Opinion
No. 09 C 7884.
May 4, 2011
MEMORANDUM OPINION AND ORDER
Plaintiff, Brenda Lee Hopper, moves this court for summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, to reverse or remand the final decision of the Commissioner of Social Security (the "Commissioner"), who denied her claim for Disability Insurance Benefits (DIB). Defendant Commissioner has filed a cross-motion for summary judgment. For the reasons set forth below, the Court denies Ms. Hopper's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.
STATEMENT OF FACTS
A. Procedural History
Ms. Hopper filed an application for DIB on December 1, 2004, alleging a disability onset date of February 18, 2003. Ms. Hopper was last insured for such benefits on September 30, 2004. The Social Security Administration ("SSA") denied Ms. Hopper's initial claim on May 16, 2005 and again upon reconsideration on September 25, 2005. Subsequently, Ms. Hopper requested a hearing before an Administrative Law Judge ("ALJ"). ALJ Denise McDuffie Martin held Ms. Hopper's hearing on January 31, 2007 and issued a decision denying Ms. Hopper's claim for DIB on July 11, 2007. Ms. Hopper appealed. On June 10, 2008, the Appeals Council vacated the July 11, 2007 order and remanded the case for further consideration of Ms. Hopper's maximum residual functional capacity, especially with respect to any limitations caused by Ms. Hopper's obesity, for the period of time through September 30, 2004. The Appeals Council directed that, if warranted, the ALJ should obtain supplemental evidence from a vocational expert ("VE") to clarify the effect of Ms. Hopper's obesity on her occupational base. ALJ Martin held a second hearing on September 30, 2008 and issued a second decision denying Ms. Hopper's claim for DIB on March 11, 2009. On October 30, 2009, the Appeals Council denied Ms. Hopper's request for review, making the ALJ's decision the final decision of the Commissioner.
On April 7, 2009, Ms. Hopper requested judicial review of the ALJ decision denying her claim. The case was initially assigned to Judge Elaine E. Bucklo in the Northern District of Illinois. The parties consented to proceed before a United States Magistrate Judge, and the case was reassigned to this Court on March 22, 2010. Thereafter, both parties moved for summary judgment.
B. Medical History
From September 1998 until February 2003, Ms. Hopper worked as a bus driver for First Union. R. at 669, 687. During this time period, Ms. Hopper's work duties included inspecting the bus, driving routes, timing routes, and picking up and dropping off children. R. at 670. On February 18, 2003, Ms. Hopper, then thirty-two years old, slipped and fell on ice in her employer's parking lot. R. at 158. Several days after the injury, she began to feel pain in her back. R. at 702. On March 7, 2003, Dr. John Saran, Ms. Hopper's primary care physician at the time, ordered Magnetic Resonance Imaging ("MRI") scans for the thoracic, cervical and lumbar spines. R. at 265-267. The thoracic spine MRI scan showed "small central disc protrusion herniation at T8-T9 level." R. at 265. The cervical and lumbar spine MRI scans showed no disc herniation. R. at 266-267.
The page numbers cited are those given in Docket #9, and not those stamped on the hardcopy version of the administrative record.
On March 13, 2003, Ms. Hopper went to the emergency room complaining of back and chest pain, nausea, vomiting and numbness and tingling in her hands and feet. R. at 236-237. Ms. Hopper told emergency room physicians that she suffered from herniated discs and had been unresponsive to oral pain medication at home. Id. Dr. Yousuf Sayeed examined Ms. Hopper and noted that she could have a thoracic herniated disc or a muscle spasm with facet arthropathy and that her nausea and vomiting may be related to her pain. R. at 238-239, 703. Between March 2003 and approximately January 2004, Ms. Hopper received thoracic epidural injections, chronic pain medication, physical therapy and heat treatments to relieve pain. R. 223, 225, 230, and 234. Dr. Sayeed reported that physical therapy and heat treatments temporarily improved Ms. Hopper's pain and recommended that Ms. Hopper undergo another course of physical therapy and weight loss. R. at 219.
In February 2004, Dr. Sayeed began weaning Ms. Hopper off oral pain medication. R. at 218. He reduced Ms. Hopper's MS Contin from six tablets per day to four tablets per day and recommended work-hardening activities and physical therapy as needed. Id. Dr. Sayeed also suggested that Ms. Hopper see a pain pathologist. Id. Dr. Andreshak, who also treated Ms. Hopper's pain, agreed with Dr. Sayeed's plan to reduce medication and focus on physical therapy and weight loss. Id.
In March 2004 and April 2004, Dr. Saran diagnosed Ms. Hopper with persistent upper respiratory infection. R. at 426-427. During this time, Ms. Hopper also complained of shortness of breath, which Dr. Saran attributed to Ms. Hopper's weight and anxiety. R. at 426.
On May 4, 2004, Dr. Martin Lanoff performed an independent evaluation of Ms. Hopper. R. at 334. Dr. Lanoff opined that degenerative thoracic disc herniations were not causing Ms. Hopper's severe back pain or extremity numbness. R. at 339. Rather, Dr. Lanoff stated that Ms. Hopper's "physical examination findings and subjective complaints do not correlate with degenerative disc changes" because "one would expect to have significant degenerative disc changes in multiple areas of the thoracic spine" and "[Ms. Hopper's] MRI did not change between March and November to any large extent." R. at 339. Further, Dr. Lanoff stated that he saw "no evidence of any injury in [Ms. Hopper] whatsoever." R. at 340.
On May 11, 2004, Ms. Hopper went to the emergency room at Edward Hospital, complaining that she had quickly moved from a sitting position to standing position to grab her child and, within a few steps, felt a blackness come over her and passed out. R. at 214. Emergency room physicians ordered a CT brain scan, which showed no abnormalities in the brain function, and diagnosed Ms. Hopper with syncope, temporary loss of consciousness or posture described as "fainting" or "passing out." Id. The following day, Dr. Saran examined Ms. Hopper, concluded that she likely suffered from syncope or increased muscle spasm and ordered an MRI, a 24-hour Holter monitor and a 2-D echocardiogram to rule out heart problems. R. at 350.
On June 21, 2004, Dr. Andreshak examined Ms. Hopper. R. at 319. During the examination Ms. Hopper complained of back pain, described various activities that seemed to cause the pain and asked to have a CT myelogram. Id. Dr. Andreshak refused Ms. Hopper's request for a CT myelogram and stated that, based on the MRI, he found "no obvious finding that relates to any nerves causing back pain in [Ms. Hopper's] back." Id. Rather, Dr. Andreshak concluded that Ms. Hopper's pain appeared to be soft tissue and mechanical in nature, not structural. Id. Dr. Andreshak also told Ms. Hopper that he planned to wean her off of narcotics, that she needed to be detoxified and that hospitalization would be best for her. Id.
Dr. Andreshak's notes state that a CT myelogram "is an invasive test and is only used for preoperative evaluation in terms of planning surgical routes and bony decompressions." R. at 319.
On June 25, 2004, Ms. Hopper underwent a functional capacity evaluation at Dr. Andreshak's request. R. at 320. The examiner determined that Ms. Hopper had a work tolerance at a sedentary physical demand level, but noted that the validity of this determination was questionable due to Ms. Hopper's sub-maximum physical test effort. Id. On July 12, 2004, Dr. Andreshak produced a work status report indicating that Ms. Hopper could return to full duty without any restrictions on July 13, 2004. R. at 331. Additionally, on August 5, 2004, Dr. Louis Papaliou, who evaluated Ms. Hopper and reviewed her medical records, also opined that Ms. Hopper should be able to return to work as long as she was weaned off narcotics and detoxified. R. at 342.
Between mid-August 2004 and the end of September 2004, Ms. Hopper frequently visited Dr. Saran for back pain. Ms. Hopper repeatedly called Dr. Saran's office requesting pain medication refills, additional pain medication, such as morphine, and increased dosages of current pain medication. R. at 371-374. Dr. Saran refused to prescribe morphine, but increased Ms. Hopper's Norco dosage and then eventually refused to prescribe any additional pain medication. R. at 371. Ms. Hopper again requested a CT myelogram, the same test that Dr. Andreshak had previously refused to order. R. at 319, 368. Dr. Saran ordered the test. R. at 368. He also referred Ms. Hopper to a chiropractor for six weeks, and dictated a letter seeking approval for gastric bypass surgery for Ms. Hopper. Id.
On September 30, 2004, Ms. Hopper's date last insured ("DLI"), Dr. Saran examined Ms. Hopper, found focal protruding discs at T5-6, T6-7, T8-9, T9-10 and T10-11, with the most prominent protruding at T8-9 and T9-10, and concluded that Ms. Hopper had extensive degenerative disc disease in the thoracic spine and spinal stenosis. R. at 212. On November 11, 2004, Dr. Saran opined that Ms. Hopper would not be able to return to work in any job that would require prolonged sitting, standing, bending, or stooping. R. at 204. Dr. Saran also opined that Ms. Hopper would need to change from a standing to sitting position more than once every two hours to relieve pain in her back. Id.
On December 1, 2004, Ms. Hopper protectively filed an application for DIB. R. at 180. Shortly thereafter, Ms. Hopper reported sleep difficulties and underwent several sleep studies, which showed that she experienced overall mild apnea with moderate apnea occurring in the sapine sleep. R. at 289. Ms. Hopper's doctors recommended titration and nasal CPAP to keep the windpipe open during sleep and to prevent the episodes of blocked breathing. Id.
A few months later, Dr. Victoria Dow performed a physical residual functional capacity assessment of Ms. Hopper. R. at 304. Dr. Dow remarked that she believed Ms. Hopper exaggerated complaints of pain and went from physician to physician seeking drugs. R. at 309. Dr. Dow further stated that the severity of Ms. Hopper's pain seemed "disproportionate to the physical findings in regard to her medically determinable impairment after thorough examinations by unbiased physicians." Id. Subsequently, the SSA denied Ms. Hopper's initial claim for DIB and again upon reconsideration.
On November 23, 2005, Ms. Hopper requested a hearing before an ALJ. Between that time and the time of the hearing, Dr. Saran continued treating Ms. Hopper and prescribing pain and psychiatric medication. R. at 403. Ms. Hopper also underwent both carpal tunnel surgery for her right hand and gastric bypass surgery. R. at 504, 485. Ms. Hopper repeatedly requested additional pain and psychiatric medication from Dr. Saran, and Dr. Saran eventually referred her to a psychiatrist. Id. Dr. Mary Goebel, Ms. Hopper's psychiatrist, concluded that Ms. Hopper suffered from depression and marital, medical and financial stress. R. at 525.
C. The ALJ's First Hearing Decision
During the January 31, 2007 hearing, Ms. Hopper testified that she is unable to work because she experiences back pain and, as a result, stays in bed two or three times a week. R. at 671. Ms. Hopper stated that the pain sometimes occurs in her mid-back, making it hard for her to breathe, and sometimes occurs in her upper-back, making it difficult to control her arms or neck. Id. Ms. Hopper also testified that, when pain occurs in her lower back, she generally has to sit down and has fallen down a couple of times. Id.
Ms. Hopper testified that carpal tunnel also causes her pain and limits the range of motion and strength of her hands. R. at 672. Ms. Hopper stated that, even though she had carpal tunnel surgery on both hands, she still experiences problems with her right thumb and the muscle between her elbow and wrist. R. at 671-672. Ms. Hopper noted that the braces on her arm were to support and strengthen the muscle between her elbow and wrist. R. at 672.
Ms. Hopper testified that, generally, in the mornings her hands are swollen from tendinitis, making it difficult for her to maneuver them. R. at 672. Ms. Hopper stated that she can lift no more than five pounds, can stand for fifteen to twenty minutes at a time, sit for approximately twenty minutes at a time, drive approximately five miles and walk approximately one block. R. at 677-679, 690.
Ms. Hopper testified that she takes the following medications daily: Adderall, Allegra, Aciphex, Valium, Cymbalta, MS Contin, Requip, Bacolfen, Ambien, Flonase, Singulair, Vitamin C, Fioricet, One-a-Day Women's vitamin, Vitamin B12, Dilaudid, Norco, Morphine, Sulfate and Lidoderm patches. R. at 673-674. Ms. Hopper also stated that she uses a TENS unit, large ice packs and heating pads to try to control her pain. R. at 674. Ms. Hopper explained that she feels tired from her medications and often needs someone to drive her and accompany her to the store. Id.
Ms. Hopper testified that she attempted to return to work for her previous employer, First Union, but that the site manager told her that they did not have any positions available for her. R. at 698. Ms. Hopper stated that she then went to a temp agency and asked them for available work with flexibility as far as sitting and standing, and that they too told her that they had nothing available. Id.
Dorothy Ann Scott, Ms. Hopper's friend and caretaker, also testified; she testified that she had been helping Ms. Hopper with her daily activities for the past four months and that she often found Ms. Hopper to be incapable of completing simple tasks or getting out of the bed. R. at 720. Ms. Scott testified that she would come to Ms. Hopper's home each morning, prepare Ms. Hopper's children for school and drive them to school. R. at 717. She testified that she would then return to Ms. Hopper's home and help her shower, dress and complete household chores. Id. Ms. Scott testified that she would pick Ms. Hopper's children up from school and help with preparing dinner, completing homework and putting out the children's clothes for the next day. R. at 718. When questioned by the ALJ, Ms. Scott testified that she decided to help Ms. Hopper on a daily basis when she noticed Ms. Hopper "slipping in a real deep depression." R. at 719.
The ALJ also heard from William Spaniak, Ms. Hopper's husband, who testified that, since Ms. Hopper's February 2003 fall, she is been unable to do household chores or take care of their children. R. at 727. Mr. Spaniak stated that he noticed his wife becoming depressed after she hurt her back. R. 728. He also testified that, in order to care for the children, the household and Ms. Hopper, he needs assistance from Ms. Scott and from their family members. R. at 729-730.
The ALJ also heard from Dr. Daniel D. Girzadas, a medical expert, who testified that, based on Ms. Hopper's medical records from February 18, 2003 through June 23, 2006, her condition did not meet or medically equal one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. R. at 709. Dr. Girzadas testified that he believed Ms. Hopper could lift ten pounds frequently, stand and walk two hours and sit for six hours out of an eight-hour day, so long as Ms. Hopper alternated sitting on an hourly basis for approximately ten minutes. Id. Further, Dr. Girzadas testified that Ms. Hopper should not use foot controls but could use her hands and fingers frequently. R. at 710. Dr. Girzadas testified that, as far as environmental factors, Ms. Hopper should avoid all exposure to unprotected heights, hazardous moving machinery and commercial driving. Id. Finally, Dr. Girzadas testified that Ms. Hopper could occasionally walk ramps or stairs, balance, squat, stoop, crouch, kneel or crawl. Id.
Next, the ALJ heard from Julia Lynn Bose, a vocational expert, who testified that an individual of Ms. Hopper's age, education and work experience subject to the limitations outlined by Dr. Girzadas would not be capable of doing any of Ms. Hopper's past work — bus driver, parts driver, data entry clerk, or cook. R. at 732. Ms. Bose then testified that other jobs in the national market could accommodate Ms. Hopper's limitations, including general office clerk, telephone clerk, and food and beverage order caller. R. at 733. Ms. Bose added that all of the jobs suitable for Ms. Hopper were simple, unskilled, routine and repetitive jobs. Id.
On July 11, 2007 the ALJ issued a decision finding that Ms. Hopper was not under a disability within the meaning of the SSA from February 18, 2003 through September 30, 2004. The ALJ found that: (1) the medical evidence of record established that through the date last insured, Ms. Hopper had degenerative disc disease of the thoracic spine, lumbar spine and cervical spine; carpal tunnel syndrome with surgical repair; generalized anxiety; and depression; (2) the aforementioned impairments did not meet or medically equal one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1, specifically Listing 1.02, major dysfunction of a joint(s) (due to any cause), Listing 1.04, disorders of the spine, and Listing 12.00, mental impairments; (3) Ms. Hopper retained the residual functional capacity to perform the exertional and nonexertional requirements of work because the medical record in its entirety demonstrated that she had no greater limitations in her ability to perform work activities than those reflected in the residual functional capacity determination reached in her case, and the objective medical evidence did not fully support and was inconsistent with Ms. Hopper's subjective complaints; and (4) based on the testimony of the vocational expert, Ms. Hopper had acquired work skills from past relevant work that were transferrable to other jobs that existed in significant numbers in the national economy. R. at 71-79. The ALJ concluded that, considering the claimant's age, education, and transferable work skills, a finding of "not disabled" was appropriate under the Medical-Vocational Rule 201.28. R. at 79.
On June 10, 2008, the Appeals Council vacated the July 11, 2007 order and remanded the case to the ALJ for resolution of two issues. First, the Appeals Council noted that Ms. Hopper's medical evidence indicated that she was obese but that the hearing decision did not contain any evaluation of obesity. R. at 82. Second, the Appeals Council noted that the VE's testimony did not establish transferability because skills from past work cannot transfer to unskilled jobs (Social Security Ruling 82-41). Id. However, it also determined that citation to a significant number of unskilled jobs that Ms. Hopper could perform would be sufficient to support a denial. Id.
The Appeals Council instructed the ALJ to reevaluate Ms. Hopper's maximum residual functional capacity for the period of time through and including September 30, 2004 and to provide an appropriate rationale with specific references to record evidence in support of the assessed limitations. R. at 83. Further, the Appeals Council directed the ALJ to evaluate the limitations caused by Ms. Hopper's obesity and to obtain, if warranted, supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base. Id.
D. The ALJ's Second Hearing Decision
The ALJ held a second hearing on September 30, 2008. At that time, Ms. Hopper again testified that she was unable to work because of back, arm and leg pain, narcotic medication, carpal tunnel, anxiety, and depression. She testified that pain medication and epidural injections had not relieved her pain in the past, and that she would have been willing to undergo back surgery but her doctors found her to be ineligible. R. at 757. Ms. Hopper also testified that she had participated in physical therapy and used the TENS machine, a device that uses electric current to stimulate the nerves for therapeutic purposes, which marginally relieved her pain at times, but not consistently. R. at 760. Ms. Hopper testified that she worked hard to function without pain medication, opting for "mental concentration" and endurance to bear the pain. R. at 772-773, 777. Ms. Hopper added that, regardless of whether she takes pain medication or not, she is unable to work eight hours a day, five days a week. R. at 777.
Next, the ALJ heard from Dr. Cavenaugh, a board certified internist and medical expert, who testified that the medical evidence of record would reasonably limit Ms. Hopper to a sedentary level of activity. R. at 785. Dr. Cavenaugh found physical and environmental limitations consistent with Dr. Girzadas' findings in the first ALJ hearing. R. at 785. Dr. Cavenaugh testified that he considered Ms. Hopper's side effects from medication in determining that she is capable of sedentary activity. R. at 786. Dr. Cavenaugh also noted that the record did not show any objective evidence of functional impairment, that all of Ms. Hopper's extremities worked well and that Ms. Hopper's neurological examinations were within normal limits. R. at 786.
Lastly, the ALJ heard from Lee Knutson, a certified rehabilitation counselor and vocational expert, who testified that Ms. Hopper would not be able to do any of her past work but, that she could do other jobs in the national economy with the limitations outlined by Dr. Cavenaugh. R. at 789. VE Knutson identified several jobs that Ms. Hopper could do, including order clerk, information clerk, surveillance system monitor and unskilled security personnel jobs — all unskilled, sedentary jobs. R. at 790.
On March 11, 2009, the ALJ issued a second decision, holding that Ms. Hopper was not disabled within the meaning of the SSA at any time through the date last insured, and thus was not entitled to DIB. R. at 34. First, the ALJ found that Ms. Hopper did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR 404, Subpart P, Appendix 1, Regulations No. 4 because, upon review of the medical record, Ms. Hopper was not totally limited manipulatively in the use of her upper extremities and, even considering her obesity, was not extremely limited in ambulation. R. at 39. Second, the ALJ found that Ms. Hopper had the residual functional capacity to perform sedentary work, subject to the limitations specified by Dr. Cavenaugh, the medical expert. Id. The ALJ determined that Ms. Hopper's medically determinable impairments could reasonably have been expected to produce her alleged symptoms, but she did not find Ms. Hopper's statements concerning the intensity, duration, and limiting effects entirely credible. R. at 40. Third, the ALJ found that Ms. Hopper could not perform any past relevant work, because her least demanding past relevant job required her to perform work activities inconsistent with the residual functional capacity determined above. R. at 42. Finally, the ALJ found that, considering Ms. Hopper's age, education, work experience and residual functional capacity, Ms. Hopper was capable of making a successful adjustment to other work that existed in significant numbers in the national economy. R. at 43. Based on the aforementioned findings, the ALJ concluded that Ms. Hopper was not entitled to a period of disability or DIB under Sections 216(i) and 223 of the SSA.
Standard of Review
In reviewing the denial of a claim for disability insurance benefits, a district court must affirm an ALJ's decision if the decision is supported by substantial evidence and correct conclusions of law. 42 U.S.C. § 405(g); Steel v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). The ALJ's findings are supported by "substantial evidence" if the ALJ identifies supporting evidence in the record and builds a logical bridge from that evidence to the conclusion. Giles v. Astrue, 483 F.3d 483, 486 (7th Cir. 2007). The reviewing court reviews the record as a whole, but may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009) (citing Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000)). Conflicts in the evidence, including those arising in medical opinions, and questions of credibility are to be resolved by the Commissioner, not by the courts. White v. Barnhart, 415 F.3d 654, 659 (7th Cir. 2005) (citing Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003).
Social Security Regulations
An individual seeking DIB must prove that she has a disability under the terms of the SSA. Social Security regulations provide a five-step inquiry to determine whether a claimant is disabled. First, the ALJ must determine whether the claimant is currently employed. Second, the ALJ must determine whether the claimant has a severe impairment. Third, the ALJ must determine whether the claimant's impairments meet or equal one of the impairments listed by the SSA in 20 C.F.R. § 404, Subpt. P, App. 1. Fourth, the ALJ must determine whether the claimant can perform her past work. Fifth, the ALJ must determine whether the claimant is capable of performing work in the national economy. 20 C.F.R. § 404.1520. If a claimant satisfies steps one, two and three, she will automatically be found disabled. Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993). If a claimant satisfies steps one and two, but not three, then she must satisfy step four by proving that she cannot perform her past work. Id. If she satisfies step four, the burden shifts to the SSA to establish that the claimant is capable of performing work in the national economy. Id.
Discussion
Ms. Hopper argues that the ALJ's decision should be reversed or remanded for four reasons. First, she argues that, at step five, the ALJ erred in concluding that she could perform other jobs — namely, jobs that exceeded the RFC she determined for Ms. Hopper. Second, she argues that the ALJ's RFC determination was not supported by substantial evidence or adequately explained. Third, she argues that the ALJ inappropriately and inexplicably rejected the opinion of her primary treating physician. And, finally, she argues that the ALJ erroneously found less than credible her allegations concerning her pain and its limiting effects.(1) The ALJ's Step Five Determination
Ms. Hopper argues that a conflict exists between the jobs that VE Lee Knutson identified in response to the ALJ's hypothetical and the actual requirements of those jobs. R. at 827. Specifically, Ms. Hopper argues that, while the jobs that the VE identified are unskilled, they are not within the capabilities of a person who is limited to simple, routine and repetitive tasks because they require a Dictionary of Occupational Title ("DOT") reasoning level of three or four. R. at 826.
A reasoning level of three requires an ability to "apply common sense understanding to carry out instructions furnished in written, oral or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations." Dep't of Labor, Dictionary of Occupational Titles, App'x C(III). A reasoning level of four requires the ability to "apply principles of rational systems to solve practical problems and deal with a variety of concrete variables in situations where only limited standardization exists. Interpret a variety of instructions furnished in written, oral, diagrammatic, or schedule form. (Examples of rational systems include: bookkeeping, internal combustion engines, electric wiring systems, house building, farm management, and navigation." Id.
Ms. Hopper argues that the ALJ's determination that she is limited to simple, routine and repetitive tasks is inconsistent with her determination that she could perform the jobs identified by the VE, which she argues require a reasoning level of 3 or 4. R. at 826-827.
As previously mentioned, a district court must affirm an ALJ's decision if the decision is supported by substantial evidence and correct conclusions of law. 42 U.S.C. § 405(g); Steel v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). Conflicts in the evidence are to be resolved by the Commissioner, not the courts. White v. Barnhart, 415 F.3d 654, 659 (7th Cir. 2005) (citing Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003).
Unfortunately for Ms. Hopper, no one — not the VE, not the ALJ, not her attorney — even mentioned reasoning levels at the hearing. But, more importantly, there is nothing in the record to suggest that she could not perform at these reasoning levels. In fact, the record suggests that Ms. Hopper does have the skills to perform jobs with a reasoning level of three or four: she completed high school and two years of college and has the cognitive capacity to follow simple instructions. See Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009) citing Renfrow v. Astrue, 469 F.3d 918, 921 (8th Cir. 2007) (job requiring level three reasoning was not inconsistent with claimant's ability to follow only simple, concrete instructions). In the absence of some evidence that calls into question Ms. Hopper's reasoning or cognitive abilities, Ms. Hopper's argument fails.
Ms. Hopper also argues that the ALJ was required to investigate and resolve conflicts between the DOT and the VE's testimony; specifically, the differences between the DOT reasoning and language levels required for the jobs that the VE identified and the ALJ's limitation to simple, routine and repetitive tasks. R. at 827.
An ALJ has an affirmative duty to ask whether the VE's testimony conflicts with the DOT and obtain a reasonable explanation for any apparent conflict. Nicholson v. Astrue, 341 Fed.Appx. 248, 5 (7th Cir. 2011). Here, the ALJ did not identify any conflict involving the reasoning levels. But she did ask the VE whether the jobs that he identified were consistent with the DOT numbers. R. at 789. The VE noted that two DOT numbers existed for information clerk, one for light and unskilled and the other for semi-skilled and sedentary. Id. Then, the VE explained that most information clerk jobs are unskilled and the only difference between the two DOT numbers is whether the information clerk was provided a chair or not. Id. Finally, the VE opined that there are unskilled, sedentary information clerks. Id. Ms. Hopper's counsel was afforded the opportunity to cross-examine the VE on conflicts between the VE's testimony and the DOT. Ms. Hopper's counsel never identified any inconsistency that had not already been identified and explained by the VE.
Ms. Hopper also suggests that the ALJ should have questioned the VE more vigorously about the conflict between the jobs that he identified and the DOT numbers. However, the ALJ had no duty to interrogate him further. See Martin v. Comm'r of Soc. Sec. 170 Fed.Appx 369, 374 (6th Cir. 2006) ("Nothing in S.S.R. 00-4p places an affirmative duty on the ALJ to conduct an independent investigation into the testimony of witnesses to determine if they are correct.") For the aforementioned reasons, Ms. Hopper's argument fails.
(2) The ALJ's RFC Determination
Ms. Hopper next argues that the ALJ's finding as to her RFC is not supported by substantial evidence or adequately explained. Ms. Hopper argues that a limitation to simple, unskilled work does not account for her somnolence and concentration problems, which are primarily caused by her medication. R. at 828. Ms. Hopper also argues that the ALJ accepted that she would have difficulty in maintaining concentration, but did not explain how a person with such difficulties would be able to stay on task for the requisite eighty-five to ninety percent of the time, as identified by the VE. R. at 829.
The ALJ is not required to address every piece of evidence in the record, but must build an accurate and logical bridge from the evidence to her conclusions. Sims v. Barnhart, 309 F.3d 424, 429 (7th Cir. 2002). Unless the ALJ fails to rationally articulate the grounds for his/her decision in a manner that permits meaningful review, the Court must affirm if there is substantial evidence supporting the ALJ's decision. Id.
The ALJ found that Ms. Hopper had the RFC to perform sedentary work, with no use of foot/leg controls, no climbing ladders, ropes, or scaffolds, no frequent fingering, handling objects bilaterally, or overhead reaching, occasional climbing of ramps or stairs, balancing, stooping, kneeling, crouching, crawling, or bending, no concentrated exposure to dust or fumes, and no commercial driving. R. at 39. The ALJ also found that Ms. Hopper had the mental RFC to understand, remember and carry out unskilled, simple repetitive and routine tasks. Id.
The ALJ specifically discussed Ms. Hopper's complaints of somnolence and concentration difficulties in her decision and concluded that Ms. Hopper could perform a range of sedentary work limited to understanding, remembering and carrying out unskilled, simple, repetitive and routine tasks. The ALJ found that the side effects of Ms. Hopper's medication, including somnolence and concentration issues, were minimal. R. at 41. In support of this finding, the ALJ noted that one of the claimant's physicians listed side effects of all medications, but did not specifically list any that the claimant suffered.
Additionally, Ms. Hopper's own testimony suggests that the side effects of her medication are not particularly limiting. She testified that, in 2003 and 2004, the medication affected her quality of life and caused her to stay in bed 100 percent of the time, R. at 767; she also testified that the combination of pain and the medication she took to control the pain caused her to stay in bed and gave her a "cloudy mind as far as thinking goes." R. at 768. Yet, when, at the September 2008 hearing, her attorney asked her about the side effects of her medication, she testified that it wasn't really the medication that limited her activities; it was really just more about what her body could and could not do. See R. at 770. The ALJ relied upon this testimony in her opinion.
In addition, the ALJ's finding is consistent with the ME's testimony. The ME testified that the side effects of the medication prescribed to Ms. Hopper, which include somnolence and concentration issues, would contribute to a finding that she could do sedentary work, as opposed to light level work. In short, substantial evidence supports the ALJ's finding that the side effects of Ms. Hopper's medication were minimal, and the ALJ logically connected this evidence and the conclusion that Ms. Hopper is capable of performing unskilled, sedentary work, subject to limitations. Therefore, Ms. Hopper's argument fails.
(3) The ALJ's Consideration of Dr. Saran's Opinions
Ms. Hopper next argues that the ALJ incorrectly rejected the opinion of her primary treating doctor, Dr. Saran. Ms. Hopper argues that many of Dr. Saran's opinions included statements that Ms. Hopper is disabled and, while this is an issue reserved to the Commissioner under 20 C.F.R. § 404.1527(e)(1), this fact does not render Dr. Saran's opinion invalid. R. at 829. Further, Ms. Hopper argues that, unlike the other doctors, Dr. Saran was familiar with her entire medical history, which was not solely limited to back problems, and that Dr. Saran's opinions should, therefore, have been given greater weight. Id. Ms. Hopper argues that, because Dr. Saran was a long-term treating professional, his opinions were entitled to controlling weight and should not have been rejected. R. at 829.
It is well established that the Commissioner, not a medical source, expressly reserves the responsibility of determining whether an individual meets the statutory definition of a disability. See 20 C.F.R. § 404.1527(e)(1). Generally, an ALJ will give controlling weight to a medical opinion rendered by a treating source when it is well supported by medically acceptable clinical and laboratory diagnostic techniques, and is consistent with other substantial evidence in the record. See 20 C.F.R. § 404.1527(d)(2). Here, the ALJ noted that Dr. Saran's opinions that Ms. Hopper was disabled and unable to work was not entitled to significant weight because that ultimate finding is not appropriately made by the treater, but is, rather, reserved for the Commissioner. See 20 C.F.R. § 404.1527(e)(2); R. at 41. But the ALJ gave significant weight to Dr. Saran's opinion that Ms. Hopper could lift/carry up to ten pounds, noting that this finding was consistent with the medical record. R. at 41. The ALJ gave little weight to Dr. Saran's opinion that Ms. Hopper needed to change positions more than once every two hours, because she found that Dr. Saran did not have the benefit of the full record when he made this finding and because it was inconsistent with the record evidence. Id. In fact, Ms. Hopper underwent two functional capacity evaluations from the time of her disability onset date through the DLI. And neither of these evaluations affirmed Dr. Saran's opinion that Ms. Hopper was restricted to changing positions more than once every two hours.
First, on June 24, 2004, physical therapist, Heather Thompson, conducted a functional capacity evaluation of Ms. Hopper. Ms. Thompson opined that Ms. Hopper could sit for zero to two hours at one time for a total of seven to eight hours per day. R. at 323. Ms. Thompson noted, "Occasional positional changes will enhance the patient's tolerance to postural activities." Id.
Second, on May 15, 2005, Dr. Victoria Dow performed a functional capacity assessment of Ms. Hopper. Dr. Dow opined that Ms. Hopper could sit with normal breaks about six hours in an eight-hour workday and must periodically alternate sitting and standing to relieve pain or discomfort. R. at 305. Dr. Dow went on to explain that, according to Ms. Hopper, she must shift positions periodically for pain relief, and then noted that it is not necessary for Ms. Hopper to assume the shifted position for more than a few minutes at a time. Id.
Generally, the more consistent an opinion is with the record as a whole, the more weight it will be given. See 20 C.F.R. § 404.1527(d)(2), (4). Dr. Saran's opinion that Ms. Hopper was required to change positions more than once every two hours was not consistent with the record as a whole, and therefore did not deserve controlling weight in the ALJ's opinion. The ALJ used medical sources, including the claimant's treating source, to provide evidence and opinions of the nature and severity of the claimant's impairment(s). But the final responsibility for determining the claimant's RFC is reserved for the Commissioner, not the treating source. See 20 C.F.R. § 404.1527(e)(2). Here, the ALJ expressly reviewed and considered Dr. Saran's opinion as to Ms. Hopper's physical limitations and, based on the entire record, determined that Dr. Saran's opinion deserved little weight as to Ms. Hopper's RFC. The Court will not second guess that determination.
(4) The ALJ's Credibility Determination
Next, Ms. Hopper challenges the ALJ's credibility findings. Specifically, Ms. Hopper contends that the ALJ erred in rejecting testimony that she was "foggy," tired and had difficulty getting out of bed. R. at 831. Ms. Hopper argues that medical evidence indicated that her pain medication could cause sedation and that her inability to pinpoint the exact source of her sedation does not justify rejecting the testimony that she experienced this symptom. Id. Further, Ms. Hopper argues that the ALJ should have considered her weight, its contribution to her perceived level of pain and the bariatric surgery that she underwent to reduce her pain. Id.
In a disability insurance case, an ALJ's credibility determinations are "afforded special deference because the ALJ is in the best position to see and hear the witness and determine credibility." Eichstadt v. Astrue, 534 F.3d 663, 667-668 (7th Cir. 2008) (citing Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000)). An ALJ is required to "evaluate all evidence bearing on the severity of pain and give specific reasons for discounting a claimant's testimony about it." Martinez v. Astrue, 630 F.3d. 693, 697 (7th Cir. 2011). A reviewing court may overturn an ALJ's credibility determinations only if they are "patently wrong." Eichstadt, 534 F.3d 663, 668 (7th Cir. 2008) (citing Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003)).
The ALJ determined that Ms. Hopper's medically determinable impairments reasonably could have been expected to produce the symptoms that Ms. Hopper alleged, but also found that Ms. Hopper's statements concerning the intensity, duration and limiting effects of these symptoms were not entirely credible. R. at 40. In assessing Ms. Hopper's credibility, the ALJ considered the objective medical record, the malingering that was suggested by the medical sources at the functional capacity evaluation, the testimony of Ms. Hopper and the opinion of the medical expert. R. at 40-41.
First, the ALJ noted that the objective medical record did not support Ms. Hopper's statements concerning the intensity, duration and limiting side effects of her symptoms because she did not receive medical treatment for her back pain until about one month after she fell, a treating doctor noted that her pain appeared to be soft tissue and mechanical in nature, several treating doctors released her to full work duty in July 2004, subsequent physical examinations that showed no abnormal neurological or other medical findings except positive trigger points and pain in the cervical extension and, thereafter, she received minimal treatment. R. at 40.
Second, the ALJ noted that, in rejecting Ms. Hopper's testimony, she took into consideration that a medical source at the functional capacity evaluation noted that Ms. Hopper had a high indication of inappropriate illness behavior and demonstrated ability for sedentary work, but displayed sub-maximum physical test efforts. Id.
Third, the ALJ noted that one of Ms. Hopper's physicians listed the possible side effects of all of her medications, but did not specifically list any side effects that Ms. Hopper allegedly suffered. R. at 41.
Fourth, the ALJ noted that, at the hearing, Ms. Hopper did not describe any side effects other than "being foggy" and testified that medication side effects were why she was in bed when she previously consistently described sleep problems due to pain and not side effects of the medication. Id.
Finally, the ALJ noted that she concurred with ME Cavenaugh's testimony that all of Ms. Hopper's extremities worked well, that her neurological examinations were within normal limits and that the side effects of her medication would reasonably limit her to sedentary work because his testimony was consistent with the objective medical record. R. at 41.
Based on the specific reasons that the ALJ provided for discounting Ms. Hopper's testimony, this court declines to overturn the ALJ's credibility determination.
Conclusion
For the reasons set forth above, the Court denies Ms. Hooper's Motion for Summary Judgment and grants the Commissioner's Cross-Motion for Summary Judgment.