and that:
(R. at 22-23).
The ALJ then summarized the DDS non-examining doctor's report, and the report on reconsideration. He also generally discussed the medical records from the health center Wright visited more than 25 times between 2009 and 2011, and noted that it was not until March 4, 2011 that Wright complained of right knee pain that had lasted for six months (meaning it began in September 2010).
The ALJ then continued discussing the record, and concluded:
(R. at 23-24).
The ALJ's extensive discussion allows the Court to sufficiently analyze what the ALJ relied on when he concluded that Plaintiff was not entirely credible. See Pepper, 712 F.3d at 367-68. The ALJ analyzed the consulting physician's and DDS physician's reports, and also considered his treating physicians' records. The ALJ found only two reports of right knee pain complaints—one to Dr. De Biase, and one to Dr. Jefferson-Byrd—and the ALJ reasoned that the DDS physician's reports were well-founded. Because the Court can follow the ALJ's reasoning, and because the ALJ provided substantial evidence for his decision, the Court is not persuaded by Plaintiff's claim that the ALJ improperly selected evidence that would support his conclusion regarding the RFC. Rather, the credibility determination was supported with substantial evidence.
Plaintiff argues that the ALJ improperly ignored the opinions of Wright's treating physicians, failed to articulate reasons for doing so, and selected evidence specifically that would support the ALJ's ultimate conclusion. (Pl. Mot. at 8-10). Plaintiff argues that "[t]he ALJ here did not even make an attempt to articulate reasons for rejecting the opinion of the treating and consultative doctors. Instead, he just recites what is contained in the medical records, without explaining why those findings and opinions were not accorded either controlling or greater weight." (R. at 10-11). The Court agrees with Wright that the ALJ cannot ignore uncontradicted, dispositive medical opinions. The problem with Wright's argument is that he has not identified a single medical opinion by a treating physician that the ALJ ignored. Accordingly, this argument is waived. Clarett v. Roberts, 657 F.3d 664, 674 (7
In fact, the only significant evidence that contradicts the DDS physicians' reports is Wright's own hearing testimony. For example, the ALJ states that, "There is no evidence supporting a need for a cane," (R. at 21), despite Wright's testimony on July 7, 2012 that he uses a cane "off and on." (Id. at 49). The ALJ even engaged in the following colloquy with Wright:
(R. at 50).
This exchange appears to contradict Wright's statements to Dr. De Biase on March 19, 2011 that he "used to have" a cane, but that currently he could walk 10 blocks. (R. at 347). The ALJ neither acknowledges the conflict, nor directly addresses the testimony.
Wright mentioned his right knee pain at only two doctors' appointments, and reported an ability to walk some distance when he met with Dr. De Biase. In his decision, the ALJ addressed each of Wright's physical complaints, and each significant piece of evidence about that complaint— with the sole exception being Wright's statements regarding the need for a cane—and the ALJ noted how the complaints to his treating physicians, throughout 2009 and 2010 did not address the main complaints Wright alleged before the SSA. While the ALJ is required to address all the medical testimony, including that of the Plaintiff provided at the hearing, the ALJ need not directly mention every piece of evidence. Scheiber v. Colvin, 519 Fed. Appx. 951, 957 (7
Ultimately, the ALJ concluded that Wright was not credible, due to the contrast between Wright's testimony at the hearing and the records. (R. at 23-24). As discussed above, because the ALJ provided specific reasons and substantial evidence to support that conclusion, the Court will defer to his assessment.
Wright argues that the ALJ made findings regarding Wright's RFC "without referring or relying on a treating physician's opinion or an expert opinion that was based [on] a complete record." (Pl. Mot. at 11). Wright also argues that "the ALJ failed to obtain additional x-rays of the knee that Plaintiff had the most complaints of pain about, the right knee, and only referred to the x-rays of the `better' knee." (Id.). Wright further states that the ALJ should not have determined his RFC without consulting a physician's evaluation, and having failed to obtain such an evaluation, the ALJ failed in his duty to develop the record. (Id.).
The ALJ is required "to make a reasonable effort to ensure that the claimant's record contains, at a minimum, enough information to assess the claimant's RFC and to make a disability determination." Martin v. Astrue, 345 Fed. Appx. 197, 201 (7
The ALJ in this case had enough information to make a disability determination. He relied upon the RFC assessment provided by Dr. James Madison (R. at 363-70), which itself relied upon the report of the consulting physician, Dr. De Biase, and the examinations accompanying that report. Dr. Madison further relied on Wright's surgical records from March 2009, and one medical report from June 15, 2010. (R. at 370). The ALJ's reasoning that Wright's more extreme complaints at the hearing—such as only being able to walk distances with a cane, and needing to elevate his leg constantly—were not credible, is supported by the ALJ's reasoning, and is spelled out clearly for the Court.
Because the record contains adequate information for the ALJ to render an opinion, the ALJ was not required to request an additional physician's evaluation in order to assess the RFC. Here the ALJ elicited information from Wright regarding his right knee pain, and sought information from Wright regarding his daily life and how his right knee pain affects him. The ALJ was not obligated to also seek x-rays for Wright's right knee.
Last, Wright argues that in finding him not disabled, the ALJ relied upon his own inexpert medical opinion and disregarded the opinions found in the medical records. (Pl. Mot. at 7). In support, Wright points to a statement by the ALJ that: "I persuaded [sic] the claimant's breathing problems are more due to obesity than a definitive respiratory impairment." (R. at 24.) Wright has not claimed an impairment related to any breathing problems, however, so while this statement is troubling to the Court, the ALJ's comment did not affect the outcome of his decision regarding Wright's disability.
Wright also argues that the ALJ had no basis for finding that Wright could be off-task 4% of each day in a potential job. (Pl. Mot. at 7-8). Wright states that the ALJ provided no "explanation as to how [he] made that finding," (Id. at 8), however the ALJ did state that "I further credit reasonable allegations of pain, which might interfere with concentration and preclude operating moving or dangerous machinery; and being off-task 4% of the time in an eight-hour workday." (R. at 24). Without providing any basis in a medical opinion, the ALJ's assumption of a 4% off-21 task period appears to rest on his inexpert opinion only. Again, the ALJ's assumption appears to be harmless error, as the Plaintiff has not argued that there is a greater timeframe that Wright would be off-task. In fact, there is no evidence in the record of a physician or other expert stating that Wright would be off-task at all. While the Court is concerned that the ALJ repeatedly provided his own inexpert opinion in this decision rather than relying on medical experts, we will not remand on this issue because it appears to be harmless error. Patton v. Colvin, 2013 WL 4024506, *4 (7
Finally, the Plaintiff argues that the ALJ's statements at the hearing regarding Wright's gout indicated reliance by the ALJ on his own inexpert medical opinion. (R. at 8). At the hearing, Wright testified that he had gout in his toes, and that he had been taking medication for it regularly for approximately two weeks, due to a flare-up. (Id. at 64). Wright also testified that he feels pain in his toes "every now and then." (Id.) The ALJ then responded that he had personally suffered from gout forty years prior, and that he had received medication and the gout did not return. (Id.) He added, further, that:
(R. at 65).
Again, the Court is concerned that the ALJ made a statement about his own understanding of gout symptoms, but the Court is not persuaded that the ALJ's statements, based on his own experience, are medical findings, and the Court finds that the ALJ relied upon substantial evidence in his findings regarding Wright's disability.
Although the ALJ's decision is imperfect, he has built an accurate and logical bridge from the evidence to his conclusion. The ALJ's decision was supported by substantial evidence, "and we must nevertheless affirm the denial of benefits even if `reasonable minds could differ concerning whether [Wright] is disabled.'" Schreiber v. Colvin, 519 Fed. Appx. 951, 962 (7
For the reasons stated above, Plaintiff's Motion for Summary Judgment [14] is
