United States District Court, N.D. Illinois, Eastern Division
SHEILA D. H., Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
DAVID WEISMAN UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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. §
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).
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).
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.)
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).
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.
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
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.
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