Opinion
No. 12 C 3938
12-05-2013
ANGELA J. NEAL, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
Magistrate Judge
Jeffrey T. Gilbert
MEMORANDUM OPINION AND ORDER
Plaintiff Angela J. Neal ("Claimant" or "Neal") brings this action under 42 U.S.C. § 405(g) seeking reversal or remand of the decision of Defendant Carolyn W. Colvin, Commissioner of Social Security ("Commissioner") denying Neal's application for supplemental security income benefits ("SSI"). This matter is before the Court on the parties' cross-motions for summary judgment [14, 16]. Claimant argues that the Administrative Law Judge's ("ALJ") decision denying her application should be reversed or, alternatively, remanded for further proceedings. In support of her motion for summary judgment, Claimant raises the following issues: (1) whether the ALJ erred by failing to properly weigh the medical opinion evidence; (2) whether the ALJ failed to consider Neal's obesity; (3) whether the ALJ failed to properly evaluate Neal's credibility; and (4) whether the ALJ relied upon flawed vocational expert testimony.
For the reasons set forth below, Claimant's motion for summary judgment [14] is denied. The Commissioner's motion for summary judgment [16] is granted, and the decision of the Commissioner is affirmed.
I. BACKGROUND
Neal was born on May 23, 1961 (R. 162), and she was 49 years old at the time of the ALJ hearing (R. 20). Neal is right handed (R. 264), and around five feet eight inches tall (R. 383). Neal has a ninth grade education (R. 20). She has never been married (R. 162). Prior to becoming unemployed, she worked as a general laborer. (R. 20, 179, 192.) In 2004, Neal was diagnosed with stage-two breast cancer, and she later underwent chemotherapy, radiation therapy, and a partial mastectomy. (R. 20, 264.)
Alternatively, one treating physician possibly diagnosed Neal with stage-three cancer. (R. 265.)
Neal alleges a disability onset date of August 1, 2005, when she was 44 years old. (R. 20, 162.) Her alleged disability results from spinal arthritis and lymphedema in her right arm. (R. 20.)
A. PROCEDURAL HISTORY
On December 4, 2008, Neal filed a claim for SSI, alleging disability since August 1, 2005. (R. 162-64.) Her application was denied on March 5, 2009 (R. 77-80), and upon reconsideration on June 1, 2009 (R. 83-85). Neal filed a timely request for a hearing by an ALJ (R. 88-90), which was held on November 2, 2010, (R. 17, 39-73). Neal personally appeared and testified at the hearing, and she was represented by counsel. (R. 17, 39-73.) Vocational expert ("VE") Edward Pagella also testified. (Id.)
On December 8, 2010, the ALJ denied Neal's claim for SSI and found her not disabled under the Social Security Act. (R. 17-24.) The Social Security Administration Appeals Council then denied Neal's request for review (R. 1-6), leaving the ALJ's decision as the final decision of the Commissioner and, therefore, reviewable by the District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
B. HEARING TESTIMONY
1. Claimant Angela Neal
Neal testified that she lived at home with her twenty-year-old son. (R. 44.) She had no income but received food stamps and "Section 8" payments for utilities and rent. (R. 44-45.) Neal claimed that she had not worked since 2002 and that her last job was as a janitor. (R. 45.) As a janitor, she pulled up carpet, painted, and scrubbed, buffed, and waxed floors. (R. 45-46.)
Neal claimed that she took medication for high blood pressure and the drug Naproxen for arthritis (R. 46), which she had in her knees, feet, shoulders, and back, (R. 50). She said that she had been taking the Naproxen for five years. (R. 47.) Although she testified that she had most recently been taking 500 milligrams of Naproxen several times per day (R. 47-49), she later said she had not taken the drug for several weeks leading up to the hearing because her "medical card" had stopped covering Naproxen (R. 51-52).
In addition, Neal described her breast cancer diagnosis and treatment. (R. 55.) In 2004, she underwent a lumpectomy, and the cancer had not recurred since that time. (R. 55-56.) During this period, Neal's doctor was oncologist Thomas Lad. (R. 66.) Neal testified that lymphedema was her only lingering symptom. (R. 56.) She suggested that the swelling in her right arm was due to the removal of lymph nodes, but she was not taking any medication for the lymphedema. (Id.) Neal said that the swelling became worse whenever she used her arm or hand. (R. 67.)
Dr. Lad's name is misspelled in the hearing transcript.
During the hearing, Neal was wearing a compression sleeve on her arm (id.), and she testified that she had worn it for several years (R. 57). Although she stated that the sleeve "help[ed]" alleviate pain (R. 67), she also suggested that the sleeve itself was painful and irritating to use (R. 57, 67). As a result, she did not use it in her home. (R. 67.)
In addition to the above treatments, Neal stated that she also took blood pressure medication. (R. 56-57.)
As to the limitations imposed by Neal's impairments, Neal testified that she "tr[ied]" to do things normally. (R. 57-58.) For example, she claimed that she was able to "wake up in the morning," bathe, and dress herself. (R. 58.) However, she said that she had some difficulty cooking. (Id.) She was unable to cut vegetables and, thus, would ask her children to do so. (Id.) Neal testified that this limitation was the result of arthritis in her fingers. (R. 67-68.)
On the other hand, Neal testified that she was able to cook herself "something light" for breakfast and was able to fix herself "a sandwich or something" for lunch. (R. 58, 59.) As for dinner, Neal mentioned that her son cooked for her. (R. 59.) When the ALJ inquired into what prevented her from cooking, Neal stated that she did not like the "taste" of much of her own food. (R. 60.)
In addition, Neal testified that she was unable to clean, sweep, mop, or launder clothes. (Id.) As a result, her children were required to do these chores. (R. 60-61.) Specifically, Neal claimed that, although she would try to wash some dishes, she was unable to remain standing for more than twenty minutes at a time. (R. 61.) Likewise, she stated that the arthritis in her shoulder and back prevented her from sweeping. (Id.) Though able to lift a mop or broom, Neal suggested that she was unable to use either. (R. 63.) Similarly, while she was able to lift and pour a gallon of milk, she could not hold the milk for long. (Id.) She also said that she was able to walk the several blocks to the local store. (Id.)
Moreover, Neal testified that she was only able to stand for approximately twenty minutes and sit for approximately twenty to thirty minutes. (R. 63, 68.) Neal claimed that her pain made it difficult for her to pick up objects from the floor. (R. 63-66.)
2. Vocational Expert Edward Pagella
Edward Pagella testified at the hearing as a VE. (R. 69.) The ALJ asked the VE several questions involving a hypothetical person with a "limited" education who shared Neal's work history ("the hypothetical person"). (R. 70.) The ALJ asked whether this hypothetical person would be able to perform past relevant work if the person were (1) able to lift/carry twenty pounds occasionally, lift/carry ten pounds frequently, stand/walk for about six hours with normal rest, and sit for about six hours with normal rest; (2) unable to work at heights, climb ladders or frequently negotiate stairs; and (3) limited to occasional stooping, crouching, reaching, handling, fingering, and feeling with the dominant right arm. (R. 70-71.) The VE responded that this hypothetical person would be unable to perform past relevant work under these circumstances. (R. 71.) However, the VE also stated that this person would be able to perform several other jobs, including hostess (7,200 available jobs in the Chicago metropolitan region according to the VE), usher (980 available jobs), and messenger (1,200 available jobs). (Id.) When asked by Claimant's attorney, the VE testified that, if this hypothetical person also needed a "sit/stand" option and had to change her position every twenty minutes, the person would be unable to perform any jobs. (R. 72-73.)
The ALJ also asked whether the hypothetical person would be able to perform any jobs if the person were (1) unable to lift/carry anything, sit for more than five hours, or stand for more than one hour; (2) required to take thirty-minute breaks in between sittings; and (3) significantly limited in her ability to do repetitive reaching, handling, fingering, or lifting. (R. 71-72.) The VE responded that this person would be unable to perform any jobs. (R. 72.)
C. MEDICAL EVIDENCE
1. Treating Physicians
Thomas Lad, M.D.
Dr. Thomas Lad, an oncologist, began treating Neal in 2004. (R. 455.) Progress notes from May 26, 2005 show that Neal complained of pain in several joints but also that she had "full range of motion" at these joints and that her pain was relieved by "over the counter" analgesics. (R. 315.) On March 30, 2007, Neal underwent an x-ray, which showed lymphedema. (R. 353.)
After a March 18, 2008 appointment, Dr. Lad noted that Neal took Naproxen to combat chronic back pain and reported that the pain "deserve[d] a bone scan." (R. 342.) On March 24, 2008, Neal underwent a full-body bone scan. (R. 347.) The scan showed "increased uptake in the region of T4 and T10" and a "mild increased uptake" in her shoulders, knees, ankles, and feet. (Id.) Subsequently, at a September 16, 2008 appointment, Dr. Lad again referred to Neal's back pain and her use of Naproxen. (R. 345.)
On March 16, 2009, Dr. Lad wrote to Neal's attorney, stating that Neal suffered from right arm lymphedema due to her cancer treatments. (R. 264.) Dr. Lad also noted that she had severe degenerative joint disease. (Id.) However, he opined that the lymphedema was the "cause of her disability" and would linger for life. (Id.)
Also on March 16, Dr. Lad filled out a "Multiple Impairment Questionnaire" (R. 265-72), in which he diagnosed Neal with stage-three breast cancer, grade-two lymphedema post surgery, and "radiation therapy for breast cancer" (R. 265). As for clinical findings, Dr. Lad reported that Neal had status post part mastectomy of her right breast and right arm lymphedema. (Id.) In support of this diagnosis, Dr. Lad vaguely identified several reports. (R. 266.)
Dr. Lad's handwriting for this seemingly critical section is somewhat illegible and his words frustratingly general. In her brief, Claimant suggests that Dr. Lad cited to "laboratory pathology and operative reports." (Pl. Br. 2.)
Dr. Lad stated that Neal's primary symptom was swelling of the right arm, which was exacerbated by the use of that arm. (Id.) Dr. Lad also stated that Neal had daily, chronic back pain caused by movement. (R. 266-67.) Dr. Lad reported that Neal's pain was "moderate" because it rated a "5" on a scale of one to ten. (R. 267.) According to Dr. Lad, in a regular eight-hour workday, Neal would be able to sit for only five hours, would be able to stand or walk for less than one, and would need to move around every thirty minutes. (Id.)
Dr. Lad opined that Neal was "never" able to lift or carry even up to five pounds. (R. 268.) According to Dr. Lad, she was significantly limited in her ability to do repetitive reaching, handling, fingering, or lifting. (Id.) Further, Neal was "essentially precluded" from grasping, turning, or twisting objects with her right arm. (Id.) Similarly, she was "essentially precluded" from either using her right hand for fine manipulations or using her right arm for reaching, (R. 269), but the doctor noted that she had "no limitations" with respect to her left arm or fingers, (R. 268-69).
Moreover, Dr. Lad reported that Neal's condition interfered with her ability to keep her neck in a constant position and that her symptoms were "periodically" severe enough to interfere with her attention and concentration. (R. 269-70.) Dr. Lad also listed a variety of limitations that would interfere with Neal's ability to work at a regular job on a sustained basis. (R. 271.) Specifically, Neal would need to refrain from pushing, pulling, kneeling, bending, or stooping. (Id.)
Dr. Lad also reported that Neal had been prescribed several medications, including Naproxen. (R. 269.)
On May 9, 2009, Dr. Lad wrote to the Illinois Department of Human Services, opining that (1) Neal's "spinal arthritis" had limited her ability to stand, walk, and lift; and (2) her lymphedema limited her ability to lift, carry, and handle objects. (R. 423.) Further, Dr. Lad noted that repetitive use of her right arm would exacerbate the lymphedema. (Id.)
On October 7, 2010, Dr. Lad wrote another letter describing his treatment relationship with Neal. (R. 455.) Lad stated that Neal suffered from right arm swelling due to lymphedema and chronic back pain due to arthritis. (Id.) As a result, she would only be able to sit for five hours and stand/walk for one hour in an eight-hour workday. (Id.) Further, she would need to take thirty-minute breaks between "sittings." (Id.) Dr. Lad opined that Neal could not lift or carry and that she had significant limitations in her ability to do repetitive reaching, handling, fingering, or lifting. (Id.) He stated that she should avoid any pulling, pushing, kneeling, bending, or stooping. (Id.) Lastly, she was also significantly limited in her ability to use her right arm or right hand. (Id.)
Philip Maskall, M.D.
Dr. Philip Maskall began treating Neal in 2007. (R. 451.) At a December 29, 2008 appointment, Neal complained of neck, back, and knee pain, which was radiating down from her back to her lower legs. (R. 411.) After an examination, Maskall diagnosed chronic back pain. (Id.) On the same day, Neal had x-rays taken of her thoracic spine, cervical spine, right knee, and lumbosacral spine. (R. 378-81.) The x-rays were negative, except for "mild degenerative arthritis" at the cervical spine and a "questionable soft tissue mass" in her abdomen. (Id.) On January 6, 2009, Neal again complained of neck, back, and knee pain to Dr. Maskall. (R. 413.)
On January 28, 2009, Dr. Maskall completed both a "Cardiac Report" and an "Arthritic Report" about Neal. (R. 254-61.) In the Cardiac Report, Dr. Maskall diagnosed Neal with "hypertension," and he also noted that she had "chronic back pain." (R. 254, 258.) He prescribed 600 milligrams of Ibuprofen. (R. 258.) In the Arthritic Report, Dr. Maskall diagnosed Neal with degenerative joint disease. (R. 259.) He wrote that Neal had no significant limitations in her ability to grasp, turn or twist objects or to do repetitive reaching, handling or fingering. (R. 260.) He also stated that she had no difficulties with fine manipulations of her fingers. (Id.)
Moreover, in the Arthritic Report, Dr. Maskall did not indicate that Neal had any difficulties holding utensils, turning the pages of a newspaper, or turning a doorknob. (Id.) Similarly, he did not indicate that she had any difficulties buttoning or zipping clothes. (Id.) According to Dr. Maskall, Neal had normal ambulation and had no gait abnormalities. (Id.)
Dr. Maskall did note, however, that Neal had difficulties with both shoulder-level and overhead reaching. (Id.) He wrote that she needed to include periods of walking during an eight-hour workday and that she was only able to sit or stand for one to two hours at a time. (Id.) Maskall found that Neal needed to remain in the alternate position for ten to fifteen minutes in order to get relief from pain. (R. 261.) Accordingly, he opined that she would need a job that permitted shifting positions from sitting, standing, or walking. (Id.) Finally, Dr. Maskall cited 600 milligrams of Ibuprofen as Neal's "treatment." (Id.)
Also on January 28, 2009, Dr. Maskall filled out Social Security papers regarding Neal. (R. 412.) Again he noted that Neal had no significant limitations in her ability to do repetitive reaching, handling, or fingering or to grasp, turn, or twist objects. (R. 416.) She did have difficulties with shoulder-level and overhead reaching and needed to include periods of walking during an eight-hour workday. (Id.) Dr. Maskall once more opined that she was only able to sit/stand for one to two hours at a time. (Id.) Finally, he reported that Neal had chronic back pain, which limited her ability to stand and lift. (R. 419.)
On May 18, 2009, Neal again saw Dr. Maskall and complained of pain. (R. 414.) Nearly one year later, on May 11, 2010, Dr. Maskall composed a brief note about Neal, which referenced the degenerative joint disease in her neck, knees, and shoulders. (R. 451.) In this note, Dr. Maskall opined that Neal was unable to work. (Id.)
The record also contains medical evidence from a Dr. "S." Uday—his or her first name is curiously absent—dated February 24, 2012. (R. 456-64.) A Multiple Impairment Questionnaire completed by Dr. Uday was submitted to the Appeals Council on March 15, 2012. (R. 456.) This was 16 months after Claimant's hearing and 15 months after the ALJ's decision. Although neither party raises the issue, we note that the Appeals Council will consider "new and material evidence . . . only where it relates to the period on or before the date of the administrative law judge hearing decision." 20 C.F.R. § 416.1470(b).In this case, the ALJ's decision was rendered on December 8, 2010. Further, we will not remand this case back to the Commissioner for consideration of this evidence because it does not speak to Neal's condition as it was during or prior to the time of the hearing. See Schmidt v. Barnhart, 395 F.3d 737, 742 (7th Cir. 2005). It is therefore irrelevant that Dr. Uday treated Neal for many of the same impairments that the ALJ considered. See id.
2. Disability Determination Services ("DDS") Consultants
Mahesh Shah, M.D.
On February 9, 2009, Dr. Shah examined and evaluated Neal. (R. 382-85.) He also reviewed the aforementioned bone scan dated March 24, 2008. (R. 382.) Dr. Shah's physical examination of Neal revealed mild tenderness in her lumbar region. (R. 384.) Dr. Shah noted that Neal was "mildly overweight" and that her abdomen was "mildly obese," but he also observed that she was able to move around his office without any apparent difficulty. (R. 383-84.) Dr. Shah reported that Neal had lymphedema on her right arm and was wearing "stockings" over the arm. (R. 384.)
According to Dr. Shah, Neal had mild, vague tenderness in her hands and knees but had full range of motion at these joints and had no swelling or deformity. (Id.) She also had full range of motion at all of her other joints. (Id.) Further, Dr. Shah noted that she had a normal gait and was able to heel-walk, toe-walk, squat down, stoop, and arise. (Id.) In addition, her handgrip, finger grasps, and fine and gross manipulations were normal. (Id.) To conclude his evaluation, Dr. Shah opined that Neal's hypertension was "under fair control" and that, as for her arthritis allegations, her musculoskeletal examination was "fairly unremarkable." (R. 385.)
Towfig Arjmand, M.D.
In March 2009, Dr. Towfig Arjmand completed a consultative Residual Functional Capacity ("RFC") assessment (R. 386-93), and found that Neal could occasionally lift/carry twenty pounds, could frequently lift/carry ten pounds, and would be able to stand/walk/sit for six hours in an eight-hour workday, (R. 387). Further, Neal's ability to push/pull was unlimited. (Id.) According to Dr. Arjmand, Neal was only occasionally able to climb ladders, ropes, or scaffolds and was only occasionally able to crawl. (R. 388.) But Dr. Arjmand found no manipulative, visual, communicative, or environmental limitations. (R. 389-90.) Dr. Arjmand stated that, although Neal's statements about her symptoms were "partially credible" in that "some limitations" could be expected, the stated extent of her symptoms exceeded what would be expected given the objective findings from treatment and consult reports. (R. 393.) Specifically, Dr. Arjmand discredited Neal's claim that she was unable to walk even one block. (Id.)
Marion Panepinto, M.D.
In May 2009, Dr. Marion Panepinto performed an RFC assessment of Neal. (R. 442-49.) Dr. Panepinto's RFC assessment was largely the same as Dr. Arjmand's. As for the differences between the two, according to Dr. Panepinto, Neal had no postural limitations. (R. 444.) Further, Panepinto stated that Neal was limited to occasional reaching, handling, fingering, and feeling on her right side due to lymphedema. (R. 445.) In contrast, Neal's left side was apparently "normal." (Id.)
Moreover, Panepinto noted that the severity of the symptoms alleged by Neal were "partially credible," but he also reported that the x-rays and physical exam did not support the level of limitations alleged. (R. 447.) Notably, Dr. Panepinto directly challenged the Multiple Impairment Questionnaire completed by Dr. Lad. (R. 448.) Dr. Panepinto reported that Dr. Lad's conclusions—specifically, concerning the extent of Neal's limitations—were not supported by the objective evidence on file. (Id.)
D. ALJ DECISION
After a hearing and a review of the medical evidence, the ALJ found that Neal was not disabled under the Social Security Act. (R. 24.) The ALJ reviewed Neal's application under the required five-step evaluation process. (R. 17-19.) At step 1, the ALJ found that Neal had not engaged in substantial gainful activity since the alleged onset date of August 1, 2005. (R. 19.) At step 2, the ALJ found that Neal had the severe impairments of status post lumpectomy with residual lymphedema and spinal arthritis. (Id.) At step 3, however, the ALJ found that none of the impairments, alone or in combination, met or medically equaled one of the listed impairments described by Appendix 1 of the regulations. (Id.)
At step 4, the ALJ found that Neal had the RFC to perform "light work" as defined in 20 C.F.R. § 416.967(b), except that she was unable to work at heights, climb ladders, or frequently negotiate stairs; she was limited to occasional reaching, handling, fingering, and feeling on the right arm; and she was able to only occasionally stoop or crouch. (R. 20.) In making this RFC determination, the ALJ stated that he had considered Neal's symptoms to the extent that they could reasonably be accepted as consistent with the objective medical evidence and other evidence as required by 20 C.F.R. § 416.929. (Id.) The ALJ also stated that he considered opinion evidence as required by 20 C.F.R. § 416.927. (Id.)
First, the ALJ noted that Neal's alleged lymphedema was documented by objective medical evidence, including x-rays and her use of the compression sleeve. (R. 20-21.) However, the ALJ concluded that the lymphedema only minimally limited her ability to perform work-related activities consistent with the aforementioned RFC assessment. (R. 21.) For instance, several examinations in 2008 showed that Neal had "full range of motion." (Id.)
Second, the ALJ found that Neal's alleged arthritis was corroborated by medical evidence but concluded that the evidence did not indicate that the arthritis posed any physical limitations beyond those described by the RFC assessment. (Id.) For example, the ALJ cited a July 5, 2005 appointment, which showed that Neal's pain had been relieved by 600 milligrams of Ibuprofen. (Id.)
The ALJ gave great weight to the opinions of Dr. Maskall, one of Neal's treating physicians, because they were generally consistent with the objective findings and treatment notes in the record. (R. 21-22.) For instance, Dr. Maskall had "opined that the claimant ha[d] no significant limitations in doing repetitive reaching, handling or fingering or in grasping, turning, or twisting objects." (R. 21.)
The ALJ also gave great weight to the evidence provided by the DDS medical consultants. (R. 22.) Specifically, the ALJ cited Dr. Shah's consultative examination, which showed that most of Neal's joints were normal and that Neal was able to move around Shah's office without difficulty. (R. 21.) Likewise, the ALJ credited the assessments provided by Drs. Arjmand and Panepinto, because they were generally corroborated by the medical evidence. (R. 22.)
In contrast, the ALJ gave "limited weight" to the opinions of Dr. Lad, Neal's treating oncologist. (Id.) To the ALJ, the extremity of Dr. Lad's opinions had no support in the medical evidence. (Id.) The ALJ pointed to Lad's opinion that Neal could never use her right arm and his opinion that Neal could never lift or carry any weight. (Id.)
The ALJ noted that an individual's symptoms could sometimes suggest a greater severity of impairment than could be shown by the objective medical evidence alone. (Id.) As a result, the ALJ stated that he had considered other evidence, including the location, duration, frequency, and intensity of Neal's symptoms, as well as the nature of her medication. (Id.) Nevertheless, the ALJ found that Neal had no problems with personal care and that she was able to perform light chores at home. (R. 23.) Further, the ALJ noted that Neal's subjective allegations of limited functioning were generally inconsistent with the medical evidence and were thus given "little weight." (Id.)
In sum, the ALJ concluded that, although Neal's medically determinable impairments could reasonably be expected to cause her alleged symptoms, her statements concerning their intensity, persistence, and limiting effects were not credible to the extent they were inconsistent with the RFC assessment. (Id.)
Finally, at step 5, the ALJ concluded that Neal was unable to perform any past relevant work but found that there were jobs in the national economy that she could perform. (R. 23-24.) Accordingly, the ALJ concluded that Neal was not disabled under the Social Security Act. (R. 24.)
II. LEGAL STANDARD
A. STANDARD OF REVIEW
The "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). A decision by an ALJ becomes the Commissioner's final decision if the Appeals Council denies a request for review. Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Under such circumstances, the District Court reviews the decision of the ALJ. Id. Judicial review is limited to determining whether the decision is supported by substantial evidence in the record and whether the ALJ applied the correct legal standards in reaching his decision. Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009).
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 (1971). A "mere scintilla" of evidence is not enough. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 1992). Even when there is adequate evidence in the record to support the decision, however, the findings will not be upheld if the ALJ does not "build an accurate and logical bridge from the evidence to the conclusion." Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
The ALJ must at least minimally articulate the "analysis of the evidence with enough detail and clarity to permit meaningful appellate review." Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005); Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007) ("An ALJ has a duty to fully develop the record before drawing any conclusions . . . and must adequately articulate his analysis so that we can follow his reasoning . . . ."); see Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005). If the ALJ's decision lacks evidentiary support or adequate discussion of the issues, it cannot stand. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009).
Though the standard of review is deferential, a reviewing court must "conduct a critical review of the evidence" before affirming the Commissioner's decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). It may not, however, "displace the ALJ's judgment by reconsidering facts or evidence, or by making independent credibility determinations." Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
Where conflicting evidence would allow reasonable minds to differ, the responsibility for determining whether a claimant is disabled falls upon the Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). At the same time, an ALJ may not "select and discuss only that evidence that favors his ultimate conclusion" but must instead consider all relevant evidence. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994).
The reviewing court may enter a judgment "affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
B. DISABILITY STANDARD
SSI is available to a claimant who can establish that she has a "disability" as defined under the Social Security Act. 42 U.S.C. § 1381a. Under the Act, a person is disabled if she "is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A).
The standard for determining "disability" for SSI is "virtually identical" to that used for disability insurance benefits ("DIB"). Hankerson v. Harris, 636 F.2d 893, 895 n.2 (2d Cir. 1980); see Craft v. Astrue, 539 F.3d 668, 674 n.6 (7th Cir. 2008) ("Although the Code of Federal Regulations contains separate sections for DIB and SSI, the processes of evaluation are identical in all respects relevant to this case."); Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007); Knipe v. Heckler, 755 F.2d 141, 145 n.8 (10th Cir. 1985). Accordingly, this Court cites to both SSI and DIB cases.
In order to determine whether a claimant is disabled, the ALJ considers the following five questions in order: (1) Is the claimant presently unemployed? (2) Does the claimant have a severe impairment? (3) Does the impairment meet or medically equal one of a list of specific impairments enumerated in the regulations? (4) Is the claimant unable to perform her former occupation? and (5) Is the claimant unable to perform any other work? 20 C.F.R. § 416.920(a)(4).
An affirmative answer at either step 3 or step 5 leads to a finding that the claimant is disabled. Young v. Sec'y of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992). A negative answer at any step, other than at step 3, precludes a finding of disability. Id. The claimant bears the burden of proof at steps 1-4. Id. Once the claimant shows an inability to perform past work, the burden then shifts to the Commissioner to show the claimant's ability to engage in other work existing in significant numbers in the national economy. Id.
III. DISCUSSION
Claimant argues that the ALJ erred because (1) the ALJ failed to properly weigh the medical opinion evidence; (2) the ALJ failed to consider Neal's obesity; (3) the ALJ failed to properly evaluate Neal's credibility; and (4) the ALJ relied upon flawed VE testimony.
A. THE ALJ PROPERLY WEIGHED THE MEDICAL OPINION EVIDENCE
Claimant argues that the ALJ failed to appropriately weigh the medical opinion evidence. Initially, Claimant contends that the ALJ ought to have given controlling weight to the opinions of Dr. Lad, her treating oncologist. Under the so-called "treating physician rule," an ALJ must give controlling weight to a treating physician's opinion if the opinion is both (1) "well-supported by medically acceptable clinical or laboratory diagnostic techniques;" and (2) "not inconsistent with the other substantial evidence" in the case record. 20 C.F.R. § 416.927(c); see Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). The ALJ must also "offer good reasons for discounting" the opinion of a treating physician. Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (internal quotations omitted); Scott, 647 F.3d at 739.
Notably, "a claimant is not entitled to disability benefits simply because her physician states that she is 'disabled' or unable to work." Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001). The Seventh Circuit has "noted that the claimant's regular physician may not appreciate how her patient's case compares to other similar cases, and therefore that a consulting physician's opinion might have the advantages of both impartiality and expertise." See id.
In this case, Dr. Lad's opinions were not well supported by medically acceptable clinical and laboratory techniques. In her brief (Pl. Br. 8), Claimant directs the Court to the questionnaire filled out by Dr. Lad on March 16, 2009 (R. 265-72). The questionnaire contained sections asking Lad to identify clinical findings and laboratory and diagnostic test results, but the doctor provided only superficial, general responses. (R. 265-66.) Taken as a whole, the opinions expressed in the questionnaire provide little elaboration and were almost entirely based on Neal's subjective complaints. (Id.) While subjective complaints are relevant, they are also the "opposite of objective medical evidence," and as such, they "do not compel the ALJ to accept" a treater's opinions. See Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010).
In addition, the ALJ cited two other opinions by Dr. Lad that similarly lacked support. (R. 22.) Both Dr. Lad's letter to Neal's attorney dated March 16, 2009 and his "narrative report" dated October 7, 2010 merely contained summaries of his various opinions. (R. 424, 455.) In each, he failed to cite any actual clinical or laboratory results. (Id.)
More seriously, however, Dr. Lad's opinions are inconsistent with other substantial evidence in the record, specifically the consultative examination of Dr. Shah and the RFCs completed by Drs. Arjmand and Panepinto. Dr. Shah reported that Neal had "full range of motion" in her hands and knees, as well as in all of her other joints. (R. 384.) In terms of arthritis, he opined that Neal's musculoskeletal examination was "fairly unremarkable." (R. 385.)
What's more, in contrast to Dr. Lad's very restrictive assessment, (R. 265-72), Drs. Arjmand's and Panepinto's respective RFCs both noted that Neal was able to stand/walk/sit for six hours in an eight-hour workday, (R. 387, 443), and that Neal's statements about her symptoms were only "partially credible," (R. 393, 447). In fact, Dr. Panepinto explicitly wrote that one of Dr. Lad's assessments was "not consistent with the objective" information on file. (R. 448.)
Claimant is correct to note that the contradictory opinion of a non-examining physician does not "by itself" constitute substantial inconsistent evidence. See Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). But Dr. Lad's opinion is, in fact, contradicted in various ways by three different consultants. Further, as an examining physician, Dr. Shah's opinion would suffice as substantial evidence. See Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008) ("[I]f the treating physician's opinion is inconsistent with the consulting physician's opinion . . . the ALJ may discount it.").
For the above reasons, the ALJ appropriately declined to give Dr. Lad's assessments "controlling" weight. But this determination does not end the inquiry. An ALJ must still determine what value the treating physician's assessment does merit. Scott, 647 F.3d at 740; Campbell, 627 F.3d at 308. The regulations require the ALJ to consider a variety of factors: 1) the length, nature, and extent of the treatment relationship; 2) the frequency of examination; 3) the physician's specialty; 4) the types of tests performed; and 5) the consistency and support for the physician's opinion. See id. After considering these factors, the ALJ is free to discount the treating physician's opinion "so long as the ALJ minimally articulate[s] his reasons." See Elder, 529 F.3d at 415 (calling the standard "very deferential").
It is clear from the decision that the ALJ implicitly considered these factors. The ALJ analyzed the various medical opinions of Dr. Lad, concluding that they warranted "little weight" because the "extreme limitations" Dr. Lad suggested had no support in the record. (R. 22.) In addition, the ALJ heavily cited to Dr. Lad-supplied evidence during his lengthy discussion of Neal's medical history. (R. 20-22.) Specifically, the ALJ referenced a variety of key evidence involving Dr. Lad, from Neal's 2004 cancer diagnosis, (R. 264, 455), to her reports of lymphedema and back pain, (R. 345), to the bone scan that Dr. Lad himself had recommended, (R. 342, 347).
Thus, the ALJ did not commit reversible error by giving limited weight to the opinions of Dr. Lad. The Court has little doubt that the ALJ implicitly considered the nature of the treating relationship and the fact that Lad was an oncologist. Further, the ALJ "thoroughly discussed the medical evidence." See Dixon, 270 F.3d at 1178.
Claimant emphasizes that Dr. Lad was a "board-certified specialist in oncology." (Pl. Br. 9.) It is unclear how being an oncologist had given him special insight into other and seemingly unrelated conditions such as arthritis.
Next, Claimant argues that the ALJ's RFC determination was inconsistent with the opinions of Dr. Maskall and the consulting physicians, whom "the ALJ purported to credit." (Pl. Br 9.) Specifically, Claimant is troubled because the RFC did not address Neal's alleged inability to sit or stand for longer than two hours. In the Arthritic Report dated January 28, 2009, Dr. Maskall indeed noted that Neal was only able to sit or stand for one to two hours at a time, (R. 260), and then was only able to return to her original position after ten to fifteen minutes (R. 261). Although Claimant contends that the consulting physicians agreed with Maskall's assessment, neither Dr. Shah (R. 382-85), nor Dr. Panepinto (R. 442-49), cited to Maskall. Dr. Arjmand's RFC assessment did cite to one of Dr. Maskall's statements dated January 28, 2009, and it noted that Neal got "relief of pain with alternating positions." (R. 392.) But this reference was brief and its meaning unclear.
More importantly, however, Dr. Maskall's opinion that Neal was only able to sit for one to two hours at a time is not necessarily inconsistent with the ALJ's RFC determination, nor did it require the ALJ to include a "sit/stand" option in his questions to the VE. Inherently, the oft-mentioned "eight-hour workday" includes two breaks and one lunch period, with each essentially occurring at two-hour intervals. See SSR 96-9p ("[With respect to performing a full range of sedentary work] an individual must be able to remain in a seated position for approximately 6 hours of an 8-hour workday, with a morning break, a lunch period, and an afternoon break at approximately 2- hour intervals.").
Interpretive rules, such as Social Security Rulings ("SSR"), do not have force of law, but they are binding on all components of the Agency. 20 C.F.R. § 402.35(b)(1); accord Lauer v. Apfel, 169 F.3d 489, 492 (7th Cir. 1999).
While SSR 96-9p specifically pertains to "sedentary work," its description and breakdown of the eight-hour workday seems applicable to "light work" scenarios as well.
Therefore, if Neal were able to sit for two hours, she would not actually be precluded from working throughout a normal workday. This corresponds to the RFC assessments of Drs. Arjmand and Panepinto, each of whom opined that Neal was able to sit for six hours out of the eight-hour workday. (R. 387, 443.) The RFC form itself only provided each doctor with three options from which to describe Neal's sitting ability; "six hours of work" was, in fact, the least restrictive option. (Id.) It is clear that the remaining two hours of the day would be comprised of the lunch period and the morning and afternoon breaks. Neal would have been able to use these breaks to stand or to otherwise change her position.
Each RFC had a section entitled "Exertional Limitations." (R. 387, 443.) Within this section, question 4 asked each doctor to describe the extent to which Neal was able to "Sit (with normal breaks)." (Id.) The three options were (1) "less than about 6 hours in an 8-hour workday"; (2) "about 6 hours in an 8-hour workday"; and (3) "must periodically alternate sitting and standing to relieve pain or discomfort." (Id.)
Lastly, Claimant faults the ALJ for not crediting Dr. Maskall's opinion that Neal was "unable to work on a full-time sustained basis" (Pl. Br. 9), which was expressed in a brief note written on May 11, 2009 (R. 451). Nevertheless, a treater's opinion that his or her patient is unable to work is, in fact, a decision reserved to the Commissioner. 20 C.F.R. § 416.927(d) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability. . . . A statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled."); see Dixon, 270 F.3d at 1177.
B. THE ALJ ADEQUATELY CONSIDERED CLAIMANT'S OBESITY
Claimant next argues that the ALJ failed to properly consider her obesity at any of the five analytical steps. Agency regulations provide in SSR 02-1p that "[t]he combined effects of obesity with other impairments may be greater than might be expected without obesity. For example, someone with obesity and arthritis affecting a weight-bearing joint may have more pain and limitation than might be expected from the arthritis alone." Further, an ALJ's "failure to consider the effect of obesity is subject to harmless-error analysis." Villano, 556 F.3d at 562.
The Court finds the case of Prochaska v. Barnhart, 454 F.3d 731 (7th Cir. 2006), to be particularly instructive. In Prochaska, the Seventh Circuit held that an ALJ's failure to explicitly consider a complainant's obesity is harmless error when the ALJ has implicitly considered it by reviewing medical reports that have, themselves, explicitly considered it. Id. at 736-37; see Mills v. Colvin, No. 12 C 5896, 2013 WL 4083288, at *16 (N.D. Ill. Aug. 14, 2013). Therefore, it is not reversible error when an ALJ "predicate[s] his decision upon the opinions of physicians who d[o] discuss" a claimant's weight. Prochaska, 454 F.3d at 737.
In this case, the ALJ relied upon the consultative report of Dr. Shah. (R. 21.) In the report, Dr. Shah described Neal as "obese" or "overweight" at least three separate times. (R. 382-85.) Similarly, the ALJ gave great weight to the consultative report of Dr. Arjmand, (R. 22), which explicitly noted Neal's obesity (R. 388), and "38" Body Mass Index, (R. 393). Thus, it is immaterial that the ALJ did not overtly use the terms "obesity" or "overweight" when determining Neal's RFC. The very physicians whom the ALJ most heavily credited incorporated Neal's weight into their own respective assessments. Accordingly, the Court does not believe the ALJ's decision would have differed even had he explicitly discussed the implications of Neal's obesity.
A BMI of "30" or greater indicates obesity. See Calculate Your Body Mass Index, Nat'l Insts. of Health, http://www.nhlbi.nih.gov/guidelines/obesity/BMI/bmicalc.htm (last visited Nov. 20, 2013).
The Court also notes that Neal did not testify at the hearing that her obesity—in any way—exacerbated her impairments or increased her limitations. She spoke at length about the ways in which she performed daily activities, yet she did not once explicitly mention her obesity. (R. 57-66.) Although Neal now tries to convey the seriousness of her obesity and hint at the direness of its implications, her arguments are unavailing.
C. THE ALJ PROPERLY EVALUATED CLAIMANT'S CREDIBILITY
Next, Claimant argues that the ALJ failed to properly evaluate her credibility. When a claimant alleges subjective symptoms, an ALJ evaluates the credibility of these allegations. SSR 96-7p. An ALJ's credibility determination is granted substantial deference by a reviewing court unless it is "patently wrong" and not supported by the record. Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007); Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000).
An ALJ must give specific reasons for discrediting a claimant's testimony, and "[t]hose reasons must be supported by record evidence and must be 'sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.'" Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th Cir. 2003) (quoting Zurawski v. Halter, 245 F.3d 881, 887-88 (7th Cir. 2001)). Since an ALJ is in the best position to observe witnesses, his credibility finding will not be overturned so long as it has some support in the record. Dixon, 270 F.3d at 1178-1179.
In addition, when assessing the credibility of an individual's statements about symptoms, an ALJ must consider the evidence in light of the entire case record. See SSR 96-7p. "This includes . . . the individual's own statements about the symptoms, any statements and other information provided by treating or examining physicians . . . and any other relevant evidence in the case record." Id. The ALJ must consider the "individual's daily activities" and the "location, duration, frequency, and intensity of the individual's . . . symptoms." Id. Similarly, where the individual attends a hearing conducted by an ALJ, the ALJ may also consider his or her own observations of the individual. Id.
In the instant case, Claimant has put forth only vague and unclear assertions in support of her attack on the ALJ's credibility analysis. Claimant argues that the ALJ's finding of incredibility was unsupported, yet such a finding is nevertheless "entitled to special deference." See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). Accordingly, this Court will not "nitpick the ALJ's opinion for inconsistencies or contradictions . . . ." See id.
Claimant contends that the evidence of Neal's persistent lymphedema "cannot be ignored." (Pl. Br. 13.) Perhaps not, but the ALJ did, in fact, note Neal's lymphedema—as well as her arthritis—throughout his thorough recitation of her medical history and the various exams that she underwent. (R. 20-22.) While the ALJ did not find this evidence as persuasive as Claimant would have liked, the weighing of evidence is the very duty with which ALJs are charged.
Claimant correctly states that a claimant's allegations of pain may not be disregarded "solely" because they are unsubstantiated by the objective evidence. See SSR 96-7p. But this evidence is still probative because "discrepancies between . . . objective evidence and self-reports may suggest symptom exaggeration." Jones, 623 F.3d at 1161; see Powers, 207 F.3d at 435-36 ("The discrepancy between the degree of pain attested to by the witness and that suggested by the medical evidence is probative . . . . For the hearing officer to rely on this as evidence of a lack of complete candor cannot be deemed patently wrong.").
Additionally, in this case, the ALJ did consider non-objective evidence as well. First, the ALJ explicitly stated in his decision that he had considered such evidence to assess Neal's credibility. (R. 22.) He noted that a person's symptoms can sometimes indicate an impairment that is more severe than otherwise reflected by objective evidence. (Id.) The ALJ then turned to a discussion of Neal's own testimony at the hearing. (R. 23.) It is worth reiterating that an ALJ is in the "best position to see and hear" a witness and "assess [his or her] forthrightness." See Powers, 207 F.3d at 435. What's more, the instant hearing transcript suggests that it might have been reasonable for the ALJ to doubt Neal's credibility. For example, Neal's testimony shifted some as she discussed her ability to cook for herself. (R. 58-60.) At one point, Neal said she did not cook more because she did not like the taste of her cooking. (R. 60.)
Claimant then argues that the ALJ erred by finding that Neal's allegations were contradicted by her various activities of daily living. The ALJ summarized Neal's testimony concerning her ability to engage in these activities. (R. 23.) He noted that Neal admitted to being able to engage in some cooking and cleaning at home. (Id.) But ultimately, the ALJ gave "little weight" to Neal's subjective allegations of limited functioning. (Id.) While the Seventh Circuit has cautioned against placing "undue weight" on a claimant's household activities, see Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009), such activities comprise a factor that ALJs can and must consider when assessing a claimant's credibility. See SSR 96-7p.
Claimant's own brief admits as much. (Pl. Br. 12.)
One last matter warrants the Court's attention. Claimant faults the ALJ for incorporating oft-criticized "boilerplate language" into his decision. However, the mere presence of boilerplate language is insufficient grounds for remand. See, e.g., Carter v. Astrue, 413 Fed. Appx. 899, 905-06 (7th Cir. 2011). It fact, the language is permissible so long as an ALJ "sa[ys] more" in support of his or her credibility finding See Richison v. Astrue, 462 Fed. Appx. 622, 625 (7th Cir. 2012). And indeed, as noted above, the ALJ did say more. See supra.
In context, the following is the language in question: "After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the 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. 23.) This boilerplate language has been criticized because of its meaninglessness. See Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012) (finding that the template "gets things backwards" and that it is "meaningless boilerplate" that "implies that ability to work is determined first and is then used to determine the claimant's credibility"). This inverted approach violates the rule that a claimant's statements about the intensity and persistence of pain or other symptoms cannot be disregarded solely because they are not substantiated by objective medical evidence. Id. at 646 (citing SSR 96-7p). The claimant's credibility must be factored into the RFC determination and not result from it.
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In sum, this Court may not "reweigh the evidence and arrive at a different conclusion." See Jones, 623 F.3d at 1162. The ALJ's assessment was not patently wrong, and it is immaterial that another adjudicator or a court could have reached a different conclusion. Claimant has failed to show that the ALJ acted unreasonably by giving greater weight to the objective medical evidence than to her testimony. As described above, the ALJ discussed at length this medical evidence, much of which provided minimal support for Neal's allegations of limited functioning.
D. THE ALJ PROPERLY RELIED ON THE VOCATIONAL EXPERT'S TESTIMONY
Lastly, Claimant argues that the ALJ's reliance on the VE's testimony was improper because the hypothetical questions posed to the VE failed to include all limitations reasonably caused by Neal's medical impairments. Claimant directs the Court's attention to the omission of a sit/stand option in the ALJ's hypotheticals and—once more—to the ALJ's allegedly unsupported RFC determination. But the RFC assessment was appropriate, as were the hypothetical questions based upon it.
In general, an ALJ's hypothetical questions must include all limitations supported by medical evidence in the record. Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002). Nonetheless, an ALJ is only required to incorporate those impairments and limitations that he or she deems credible. Simila v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009).
The Court reiterates that the ALJ properly determined that Neal was not credible and that he properly weighed the medical evidence. Specifically, the ALJ did not find it credible that Neal was only able sit or stand for twenty minutes at a time. (R. 23.) This notion of a "twenty-minutes" requirement comes from Neal's own testimony (R. 61, 63, 68), although Dr. Lad had opined that she needed to move around every thirty minutes (R. 267, 455). In any event, the ALJ discredited both Neal and Dr. Lad.
On the other hand, Dr. Maskall's opinion was merely that Neal was able to sit for up to two hours at a time. (R. 260.) As noted above, this determination does not automatically lead to the conclusion that Neal is limited in her ability to get through a normal workday. See supra. And more importantly, within the ALJ's first question to the VE, the ALJ, in fact, mentioned that the hypothetical person could "sit about six hours with normal rest periods." (R. 70-71.) Thus, the ALJ did include an implicit sit/stand option in his hypothetical questions; an option more consistent with Maskall's opinions than the "twenty-minutes" limitation advocated by Claimant. (R. 260-61.)
Furthermore, even if the ALJ were required to mention a "twenty-minutes" sit/stand limitation, its omission nevertheless constitutes harmless error. After all, Claimant's own attorney questioned the VE using the ALJ's hypothetical construct, and he explicitly added to the hypothetical that very limitation. (R. 72-73.) The VE dutifully responded that a "twenty-minute" limitation would completely preclude Neal from working. (Id.) The Court does not doubt that the VE would have given this same response had the ALJ himself directly addressed the limitation. As a result, it is highly unlikely that the ALJ's ultimate ruling would have been different had the VE's testimony been elicited by the ALJ rather than by Claimant's attorney.
Therefore, the ALJ's reliance on the VE's testimony is not reversible error.
IV. CONCLUSION
For the reasons set forth above, Claimant's motion for summary judgment is denied [14]. The Commissioner's motion for summary judgment [16] is granted, and the decision of the Commissioner of Social Security is affirmed.
It is so ordered.
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Jeffrey T. Gilbert
United States Magistrate Judge