Jeffrey Cole, UNITED STATES MAGISTRATE JUDGE.
Plaintiff applied for Disability Insurance Benefits ("DIB") and Supplemental Security
Plaintiff was born on August 30, 1964 (R. 234), and was 48 years old when she claims she became disabled. (R. 234). She has a ninth-grade education, and a sporadic work history, briefly holding jobs at the night desk of hotels, in manufacturing, and in inventory. (R. 302). Most of these were through a temp agency. (R. 38). The only job she's had that lasted more than a few months was in a pharmaceutical plant. (R. 302). While she alleges an array of impairments, she seems to claim the most of her trouble is due to her knees, and to a lesser extent, to carpal tunnel syndrome.
At about 420 pages, the medical record in this case is of average heft as these cases go and, as is usually the case as well, precious little of it has anything to do with whether the plaintiff is disabled or not. Indeed, the plaintiff, herself, indicates through citations to the record in her brief that not even 20 pages of the record matter to her claim that she is unable to work. [Dkt. # 16, at 3-4]. A summary of the relevant evidence follows.
Plaintiff began seeing Dr. Randon Johnson for right knee pain in December 2013. (R. 409). Plaintiff indicated she had had right knee surgery in 1998 and 2006. (R. 409). While there was mild swelling and mild crepitus in the knee, range of motion was normal, there was no tenderness, no sign of tear, and the knee was stable. (R. 409). X-rays revealed some medial compartment narrowing. (R. 410). The doctor administered a corticosteroid injection. (R. 410). That worked for about four months, but in April 2014, plaintiff returned and reported that her right knee pain was returning. (R. 412). Again, there was no tenderness, full range of motion, mild swelling and mild crepitus. (R. 412). Plaintiff also reported that her left knee was now locking, and while range of motion was nearly normal, McMurray's test suggested a possible meniscus tear. (R. 412). X-rays of the left knee were normal (R. 412), but an MRI of the left knee did reveal a meniscus tear. (R. 414). Plaintiff opted for another injection over surgery on the right knee in June 2014, but did elect surgery to repair the meniscus on the left. (R. 414-15). Surgery was scheduled for June 26, 2014 (R. 415), but was apparently cancelled for some reason — there are no records — and plaintiff's brief indicates she changed her mind about it. [Dkt. # 16, at 3].
Everything appears to have been fine with plaintiff's knees until November 2015. [Dkt. #16, at 3]. At that time, a right knee exam revealed mild tenderness, mild swelling,
In January 2017, plaintiff was reporting moderate pain, but was not taking anything for the symptoms. (R. 723). A left knee x-ray in February 2017 showed that osteoarthritis and narrowing of the medial compartment had progressed in the previous three years. (R. 754). MRI showed grade IV chondromalacia. (R. 734).
Then there is plaintiff's bilateral carpal tunnel syndrome. In January 2015, plaintiff reported numbness and tingling in her left arm. (R. 496). She had fallen in November 2014, (R. 496), and underwent left carpal tunnel surgery in July 2015. (R. 400). Follow-up in November revealed mild swelling, but normal range of motion without difficulty in elbow and fingers. (R. 550). Then it was right hand numbness. In September 2016, examination revealed plaintiff could move her fingers without difficulty, but there was a positive Tinel's sign and positive Durjkan's test suggesting carpal tunnel syndrome. (R. 555). She had right carpal tunnel release surgery in November 2016. (R. 753). At follow-up in December, she reported some mild pain and numbness. There was some mild swelling, but she could move her fingers without difficulty. (R. 753).
After an administrative hearing — at which plaintiff, represented by counsel, and a vocational expert testified — the ALJ determined plaintiff was not disabled. The ALJ found that plaintiff had the following severe impairments: carpal tunnel syndrome and degenerative joint disease of both knees. (R. 17). The ALJ noted that the plaintiff also suffered from Hepatitis C and cervical spine disorder, but found these impairments were not severe. (R. 17). He said that the Hepatitis C was treated conservatively and studies showed that there was only a small disc herniation in plaintiff's neck at C6 and mild disc bulging at C4-5 and C6-7. (R. 17). The ALJ also found that plaintiff's depression was non-severe, causing no more than mild limitations in understanding, remembering and applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing herself. (R. 18). The ALJ then found that plaintiff's impairments, either singly or in combination, did not meet or equal a listed impairment assumed to be disabling in the Commissioner's listings. (R. 18-19).
The ALJ then stated that the plaintiff had the residual functional capacity to perform light work — "lifting/carrying 20 pounds occasionally and 10 pounds frequently, standing/walking about six of eight hours, sitting about six of eight hours" — with the following list of additional
The ALJ summarized the medical evidence, discussing treatment of plaintiff's knee impairments and carpal tunnel syndrome. Treatments in both areas moved from conservative to surgical, with injections along the way. The ALJ noted that, in both cases, treatment resulted in improvement, (R. 20). The ALJ referred to a consultative examination in September 2015 with essentially benign results. (R. 20). There were only medical opinions on disability in the record, both from the state agency doctors who reviewed the record during the application process. The ALJ gave greater weight to the second — which found plaintiff capable of light work — than the first — which found plaintiff capable of medium work — explaining that the second was "given greater weight as that of a non-examining expert source ... [and] is consistent with the claimant's improvement with appropriate surgical treatment." (R. 21).
Next, the ALJ determined that plaintiff could not return to her past work based on the testimony of the vocational expert. (R. 22). Then, the ALJ — again relying on the testimony of the vocational expert — found that given her residual functional capacity, plaintiff could perform the following jobs that exist in significant numbers in the national economy: bakery worker-conveyor line (DOT #524.687-022), usher (DOT #344.677-014), and furniture rental consultant (DOT #295.357-018). (R. 27). The ALJ concluded that plaintiff was not disabled and thus not entitled to benefits under the Act. (R. 29-30).
If the ALJ's decision is supported by substantial evidence, the court on judicial review must uphold that decision even if the court might have decided the case differently in the first instance. See 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Beardsley v. Colvin, 758 F.3d 834, 836 (7th Cir. 2014). To determine whether substantial evidence exists, the court reviews the record as a whole but does not attempt to substitute its judgment for the ALJ's by reweighing the evidence, resolving material conflicts, or reconsidering facts or the credibility of witnesses. Beardsley, 758 F.3d at 837. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is entitled to benefits," the court must defer to the Commissioner's resolution of that conflict. Binion v. Chater, 108 F.3d 780, 782 (7th Cir.1997); Schloesser v. Berryhill, 870 F.3d 712, 717 (7th Cir. 2017).
As one can tell from review of the record, there is not really any medical evidence indicating plaintiff is disabled. Certainly, from time to time, while recovering from surgery, she would have been unable to work. But it in order to get benefits a claimant must be "disabled" for a continuous period of not less than twelve months. Walker v. Berryhill, 900 F.3d 479, 483 (7th Cir. 2018). Plaintiff ignores this requirement and argues the ALJ's mentions of her improvement after surgery are irrelevant. [Dkt. #16, at 9]. Indeed, as already pointed out, plaintiff's impairments and their symptoms, even prior to successful surgical treatment, are regularly described by her treating doctors as mild. There were no issues with range of motion or weight bearing in her knees; no issues with range of motion in her arms or fingers. The theme of the doctor's notes regarding plaintiff's symptoms throughout the pertinent period seems to be that the symptoms are "mild"; indeed, that characterization and description are repeated over and over again. And, significantly, while there are indications in the record that she told her doctors she was hoping to obtain disability benefits, not one of her providers opined that she was disabled.
So, while there is little quibble within the ALJ's finding that the plaintiff can perform a limited range of light work, the
First the plaintiff claims the ALJ failed to identify the specific paragraph B criteria. [Dkt. # 16, at 7]. Yet, the ALJ did, in fact, mention all four functional areas: "understanding, remembering and applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing herself." (R. 18). The plaintiff then faults the ALJ for relying on the opinions as to these functional areas from the state agency psychologists, who reviewed the record and determined she did not have a severe mental impairment. [Dkt. # 16, at 7-8]. Plaintiff, surprisingly, cites no case law regarding this point. The law is well-settled that "[t]he ALJ may properly rely upon the opinion of these medical experts." Scott v. Sullivan, 898 F.2d 519, 524 (7th Cir.1990); Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004); SSR 96-6p 1996 WL 374180, *3 ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of examining sources."). And, as already noted, there is no contrary medical opinion in the record.
Plaintiff then complains that the ALJ violated the Seventh Circuit's warning against equating daily activities with an ability to sustain full-time work. [Dkt. # 16, at 8]. While the warning is valid, that is not what the ALJ did here. The ALJ never said Plaintiff's activities showed a capacity for work; he said they were inconsistent with more than mild mental functional limitations. (R. 18). What the court said in Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019) applies here: "The ALJ did not equate [plaintiff's] ability to perform certain activities of daily living with an ability to work full time. Instead, he used her reported activities to assess the credibility of her statements concerning the intensity, persistence, or limiting effects of her symptoms...." See also Egly v. Berryhill, 746 F. App'x 550, 555 (7th Cir. 2018) ("The record does not support
As the ALJ stated, plaintiff socializes with her family, drives, cooks simple meals, does laundry, folds clothes, grocery shops, etc. (R. 18). The plaintiff herself reported that she had no issues with memory, concentration, completing tasks, understanding and following instructions, or getting along with others. (R. 299, 327). In short, there is no evidence that plaintiff has any limitations beyond, perhaps, the mild ones the ALJ found. And, plaintiff certainly doesn't direct the court to any, instead inviting the court to "play doctor" and find that her medication "would certainly exacerbate her concentration issues, as well as her ability to stay on task, or to maintain proper attendance in a full time competitive work environment." We decline the invitation. That would be not only inappropriate for ALJs, but for reviewing courts as well.
Next the plaintiff critiques the ALJ's assessment of her allegations regarding the limiting effect of her symptoms. While the plaintiff contends the ALJ based his assessment primarily on evidence of medical improvement [Dkt. #16, at 9], the ALJ actually based his assessment on the objective medical evidence, plaintiff's demeanor at the hearing, and her daily activities. (R. 21). All three of these factors are valid reasons for not accepting a plaintiff's allegations uncritically. "[A]lthough an ALJ may not ignore a claimant's subjective reports of pain simply because they are not fully supported by objective medical evidence, discrepancies between objective evidence and self-reports may suggest symptom exaggeration." Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008). See also Ghiselli v. Colvin, 837 F.3d 771, 778 (7th Cir. 2016) (court has little freedom to review credibility determinations based on demeanor); Carter v. Colvin, 556 F. App'x 523, 527 (7th Cir. 2014) (demeanor at the hearing a legitimate reason for disbelieving testimony); Alvarado v. Colvin, 836 F.3d 744, 750 (7th Cir. 2016) ("But it is entirely permissible to examine... a claimant's daily activities, to assess whether `testimony about the effects of his impairments was credible or exaggerated.'"); Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir. 2007) (daily activities may undermine allegations of limitations). Moreover, an ALJ's assessment of a claimant's allegations doesn't have to be perfect, see Shideler v. Astrue, 688 F.3d 306, 312 (7th Cir. 2012) ("Despite these shortcomings, the ALJ adequately evaluated [plaintiff's] credibility, and we see no reason to reverse."). Indeed, in order for a decision to be overturned, it's up to the plaintiff to show they it was "patently wrong." Cooley v. Berryhill, 738 F. App'x 877, 882 (7th Cir. 2018); Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003). Plaintiff has fallen far short of that mark here. Indeed, acceptance of what underlies the Plaintiff's unsupportable argument would effectively leave ALJs with no basis for credibility determinations in these cases and would turn the hearing into a protracted proceeding the outcome of which would inevitably be in the applicant's favor. That, of course, is not the purpose of a "hearing."
Of course, as already discussed, the medical evidence in this case not only supports the fact that plaintiff's conditions improved following treatment, but that upon repeated examinations their effects were essentially mild. And, contrary to plaintiff's assertion [Dkt. # 16, at 10],
Beyond that, the plaintiff speculates that the ALJ inferred that her pain in her knee was not so bad that she initially chose injections over surgery. [Dkt. #16, at 10]. There is absolutely no indication the ALJ did that, and his opinion goes on to say that she did opt for surgery later on. (R. 20). Misreading the record and misreading the ALJ's opinion are not the routes to securing a remand. Malik v. Holder, 313 Fed.Appx. 851, 853 (7th Cir. 2009); U.S. v. Kozinski, 16 F.3d 795, 811 (7th Cir. 1994); Florida Breckenridge, Inc. v. Solvay Pharm., Inc., 174 F.3d 1227, 1233-34 (11th Cir. 1999).
Plaintiff also claims she required a crutch for ambulation for months [Dkt. # 16, at 10], but of course, following knee surgery, that would be expected. Moreover, after a couple of months, her doctor indicated she was fully weight bearing; he gave no indication that she continued to require a cane or a crutch. Indeed, on one occasion plaintiff explained to her doctor that she chose to use it "for balance." More importantly, no doctor ever prescribed the ongoing use of a crutch or a cane once she had recovered from her procedure or even suggested she use one.
The plaintiff also takes issue with the ALJ's assessment of the medical opinions regarding her physical capacity. [Dkt. #16, at 12]. There were only two such medical opinions to consider in this case, both from the state agency reviewing doctors. The plaintiff doesn't understand how the ALJ decided to give great weight to one and not the other as they were both from, as the ALJ put it, "a non-examining expert source." It makes little difference as the opinion the ALJ discarded found plaintiff could do medium work — a far greater residual functional capacity than the ALJ arrived at. As such, any error here was harmless, because the result for the plaintiff would not have changed had the ALJ favored the other opinion. Weaver v. Berryhill, 746 F. App'x 574, 578 (7th Cir. 2018); McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011).
In addition, the plaintiff argues that the ALJ failed in his duty to develop a full and fair record. The plaintiff contends that the ALJ had to ask for a medical opinion from her treating physician, Dr. Johnson. [Dkt. # 16, at 12]. While an ALJ is under an obligation to develop a "full and fair record," Smith v. Apfel, 231 F.3d 433, 437 (7th Cir.2000), "this obligation is not limitless." Thomas v. Colvin, 745 F.3d 802, 807 (7th Cir. 2014). This duty is enhanced when a claimant appears without counsel, Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009), but plaintiff has been represented by counsel since well before her administrative hearing. (R. 230). Even when the claimant lacks representation, the Seventh Circuit generally upholds the reasoned judgment of the Commissioner on how much evidence to gather. Nelms, 553 F.3d at 1098. Here, where the plaintiff
Moreover, there is no requirement that ALJs contact all treating physicians for disability opinions. Cf. Thomas v. Colvin, 745 F.3d 802, 808 (7th Cir. 2014). An ALJ "may contact treating physicians for further information when the information already in the record is `inadequate' to make a determination of disability...." Skinner v. Astrue, 478 F.3d 836, 843 (7th Cir.2007) (emphasis supplied). Here, the record was not inadequate; the ALJ simply found it failed to support the plaintiff's claim that she was disabled. See Simila v. Astrue, 573 F.3d 503, 516-17 (7th Cir. 2009).
For the foregoing reasons, the ALJ's decision is affirmed. The defendant's motion for summary judgment [Dkt. # 24] is granted and the plaintiff's motion for summary judgment [Dkt. # 15] is denied.