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Elder v. Astrue

June 16, 2008

DIANNA R. ELDER, PLAINTIFF-APPELLANT,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 05 C 651-Allen Sharp, Judge.

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED APRIL 4, 2008

Before POSNER, KANNE, and ROVNER, Circuit Judges.

Dianna Elder applied for Disability Insurance Benefits and Supplemental Security Income (SSI), claiming that her fibromyalgia rendered her disabled as that term is defined by the Social Security Act ("the Act"), 42 U.S.C. § 301 et seq. The administrative law judge (ALJ) denied Elder's claims in November 2004. After the Social Security Appeals Council ("Appeals Council") declined Elder's request for review, the district court affirmed the ALJ's decision. Elder now argues that the ALJ's decision was wrong; in Elder's view, the ALJ errone- ously concluded that her descriptions of the severity her ailments were not credible, and improperly evaluated the medical opinions of two of her treating physicians. We affirm.

I. HISTORY

Elder filed an application for disability and SSI claims in November 1999, alleging that her fibromyalgia and depression rendered her disabled as of August 12, 1998. As Elder explained in her application, she was 34 years old on her claimed onset date, had a high school education, and had worked at a factory operated by Eaton Corporation as a mold operator and bench assembler. She also stated that she was five feet, eleven inches tall (a measurement that, for some reason, changes throughout the record), and weighed 316 pounds; however, as her attorney repeatedly stated at oral argument, Elder based her claims on the severity of her fibromyalgia and depression, and not on her obesity.

Elder's claims of disability originated in August 1998, when she sought treatment from her family doctor, Dr. James Hanus, for pain in her arms and legs. Aware that Elder had complained of similar pain in the past, Dr. Hanus provided a preliminary diagnosis of fibromyalgia. He then referred Elder to Dr. Steven Ko, a rheumatologist, to confirm his assessment and to provide treatment for her pain.

Dr. Ko diagnosed Elder with fibromyalgia when he first treated her in September 1998. When Dr. Ko inquired about the severity of her condition, Elder explained that, because of the pain, she had difficulty walking, climbing stairs, sitting, and accomplishing everyday activities, such as cooking, washing dishes, and doing laundry. Elder also stated, however, that she was able to maneuver up and down the stairs at her home, and that she did most of the housework and shopping for her family. In all, Elder stated that her ability to function was a 3 on a scale of 1 to 5, which, Dr. Ko stated, was "okay." Dr. Ko prescribed to Elder pain medication, and instructed her to exercise regularly.

Elder visited Dr. Ko eight times over the following year, and during this time she provided mixed reports regarding the severity of her condition. On occasion, Elder reported to Dr. Ko that her fibromyalgia had gotten much worse; at other times, she stated that her pain had subsided. And although Elder's descriptions of her pain fluctuated, she regularly told Dr. Ko that she was following his instructions to exercise. For instance, in November 1998, Elder informed Dr. Ko that she had participated in an aquatic-exercise class, but stopped attending for a while after "overdo[ing] it one day." However, she also stated that she "[went] out three times a week for approximately twenty minutes at a time" without any problem, and that she was able to walk about "one-and-a half miles." At an appointment in January 1999, Elder reported that she had returned to the aquatic-exercise class, and had since been able to participate in the program three times a week without any pain. Likewise, in June 1999, Elder informed Dr. Ko that she was exercising on a stair-step machine at home three times a day for five to ten minutes each time.

In response to Elder's reports of her ability to exercise regularly, Dr. Ko opined at the June 1999 appointment that Elder could "probably go back to work on a part-time basis or at a reduced capacity." He therefore advised Elder to obtain a functional capacity evaluation from a physical therapist so she could seek "an alternative vocation." But at Elder's final appointment with Dr. Ko in August 1999, she informed him that "she was not able to obtain the functional capacity evaluation for her work," and had not pursued any type of "vocational rehab." Elder did state, though, that she was still exercising-"walking almost a mile a day," and continuing to participate "in a water exercise program." Dr. Ko noted that he had done all that he could for Elder, including having encouraged her to "look into vocational rehab programs where she could look into alternative work." He thus concluded that there was no other treatment that he could provide to her, and discharged her from his care. Shortly thereafter, Elder returned to Dr. Hanus to discuss the status of her treatment and to review her medical records so she could prepare her disability and SSI application.

Elder filed her application, and while it was pending she underwent a consultative medical examination by Dr. Michael Holton. Elder did not complain to Dr. Holton about any debilitating pain; she instead informed him that she could "walk about 2-3 blocks level at a leisurely pace or up less than 1 flight of steps generally without increased discomfort or difficulty." Based on Elder's statements and his own examination, Dr. Holton determined that, although Elder had fibromyalgia, she had no difficulty walking, had normal muscle strength and tone, and could grip 25 pounds with both hands.

Also during this time, Elder continued to seek treatment from Dr. Hanus for various ailments, such as vertigo, sinus infections, and issues related to her diabetes mellitus. She also saw Dr. Hanus for, as she put it, "a recheck of her fibromyalgia," although Dr. Hanus's medical records from this period show that he did nothing more than note Elder's complaints of pain, prescribe her different kinds of pain medication, and provide her with medical excuses from work. Nevertheless, Dr. Hanus sent a letter to the Social Security Commission, in which he stated that Elder had "one of the [worst] cases of fibromyalgia that [he had] ever seen," and further opined that she was disabled.

The ALJ held a hearing on Elder's claims in October 2001. Elder testified at the hearing that her fibromyalgia caused her pain "all over," and that the pain sapped her energy, caused her to be depressed, and prevented her from doing "anything." Shortly thereafter, the ALJ denied Elder's claim. However, Elder sought review from the Appeals Council, and in May 2003 the Appeals Council remanded her case to allow the ALJ the chance to obtain additional medical evidence both explaining how Elder's fibromyalgia contributed to her depression and specifying the nature and severity of Elder's ailments. The Appeals Council also stated that the new evidence could include additional consultative medical examinations.

On remand, the ALJ obliged the Appeals Council, and ordered Elder to undergo additional consultative medical examinations. Accordingly, Elder was examined by, among other doctors, Dr. Bhuependra Shah, who focused his examination on Elder's neurological health and muscle strength. As relevant here, Dr. Shah opined that Dr. Hanus's and Dr. Ko's medical records revealed that Elder's fibromyalgia was "unremarkable." Dr. Ko further stated that Elder's strength was normal, and that she could lift and carry 25 pounds occasionally and 20 pounds frequently. Dr. Hanus also submitted additional information to supplement his earlier statements supporting Elder's ...


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