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Anderson v. Colvin

United States District Court, E.D. Wisconsin

September 30, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



         Plaintiff John Anderson seeks judicial review of the final decision of the acting Commissioner of Social Security (Commissioner), who found that Anderson was not “disabled” within the meaning of the Social Security Act. The Social Security Administration's Appeals Council denied review, making the administrative law judge's (ALJ) decision the final decision of the Commissioner. 20 C.F.R. § 416.1481; Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013).

         The ALJ applied the five-step analysis in 20 C.F.R. § 416.920(a)(4) and found that Anderson had not engaged in substantial gainful activity since his alleged November 2, 2012, date of disability (step one). He also found that Anderson's alcohol dependence and anxiety disorder are severe impairments; his other mental impairments, however, are non-severe, as are all his physical impairments of blood disorders, hypertension, chest pain, hip pain and other musculoskeletal symptoms, cholesterol issues, difficulty hearing, history of tongue cancer, and gastro-esophageal reflux (step two), and that Anderson does not have an impairment or combination of impairments that meet or equal the listing of impairments found at 20 C.F.R. Part 404, Subpart P, App. 1 (step three).

         The ALJ further found that Anderson has the residual functional capacity (RFC) for a full range of work at all exertional levels with the following non-exertional limitations: allowing him to perform simple, routine, repetitive tasks at a job in which he can be off task up to five to ten percent of the work period, with only occasional changes in the work-setting and no fast-paced work. Consequently, he is not able to perform any past relevant work (step four). However, using the medical vocational guidelines as a framework for decision-making, and considering Anderson's age, education, past work experience (with the transferability of work skills not being material) and RFC, the ALJ found that substantial gainful employment as a kitchen helper, laundry worker, cleaner of vehicles/equipment and machine bearer or off bearer would be available in significant numbers in the national economy (step five) and, therefore, Anderson was not disabled through the February 19, 2015, date of the decision.

         Anderson contends that the case should be remanded for a further hearing, because the ALJ improperly minimized the opinion of treating physician Dr. Francis J. Cuevas, a specialist in blood disorders, after improperly finding that Anderson's blood disease[1] is not severe. Further, Anderson contends that the RFC fails to account for his panic attacks.

         To uphold the denial of benefits, the ALJ's decision must be supported by substantial evidence, which is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). To determine whether substantial evidence exists, the court reviews the record as a whole but does not attempt to substitute its judgment for the ALJ's by reweighing the evidence, resolving material conflicts, or reconsidering facts or the credibility of witnesses. Beardsley v. Colvin, 758 F.3d 834, 836-37 (7th Cir. 2014). An ALJ's credibility determination is entitled to “special deference.” Schomas, 732 F.3d at 708. The court will reverse an ALJ's credibility finding only if it is patently wrong. See Pepper v. Colvin, 712 F.3d 351, 367-68 (7th Cir. 2013).

         The ALJ must articulate, at least minimally, his analysis of all relevant evidence, Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994), and “the [ALJ's] decision . . . cannot stand if it lacks evidentiary support or an adequate discussion of the issues, ” Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003). Additionally, the ALJ must “build an accurate and logical bridge from the evidence to his conclusion.” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).

         At step two of the analysis, the ALJ determines whether the claimant has an impairment or combination of impairments that is severe. Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010); 20 C.F.R. § 416.920(a)(4)(ii). An impairment is severe if it “significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). The step two determination “is a threshold issue only.” Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012.). If the ALJ fails to find one impairment severe, but finds that another is severe and continues with the sequential analysis, any step two error is harmless. See id. (holding that any error in omitting a severe impairment was harmless where the ALJ found two impairments severe and continued with the remaining steps of the evaluation process); Castile, 617 F.3d at 927. In this case, any error at step two is harmless because the ALJ found that Anderson's alcohol dependence and anxiety disorder are severe, and because the ALJ evaluated the effect of all Anderson's impairments on his RFC.

         The ALJ must determine an individual's RFC, meaning “what an individual can still do despite his or her limitations, ” SSR 96-8p, based upon medical evidence as well as “other evidence, such as testimony by the claimant or his friends and family, ” Murphy v. Colvin, 759 F.3d 811, 817 (7th Cir. 2014) (citation omitted). See 20 C.F.R. § 416.929(a) (in making a disability determination, the ALJ must consider a claimant's statements about his symptoms, such as pain, and how his symptoms affect his daily life and ability to work). An ALJ must evaluate both the evidence favoring the claimant and the evidence favoring the claim's rejection and may not ignore an entire line of evidence that is contrary to his findings. Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003); Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001). Nevertheless, an ALJ need not provide a written evaluation of every piece of testimony and evidence. Golembiewski, 322 F.3d at 917. Instead, an ALJ need only minimally articulate his justification for accepting or rejecting specific evidence of disability. Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008); Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004).

         An ALJ is not required to give the treating opinion controlling weight. The ALJ must, however, provide a sound explanation for a decision to reject the treating physician's opinion and to accept an alternate opinion. Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011); 20 C.F.R. § 416.927(c)(2). Moreover, even when an ALJ offers good reasoning for refusing to give controlling weight to a treating physician's opinion, he must still decide what weight to give that opinion. Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010). ALJs are required to rely on expert opinions instead of determining the significance of particular medical findings themselves. Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play doctor and make their own independent medical findings.”)

         In evaluating Anderson's blood disorder, the ALJ relied on Anderson's reports regarding his response to treatment, his “eventual denial of fatigue, ” and the observations of Dr. Cuevas and Mary B. Snell, M.D., his primary care physician. (Tr. 21.)

         The medical evidence establishes that Anderson was initially diagnosed with polycythemia vera in January 2010 by hematologist Lewis R. Domke, M.D., who recommended treatment with weekly phlebotomies for four weeks. (Tr. 430-31.) Due to conflicts - Anderson's genetic testing initially reported as positive and then reported a day later as negative - Dr. Domke withheld such treatment because he was uncertain about Anderson's diagnosis. (Tr. 430.) However, he told Anderson to stop smoking, that his blood pressure needed to be controlled, and that future treatment might include therapeutic phlebotomies but that would be “very temporary.” (Tr. 429.)

         As of May 2010, Anderson told Dr. Snell that he had not seen Dr. Domke for a couple of months, he was “just tired, ” and he was going to trial on charges of driving while intoxicated. (Tr. 405.) Dr. Snell noted a trace of edema (swelling caused by excess fluid trapped in the body's tissue) and that the polycythemia vera was lower since Anderson had treatment phlebotomy. (Tr. at 405-07.) She also documented fatigue, stating that it was multifactorial but could be sleep apnea. (Tr. 407.)

         In February 2012, Anderson told Dr. Snell that in January he had been released after thirteen and a half months in jail. (Tr. 399.) He had dyspnea (shortness of breath) on exertion if carrying too much, and a trace of edema. (Tr. 400.) In April 2012, Dr. Snell ...

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