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Britt v. Berryhill

United States District Court, N.D. Illinois, Eastern Division

July 27, 2017

CLAUDE C. BRITT, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          M. David Weisman United States Magistrate Judge

         Plaintiff Claude C. Britt appeals the Commissioner's decision denying in part his application for Social Security benefits. For the reasons set forth below, the Court affirms the Commissioner's decision.


         Plaintiff filed an application for benefits on February 10, 2011, alleging a disability onset date of March 31, 2009. (R. 396.) His application was denied initially on August 15, 2011, and again on reconsideration on December 28, 2011 (R. 226-29, 237-44.) Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on July 1, 2013. (R. 85-149.) On September 12, 2013, the ALJ issued a decision denying plaintiff's application. (R. 201-10.) The Appeals Council remanded the case (R. 216-19), and a second hearing was held before an ALJ on February 17, 2015. (R. 43-84.) On March 19, 2015, the second ALJ found that plaintiff was disabled as of March 7, 2013, but not as of September 12, 2012, the date he was last insured.[2] (R. 20-34.) The Appeals Council denied review (R. 1-4), leaving the ALJ's decision as the final decision of the Commissioner. See Villano v. Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).


          The Court reviews the ALJ's decision deferentially, affirming if it is supported by “substantial evidence in the record, ” i.e., “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is generous, it is not entirely uncritical, ” and the case must be remanded if the “decision lacks evidentiary support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).

         Under the Social Security Act, disability is defined as the “inability 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 12 months.” 42 U.S.C. § 423(d)(1)(A). The regulations prescribe a five-part sequential test for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520. Under the regulations, the Commissioner must consider: (1) whether the claimant has performed any substantial gainful activity during the period for which she claims disability; (2) if not, whether the claimant has a severe impairment or combination of impairments; (3) if so, whether the claimant's impairment meets or equals any listed impairment; (4) if not, whether the claimant retains the residual functional capacity (“RFC”) to perform her past relevant work; and (5) if not, whether she is unable to perform any other work existing in significant numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001). The claimant bears the burden of proof at steps one through four, and if that burden is met, the burden shifts at step five to the Commissioner to provide evidence that the claimant is capable of performing work existing in significant numbers in the national economy. See 20 C.F.R. § 404.1560(c)(2).

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged disability onset date. (R. 23.) At step two, the ALJ found that plaintiff had the severe impairment of “right foot crush injury with neuropathy.” (Id.) At step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Id.) At step four, the ALJ found that plaintiff could not perform his past relevant work but had the RFC to perform sedentary work with additional restrictions. (R. 24, 32.) At step five, the ALJ found that there were jobs that existed in significant numbers in the national economy that plaintiff could have performed before March 7, 2013, but not after that date. (R. 32-33.) Thus, the ALJ concluded that plaintiff became disabled on March 7, 2013. (R. 33.)

         Plaintiff contends the ALJ erred in assessing the opinion of agency examining expert, Dr. Hildreth, who opined that plaintiff can sit for only one and one-half hours and stand and walk for only one hour of an eight-hour workday and needs a cane or walker to walk more than fifty feet. (R. 986.) The ALJ gave this opinion “moderate weight” because: (1) Dr. Hildreth examined plaintiff only once; (2) she “over-relied on [plaintiff's] subjective reports” of his need for a cane; (3) the degree of difficulty she noted with his ambulation was inconsistent with the notes from plaintiff's treating physician; and (4) the exam occurred four months after the alleged disability onset date. (R. 30-31.)

         The regulations do not, as plaintiff suggests, require the ALJ to accept Dr. Hildreth's opinions simply because she is an agency doctor or to give them more weight simply because she examined plaintiff. See 20 C.F.R. § 404.1527(e)(2)(i) (“Administrative law judges are not bound by any findings made by State agency medical or psychological consultants, or other program physicians or psychologists.”); 20 C.F.R. § 404.1527(c)(1) (stating that ALJs “[g]enerally” give more weight to the opinions of examining sources). Moreover, there is no inconsistency between the RFC formulated by the ALJ, that plaintiff can perform sedentary work with certain limitations, and his assignment of moderate weight to Dr. Hildreth's opinion. Though the ALJ did not agree that plaintiff can only sit for ninety minutes of a workday, his RFC incorporated Dr. Hildreth's ten-pound lifting restriction, her limitation on plaintiff's walking and standing, and her opinion that plaintiff needs to use a cane. (See R. 985-86 (setting forth Dr. Hildreth's restrictions); R. 24 (stating that plaintiff has the RFC to perform sedentary work with certain restrictions, including “the use of a cane to ambulate in the workplace”); see also 20 C.F.R. § 404.1567(a) (“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.”). Finally, though the ALJ said Dr. Hildreth “over-relied” on plaintiff's report of “need[ing] . . . an assistive device to ambulate” (R. 31), he nonetheless incorporated that limitation into the RFC. (See R. 24.) Thus, to the extent that statement was error, it was harmless. See Keys v. Barnhart, 347 F.3d 990, 994 (7th Cir. 2003) (stating that “the doctrine of harmless error . . . is fully applicable to judicial review of administrative decisions”).

         Plaintiff also faults the ALJ for failing to address the May 15, 2008 opinion of plaintiff's treating orthopedist, Dr. Vora, who said that plaintiff could “return to work . . . in a seated job . . . with . . . elevation as needed.” (R. 628.) Though the ALJ should have addressed this opinion, see 20 C.F.R. § 404.1527 (stating that an ALJ “will evaluate every medical opinion [he] receive[s]”), his failure to do so was harmless. The record shows that Dr. Vora treated plaintiff immediately after the injury to his right great toe, almost a year before the alleged onset of his disability. (See R. 623 (noting that plaintiff was injured on May 3, 2008); R. 616-35 (Dr. Vora's records dated May 7 and 15, 2008); R. 396 (benefits application alleging a disability onset date of March 31, 2009). It also shows that the ALJ gave significant weight to more recent opinions of other treating, examining, and consulting doctors, none of which said that plaintiff was required to elevate his foot during the workday. (See, e.g., R. 98-101 (Dr. Slodki's testimony); R. 172-83 (Dr. Jhaveri's report); R. 677-82, 689-98, 705-11, 867-80 (Dr. DeFrino's records);[3] R. 814-17 (Dr. Kodros' report); R. 981-96 (Dr. Hildreth's report).) Because the ALJ's acceptance of the other medical opinions is an implicit rejection of the foot elevation requirement in Dr. Vora's records, the ALJ's failure to address Dr. Vora's opinion explicitly is not a basis for a remand.[4]

         Plaintiff also contests the ALJ's credibility finding. The Court notes that defendant recently issued new guidance for evaluating symptoms in disability claims, which “eliminate[es] the use of the term ‘credibility'” to “clarify that subjective symptom evaluation is not an examination of an individual's character.” See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). Though SSR 16-3p was issued after the ALJ's decision in this case, it is appropriate to apply it here because it is a clarification of, not a change to, existing law, see Pope v. Shalala, 998 F.2d 473, 483-83 (7th Cir, 1993), overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999) (stating that courts give “great weight” to an agency's expressed intent to clarify a regulation), and is substantially the same as the prior regulation. Compare SSR 96-7p, 1996 WL 374186 (July 2, 1996), with SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016).

         The ALJ deemed plaintiff's allegations “not fully credible” because: (1) the functional limitations noted by his doctors were based on his subjective complaints, not objective evidence; (2) plaintiff's workers' compensation case coupled with his benefits application gave him an incentive to exaggerate his symptoms; (3) a surveillance video showed that plaintiff walked with a normal or nearly normal gait, not with a pronounced limp; (4) though plaintiff said he required an assistive device to walk, the record showed that he used one only sporadically; (5) plaintiff did not seek free or low cost treatment during the considerable period of time for which there were no treatment records; and (6) his long-term reliance on over-the-counter pain relievers was inconsistent with his allegation of constant, severe pain. (R. 31-32.)

         As plaintiff correctly points out, it is improper for an ALJ to dismiss reports of pain simply because they are not corroborated by objective evidence. See Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004) (“[O]nce the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant's testimony as to ...

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