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Sheila D. H. v. Saul

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

August 21, 2019

SHEILA D. H., Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          M. DAVID WEISMAN UNITED STATES MAGISTRATE JUDGE.

         Sheila D. H. brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the Social Security Administration's (“SSA's”) decision denying her application for benefits. For the reasons set forth below, the Court affirms the SSA's decision.

         Background

         Plaintiff applied for benefits on October 10, 2013, alleging a disability onset date of December 15, 2011. (R. 74-75.) Her application was denied initially and on reconsideration. (R. 93, 114.) Plaintiff requested a hearing, which was held by an administrative law judge (“ALJ”) on July 8, 2016. (See R. 39-73.) In a decision dated September 13, 2016, the ALJ found that plaintiff was not disabled. (R. 18-33.) The Appeals Council declined review (R. 1-3), and plaintiff appealed to this Court, which remanded the case for further proceedings. (R. 693.)

         On October 10, 2018, the ALJ held another hearing. (R. 635-80.) In a decision dated October 23, 2018, the ALJ found that plaintiff was not disabled. (R. 614-27.) The Appeals Council did not assume jurisdiction, making the ALJ's decision the final decision of the SSA, reviewable by this Court pursuant to 42 U.S.C. § 405(g). 20 C.F.R. § 404.984(a).

         Discussion

         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(a), 416.920(a). The SSA must consider whether: (1) the claimant has performed any substantial gainful activity during the period for which she claims disability; (2) the claimant has a severe impairment or combination of impairments; (3) the claimant's impairment meets or equals any listed impairment; (4) the claimant retains the residual functional capacity (“RFC”) to perform her past relevant work; and (5) the claimant is able to perform any other work existing in significant numbers in the national economy. Id.; see Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001).

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. (R. 616.) At step two, the ALJ determined that plaintiff has the severe impairments of diabetes with neuropathy in the feet, asthma, obstructive sleep apnea, obesity, and sciatica. (R. 617.) At step three, the ALJ found that plaintiff's impairments do not meet or medically equal the severity of a listed impairment. (R. 618.) At step four, the ALJ found that plaintiff has the RFC to perform her past relevant work as a clerical worker and administrative clerk and thus is not disabled. (R. 619, 626.)

         Plaintiff contends that the ALJ wrongly rejected the opinion of her treating physician, Dr. Govindarajan. An ALJ must give a treating physician's opinion controlling weight if “it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. § 404.1527(c)(2); see Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). “If an ALJ does not give a treating physician's opinion controlling weight, the regulations require the ALJ to consider the length, nature, and extent of the treatment relationship, frequency of examination, the physician's specialty, the types of tests performed, and the consistency and supportability of the physician's opinion.” Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009).

         On July 6, 2016, Dr. Govindarajan opined that plaintiff can only sit for twenty minutes and and stand for an hour a time. (R. 608.) The doctor also said that plaintiff could sit for four hours and stand/walk for two hours of a workday, would need three or four unscheduled breaks during the day, would likely miss three days of work per month, and would frequently have lapses in attention and concentration because of her symptoms. (R. 608-10.) The ALJ rejected the opinion about plaintiff's ability to concentrate and gave “minimal weight” to the remaining opinions because they were not supported by Dr. Govindarajan's treatment records and were contradicted by plaintiff's statements and the conservative treatment she received. (R. 625.)

         Plaintiff says the ALJ incorrectly asserted that plaintiff's diagnosis of sciatica is inconsistent with her negative leg raising test. (Pl.'s Br., ECF 16 at 6; see R. 625.) Even if that is true, an issue the Court does not decide, it is irrelevant because the ALJ did not reject this diagnosis. On the contrary, the ALJ found that sciatica was one of plaintiff's severe impairments. (R. 617.) Thus, even if the ALJ erred with respect to the leg raising test, that error was harmless. See Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (“The doctrine of harmless error . . . is applicable to judicial review of administrative decisions.”).

         Plaintiff also contends that the ALJ failed to consider the impact of all of plaintiff's impairments on her attention and concentration when she rejected Dr. Govindarajan's opinion about plaintiff's limitations in those areas. Specifically, plaintiff argues that the ALJ only considered how plaintiff's pain medication, not her impairments, impacted her concentration. In reality, what the ALJ said is: “I give th[e] [attention/concentration] aspect of the [doctor's] assessment no weight, as no mention of difficulty attending or concentrating is noted in the records and no significant pain management is provided.” (R. 625.) In other words, the ALJ rejected the doctor's opinion because the medical records did not show that plaintiff's concentration was diminished by her pain medication or any of her symptoms. Because the ALJ did not, as plaintiff argues, focus exclusively on limitations from pain medication in assessing this opinion, the Court has no basis for disturbing the ALJ's assessment.

         Plaintiff also argues that the ALJ had no basis for rejecting Dr. Govindarajan's assertion that plaintiff will likely miss three days of work each month. In plaintiff's view, the ALJ should not have expected there to be “ongoing work assessments in the office notes when [plaintiff] was not working full time.” (Pl.'s Br., ECF 16 at 7.) But the ALJ did not reject this opinion because there were no work assessments in Dr. Govindarajan's records. She rejected it because Dr. Govindarajan's notes do not evidence impairments that would preclude plaintiff from working several days each month. (See R. 625 (“Dr. Govindarajan did not provide any basis for her assertion that the claimant would be absent from work with this ...


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