United States District Court, S.D. Indiana, Terre Haute Division
TRACY L. KNEEVES, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER AFFIRMING COMMISSIONER'S DECISION
WILLIAM G. HUSSMANN, Jr., Magistrate Judge.
This matter is before the Honorable William G. Hussmann, Jr., United States Magistrate Judge, on Plaintiff's Complaint seeking Social Security disability benefits. The parties consented to Magistrate Judge jurisdiction (Dkt. 12, 17), and an Order of Reference was entered by District Judge Jane Magnus-Stinson on August 8, 2012 (Dkt. 18). The parties filed briefs, and the Magistrate Judge conducted oral argument on January 8, 2014, at which Plaintiff, Tracy L. Kneeves, was present by telephone with her counsel and Defendant, Acting Commissioner Colvin, was represented by counsel by telephone.
Findings of Fact
Material portions of the ALJ's findings in dispute are as follows:
(a) Plaintiff has only one severe impairment - that of degenerative disc disease (R. 13-16);
(b) Plaintiff has the residual functional capacity to perform light work (R. 16-19); and
(c) Plaintiff is capable of performing her past relevant work as a bartender (R. 19).
Each of these findings will be discussed individually.
(a) The ALJ's findings concerning severe impairments:
In this case, the ALJ found that Plaintiff had one severe and several nonsevere impairments. At oral argument, Plaintiff's counsel for the first time argued that it was error for the ALJ to find Plaintiff's vision was not a severe impairment. Because this was not argued in the parties' briefs, the Court concludes that Plaintiff has waived this argument. See, e.g., Waite v. Bowen, 819 F.2d 1356, 1360 n.1 (7th Cir. 1987). However, even if this argument was not waived, the ALJ discussed not only the vision records from Dr. David Zauel, but also a physical consultative examination occurring the month before where the consultative examiner found normal fields of vision. (R. 288.) The Court concludes that substantial evidence would support a finding that Plaintiff's vision problem was not severe, even though another ALJ might have found it to be severe. The Court therefore concludes that there is no error properly raised by Plaintiff at this time requiring remand because of the failure of the ALJ to find Plaintiff's vision condition to be severe.
(b) The ALJ's residual functional capacity determination:
The ALJ concluded that Plaintiff has the residual functional capacity to perform light work. Plaintiff argues that the ALJ failed to give controlling weight to the opinion of Plaintiff's treating physicians, Dr. Sturman, Nurse Practitioner Hutchinson, and Dr. Harber. A review of the records of Dr. Sturman, Ms. Hutchinson, and Dr. Harber shows that the ALJ reasonably summarized those records and did not "cherry pick" from them. None of those records of treating physicians show more than episodic issues of pain. Dr. Harber found some decreased sensation in Plaintiff's thighs and tenderness in her spine, but otherwise a stable gait, and prescribed medication. (R. 596-98.) This Court does not find that the treating physicians are inconsistent with the RFC found by the ALJ-an ability to perform light work where the claimant can never climb ladders, ropes, or scaffolds; can only occasionally climb ramps and stairs; and can only occasionally balance, stoop, kneel, croutch, and crawl. There is no error in failing to give greater weight to the treating physicians' opinions in this case.
Plaintiff argues that under 20 C.F.R. § 1527(e)(1) an ALJ may be required to recontact treating physicians regarding work-related limitations not addressed in their report. The Court concludes in this case that the doctors's records were not unclear and did not fail to address Plaintiff's conditions, and there was no error on the part of the ALJ in not recontacting the treating physicians.
Plaintiff also argues that the ALJ erred by relying on evidence of gaps in treatment as evidence that Plaintiff's lumbar condition was not more severe. Under S.S.R. 96-7p at 7 (1996), and under the authority of such cases as Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009), an ALJ may rely on infrequency or gaps in treatment as evidence undermining a claimant's credibility. However, a more recent case, Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012), indicates that an ALJ may not draw an adverse inference from infrequency or ...