Hall v. Berryhill, No. 17-2628 (7th Cir. 2018)

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The Seventh Circuit affirmed the district court's denial of disability insurance benefits to plaintiff. The court held that substantial evidence supported the ALJ's decision to deny benefits where the opinion's of plaintiff's treating physician were inconsistent with the opinions from other doctors, and the physician's opinions lacked detail and did not show that he knew of the functional capacity evaluation from 2008. Furthermore, the ALJ did not improperly discount plaintiff's own testimony where the ALJ found plaintiff not fully credible for many specific reasons supported by the evidence.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 17 2628 CURTIS K. HALL, Plaintiff Appellant, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant Appellee. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:16 cv 938 — Marvin E. Aspen, Judge. ____________________ ARGUED OCTOBER 2, 2018 — DECIDED OCTOBER 15, 2018 ____________________ Before BAUER, KANNE, and SCUDDER, Circuit Judges. PER CURIAM. While loading chemicals onto a truck, Curtis Hall felt a sharp pain in his back. This back pain formed the basis of his application for disability insurance benefits. An administrative law judge denied his application, and a district court upheld that determination. On appeal, Hall contends that the ALJ improperly discounted his treating physician’s 2 No. 17 2628 opinion and discredited his own testimony. Because substantial evidence supports the ALJ’s decision, we a rm. I Hall, a tanker loader at a chemical company, was hooking a hose underneath a tanker truck in mid 2006 when he felt pain in his low back. His pain persisted so he saw Dr. George Miz, an orthopedic surgeon, who ordered an MRI of Hall’s lumbar spine. After reviewing the MRI, Dr. Miz found that Hall had a large disc herniation at L 5 that was pinching a spinal nerve root. Dr. Miz recommended “conservative treatment,” so Hall began physical therapy while continuing to work, and he reported progress from the therapy. As of November 2006, Hall was still experiencing “ups and downs” in terms of pain, and by December, Dr. Miz thought that any improvement Hall felt with his back had “essentially plateaued.” Because the pain persisted, Hall and Dr. Miz began planning a lumbar microdiscectomy to relieve the pressure on his spinal nerve root. In March 2007, Hall stopped working and underwent the operation. The surgery was successful. Hall’s back improved, and by June his range of motion during physical therapy had increased. He reassured Dr. Miz the next month that he had “slow but steady progress with physical therapy.” By December, after an epidural steroid injection, Hall reported that his pain was “down to 2 to 3/10.” Meanwhile, since the day of his surgery, Hall has received temporary total worker’s compensation benefits. The record shows that Hall continues to receive these benefits to this day. In 2008, Hall’s functionality continued to improve. In June he said that he could sit, stand, and walk for about an hour. No. 17 2628 3 Dr. Miz referred him to a physical therapist later that summer for a functional capacity evaluation, and a therapist adminis tered a battery of tests before finding that Hall could return to work at the “light” level (meaning that he could lift 20 pounds infrequently, 10 pounds frequently, and carry 10 pounds or more). The tests also showed that Hall could sit for 15–20 minutes and stand for 30 minutes. The following month, Dr. Miz said that Hall could work within the parameters of the functional capacity evaluation, though Hall did not return to work. In September 2010, Dr. Hutchinson, an orthopedist at the University of Illinois at Chicago Medical Center, reviewed Hall’s records and examined him in connection with his worker’s compensation case. Dr. Hutchinson agreed with Dr. Miz that Hall could work at the “light” level, consistent with the results of the 2008 functional capacity evaluation. Dr. Hutchinson opined that Hall had a protruding disc, but that Hall could continue to work. One month later, in October 2010, a CT scan confirmed Dr. Hutchinson’s opinion that Hall’s disc was still protruding. Shortly thereafter, Dr. Miz performed a lumbar discography, a diagnostic procedure to determine if one or more discs was the cause of Hall’s back pain. Based on the results of the dis cography, Dr. Miz concluded that the L5 S1 area was causing Hall’s pain. In February 2011, Dr. Miz recommended that Hall undergo a “transforaminal interbody fusion” to stabilize his spine. Put o by the prospect of another surgery, Hall heeded the recommendation of his internist and turned for a second opinion to a neurosurgeon, Dr. Martin Luken. In June 2011, Dr. Luken recommended that Hall undergo a foraminotomy, 4 No. 17 2628 a minimally invasive surgery to remove whatever was com pressing his nerve root. Meanwhile, Dr. Luken proposed (without elaboration) that Hall be “o work.” A few months later a state agency physiatrist consultant, Dr. Barbara Heller, examined Hall and opined that he had persistent L5 S1 discogenic disease with persistent right L5 S1 radiculopathy. But because Hall’s pain medications were working well, she determined that he could return to light work consistent with the functional capacity evaluation from 2008. In 2012, Hall applied for disability insurance benefits based on his continued back pain. He alleged an onset date of March 7, 2007—the day of his surgery—and a date last in sured of December 31, 2012. In September 2013, almost a year after Hall’s date last in sured, Dr. Luken performed the foraminotomy, and within days Hall reported “substantial relief.” According to Dr. Luken, Hall’s progress over the next few months was “generally very encouraging.” In November, Hall told Dr. Luken that his pain had “slowly but steadily improved,” and that he was confident that it was less severe than before the surgery. The next month, Hall reported being “steadily more comfortable,” so Dr. Luken released him back to work at the “strictly sedentary” level. In February 2014, Hall told Dr. Luken that he was still getting “slowly better,” so Dr. Luken released him to work at “light or medium duty.” In 2014, Hall appeared at a hearing before an administra tive law judge. He testified that before his date last insured he could not bend or lift anything, but that he could exercise for an hour on the bike or treadmill, do laundry, mow grass, and No. 17 2628 5 take short walks. Hall also testified that to manage his pain, he had recently started taking Norco, a narcotic that a ected his concentration. Applying the familiar five step analysis, see 20 C.F.R. § 404.1520(a), the ALJ denied disability insurance benefits. The ALJ determined that Hall had not been engaged in sub stantial gainful activity since his alleged onset date (step one); that his degenerative disc disease with radiculopathy was se vere (step two); and that his impairment did not meet or med ically equal a listing (step three). The ALJ then considered Hall’s residual functional capac ity and decided that Hall could perform light work, with ca veats not relevant here except that Hall could alternate be tween sitting and standing as needed. In evaluating Hall’s RFC, the ALJ concluded that Hall’s statements concerning the intensity, persistence, and limiting e ects of his symptoms were “not fully credible” because there was evidence that Hall exaggerated his symptoms. The ALJ gave Dr. Luken’s opin ions “little weight” because they were generally inconsistent with the other doctors’ opinions and appeared to rely too heavily on Hall’s self reported symptoms. After finding that Hall could not perform any past relevant work (step four), the ALJ credited the vocational expert’s testimony that Hall could work as an assembler, screener, or an information clerk (step five). The Appeals Council denied Hall’s request for review. Hall sought judicial review of the Commissioner’s deci sion, and the district court granted the Commissioner’s mo tion for summary judgment. The court agreed with the ALJ’s decision not to give controlling weight to Dr. Luken’s opinion primarily because his opinion was inconsistent with the weight of other medical evidence in the record. The court 6 No. 17 2628 found insu cient the ALJ’s consideration of some factors set forth in 20 C.F.R. § 404.1527(c) (the “treating physician rule”), but deemed any error harmless because of substantial evi dence that “heavily” undermined Dr. Luken’s opinion—in particular, the absence of details in Dr. Luken’s treatment notes, his unfamiliarity with Hall’s previous functional capac ity evaluation, and contradictory opinions expressed by other doctors (Miz, Hutchinson, and Heller). The district court also determined that the ALJ adequately substantiated his conclu sion that Hall was “not fully credible” by explaining that the objective evidence did not support Hall’s reports about the severity of his symptoms. II On appeal Hall challenges the ALJ’s application of the treating physician rule to Dr. Luken’s opinion. Under the rule, which (although now repealed) applies to Hall’s claim based upon it being filed before March 27, 2017, a treating doctor’s opinion generally is entitled to controlling weight if it is consistent with the record. See 20 C.F.R. § 404.1527(c)(2). Hall primarily contends that the ALJ wrongly discounted Dr. Luken’s opinion based on his finding that the opinion was inconsistent with the record. We disagree. The record shows that Dr. Luken’s opinion was at odds with the other doctors’ opinions. For example, while Dr. Luken said that Hall should be “o work” in March and June 2011, Drs. Miz, Heller, and Hutchinson had contem poraneous, conflicting, and fully reasoned opinions that Hall could continue to work. Indeed, once Hall’s back worsened in 2010, to the point at which Dr. Miz recommended a spinal fu sion surgery, Dr. Miz nonetheless rea rmed that Hall could still work within the parameters of the functional capacity No. 17 2628 7 evaluation done by the physical therapist in 2008. And after thoroughly reviewing Hall’s medical records and conducting physical examinations, Drs. Hutchinson and Heller agreed with Dr. Miz that Hall could work at the “light” level. Those doctors all based their opinions on relevant objective evidence that Dr. Luken did not have access to—the 2008 functional ca pacity evaluation—and the ALJ was entitled to credit their opinions over Dr. Luken’s. To be sure, Hall is right with two of his observations re garding Dr. Luken. First, we agree with Hall that the ALJ in appropriately commented that Dr. Luken’s opinions “seem to contain a level of sympathy.” If the ALJ somehow found it necessary to o er such a view, he needed to root the observa tion in specific record evidence—for example, an express statement in a physician’s treatment notes. See 20 C.F.R. § 404.1527(c)(2). That did not happen. Instead, the ALJ broadly speculated—with no citation to any portion of the record—that Dr. Luken’s opinions “seem[ed] to contain a level of sympathy as they are not supported by the overall ev idence.” We discourage such stray, unsupported conjecture. Second, we agree with Hall that the ALJ should not have discounted Dr. Luken’s opinion because the doctor was re ferred by Hall’s internist and was therefore “essentially one of the claimant’s choosing.” Hall went to see his internist about his back pain, and the internist reasonably referred Hall to a neurosurgeon rather than attempt back surgery himself. We see no reason for Hall, who was in pain, to avoid his doc tor’s recommendation to see a neurosurgeon who was quali fied to treat his back. We fail to understand why Dr. Luken’s credibility was called into question because Hall decided to follow through with the referral. 8 No. 17 2628 These two deficiencies in the ALJ’s reasoning do not un dermine the ALJ’s broader conclusion that Dr. Luken’s opin ions were inconsistent with the opinions from other doctors. Furthermore, the opinions lacked detail and did not show that he knew of the functional capacity evaluation from 2008. Put di erently, we cannot say that the ALJ’s other misplaced rea sons for discounting Dr. Luken make the ALJ’s overarching credibility determination “patently wrong.” Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010). We turn now to Hall’s argument that the ALJ improperly discounted his own testimony without giving adequate rea sons, thereby violating a regulation requiring ALJs to give specific reasons for credibility determinations that are sup ported by the evidence, see SSR 96 7p. But the ALJ’s credibil ity determination here was not “patently wrong” because the ALJ found Hall “not fully credible” for many specific reasons supported by the evidence. See Schaaf, 602 F.3d at 875. Foremost, Hall’s presentation of symptoms was incon sistent. Though multiple doctors (including Dr. Luken) found that Hall had a normal gait and range of motion, his physical therapist expressly stated that Hall “exaggerated” the sever ity of his pain while moving and that he was “self limiting.” In addition, Hall’s testimony about his limitations was incon sistent: he said that he could exercise for an hour, mow grass, drive, prepare meals, clean, shop, and do laundry, but he sim ultaneously insisted that he could not bend or lift anything. And finally, though Hall testified that pain medication (Sub oxone) would “wipe him out” physically, he seemed to use it successfully at the time, as he reported no side e ects to his doctor. No. 17 2628 9 Hall’s final two arguments are underdeveloped. First, in a cursory discussion, Hall asserts that the ALJ erred in assessing his RFC by omitting his level of pain, his need to shift regu larly from sitting to standing, and his need for narcotic medi cation. His argument is “perfunctory and undeveloped,” and therefore waived. Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016). In any event, the ALJ’s RFC determination did include Hall’s need to change position, as it allowed him to “alternate [between sitting and standing] as needed.” The ALJ consid ered Hall’s allegations of pain when he evaluated Hall’s testi mony before finding that Hall was “not fully credible.” And Hall himself testified that he began taking narcotics after his date last insured. In another undeveloped argument, Hall contends that the ALJ did not consider unspecified “medical and testimonial facts of record” showing that he met Listing 1.04A regarding spine diseases. That listing, however, requires that a claimant also have a condition beyond degenerative disk disease: Evidence of nerve root compression character ized by neuro anatomic distribution of pain, limitation of motion of the spine, motor loss (at rophy with associated muscle weakness or mus cle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight leg raising test (sitting and supine). 20 C.F.R. § Pt. 404, Subpt. P, App. 1. Though doctors opined that Hall had nerve root compression, he has not pointed to any finding by a medical professional that he had a “limitation of motion of the spine,” and “motor loss” “accompanied by sensory or reflex loss.” To the contrary, 10 No. 17 2628 several doctors found that Hall had a normal gait and range of motion. Hall had the burden of proof to show that he met the listing, see Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005), and he failed to meet it. We AFFIRM the district court’s judgment upholding the denial of benefits.

Primary Holding

The Court upheld the Administrative Law Judge’s decision denying disability benefits to the claimant, Curtis Hall.

Facts

The claimant Curtis Hall was injured while loading chemicals onto a truck. Imaging revealed a large disc herniation at L4-5. After claimant’s progress plateaued, surgery was recommended. A lumbar microdiscectomy was performed, and claimant’s condition improved. A functional capacity evaluation (FCE) recommended that claimant could return to work at the light level, sit for 15-20 minutes, and stand for 30 minutes. Claimant’s surgeon, Dr. Miz, returned claimant to work within the parameters of the FCE. An examining physician agreed with Dr. Miz that claimant could return to work within the limits noted in the FCE. After a CT scan revealed that claimant was still suffering with a protruding disc, a lumbar discography was performed, confirming that the disc at L5-S1 was the cause of claimant’s ongoing back pain. Dr. Miz recommended a transforaminal interbody fusion. At the recommendation of his internist, claimant sought a second opinion from neurosurgeon, Dr. Martin Luken. Luken recommended a laminotomy, and took claimant off of work. A few months later, a state agency physiatrist consultant diagnosed claimant with persistent L5-S1 disco genie disease accompanied by right L5-S1 rdiculopathy. Heller opined that claimant could return to work in a light duty capacity consistent with the prior FCE. In 2012, claimant filed for disability insurance benefits, alleging a disability onset date of March 7, 2017 and a date last insured of December 31, 2012.

Issues & Holdings

Issue: Whether the ALJ wrongly discounted the opinions of claimant’s treating physician, Dr. Luken in light of the “treating-physician rule”.
Holding: The ALJ was entitled to credit the opinions of Drs. Hutchinson, Heller and Miz because their opinions were based on relevant evidence that Dr. Luken did not have access to, namely the 2008 Functional Capacity Evaluation. Dr. Luken’s opinions regarding claimant’s ability to work was not consistent with the record.

Issue: Whether the ALJ improperly discounted claimant’s testimony without giving adequate reasons as required by SSR 96-7p.
Holding: The ALJ’s credibility determination was supported by evidence in the record. Claimant’s presentation of symptoms were inconsistent, as was his testimony regarding his own physical limitations. Claimant’s testimony as to the side effects of his pain medication was also at odds with medical evidence in the record.

Issue: Whether the ALJ erred in assessing claimant’s residual functional capacity by omitting claimant’s pain levels, the need to shift regularly from sitting to standing, and claimant’s need for narcotic medication?
Holding: The court found claimant’s argument to be “perfunctory and underdeveloped” and therefore waived. The court did go on to note that the ALJ’s residual functional capacity determination did include claimant’s need to change change positions, and that claimant testified he did not begin taking pain medications until after his date last insured.

Issue: Whether the ALJ failed to consider evidence showing claimant met Listing 1.04A.
Holding: The court held that this argument was also underdeveloped. The court did note that there was nothing in the record showing that claimant had a limitation of motion of the spine, or motor loss accompanied by sensory or reflex loss as required by the listing. The court noted that several doctors found that claimant’s gait and range of motion were normal.

Opinions

Per Curiam

William Joseph Bauer
Michael Stephen Kanne
Michael Yale Scudder, Jr.

Case Commentary

I have some “take-aways” from this case that practitioners should note. When you are dealing with two treating physicians who have differing opinions regarding a claimant’s ability to work, the practitioner must make every effort to ensure that the treating physician’s opinions are based on all the relevant evidence available. The court’s opinion does not make mention as to whether or not Dr. Miz changed his mind regarding claimant’s ability to work at the time a fusion surgery was recommended. Perhaps that could have been developed prior to the hearing. There should have been some effort to ensure that Dr. Luken had a copy not only of the 2008 FCE, but of the opinions of Drs. Hutchinson and Heller so that Luken could opine as to whether an FCE from 2008 was still relevant 3 years later, and provide an explanation as to why his return to work status differed from the other physicians. As a treating neurosurgeon, his opinions would have been entitled to more weight than those of a physiatrist and a defense examining physician. What was the basis for the opinion that claimant should not work? Was it to preclude any additional injury prior to surgery? The court opinion is silent as to any support for the off work status, and therefore one must assume that the record was silent as well.

A claimant should never testify to complaints, medicine induced side effects or levels of pain that are not supported by the record. If there have been any recent injuries, or other significant medical developments, this must be brought to the attention of the ALJ either before or the time of the hearing.

Studies referenced by the AMA Guides 6th edition reveal that patients may exaggerate their pain complaints when they are in situations in which they feel that they are not believed. It is imperative that an attorney or claimant representative explain to his or her client that the hearing before an ALJ is not adversarial. If an unsophisticated claimant feels that he or she is being challenged by the ALJ, then that claimant is more prone to exaggerate symptoms beyond what can be supported by the record in an effort to make the ALJ “believe they are disabled”. This is always a recipe for disaster.

In conclusion, make sure that a treating physician’s work status determination is fully informed, and if it differs from a majority of other physicians in a case, inquire as to the basis for the off work recommendation. Ask treating physicians about the value of old FCE’s. I don’t know many physicians who would use a 3 year old FCE as a basis for a work status recommendation. In fact, most of the physicians I’ve deposed in my career consider an FCE stale after one year, especially in the face of recommendations for additional surgery. Finally, never allow a claimant to proceed to hearing under the perception that the ALJ is an adversary. This is a recipe for exaggeration and symptom magnification.

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