Opinion
Case No. 97-C-8727
March 11, 1999
MEMORANDUM OPINION AND ORDER
Ethel L. Robinson ("Robinson") seeks judicial review pursuant to the Social Security Act, 42 U.S.C. § 405(g), of the Commissioner of the Social Security Administration's ("Commissioner") decision denying her application for Disability Insurance Benefits. Robinson asks the court to reverse and set aside the Administrative Law Judge's ("ALJ") finding that she is not disabled. In the alternative, Robinson requests the court to remand her case back to the Commissioner. Robinson alleges that the ALJ's decision is not supported by substantial evidence and is contrary to law. For the reasons set forth below, the court denies Robinson's motion for summary judgment and affirms the Commissioner's decision to deny Robinson's application for Disability Insurance Benefits.
Background
Robinson applied for Disability Insurance Benefits ("DIB") on August 3, 1992. (R. at 45.) She alleged that she had become disabled on January 1, 1984 due to arthritis, asthma, and nervousness. (R. at 45.) The Commissioner denied Robinson's initial application and her request for reconsideration. (R. at 23.) Subsequently, Robinson requested a hearing before an ALJ (R. at 50), who also found her not to be disabled, and affirmed the Commissioner's decision to deny Robinson's claim. (R. at 35.) The Social Security Appeals Council declined further review, leaving the ALJ's decision as the Commissioner's final decision. (R. at 3-4).
At the time of the hearing before the ALJ, Robinson was fifty-two years old. (R. at 34, 45.) Robinson testified that she completed schooling through the seventh grade, but that she does not read or write well. (R. at 267-268.) Robinson has no prior work experience relevant to her claim for DIB. (R. at 25, 269).
The ALJ found that Robinson had not performed any type of substantial gainful activity since August 3, 1992 (the date on which she filed the application for DIB), and concluded that Robinson has no past relevant work experience for the purposes of determining disability under section 1614(a)(3)(A) of the Social Security Act.
Robinson claimed that her disabled status resulted from the swelling of her hands, knees and feet due to arthritis, difficulty in breathing due to asthma, high blood pressure, and mental impairments (nervousness and anxiety). (R. at 45.) Robinson also claimed to have a history of alcohol abuse and dependence. (R. at 132.) She asserts that these impairments prevent her from standing for more than ten minutes at a time, walking for any distance, lifting heavy weight, and concentrating for any length of time. (R. at 285-288, 295.) Robinson noted, however, that she takes medication for the arthritis which helps alleviate that pain for up to eight hours. (R. at 277.) She also obtains relief for her asthma and high blood pressure from prescribed medications. (R. at 283.) Robinson also admitted that she can walk a block to the bus stop, shop for groceries, watch television programs, play cards, clean her room, and socialize with relatives. (R. at 285-288, 290-291.)
After reviewing Robinson's testimony and the relevant evidence presented in the case pursuant to the steps outlined in 20 C.F.R. § 416.920(a), the ALJ determined that although Robinson's impairments were severe, they did not warrant a disability rating under section 1614(a)(3)(A) of the Social Security Act. (R. at 23.) The ALJ found that Robinson's impairments did not meet or equal any of the listed impairments in 20 C.F.R. Pt. 404 subpt. P, App. 1, Pt. A. (R. at 33.) The ALJ also found that Robinson's testimony concerning her ability to perform work was not credible because it lacked a reasonable relation to the evidentiary findings and proved inconsistent with her testimony, demeanor, and appearance. (R. at 30.) Noting that Robinson had no past relevant work experience, the ALJ proceeded to the final step of the DIB inquiry. The ALJ found that rules 203.18 and 203.23 of the Medical-Vocational Guidelines directed a conclusion of "not disabled" based on Robinson's residual functional capacity for medium work, education, age, and work experience. (R. at 34.) See 20 C.F.R. § 416.969; see also 20 C.F.R. Pt. 404 subpt. P, App. 2, §§ 203.18, 203.25.
Consequently, the ALJ concluded that Robinson could perform a full range of medium work. (R. at 34.) Additionally the ALJ found that, as a result of her impairments, Robinson could not do work requiring exposure to concentrated levels of dust, gases, fumes, or other pulmonary irritants. (R. at 25.) The ALJ also noted that several jobs existed in the region where Robinson resides that allow for these physical and environmental limitations. (R. at 25.)
Jobs not requiring the lifting and or carrying of more than fifty pounds occasionally or 25 pounds frequently and concentrating on tasks other than those that are unskilled and simple.
Standard of Review
This Court must affirm the ALJ's disability findings if they are supported by substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence is "more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Erhart v. Sec. of Health and Human Servs., 969 F.2d 534, 538 (7th Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is not the court's role to re-weigh the evidence or reconsider credibility determinations made by the ALJ. See Herr v. Sullivan, 912 F.2d 178, 180 (7th Cir. 1990) (explaining the district and appellate courts' limited review of DIB claims); see also Pugh v. Bowen, 870 F.2d 1271, 1274 (7th Cir. 1987) (citing Meredith v. Bowen, 833 F.2d 650 (7th Cir. 1987)).
Credibility determinations will not be reconsidered "so long as [the reviewing court] find[s] some support in the record" or unless "patently wrong". See Dray v. Railroad Retirement Bd., 10 F.3d 1306, 1314 (7th Cir. 1993); see also Edwards v. Sullivan, 985 F.2d 334, 338 (7th Cir. 1993) (citing Anderson v. Sullivan, 925 F.2d 220, 222 (7th Cir. 1991)). "Where conflicts in the evidence allow reasonable minds to differ as to whether the claimant is disabled, the decision falls on the agency or its designate, the ALJ." See Palochko v. Chater, No. 96 C 7881, 1998 WL 100261, at *2 (N.D. Ill. Feb. 23, 1998) (citing Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). Thus, if the [ALJ's] decision is supported by substantial evidence, then that decision will be upheld unless it is based upon an error of law. See Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984).
Analysis
Robinson now asks this court to reverse and set aside the Commissioner's decision or, alternatively, to remand her case for a new hearing pursuant to 42 U.S.C. § 405(g). As noted earlier, the question for this court is not whether Robinson is disabled, but rather whether the ALJ's finding of non-disability is supported by substantial evidence. Stark v. Weinberger, 497 F.2d 1092, 1101 (7th Cir. 1974).
In order to receive DIB, an applicant must be "disabled." See 20 C.F.R. § 420.920. The Social Security Act defines "disabled" 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 twelve months." 42 U.S.C. § 1382(c)(3)(A). A five-step test is used to determine whether someone is disabled under the act. 20 C.F.R. § 416.920. The ALJ must sequentially determine whether: (1) the claimant is engaged in substantial gainful activity, (2) the claimant has a severe impairment, (3) the impairment meets or equals one listed by the Commissioner, (4) the claimant can perform her past work, and (5) the claimant is capable of performing any work in the national economy. See 20 C.F.R. § 416.920; see also Pope v. Shalala, 998 F.2d 473, 477 (7th Cir. 1993).
When applying these sequential steps, the ALJ found that the medical evidence failed to establish a severe physical or mental impairment which would prevent Robinson from engaging in any substantial activity. (R. at 30-31, 33.) The ALJ also found that Robinson does not have an impairment that meets or is equal to any impairment or combination of impairments listed by the Commissioner. See 20 C.F.R. § 416.920, App. 1, Sbpt. P, Reg. 4. (R. at 33.) Proceeding to the final step, the ALJ found that, although Robinson had no prior relevant work experience, considering her age, education, and residual functional capacity, she was not disabled under the Medical-Vocational Guidelines 203.18 and 203.25. (R. at 34.)
The ALJ found that Robinson has no relevant prior work experience, and therefore Robinson satisfied steps (1) and (4) in this case. (R. at 25.)
Robinson asserts that the ALJ reached the incorrect conclusion on each of these three issues. Specifically, Robinson contends that the ALJ erred in not giving her treating doctor's opinion sufficient weight. Second, Robinson maintains that the ALJ unreasonably rejected her psychiatric evaluation that found she met the requirements of Listings 12.06, 12.07, and 12.09 (under 20 C.F.R. § 416.920), and should therefore be found disabled. Last, Robinson contends that the ALJ improperly applied the Medical-Vocational Guidelines in light of her significant non-exertional impairments. The court will address each of Robinson's arguments separately.
I. The Weight Given To The Treating Doctor's Opinion
The ALJ rejected Robinson's treating doctor's opinion because it was inconsistent with and inadequately supported by evidence in the record. (R. at 32.) Robinson contends that this finding is wrong because her treating doctor, Dr. Masood Syed, has been her primary physician for over six years, and therefore his opinion should have been given greater weight than the opinions of the non-treating doctors in the record. Additionally, she notes that his opinion is supported by medically accepted clinical and laboratory diagnostic techniques.
Dr. Syed opined that Robinson "suffers from several medical conditions that combine to cause significant medical impairment and render her unfit to maintain gainful employment." (R. at 228.) He noted that Robinson has arthritis (degenerative joint disease) based upon findings of swelling and tenderness in her joints (knees, shoulders, and left arm). (R. at 229.) Dr. Syed also noted that he treats Robinson for mild asthma (obstructive airways disease) and high blood pressure (hypertension). (R. at 229.)
Generally, when two or more experts differ in their opinions as to the claimant's disability, it is the Secretary, not the courts, who should resolve the conflict. Allen v. Weinberger, 552 F.2d 781, 787 (7th Cir. 1977). The ALJ must make the determination based on all of the evidence in the record and then decide how much weight to assign the medical opinions in the record. See 20 C.F.R. § 404.1527(b), 416.927(b); see also Whitney v. Schweiker, 695 F.2d 784,789 n. 12 (7th Cir. 1982). Furthermore, the ALJ must give the treating doctor's opinion controlling weight if that opinion is not inconsistent with the substantial evidence in the record and if it is supported by medically acceptable clinical and laboratory diagnostic techniques. See 20 C.F.R. § 416.927(d)(2);see also Allen, 552 F.2d at 786 (explaining that the opinions of the treating physician are entitled to substantially greater weight than the opinions of a doctor who sees the claimant once). However, a doctor's opinion concerning a claimant's disability is not binding on the Secretary. Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir. 1985); Whitney, 695 F.2d at 788.
In determining the evidentiary weight to give a medical opinion, the ALJ must consider whether (1) the medical professional providing the opinion is a treating source, (2) the medical source provided relevant evidence to support an opinion such as laboratory findings or supporting explanations, (3) the opinion is consistent with the record, and (4) the medical source is a specialist in the field. See 20 C.F.R. § 404.1527(d), 416.927(d).
Applying these factors, this court finds that the ALJ afforded sufficient weight to Dr. Syed's opinion that Robinson is disabled. First, the court recognizes, as Robinson highlights, that Dr. Syed is her treating physician and has been for six years. Dr. Syed's familiarity with Robinson and her health problems therefore suggest that the ALJ should have given Dr. Syed's opinion controlling weight so long as it did not conflict with evidence in the record.
However, while Dr. Syed is a licensed physician with a practice in Chicago, and Robinson's treating physician, it appears that Dr. Syed is a family practitioner, and not a specialist in any particular field of medicine. (R. at 228.) Accordingly, nothing about Dr. Syed's medical qualifications suggest that he is able to provide a more in-depth evaluation of Robinson's medical condition than any other physician. This factor therefore supports the ALJ's decision to give Dr. Syed's opinion less weight.
The ALJ did not question the diagnostic techniques Dr. Syed employed, rather the ALJ disagreed with Dr. Syed's opinion based on additional evidence in the record. To begin with, the ALJ did not, as Robinson argues, completely discount Dr. Syed's opinion. The ALJ in fact agreed with Dr. Syed that Robinson suffers from arthritis, asthma, and high blood pressure, and found that these impairments limit her ability to perform certain work (e.g., restrictions on lifting and dust exposure). (R. at 25.) However, the ALJ and Dr. Syed did disagree over the severity of these impairments and the extent to which they impact Robinson's ability to work.
Above all, the ALJ rejected Dr. Syed's opinion because Dr. Syed's evaluation of Robinson's medical condition contradicted objective medical evidence in the record. The ALJ noted that Dr. Syed prescribed drugs to alleviate the symptoms of Robinson's impairments. (R. at 28.) Robinson takes Lodine which helps to manage the swelling and tenderness caused by her arthritis for up to eight hours at a time. (R. at 277.) The ALJ also noted that Robinson uses inhalers and a drug called Theophylline to control her asthma. (R. at 29, 229.) In finding that Robinson's asthma is not severe, the ALJ emphasized that Dr. Syed found only "mild obstructive airways disease" (R. at 28, 229), and further relied on Robinson's testimony that she only needs to use her inhalers two or three times per week. (R. at 283.) Finally, Dr. Syed prescribed the drug, Calan, which he found to be "helpful in controlling [Robinson's] high blood pressure." (R. at 29, 229.)
The ALJ also considered the opinion of Dr. Paul Knott, who performed a thirty minute consultative examination on Robinson at the request of the Administration. Dr. Knott found that Robinson has mild arthritis, noting her full range of motion in the upper and lower extremities despite finding some tenderness in those areas. (R. at 77, 78.) Dr. Knott also found that Robinson could bend her spine to seventy degrees without difficulty. (R. at 76.) Dr. Knott observed that she had no trouble getting on and off the examination table and her gait appeared to be normal. (R. at 76.) Based in part on Dr. Knott's findings which contradicted those of Dr. Syed, the ALJ determined that Dr. Syed's opinion should not be given significant weight.
Robinson argues that Dr. Knott's consultative examination does not render Dr. Syed's opinion non-controlling nor insignificant. She points out that Dr. Knott's examination lasted only thirty minutes in comparison to the years of treatment Dr. Syed has provided for her. She therefore concludes that Dr. Syed's opinion is entitled to more weight. Robinson, in part, relies on Micus v. Bowen andAllen which both held that treating doctor's opinions are entitled to greater weight than the opinions of doctors who see the claimant once and speculate as to their condition. Micus v. Bowen, 979 F.2d 602, 607 (7th Cir. 1992); Allen, 552 F.2d at 786.
Without citing any authority to support her argument, Robinson asserts that the ALJ should not have given Dr. Knott's opinion significant weight because Dr. Knott examined Robinson almost five years before Dr. Syed examined her. The court rejects this argument because nothing in the record indicates that Robinson's impairments changed in any material respect between Dr. Knott's 1991 examination and Dr. Syed's examination of Robinson in 1996. In fact, the record shows that Robinson's ability to cope with her physical impairments improved because of prescription medicines. Additionally, the time span between the examinations goes to the weight of the respective opinions, and does not (as Robinson argues) require the ALJ to find that Dr. Syed's opinion should have controlling weight. Therefore, even though Dr. Knott examined Robinson years before Dr. Syed, the ALJ reasonably decided to give Dr. Knott's opinion controlling weight.
Allen and Micus do require the ALJ to give greater weight to the treating physician where the consulting physician makes speculative statements regarding the claimant's condition, but they do not bind the ALJ to a finding of disability. In Allen, the consulting doctor speculated that the claimant "possibly could do light work . . ." 552 F.2d at 786. Based on this speculative statement in the absence of a positive opinion, the court held that the treating doctor's opinion was entitled to significantly greater weight. Id.
The court finds Allen distinguishable from this case because nothing in the record suggests that the ALJ based this decision on the speculative statements of Dr. Knott. In fact, unlike the consulting doctor in Allen, Dr. Knott did not make any speculative statements concerning the claimant's ability to perform work. As noted earlier, Dr. Knott's examination involved the determination of the severity of Robinson's impairments based on his own testing and observation of Robinson. It appears that Dr. Knott's diagnosis is completely based on his findings from his examination of Ms. Robinson, and not on mere speculation. Additionally, several Seventh Circuit decisions interpreting Allen have found that Allen does not hold that the treating physician's opinion is controlling whenever physicians disagree. See, e.g., Stephens v. Heckler, 766 F.2d 284, 288 (7th Cir. 1985); Micus, 979 F.2d at 608. As stated, the ALJ may decide how a physician's opinion weighs in a particular case as long as his final decision is supported by substantial evidence. Stephens, 766 F.2d at 289; Micus, 979 F.2d at 608.
In addition to the presence of evidence that contradicts Dr. Syed's opinion, the ALJ also relied on the lack of objective evidence supporting Dr. Syed's opinion that Robinson's impairments require a finding of disabled. (R. at 30.) First, the ALJ found no objective evidence in the record supporting Robinson's complaints of severe arthritis; rather, the objective evidence in the record indicated that Robinson only suffers from mild arthritis. (R. at 30.) The ALJ noted that Robinson claimed to have had x-rays taken of her back and legs in 1996. These x-rays allegedly proved the severity of the arthritis. However, the ALJ found that Robinson did not submit these x-rays to the ALJ for consideration. (R. at 30.) Second, the ALJ found no objective evidence of end organ damage resulting from Robinson's high blood pressure. (R. at 30.) Lastly, the ALJ found that Robinson's asthma did not require physician intervention, nor did her treatment records indicate any severe asthmatic condition. (R. at 31.) As an example, the ALJ cites to a August 15, 1994 medical report stating that Robinson's asthma was "doing well." (R. at 31.) In sum, application of the factors used to determine the evidentiary weight to give a medical opinion support the ALJ's decision to give less weight to Dr. Syed's opinion. Although Dr. Syed is a treating source, he is not a specialist in treating arthritis, asthma or hypertension. Most importantly, Dr. Syed's opinion is not supported by nor consistent with medical evidence in the record. A reasonable person could decide to not assign significant weight to Dr. Syed's opinion based on the absence of objective evidence concomitant with the subjective findings of the examining doctors. Therefore, the court affirms the ALJ on this issue.
Robinson contends that the ALJ failed to consider the combined effect of her impairments when he found that minimal weight should be given to Dr. Syed's opinion. Robinson argues that the ALJ considered her impairments independently, whereas Dr. Syed predicated his opinion in which he finds her disabled on the combined impact of the impairments.
Contrary to Robinson's claim, this court finds that the ALJ did consider the combined effect of her impairments. It is not unreasonable for the ALJ to evaluate each impairment individually and then step back to view the big picture in order to make a determination as to disability. The ALJ found that Robinson "has asthma, arthritis, hypertension, status post stab wound of the abdomen, a history of alcohol abuse and dependence and a mild anxiety disorder. . . ." (R. at 25.) Based on these findings, the ALJ concluded in part that "the claimant has impairments which significantly limit her basic work activities. . . ." (R. at 25 (emphasis added).) However, the ALJ also found that "[Robinson] does not have an impairment or combination of impairments listed in, or medically equal to one listed in [the Medical Vocational Guidelines]." No evidence in the record suggests that the ALJ failed to consider the combined effects of Robinson's impairments. The ALJ evaluated Robinson's impairments separately, finding no single impairment severe enough to render a finding of disabled. A thorough reading of the ALJ's decision shows that he reasonably concluded that the combination of the impairments also led to a finding of not disabled. As discussed earlier, the record contains substantial evidence from which a reasonable person could find that Robinson's impairments are not so severe as to render her disabled. In accordance with the legal requirement that the findings of the ALJ, if supported by substantial evidence, shall be conclusive, this court finds that the ALJ reasonably concluded that the combined effects of Robinson's impairments do not render her disabled.
Lastly, Robinson argues that the ALJ acted improperly when imputing his own observations as to the inconsistencies in her testimony and appearance with her claim of disability. She suggests that the ALJ impermissibly "played doctor" in considering her appearance and testimony as a factor weighing against the Dr. Syed's opinion.
The ALJ found Robinson's testimony and appearance at the hearing a factor in determining that she was not disabled. (R. at 31.) The ALJ specifically found Robinson's testimony to lack credibility because "it was not reasonably related to signs and findings and underlying impairments, or consistent with her testimony, or with her appearance and demeanor." (R. at 33.) The ALJ observed that, although Robinson alleged total functional incapacity, her appearance and demeanor were normal at the hearing. (R. at 31.)
For example, the ALJ found that Robinson told examiners in 1994 that she was a social drinker, and also admitted to being capable of drinking three six packs of beer in a day. However, in separate examinations Robinson tended to minimize her drinking, and even claim to never use alcohol. (R. at 31.)
Contrary to Robinson's argument, this court finds that the ALJ properly and reasonably considered his own observations in determining her claim for DIB. As a trier of fact, the ALJ may include observations adduced at the hearing because they are part of the facts of the case. Kelley v. Sullivan, 890 F.2d 961, 964 (7th Cir. 1989). "[A]n ALJ does not commit an impropriety when he relies on his own observations during a hearing concerning the severity of a claimant's claim. Such observations are credibility determinations and are entitled to considerable weight." Whitney, 695 F.2d at 788. Determinations of credibility often involve intangible elements that impress the ALJ that the court cannot discern by reviewing any transcript or evidence. Imani v. Heckler, 797 F.2d 508, 512 (7th Cir. 1986).
In this case, the ALJ's reliance on his own observations was appropriate. Robinson's claim rested in part on her inability stand or walk for more than brief periods due to her arthritis. The ALJ was in a position to clearly observe Robinson during the hearing. He cannot be expected to ignore inconsistencies between her apparent ability to stand, walk, and function normally during the hearing and her testimony that she cannot do so because of severe pain in her back and joints. Moreover, the ALJ did not substitute his own observations in lieu of medical evidence and the doctor's opinions as to the severity of Robinson's impairments. His comprehensive opinion discussed all of the medical evidence in the record. His own observations simply served to supplement the evidence in the record in his quest to determine Robinson's ability to perform work. In rejecting Robinson's credibility, the ALJ also considered the opinions of Dr. Syed and Dr. Knott along with the opinions of additional interviewers and any available medical documents in the record. As the court does not find that the ALJ's assessment of Robinson is patently wrong, the court must affirm the ALJ's determination as to Robinson's credibility.
II. The ALJ's Rejection of Robinson's Psychiatric Evaluation .
The ALJ concluded that Robinson does not suffer from severe mental impairments rendering her disabled under the Regulation. (R. at 31.) Robinson, however, argues that she suffers from severe non-exertional impairments that meet the listing requirements in appendix 1. See 20 C.F.R. § 416.920(d). Specifically, Robinson relies on the opinions of Dr. Larry Small, Psy.D, and Claudia Mosier, M.A., who both found that Robinson suffers from mental impairments that meet the requirements of Listings 12.05 (Mental Retardation and Autism), 12.06 (Anxiety Related Disorders), 12.07 (Somatoform Disorders) and 12.09 (Substance Addiction Disorders). (R. at 112-120.) Therefore, Robinson argues that the ALJ should have found she was disabled and eligible for DIB.
The law pertinent to the ALJ's findings concerning Robinson's physical impairments apply to this issue as well. As stated earlier, the ALJ has full discretion when resolving evidentiary conflicts relating to the claimant's disability status. Walker, 834 F.2d at 640. Additionally, the ALJ must decide how much weight to assign to the medical opinions in the record based on all of the evidence in the record. See 20 C.F.R. § 404.1527(b), 416.927(b); see also Whitney, 695 F.2d at 789 n. 12. As noted, in weighing a physician's opinion, the ALJ must consider whether (1) the medical professional providing the opinion is a treating source, (2) the medical source provided relevant evidence to support an opinion such as laboratory findings or supporting explanations, (3) the opinion is consistent with the record, and (4) the medical source is a specialist in the field. See 20 C.F.R. § 404.1527(d), 416.927(d).
Robinson argues that the ALJ unreasonably rejected Dr. Small's opinion. Dr. Small examined Robinson in June 1994. (R. at 121.) Dr. Small noted that Robinson does not show signs of psychosis, depression, personality disorder or bipolar personality. (R. at 131.) Dr. Small did find that WAIS-R results indicate that Robinson functions within the borderline to low average range of intellectual ability. (R. at 131.) He also found that Robinson suffers from a history of alcohol abuse, generalized anxiety and somatization disorder NOS. (R. at 131-132.) Dr. Small stated that the generalized anxiety and somatization disorder cause Robinson "to experience increasingly acute somatic symptoms such as her leg giving out on her . . ." (R. at 131-132.) Dr. Small concluded that Robinson "could not successfully perform any type of competitive employment at this time." (R. at 132.)
Applying the four factors used to determine the evidentiary weight given to a medical opinion, the court finds that the ALJ afforded sufficient weight to Dr. Small's opinion. To begin with, Dr. Small is a licensed clinical psychologist, a specialist in the field. Additionally, the report on his examination of Robinson provides supporting explanations for his opinions. However, Dr. Small has only examined Robinson once for her alleged mental impairments, and therefore cannot be considered a treating physician. This factor supports the ALJ's decision to view the validity of Dr. Small's conclusions with skepticism.
Finally, Dr. Small's opinion is not consistent with evidence in the record. The ALJ discredited Dr. Small's conclusions because the ALJ found that the record did not support Dr. Small's opinion as to the severity of Robinson's mental impairments. (R. at 31.) The ALJ points out that Dr. Small's findings are inconsistent with the findings of Dr. John W. O'Donnell. (R. at 31.) Dr. O'Donnell, a psychiatrist, examined Robinson approximately six months after Dr. Small saw Robinson. (R. at 168.)
Dr. O'Donnell, like Dr. Small, diagnosed Robinson as having a history of alcohol abuse and dependence. He also diagnosed Robinson with anxiety disorder NOS; however, unlike Dr. Small, Dr. O'Donnell opined that Robinson's anxiety disorder was mild. (R. at 173.) Both physicians observed that Robinson was alert, friendly, cooperative, and pleasant during their respective examinations. (R. at 127, 171, 172.) They also both concluded that Robinson's behavior was socially appropriate, had fluent but basic speech, had a memory recall within normal limits, and had no disturbances in her form of thought or basic orientation. (R. at 127, 172.) Both noted that Robinson has difficulty with abstract thinking, but Dr. Small further opined that she had a borderline intellectual ability. (R. at 132.)
The ALJ also discounted Dr. Small's opinion because it conflicted with the opinion of State agency physician, Kirk Boyenga, Ph.D. Dr. Boyenga did not personally examine Robinson, but did review Dr. O'Donnell's report two weeks after Dr. O'Donnell's examination. (R. at 177.) Based on Dr. O'Donnell's findings, Dr. Boyenga opined that Robinson's had a normal functioning memory, intact thought processes, and an ability to perform simple tasks. (R. at 177.) Based on Dr. O'Donnell's assessment of Robinson's mental impairments and her limited ability to think abstractly, Dr. Boyenga concluded that Robinson could perform simple, routine work. (R. at 177.) The ALJ also stressed that Dr. Boyenga found Robinson's general anxiety and alcohol abuse did not meet or equal the level of severe mental impairment Listings. (R. at 179.)
Robinson argues that Dr. Small's and Dr. O'Donnell's findings are consistent, and therefore the ALJ unreasonably rejected Dr. Small's opinion. The court agrees that the ALJ's findings of inconsistencies are not as great as the ALJ asserted, however, this does not mean the ALJ acted unreasonably by giving greater weight to Dr. O'Donnell's and Dr. Boyenga's opinions.
Robinson complains about Dr. O'Donnell not because of his specific findings, but because of the conclusions that Dr. Boyenga drew from those findings. As noted, Dr. Small concluded that Robinson was incapable of performing competitive work. Dr. O'Donnell did not express an ultimate opinion in his report as to Robinson's ability to work. However, Dr. Boyenga, based on Dr. O'Donnell's findings, concluded that Robinson could perform simple, routine work.
The court finds the ALJ appropriately used his discretion in choosing to rely on the findings and conclusions of Dr. O'Donnell and Dr. Boyenga. To begin with, the law specifically gives the ALJ the power to allocate weight to expert opinions as long as it is supported by substantial evidence. The ALJ could reasonably give greater weight to the opinions of Dr. O'Donnell and Dr. Boyenga in light of the evidence in the record. As noted above, both sides presented relatively similar findings. In such a case, the ALJ would then have to review additional evidence in the record to see which side is best supported.
In Robinson's case, the ALJ found that Dr. O'Donnell's findings indicated that Robinson's mental impairments were not as severe as Dr. Small initially determined. Additionally, the ALJ observed that Robinson had a normal appearance and demeanor at the hearing. (R. at 31.) Furthermore, Robinson testified that no one had ever recommended that she see a psychiatrist or psychologist. (R. at 290-291.) Coupled with the conflicting evidence in the record as to Dr. Small's findings, the ALJ found that Robinson's mental impairments did not meet or equal the Listings. Finally, the court notes that Dr. Small did not conclude that Robinson was incapable of performing simple, routine work. He only determined that she could not do competitive work, and no one appears to question this conclusion specifically.
The court finds that a reasonable person could have found in favor of either opinion. Therefore, the ALJ properly employed his discretionary power when choosing to reject Dr. Small's conclusion as to Robinson's work capabilities.
Robinson also argues that the ALJ erred when not acknowledging a shift in the burden of proof during the five-step inquisition. She claims that when the ALJ moved from Step 3 to Step 5, skipping Step 4, he should have notified Robinson that he now had the burden of proof. We find that the ALJ did not commit an err requiring reversal when he made his inquiry.
The claimant bears the burden of proof at Steps 1-4, after which the burden of proof shifts to the ALJ at Step 5. Young v. Sec. of Health And Human Servs., 957 F.2d 386, 389 (7th Cir. 1992). However, the Seventh Circuit has yet to address the issue as to whether the ALJ's failure to specifically acknowledge the shifting of the burden of proof in Step 5 requires remand. One judge in the Northern District of Indiana has concluded that the Seventh Circuit would not require remand in these circumstances. Pope v. Sullivan, No. S87-430, 1991 WL 520499, at *7 (N.D. Ind. Oct. 31, 1991). The court reasoned that remanding the case based on the ALJ's failure to acknowledge the shift of the burden of proof was inconsistent with the Seventh Circuit's mandate that when an ALJ's opinion is ambiguous as to the legal standard applied, the ALJ is presumed to have applied the correct standard. Id. (relying onBrown v. Bowen, 847 F.2d 342, 345 (7th Cir. 1988)).
This court agrees with the Northern District of Indiana and concludes that the Seventh Circuit would not require remand of a case where the ALJ failed to acknowledge the shift of the burden of proof. Furthermore, although the ALJ did not directly acknowledge the shift in the burden of proof, based on a review of the record, the court finds that the ALJ understood and properly applied the burden of proof at Step 5. As explained, this court finds that the ALJ's decision at Step 5 is supported by substantial evidence in the record. For these reasons, this court will not disturb the ALJ's conclusions at Step 5, because even though he may not have specifically articulated the shift in burdens, he applied the law correctly. Therefore, any error in failing to state that the burden shifted was harmless.
III. The ALJ's Application of the Medical-Vocational Guidelines .
Applying the Medical-Vocational Guidelines ("Guidelines") found in Rules 203.18 and 203.25, the ALJ concluded that although Robinson has no previous relevant work experience, her exertional and non-exertional impairments did not significantly compromise her ability to perform medium work. (R. at 34.) Robinson argues the use of the Guidelines is inappropriate where a claimant suffers from non-exertional impairments that diminish her ability to engage in a full range of work. Robinson also argues that the ALJ's finding that she could perform medium work is not supported by substantial evidence in the record. She points to her asthma, deficiencies in concentration, and limitations in her daily activities as proof of her non-exertional impairments which restrict her ability to work.
The Guidelines evaluate the "individual's ability to engage in substantial gainful activity in other than his or her vocationally relevant past work" based on various vocational factors and the individual's residual functional capacity (Step 5 of the 5 part disability analysis). 20 C.F.R. Pt. 404 Subpt. P App. 2 Sec. 200.00. These Guidelines determine whether a person is disabled where the person is not engaged in substantial gainful activity and is unable to perform past work due to a severe medically determinable impairment. 20 C.F.R. § 404.1569, 416.969. Vocational factors include age, education, and work experience.Id. An individual's residual functional capacity is the "maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirement of the job." 20 C.F.R. Pt. 404 Subpt. P App. 2 Sec. 200.00(c).
For the purposes of the Guidelines, jobs in the national economy are classified as having one of five physical exertion level requirements: (1) sedentary, (2) light, (3) medium, (4) heavy, and (5) very heavy. 20 C.F.R. § 404.1567, 416.967. Jobs requiring medium work involve "lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. § 416.967(c). A person capable of doing medium work is also considered capable of performing light and sedentary work.Id.
Robinson does not dispute the ALJ's conclusions regarding vocational factors. At the time of the decision, Robinson was 52 years old. This places Robinson in the "approaching advanced age" category for purposes of the Guidelines. 20 C.F.R. Pt. 404 Subpt. P App. 2 Sec. 202.00(d). Because Robinson is not a high school graduate, her education is categorized as limited. Lastly, Robinson's has no relevant work experience noted in the record.
The primary issue is whether there was substantial evidence to support the ALJ's finding that Robinson's non-exertional impairments did not render her incapable of performing medium work in the national economy according to the Guidelines. This court finds that substantial evidence in the record supports the ALJ's findings, and therefore application of the Guidelines was appropriate in this case.
The use of the Guidelines is inappropriate where the claimant's non-exertional impairments are so severe as to limit the range of work she can perform. Herron v. Shalala, 19 F.3d 329, 336 (7th Cir. 1994). However, in non-exertional cases where the Guidelines are used, the Secretary has instructed that a "non-exertional limitation may have very little effect on the range of work remaining that an individual can perform. The person, therefore, comes very close to meeting a table rule which directs a conclusion of `Not disabled'." See 20 C.F.R. Pt. 404 Subpt. P App. 2, § 200.00(e)(2) (1985). Thus, the Seventh Circuit determined that when applying the Guidelines, the ALJ need only provide reliable evidence that would persuade a reasonable person that the limitations in question do not significantly diminish the employment opportunities available. Walker v. Bowen, 834 F.2d 635, 641 (7th Cir. 1987); Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986); see also Nelson, 770 F.2d at 684-685. This includes a finding that the claimant will experience some discomfort in performing the job. Nelson, 770 F.2d at 685. "A small incongruity between the grid's work description and the claimant's abilities does not preclude use of the grid." Walker, 834 F.2d at 642.
The Medical-Vocational Guidelines are commonly referred to as the "grid."
Robinson indicated at the hearing and in the examinations by Dr. Small and Dr. O'Donnell that she engages in daily activities that require exertion and concentration such as shopping, walking to the bus stop, cleaning up her room, playing cards, watching television shows, and socializing with friends. (R. at 126-127, 170, 285-287.) The opinions of Dr. O'Donnell and Dr. Boyenga both indicate that Robinson is not severely impaired by her non-exertional impairments. Dr. Boyenga further concluded that Robinson was capable of working. Additionally, the ALJ found that Robinson's testimony at the hearing regarding her impairments lacked credibility because it was inconsistent with evidence in the record and with the observations the ALJ made himself at the hearing. (R. at 33.)
Furthermore, Dr. Syed indicated that Robinson had only mild obstruction of the airways for which he prescribed inhalers that he found helped to manage her asthma. (R. at 229). Robinson herself testified that she did not need to use the inhalers on a daily basis and told Dr. Small that the asthma does not affect her every day. (R. at 124, 22.) Lastly, as noted by the ALJ, the environmental limitations do not compromise Robinson's ability to perform medium work. The ALJ relied on SSR-85-15 which states in part, "[w]here a person has a medical restriction to avoid excessive amounts of noise, dust, etc., the impact on the broad world of work would be minimal because most job environments do not involve great noise, amounts of dust, etc."
From this evidence, a reasonable person could conclude that Robinson was able to perform substantially all of the activities required by the medium work category. There was substantial evidence in the record to support the ALJ's findings regarding Robinson's age, education, work experience, and residual functional capacity. Therefore, the ALJ properly applied the Guidelines.
Robinson argues that her non-exertional impairments make hers a complex case warranting the services of a vocational expert. She asks this court to remand her case so that a vocational expert can review her case. The Secretary promulgated the Guidelines to relieve the need to rely on vocational experts. Heckler v. Campbell, 461 U.S. 458, 461 (1983). Where the claimant'squalifications correspond to the job requirements identified in the guidelines, the claimant is not considered disabled. Id. Although a vocational expert's specialized knowledge may be helpful, one is not required in every case involving a non-exertional impairment. Warmoth, 798 F.2d at 1112. This court finds that the ALJ did not incorrectly apply the Guidelines because the record provides substantial evidence supporting his findings and decisions. As noted above, because Robinson's non-exertional impairments were not severe, the ALJ properly applied the Guidelines to her case.
Conclusion
For the foregoing reasons, the court denies Robinson's motion for summary judgment [doc. 14-1] and affirms the Commissioner's decision to deny Robinson's application for Disability Insurance Benefits. The clerk of the court is directed to enter judgment in favor of defendant, Kenneth Apfel, the Commissioner of the Social Security Administration.