Ephrain S. v. Berryhill
Ephrain S. v. Berryhill
Opinion of the Court
INTRODUCTION
Ephrain S.
ARGUMENT
I.
Mr. S. is 58 years old, and was nearly 55 at the time his insured status expired. (R. 17, 463). He is in the army reserves and has work experience as a corrections officer, a teaching assistant and, most recently, in sales at a home and garden center, which involved heavy work and a great deal of lifting, and was semi-skilled. (R. 118).
Mr. S.'s medical record is massive, weighing in at over 1200 pages (R. 609-1891), covering treatment for a laundry list of impairments, mostly due to problems with his back. But, as is often the case, and according to the parties in this case, very little of it is pertinent. Mr. S. cites to no more than two dozen pages of medical evidence to support his argument for overturning the ALJ's decision. (Dkt. # 16, at 1-2, 8-9). The Commissioner cites to a similar amount. (Dkt. # 20, 1, 5-9). Accordingly, we shall discuss only those treatment records and medical findings that the parties tell us matter.
After an administrative hearing - at which Mr. S., represented by counsel, and a medical expert and a vocational expert testified - the ALJ determined he was disabled, but not before the expiration of his insured status. The ALJ found that Mr. S. had severe lumbar degenerative disc disease and lumber radiculopathy. (R. 20). The ALJ found that other impairments - edema, diverticulitis, and personality disorder - were non-severe. (R. 20-22). His mental impairment left him with only mild limitations in his ability to interact with others and maintain concentration, persistence, or pace, and *742no limitations on his ability to understand, remember, and apply information, or adapt and manage himself. (R. 20). None of Mr. S.'s impairments, singly or in combination, amounted to a condition that met or equaled an impairment assumed to be disabling in the Commissioner's listings. (R. 22). In reaching that conclusion, the ALJ specifically considered listing 1.04, for disorders of the spine. (R. 23).
The ALJ then determined that Mr. S could perform "light work ... except: can stand and walk in combination up to one hour at a time and a total of four hours in an eight-hour workday; cannot climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs, balance, bend, stoop, kneel, crouch and crawl; cannot work around hazards such as unprotected heights and exposed moving mechanical parts; cannot tolerate concentrated exposure to extreme cold; must avoid even moderate exposure to excessive vibration; and is precluded from commercial driving." (R. 22). Along the way, the ALJ said that he found Mr. S.'s "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [his] statements concerning the intensity, persistence and limiting effects of these symptoms are not fully supported for reasons explained in this decision." (R. 23). The ALJ based this conclusion on the medical record, and Mr. S.'s sporadic work history prior to his alleged onset date. (R. 23-27).
The ALJ then summarized the medical record and assessed reports from doctors. He gave great weight to the opinion given by the medical expert at the administrative hearing, as the expert was familiar with the regulations and his opinion was consistent with the weight of the objective medical findings. (R. 23-24). The ALJ gave some weight to the opinion from the doctor who examined Mr. S. for the agency, but felt Mr. S. was more restricted in keeping with the findings of the medical expert and agency reviewing physicians. (R. 25). The ALJ assigned the opinions from the reviewing agency physicians substantial weight as they were generally consistent with the weight of the medical evidence. (R. 26). The ALJ gave limited weight to an opinion from a doctor from Veterans' Affairs because it was unsigned and was pertinent to military service as opposed to work. (R. 26-27).
Finally, the ALJ gave considerable weight to the opinion of Mr. S.'s treating physician as to Mr. S.'s ability to stand and walk in an eight-hour day, saying it was consistent with his treatment and objective findings. Still, at the same time, the ALJ rejected those portions of the opinion that had to do with how long Mr. S. could walk or sit at one time, saying that was arbitrary and not supported by objective testing. (R. 27).
The ALJ rejected that portion of the doctor's opinion that concluded Mr. S. had to change positions frequently: sit for only 20-30 minutes at a time, stand for only 5-10 minutes at a time, and walk for 30-45 minutes at a time. He also rejected the doctor's recommendation that Mr. S. take unscheduled breaks during the workday and rest for 15-20 minutes during the workday. (R. 27). The ALJ felt these limitations were arbitrary and based on subjective complaints rather than objective findings. (R. 27).
The ALJ then found that, as of August 6, 2015, the date on which Mr. S. reached "advanced age" under the regulations, the Medical-Vocational Guideline directed a conclusion that Mr. S. was disabled under the Act. (R. 29). Prior to that date, because the Guidelines would have directed a finding of "not disabled" if Mr. S. had the capacity for a full range of light work, the ALJ relied on the testimony of the vocational *743expert as to whether there were jobs existing in significant numbers in the national economy that Mr. S. could do. As the vocational expert stated that he could be a cashier (60,000 jobs), a rental clerk (50,000 jobs), or an inspector (45,000 jobs), the ALJ determined that, prior to August 6, 2016, Mr. S. was not disabled and not entitled to benefits under the Act. (R. 29-30).
II.
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
In the Seventh Circuit, an ALJ also has an obligation to build what is called a "logical bridge" between the evidence and the result to afford the claimant meaningful judicial review of the administrative findings. Varga v. Colvin ,
Sarchet v. Chater ,
*744Berger v. Astrue ,
III.
Mr. S. advances three arguments for overturning the ALJ's decision. He submits that the ALJ failed to follow the applicable Social Security Ruling regarding the effect his limited capacity for light work has on the occupational base available to him. Second, he contends that the ALJ improperly failed to give controlling weight to the opinion of his treating physician. And, finally, he argues that the ALJ failed to adequately assess his allegations regarding the effects of his impairments. Any other arguments Mr. S. might have raised are deemed waived. Truelove v. Berryhill ,
A.
Mr. S. first argues that the ALJ failed to apply the Medical Vocational Guideline Rule that would have directed a finding that he was disabled as of his 50th birthday. He maintains that Social Security Ruling 83-12 required the ALJ to determine whether his limitations caused a slight or significant erosion of the occupational base, as his capacity for work fell between light work and sedentary work. Where, as here, a claimant's exertional capacity level falls between two rules that direct opposite conclusions - "not disabled" at the higher exertional level and "disabled" at the lower exertional level - the Ruling directs ALJs to consider whether:
a. An exertional capacity that is only slightly reduced in terms of the regulatory criteria could indicate a sufficient remaining occupational base to satisfy the minimal requirements for a finding of "Not disabled."
b. On the other hand, if the exertional capacity is significantly reduced in terms of the regulatory definition, it could indicate little more than the occupational base for the lower rule and could justify a finding of "Disabled."
The Ruling goes on to advise that, where "the individual's exertional limitations are somewhere 'in the middle' in terms of the regulatory criteria for exertional ranges of work," and "more difficult judgments are involved as to the sufficiency of the remaining occupational base," the ALJ should consult a vocational expert. SSR 83-10,
While it's clear the ALJ followed the Ruling here - he relied on vocational expert testimony that there were significant numbers of jobs Mr. S. could perform - Mr. S. insists that there must be a specific finding from the ALJ as to whether Mr. S.'s additional limitations had a slight or significant effect on the work base. [Dkt. # 16, at 5-6]. Why? The ALJ consulted a vocational expert, as recommended by SSR 83-12, and he cited examples of over 150,000 jobs Mr. S. could perform despite his limitations. In other words, in the parlance of SSR 83-12, "the remaining occupational base ... [is] sufficien[t]." To accept *745Mr. S.'s argument is to reject common sense, which has a significant role to play in all litigation,
If this was somehow an error - and we do not find that it was - it was harmless. The question remains whether 155,000 jobs is a significant number. If it is, Mr. S. is not disabled under the Act. Mr. S does not argue it isn't, nor could he successfully. See, e.g., Liskowitz v. Astrue ,
B.
Next, Mr. S. complains that the ALJ failed to weigh properly the medical opinion from his treating physician, Dr. Purohit. Dr. Purohit filled out a form from Mr. S.'s attorney in October of 2014. At that time, Dr. Purohit had been treating Mr. S.'s back impairment for 5 years, seeing him about every 6 months. (R. 891). The doctor reported that Mr. S. had pain in his elbow, back, knees, and legs; that it was constant; and that it was 4/5 on a scale of 0 to 10 in severity. (R. 892). Dr. Purohit cited the clinical signs that supported his opinion as: "decreased sensation R leg, 4/5 motor exam bilaterally, normal gait & reflexes." (R. 892). The symptoms in his legs dated back to 1980 and back to 2007 in his back. (R. 892). They might occasionally interfere with concentration. (R. 893).
Dr. Purohit felt that, despite his impairments, Mr. S. retained the functional ability to work in a competitive environment, at least in a sedentary occupation, on a full-time basis. (R. 893). The doctor explained that this was due to a mild disc bulge, but that he could limit his activity. (R. 893). Dr. Purohit said that Mr. S. could sit for 20-30 minutes at a time, stand for 5-10 *746minutes at a time, and walk for 30-45 minutes at a time. (R. 893). Mr. S. would need to take 3 breaks a day and one 15-20 break to rest. (R. 894). But he would miss work less that once a month. (R. 893). He could constantly lift up to 10 pounds. Up to 20 pounds frequently, and up to 50 pounds occasionally. (R. 895).
The ALJ gave the bulk of Dr. Purohit's opinion "considerable weight", noting that she had seen him several times during the relevant time period, and that her estimates on his ability to stand, walk, and sit for a total of four hours each in a day, and his ability to lift were consistent with the course of treatment and the overall medical record. (R. 27). But the ALJ stopped short of accepting that Mr. S. could only sit for 30 minutes at a time, walk for 30 minutes at a time, and stand for 10 minutes at a time. (R. 27). The ALJ explained that as no function studies had been performed, and the objective clinical findings didn't support such limitations, there was no way to make such estimates other than to take Mr. S.'s word for it (R. 27) - which he was not obligated to do and which he declined to do in light of the record evidence.
Mr. S. complains that the ALJ failed to supply sound reasoning for his treatment of Dr. Purohit's opinion. As a treating physician, Dr. Purohit's opinion was entitled to controlling weight unless the ALJ set forth "good reasons" for assigning it lesser weight. Walker v. Berryhill ,
According to Mr. S., the ALJ failed to acknowledge that Dr. Purohit reviewed objective medical findings and based her opinion on them. [Dkt. # 16, at 10]. That's not true, and distortion of the record is not a basis to overturn an ALJ's decision. The ALJ recited Dr. Purohit's objective findings, but a 4/5 motor exam, normal gait, and intact reflexes, are not much to support an ability to stand or sit for the limited periods claimed by Mr. S. And the doctor cited nothing else - nor does Mr. S., for that matter. [Dkt. # 16, at 10-12]. Dr. Purohit may have reviewed the rest of the evidence as Mr. S. claims she did [Dkt. # 16, at 9], or she may not have. The ALJ never said she didn't - although there's no indication in the record that she did; Mr. S. certainly doesn't point to any. It was up to him to develop and support his arguments with references to the record. Bunn v. Fed. Deposit Ins. Corp. for Valley Bank Illinois ,
In any event, the only examination notes from Dr. Purohit appear to be from July 2014, and October 2014. In July, Mr. S. was an hour late for his appointment and brought the form from his attorney for Dr. Purohit to fill out. (R. 855, 1092). His only complaints were urinary frequency, dysphagia, and peeling skin on his hands. (R. 855, 1092). It was noted that Mr. S. had a history of joint and back pain, and decreased sensation over L5 distribution, but assessment was left until the next visit. (R. 858-59, 1094-95). In October 2014, the doctor noted a history of varicocele /epididymitis and lower back pain, (R. 1253). Right leg strength was slightly diminished to 4/5, left leg strength was normal. (R. 1254). Right leg sensation was decreased. (R. 1254). And that's it.
Mr. S. complains that, while the ALJ specifically recounted these findings in his opinion (R. 25-26), the case should be remanded because he then did not specifically say he was discounting Dr. Purohit's opinion based on these two specific reports. [Dkt. # 21, at 7]. What an extraordinary exaltation of form over substance. Not only does the argument ignore the obvious, it is, at best, a perfect example of the type of nitpicking, the Seventh Circuit rightly "refuse[s] to engage in." Burnam v. Colvin ,
The ALJ summarized Dr. Purohit's examination notes, then summarized the form she filled out, then said the form was not supported by her objective findings and notes. (R. 26-27). It's not clear what more Mr. S. requires. Whatever it may be, it is not reasonable or realistic. Under the consistent case law and the Regulations, a treating doctor's opinion is not to be automatically accepted. Quite the contrary. " 'While the treating physician's opinion is important, it is not the final word on a claimant's disability.' " Schmidt v. Astrue ,
Moreover, Dr. Purohit's assessment in the form was that Mr. S.'s problem was a mild disc bulge; but, the doctor concluded, he could still perform at least sedentary work for 8 hours a day, 5 days a week. (R. 893). The doctor wasn't asked what more he could do because, clearly, couching the questionnaire in the way it was, Mr. S.'s attorney was expecting a negative answer to the question of whether he could work competitively full-time at all. (R. 893).
*748Mr. S. also complains that the ALJ cited no evidence to support his finding that the doctor based such limitations on Mr. S.'s subjective complaints rather than clinical findings. But, again, given the clinical findings the doctor cited when prompted, what else could provide a basis? As the ALJ pointed out, Dr. Purohit didn't cite to any function study. In the doctor's October 2014 notes, she states that she "observed patient do the activities required by the paperwork and documented accordingly." (R. 1255). As the courts have long emphasized, common sense should not be left outside the administrative hearing room or at the courthouse door. See supra at 744; See also District of Columbia v. Greater Washington Bd. of Trade ,
C.
Finally, Mr. S. finds fault with the ALJ's assessment of his subjective allegations about his symptoms. Mr. S. first complains that the ALJ employed "meaningless boilerplate" in his decision, namely that his allegations were "not fully supported for the reasons explained in the decision. " [Dkt. # 16, at 12](Emphasis supplied). While the Seventh Circuit has repeatedly criticized the use of boilerplate, the court has also repeatedly held that boilerplate is not toxic as long as the ALJ goes on to give his reasons for disbelieving the extent of a claimant's allegations. Thus, in Murphy v. Colvin ,
The ALJ cited medical evidence, course of treatment, daily activities, and work history as all generally undermining the full extent of Mr. S.'s complaints. (R. 23-27). Each reason is a valid rationale to reject the full extent of a claimant's allegations.
*749See, e.g., Lambert v. Berryhill ,
Beyond that, Mr. S. quibbles with just a couple of the ALJ's reasons. Not only are those objections invalid but even viewing the ALJ's decision in a light most favorable to Mr. S., all that can be said is that the ALJ's reasoning might not have been perfect. After all, no one is perfect, Reyes-Garcia v. Rodriguez & Del Valle, Inc. ,
The court can only reject an ALJ's assessment of a claimant's allegations if they are patently wrong. See McHenry v. Berryhill ,
Mr. S.'s concerns also involve the claim that the ALJ wrongly equated his ability to attend to his hygiene, use a computer, walk to Dunkin' Donuts, and help his mother with household chores with his ability to engage in full time work. [Dkt. # 16, at 13]. If the ALJ had done that, the argument might have merit. See Bjornson v. Astrue ,
Second, Mr. S. argues that the ALJ was wrong to note factors like a two-year gap in treatment and failure to follow through with prescribed physical therapy without asking Mr. S. what was behind those factors. While these factors may well be significant, an ALJ should nonetheless inquire into what a claimant's reasons were for not seeking treatment or for not following his doctor's recommendations. See, e.g., McHenry ,
But, in summing up his assessment of Mr. S.'s allegations, the ALJ looked to the "course of treatment," rather than gaps in treatment or noncompliance with ordered treatment. (R. 27). As such, the reference is supportive of a finding that Mr. S.'s overall "course of treatment" was conservative. Summers v. Colvin ,
CONCLUSION
The "logical bridge" requirement is not about elegantia juris or aesthetics. The ALJ need not build the Pont Neuf. A simple trestle will suffice so long as it allows the reviewing court to traverse safely the divide between the evidence and the conclusions. It is, after all, a lax requirement, as the Court of Appeals reminds us. Elder ,
*751For the foregoing reasons, the Commissioner's motion for summary judgment affirming the ALJ's decision [Dkt. # 19] is granted.
Northern District of Illinois Internal Operating Procedure 22 prohibits listing the full name of the Social Security applicant in an Opinion. Therefore, the plaintiff shall be listed using only his first name and the first initial of his last name.
See also Spiva v. Astrue ,
The phrase "logical bridge," first appeared in a judicial context in Thompson v. Clifford ,
See, e.g., United States v. Montoya De Hernandez ,
The attorney asked, "in your opinion, to a reasonable degree of medical certainty, does your patient retain the functional ability to work in a competitive environment, in even a sedentary occupation, on a full-time, 8 hours a day, 5 days a week basis?" (R. 893).
We have criticized ALJ's for saying that a claimant's allegation must be "entirely consistent with the medical and other evidence" as a misstatement of the law, which requires only that statements "can reasonably be accepted as consistent with the objective medical evidence and other evidence." See, e.g., Lopez v. Berryhill ,
Mr. S.'s argument that the ALJ should have asked questions related to his sporadic work history fails for the same reason. Even in Social Security cases, lawyers have some obligation to make the case for their clients, and under consistent Seventh Circuit decisions they are presumed to have done so. They cannot delegate everything to the judge and then cry foul and point the finger at the ALJ for allegedly not having fulfilled his or her functions. Not only do the Rules and Regulations applicable to Social Security cases not allow the kind of abdication of responsibility suggested by the current argument, but through 30 pages of briefing, plaintiff's counsel never shared with the court his justification for not posing one or two simple questions to his own client and for leaving, in his view, a gap in the record.
Reference
- Full Case Name
- EPHRAIN S. v. Nancy A. BERRYHILL, Acting Commissioner of Social Security
- Cited By
- 12 cases
- Status
- Published