Civil No. 1:01cv322
March 26, 2002
MEMORANDUM OF DECISION AND ORDER
This matter is before the Court for judicial review of a final decision of the defendant, Commissioner of Social Security Administration ("Commissioner"), denying the application of the plaintiff, Robert Krontz ("Plaintiff") for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB").
Jurisdiction of the undersigned Magistrate Judge is based on 28 U.S.C. § 636(c), all parties consenting.
Section 205(g) of the Social Security Act ("the Act") provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. § 405(g).
The law provides that an applicant for disability insurance benefits must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 416(i)(1); 42 U.S.C. § 423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). It is not enough for plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude the plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F. Supp. 1098 (N.D.Ill. 1979). It is well established that the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record as a whole contains substantial evidence to support the [Commissioner's] findings." Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786 (7th Cir. 1982); 42 U.S.C. § 405(g). "Substantial evidence is defined as `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger, 552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed, 42 U.S.C. § 405(g), unless there has been an error of law." Garfield, supra at 607; see also Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
II. THE PROCEDURAL AND FACTUAL BACKGROUND A. The Procedural Background
On February 26, 1997, the Plaintiff filed an application for DIB, alleging an inability to work beginning March 6, 1996. The Plaintiff's claim was denied initially and upon reconsideration, and on April 20, 1998, it was remanded to the State Agency for evaluation of a possible mental disorder. The Plaintiff's claim was subsequently denied on July 9, 1999, and upon reconsideration on August 13, 1998. The Plaintiff requested a hearing, and on February 22, 1999, a hearing was held before the Administrative Law Judge Richard C. Ver Wiebe ("ALJ"). The Plaintiff was represented by counsel and testified at the hearing. The Plaintiff's wife, Latrisha Krontz also testified.
On April 7, 1999, the ALJ issued his decision wherein he made the following findings:
1. The claimant met the disability insured status requirements of the Act on March 6, 1996, the date the claimant stated he became unable to work, and has acquired sufficient quarters of coverage to remain insured through at least December 31, 2001.
2. The claimant has not engaged in substantial gainful activity since March 6, 1996.
3. The medical evidence establishes that the claimant has obesity, and back and knee pain, impairments which are severe but which do not meet or equal the criteria of any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4.
4. The claimant's statements concerning his impairments and their impact on his ability to work are not entirely credible.
5. The claimant lacks the residual functional capacity to lift and carry more than ten to twenty pounds. His abilities to stand and walk are limited.
6. The claimant is unable to perform his past relevant work as a carpenter, truck driver, and a bus driver.
7. The claimant has no significant non-exertional limitations which narrow the range of work he is capable of performing.
8. The claimant is 41 years old, which is defined as a "younger individual age
9. The claimant has a high school education.
10. The claimant has skilled and semi-skilled work experience but has acquired no transferable work skills.
11. Based on an exertional capacity for sedentary work, and the claimant's age, educational background, and work experience, Section 404.1569 and Rule 201.28, Table 1, Appendix 2, Subpart P, Regulations No. 4, direct a conclusion of "not disabled."
12. The claimant has not been under a disability, as defined in the Social Security Act, at any time through the date of this decision.
(Tr. at 22-23.)
Based on these findings, the ALJ determined that the Plaintiff was not entitled to DIB. The Plaintiff requested review by the Appeals Council, which was denied on July 10, 2001, leaving the ALJ's decision as the final decision of the Commissioner. This appeal followed.
The Plaintiff filed his opening brief on December 26, 2001. On February 5, 2002, the Defendant filed a memorandum in support of the Commissioner's decision, and the Plaintiff filed his reply on February 19, 2002.
B. The Factual Background
The Plaintiff was thirty-eight years old in March 1996, the alleged onset date of disability, a "younger individual age 18-44," as defined in the Act. See 20 C.F.R. § 404.1563(d).
The Plaintiff was forty-one years old at the date of the hearing.
The Plaintiff has a high school education and has previous work activity as a carpenter, truck driver, and bus driver.
The Plaintiff claims a disability due to cervical disc bulging, chronic cervical strain, mild right ulnar neuropathy of the elbow, left knee pain, obesity, Depressive Disorder NOS, and Pain Disorder Associated with a Generalized Medical Condition.
On March 6, 1996, the Plaintiff suffered a work-related injury when he apparently fell 10 feet from his semi-truck, and landed on the pavement below. (Tr. at 225, 216.)
On March 7, 1996, the Plaintiff was admitted to the Cameron Memorial Hospital's emergency room, with complaints of pain in his left knee and left shoulder after his fall. (Tr. at 216.) An emergency room doctor noted moderate swelling of Plaintiff's left knee and tenderness in his left shoulder. (Tr. at 217.) The Plaintiff was able to flex to approximately 90 degrees and fully extend his left knee without significant difficulty, but flexion did cause moderate pain. (Id.) The emergency room doctor assessed the Plaintiff with a left knee contusion, a Grade I left AC separation, and mild acute cervical strain. (Id.) Plaintiff was prescribed a nonsteroidal anti-inflammatory, given a knee immobilizer, and instructed to ice and elevate his knee for a few days (Id.)
On April 8, 1996, the Plaintiff returned to the emergency room with complaints of neck spasms. (Tr. at 212.) The physical examination revealed a paraspinous spasm without midline tenderness. (Tr. at 213.) The emergency room doctor assessed the Plaintiff with cervical spasm and strain, and recent cervical strain. (Id.) The doctor thought the Plaintiff may have a bulging disc with some radiculopathy into his left shoulder. (Id.)
On April 10, 1996, Plaintiff underwent a magnetic resonance imaging ("MRI") test of his cervical spine, which revealed a focal disc protrusion at C6-C7, midline spondylolysis at C5-C6, and degenerative disc disease at the C5-C6 and C6-C7 levels. (Tr. at 211.)
In May 1996, the Plaintiff saw Dr. Robert Shugart, M.D., who ordered a myelographic computed tomography scan ("CT scan") of the Plaintiff's cervical spine. (Tr. at 276.) The CT scan revealed mild posterior bulging of the discs at C2-3, C3-4, and C4-5, left paramedian bulging at C4-5, and a thickened and heavily calcified posterior longitudinal ligament extending from the inferior margin of the C5-6 disc to the superior margin of the C6-7 disc. (Tr. at 221.) Based on the CT scan, Dr. Shugart diagnosed the Plaintiff with a bulging disc in the cervical spine. (Tr. at 276.)
On May 29, 1996, the Plaintiff saw Dr. Bryan Kaplansky, M.D, for a second opinion. (Tr. at 258-59.) The Plaintiff complained of neck and right arm pain and intermittent headaches, but he reported no problems with his legs or left arm. (Tr. at 258.) Dr. Kaplansky documented Plaintiff's complaints of discomfort, but reported that the Plaintiff displayed an "excellent" range of shoulder motion and normal strength. (Tr. at 258-59.) Dr. Kaplansky also noted positive Tinel's sign at the right elbow and hypoesthesia (decreased sensitivity) in Plaintiff's right fourth and fifth fingers. (Tr. at 259.) Dr. Kaplansky opined that there was disc bulging with no clear herniations or stenosis. (Id.) Nevertheless, his impression was that the Plaintiff's neck and non-radicular right upper limb symptoms were musculoskeletal in nature, myofascial pain with trigger points, and right ulnar neuritis. (Id.) Dr. Kaplansky prescribed Flexeril, recommended physical therapy, and ordered an electromyography ("EMG") and nerve conduction study. (Id.) On June 5, 1996, Dr. Kaplansky performed an EMG on the Plaintiff. (Tr. at 254.) The test revealed a mild ulnar neuropathy on the right elbow without evidence of radiculopathy or plexopathy. (Id.) After Plaintiff reported that his minimal ulnar nerve findings were resolving, Dr. Kaplansky prescribed a sedative and instructed Plaintiff to continue with his physical therapy program. (Id.) Dr. Kaplansky concluded that the Plaintiff's symptoms were consistent with mechanical and soft tissue pain with referred limb symptoms. (Id.)
Tinel's sign is a sensation of tingling, or "pins and needles" felt in the distal extremity of a limb when percussion is made over the site of an injured nerve. Stedman's Medical Dictionary, at 1291.
Flexeril is used for relief of muscle spasms associated with acute musculoskeletal conditions. Physician's Desk Reference, 1929 (55th ed. 2001) (hereinafter "PDR").
On June 12, 1996, the Plaintiff saw Dr. Kaplansky for a follow-up visit. (Tr. at 253.) The Plaintiff reported that he was not making significant improvements, and that he had both good and bad days. (Id.) Specifically, he noted that he had shoulder pains brought about by physical activities and soreness resulting from physical therapy. (Id.) Dr. Kaplansky's physical examination revealed no sensory deficits in the ulnar distribution for the right hand. (Id.) The Plaintiff's cervical spine and shoulder were unremarkable except for global palpable muscle tenderness. (Id.) Dr. Kaplansky recommended a functional capacity evaluation ("FCE") to determine whether the Plaintiff should see a surgeon for potential treatment. (Id.)
On June 19, 1996, the Plaintiff saw Nathan Notter, a physical therapist, for a FCE. (Tr. 224-31). The Plaintiff demonstrated a decreased cervical range of motion with a poor tolerance for repetitive activities and lifting activities. (Tr. at 224.) The Plaintiff complained of left knee pain when squatting, and right shoulder pain with resistance to abduction, flexion, internal rotation and external rotation. (Id.) The Plaintiff also complained of neck and shoulder pain with lifting. (Id.) The Plaintiff indicated pain in response palpitation to the back and tricep muscles. (Tr. at 226.) Nevertheless, Mr. Notter concluded that the Plaintiff had the capacity to perform jobs requiring a light physical demand. (Tr. at 224.)
On June 21, 1996, the Plaintiff saw Dr. Kaplansky for another follow-up visit, reporting shoulder discomfort and a popping knee. (Tr. at 253.) A physical examination revealed some soft tissue tenderness for the pectoralis muscle and the supraclavicular region. (Id.) Dr. Kaplansky opined that the Plaintiff's symptoms were musculotendinous with a mild ulnar neuritis component, and he recommended participation in a two to three week work hardening program. (Id.)
On July 8, the Plaintiff again saw Dr. Kaplansky. (Tr. at 250.) The Plaintiff noted that he still suffered from the same symptoms on an intermittent basis, with no significant improvement. (Id.) Dr. Kaplansky's physical evaluation revealed tenderness, but normal strength. (Id.) Additionally, the Plaintiff demonstrated an excellent range of motion in the cervical spine and right shoulder. (Id.) Dr. Kaplansky noted that the Plaintiff was refusing injection treatment, and referred him to a surgeon for possible treatment options. (Id.)
On July 17, 1996, the Plaintiff saw Dr. M. Lee, M.D., for another opinion. (Tr. at 232.) Dr. Lee's physical examination revealed a full range of motion in his right shoulder and a range of motion for his cervical spine within the normal limits. (Id.) Dr. Lee noted tenderness in the back muscles down to the shoulder. (Id.) Additionally, the Plaintiff's upper extremity strength and his reflexes were normal. (Id.) However, the Plaintiff had decreased sensation in his fingers. (Id.) Dr. Lee concluded that Plaintiff was not a surgical candidate (Id.).
On July 24, 1996, the Plaintiff saw Dr. Kaplansky, who reported that the Plaintiff had a full range of right shoulder motion, and pain free elbow motion. (Tr. at 248.) Dr. Kaplansky noted the presence of atrophy and tenderness in his back. (Id.) Dr. Kaplansky opined that the Plaintiff had reached his maximum medical improvement and recommended taking permanent work restrictions. (Id.)
On August 5, 1996, the Plaintiff returned to Dr. Kaplansky, for a permanent partial impairment calculation. (Tr. at 247.) Dr. Kaplansky imposed the following limitations on the Plaintiff: occasional bending, reaching, squatting, standing, and walking, no climbing or kneeling, frequent sitting, occasional floor to waist lifting of 20 pounds with a maximum lifting of 35 pounds, and occasional waist to shoulder lifting of 15 pounds with a maximum of 25 pounds. (Id.)
On October 15, 1996, Dr. Shugart responded to a request for information from Vocational Rehabilitation. (Tr. at 276.) Dr. Shugart indicated that he had not seen the Plaintiff in several months but that his physical limitations would likely allow for work at the sedentary level. (Id.)
On October 18, 1996, the Plaintiff saw Dr. Ted Crisman, M.D., for a general medical examination at the request of the State agency. (Tr. at 277-278.) During the physical examination, Dr. Crisman noted crepitus and tenderness of the Plaintiff's neck. (Id.) His neurological examination revealed decreased sensation in the forearm some decrease in strength in the right upper extremity and tenderness in the right subacronial bursa. (Id.) Dr. Crisman diagnosed the Plaintiff with neck and knee injury and obesity. (Id.) Finally, Dr. Crisman recommended the following restrictions: no standing for more than 30 minutes, no walking on uneven ground, no heavy or repetitive tasks with the Plaintiff's right arm. (Id.)
On October 30, 1996, James Cates, Ph.D., administered intelligence testing in conjunction with a vocational rehabilitation program. (Tr. at 279-282.) Dr. Cates reported that Plaintiff's scores placed him in the low average to average range of intellectual functioning. (Tr. 280-82).
On January 8, 1997, the Plaintiff saw Dr. Thomas Lazoff, M.D., primarily complaining of cervical pain, as well as headaches, left knee pain, and neck pain with radiation down his arms. (Tr. at 236-237.) Dr. Lazoff documented the Plaintiff's weight at 330 pounds, and reported a reduced range of motion of the Plaintiff's cervical spine and decreased sensation in his right palm. (Tr. at 237-238). Dr. Lazoff also noted normal muscle strength, gait, and range of motion of Plaintiff s shoulders, wrists, and elbows. (Tr. at 238.) Dr. Lazoff diagnosed the Plaintiff with chronic cervical strain, mild right ulnar neuropathy, and left knee pain, and concluded that he had no treatment to offer Plaintiff. (Tr. at 238-239.) Finally, Dr. Lazoff agreed with Dr. Kaplansky's work restrictions. (Tr. at 239.)
In February 1997, the Plaintiff returned to Dr. Kaplansky for a worker's compensation evaluation, with complaints of pain and swelling in his left knee. (Tr. at 246.) Dr. Kaplansky reported observing no effusion or swelling, with complaints of pain in his range of knee motion, and minimal patellar crepitation and mild discomfort with patellar motion. (Id.) Dr. Kaplansky referred the Plaintiff to a knee surgeon for a second opinion. (Id.)
On April 6, 1997, Dr. Lazoff completed a report for the Disability Determination Bureau which stated that he last examined the Plaintiff several months earlier, and that current diagnoses include chronic cervical strain, right ulnar neuropathy at the elbow level, and left knee pain. (Tr. at 234.) Dr. Lazoff noted the Plaintiff's range of motion limitations, and reported that the Plaintiff's gait was within normal limits, and that the Plaintiff had no loss in grip strength. (Id.) Dr. Lazoff also related that the Plaintiff did not have any impairments to the motor movements of his upper extremities. (Id.) Dr. Lazoff also repeated the same physical limitations contained in Dr. Shugart's August 5, 1996, treatment notes. (Id.)
On April 18, the Plaintiff saw Dr. Scott Karr, M.D., with complaints of neck pain and some discomfort in his right arm, from the clavicle to the index finger. (Tr. at 260.) The Plaintiff reported that he had no numbness in his right upper extremity, but had non-specific pain in his neck. (Id.) Dr. Karr reported that the Plaintiff exhibited normal strength, reflexes, sensation, and range of motion of his cervical spine and upper extremities and concluded that no further treatment was necessary for his complaints of cervical pain. (Tr. at 261.) Dr. Karr noted no effusion and full range of motion of Plaintiff's left knee, but, due to Plaintiff's complaints of pain, he was unable to perform a complete examination of Plaintiff's left knee. (Tr. at 261.) As a result, he referred Plaintiff to a surgeon for further evaluation of his left knee complaints. (Tr. at 261.)
On April 15, 1997, Dr. J. Marciniak, M.D., a State agency physician, reviewed the Plaintiff's medical evidence and diagnosed the Plaintiff with ulnar neuropathy and back pain. (Tr. at 151.) Dr. Marciniak reported that the Plaintiff could occasionally lift 20 pounds, and frequently lift 10 pounds. (Tr. at 152.) He did not place any limitations of the Plaintiff's ability to sit, stand, walk, push, pull, or reach. (Tr. at 152-153).
On April 17, 1997, the Plaintiff saw Dr. Roger Gingerich for a blood pressure check-up. (Tr. at 290.) Dr. Gingerich diagnosed the Plaintiff with hypertension, and reported that the Plaintiff's blood pressure was 160/100 and his weight was 340 pounds. (Id.) Dr. Gingerich prescribed Sular.
Sular is calcium channel blocker used in the treatment of hypertension. PDR, at 645.
On June 2, 1997, the Plaintiff saw Dr. Michael Holton, M.D., for an independent medical evaluation in connection with the Plaintiff's worker's compensation claim. (Tr. at 271-275.) Dr. Holton noted that Plaintiff favored his left leg and ambulated with an antalgic gait. (Tr. at 273.) The Plaintiff reported some cognitive loss described as forgetfulness, and his wife noted a new onset of irritability and loss of interest in activities he once enjoyed. (Id.) Dr. Holton examined Plaintiff's left knee and noted evidence of a small effusion, a positive anterior drawer sign, and moderate joint instability. (Id.) He reported absent reflexes and decreased sensation to light touch in Plaintiff's right arm. (Id.) Dr. Holton examined the Plaintiff again in September 1997. (Tr. 266-69). He noted diminished dorsalis pedis pulses, but normal radial pulses and no evidence of varicosities, ulcerations, or edema (Id.) Dr. Holton again noted that the Plaintiff favored his left leg and ambulated with an antalgic gait. (Id.) Dr. Holton noted a decreased range of motion of Plaintiff's shoulders, elbows, hips, knees, ankles, and cervical and lumbar spine, but normal strength and no atrophy or spasm. (Id.) Dr. Holton's examination of the Plaintiff's left knee revealed a positive drawer sign and a significant amount of effusion and guarding with some evidence of degenerative hypertrophic changes. (Id.) Dr. Holton concluded that the Plaintiff could not tolerate standing or walking for more than brief periods of time due to his knee pain, and could not perform sedentary type of work or fine finger manipulations due to his neck and shoulder complaints. (Id.)
In May 1998, the Plaintiff was evaluated due to complaints of depression. (Tr. 319-21). A therapist described the Plaintiff as alert, oriented, and cooperative, with normal psychomotor activity, memory functioning, attention span, insight, and judgment, and appropriate affect, and no evidence of a thought disorder. (Id.) The plaintiff stated that he was not interested in pursuing any psychotherapy, and the therapist agreed with this decision. (Tr. 316).
In June 1998, Sherwin Kepes, Ph.D., examined the Plaintiff at the request of the State agency. (Tr. 292-95). Dr. Kepes noted that the plaintiff was cooperative and did not appear to be in any psychological distress. (Id.) Based on mental status testing, Dr. Kepes concluded that the plaintiff did not have any significant problems with cognition or mentation. (Id.)
Also in June 1998, W.F. Ungemach, M.D., examined the Plaintiff at the request of the State agency. (Tr. 296-99). Dr. Ungemach documented the Plaintiff's weight at 330 pounds, but he commented that the Plaintiff's obesity did not interfere with his functioning. (Id.) Dr. Ungemach reported normal strength, sensation, and reflexes, and full range of motion of the Plaintiff's shoulders, wrists, hands, knees, ankles, and cervical and lumbar spine. (Id.) Dr. Ungemach observed that the Plaintiff was able to walk on his heels and toes, tandem walk, hop, and squat without difficulty. (Id.). Dr. Ungemach reported that the Plaintiff's dexterity was normal, and he was able to zip and unzip a zipper, pick up a penny and a paperclip, twirl a pencil between his fingers, and button and unbutton buttons without difficulty. (Tr. 293). Dr. Ungemach noted the Plaintiff's decreased vision, and suggested that the Plaintiff's headaches might be due to eye strain. (Tr. 297-98). Dr. Ungemach concluded that the Plaintiff appeared to function "quite well". (Id.)
In July 1998, Dr. Marciniak again reviewed the record evidence and concluded that the Plaintiff could perform work involving lifting and carrying up to twenty pounds frequently and fifty pounds occasionally. (Tr. 182-89). K. Neville, Ph.D., also reviewed the record evidence and concluded that the Plaintiff did not have a mental impairment that significantly limited his ability to perform basic work activities. (Tr. 190-98).
In January 1999, the Plaintiff told Dr. Gingerich that he had experienced an exacerbation of his low back pain in the past month. (Tr. 301). Dr. Gingerich ordered an MRI, which revealed very mild spinal stenosis and mild facet degenerative joint changes at the L4-L5 level, but was otherwise negative. (Tr. 302-03). Dr. Gingerich prescribed a nonsteroidal anti-inflammatory and told the Plaintiff to lose weight. (Tr. 301).
The Social Security Act defines disability 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. § 423(d)(1)(A), 1382c(a)(3)(A). The agency has promulgated regulations that set forth a five-step sequential process for analyzing disability claims. 20 C.F.R. §§ 404.1520, 416.920. A claimant has the joint burdens of production and persuasion through at least step four, where the individual's residual functional capacity (RFC) is determined. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987); 20 C.F.R. §§ 404.1545, 416.945. At step five the Commissioner bears the burden of proving that there are jobs in the national economy that the plaintiff can perform. Herron v. Shalala, 19 F.3d 329, 333 n. 18 (7th Cir. 1994). In the present case, the ALJ found that the plaintiff retained the ability to perform his past relevant work.
The agency's final decision is subject to review pursuant to 42 U.S.C. § 405(g), which provides that the agency findings "as to any fact, if supported by substantial evidence, shall be conclusive." "Substantial evidence is . . . such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). Furthermore, "[w]here conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or on the [Commissioner's] designate, the ALJ)." Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987) (citations omitted). This court must accept the ALJ's findings if they are supported by substantial evidence, and may not substitute its judgment for that of the ALJ. Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986).
In his decision, the ALJ found that the Plaintiff had not engaged in substantial gainful activity at any time after his alleged onset date. The ALJ also found that the Plaintiff had severe impairments that did not meet or equal a listed impairment. At step four of the sequential evaluation, the ALJ concluded that the Plaintiff retained the residual functional capacity to perform sedentary work, but also found that the Plaintiff was unable to perform his past relevant work. Using the Medical-Vocational guidelines, the ALJ concluded that a significant number of jobs accommodated the Plaintiff's limitations, and thus he was not disabled within the meaning of the Social Security Act.
The Plaintiff argues that the ALJ improperly determined his RFC because he failed to articulate reasons for rejecting evidence favorable to the Plaintiff. More specifically, the Plaintiff claims that there was significant evidence of restrictions on his capability to reach. The Plaintiff notes that the ALJ rejected the opinion of Dr. Holton which limited him to occasional reaching, because he found that the range of motion was only slightly reduced. The Plaintiff contends, however, that the ALJ ignored other physical findings that would support such a limitation as well as the opinions of other doctors and the results of the FCE that he could do only occasional reaching. The Plaintiff claims that Dr. Kaplansky opined that he was limited to occasional reaching and the FCE test results resulted in a finding that he was only able to do occasional reaching. The Plaintiff also notes that Dr. Lazoff concurred that the Plaintiff had a permanent restriction to only occasional reaching.
The Commissioner acknowledges that several doctors restricted the Plaintiff to occasional reaching, but points out that Drs. Shugart, Davis, and Marciniak did not impose any limitations on the Plaintiff's ability to reach. The Commissioner argues that where there is conflicting evidence, it is the ALJ's duty to weigh the evidence and resolve the conflict. See Richardson, 402 U.S. at 399 (trier of fact has duty to resolve conflicting medical evidence). The Commissioner contends that the ALJ reasonably concluded that a restriction to occasional reaching was not supported by the objective evidence.
A review of the ALJ's decision reveals that the ALJ discussed the conflicting medical reports. (Tr. 19, 20). The ALJ specifically noted that "[n]one of the physicians who actually treated the claimant found that he was unable to perform any work activity." (Tr. 20). Also, with respect Dr. Holton's opinion that a sedentary type sitting job would not be good for the Plaintiff due to reported symptoms in the shoulder girdle and fine finger manipulations or reaching nonrepetitively, the ALJ pointed out that "this contradicts the doctor's examination findings that the claimant's ranges of motion of the upper extremities were only slightly reduced, and he had only some mild bilateral weakness in fine manipulations." (Tr. 19). This court finds that substantial evidence supports the ALJ's finding that the Plaintiff was not restricted to occasional reaching.
The Plaintiff next argues that the ALJ improperly evaluated his testimony regarding his subjective symptoms and that the ALJ overlooked evidence favorable to him in regards to his daily living activities. Again, a review of the ALJ's decision and the record evidence shows that substantial evidence supports the ALJ's decision. In his decision, the ALJ noted that an MRI of the Plaintiff's lumbar spine revealed very mild spinal stenosis and mild facet degenerative joint changes at the L4-L5 level, but was otherwise negative. Additionally, an EMG and nerve conduction study revealed mild ulnar neuropathy, and an MRI of the Plaintiff's cervical spine revealed bulging discs which were "fairly minimal". The ALJ also noted that doctors did not prescribe strong medications for the Plaintiff's allegedly disabling pain. The ALJ noted that the Plaintiff did the laundry, cooked, performed light household chores, fed his dog, went shopping, ran errands, and drove a car. Additionally, the Plaintiff acknowledged that he could lift and carry twenty pounds, and that he drove forty-five minutes to the administrative hearing with no complaints of difficulty.
With respect to the Plaintiff's assertion that the ALJ erred by ignoring his alleged extensive need to lie down during the day, the Commissioner notes that the Plaintiff never mentioned this to his doctors and none of his doctors concluded that he needed to lie down. Further, the Commissioner argues that the Plaintiff's alleged need to lie down was inconsistent with his minimal examination findings and conservative treatment. The court agrees with the Commissioner that substantial evidence supports the ALJ's decision with respect to his credibility determinations.
The Plaintiff also takes issue with the ALJ's review of his obesity. The Plaintiff points out that he did lose several pounds over two years after he was told to lose some weight. The Plaintiff argues that there is no basis for the ALJ to conclude that he had been "noncompliant" with the recommendation that he lose weight.
Both parties acknowledge that the "failure to follow treatment rule" is applied only after the ALJ has first found that the claimant is disabled and thus is not applicable to the case at bar. The Commissioner argues that in the present case, because the ALJ did not first find the Plaintiff disabled, he was not required to follow the "failure to follow treatment rule", nor did he purport to do so. This court has carefully reviewed the record and the ALJ's decision, and concludes that even if the ALJ committed an error with respect to his consideration of the Plaintiff's obesity and failure to lose significant weight, the outcome was not affected by the error. The law is clear that where the ALJ has made errors, reversal is not required if no reasonable trier of fact could have come to a different conclusion. Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 1996). It is clear in the present case that the ALJ did not rest his credibility assessment on the fact that the Plaintiff had failed to lose more than a few pounds. Rather, the Plaintiff's continuing obesity was simply an additional factor in the ALJ's credibility assessment. As the ALJ's credibility assessment was not patently wrong, this court will not disturb the ALJ's finding. Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995).
On the basis of the foregoing, the decision of the ALJ is hereby AFFIRMED.