United States District Court, S.D. Indiana, Indianapolis Division
RICHARD D. BUIS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security, Defendant.
ENTRY ADOPTING IN PART AND REJECTING IN PART THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RICHARD L. YOUNG, Chief District Judge.
Plaintiff, Richard D. Buis, appeals the Administrative Law Judge's decision denying his application for social security disability benefits. Pursuant to 28 U.S.C. § 636, the court referred the matter to the Magistrate Judge (Filing No. 38), who submitted his report and recommendation on August 6, 2014. (Filing No. 39). The Plaintiff objects to the Magistrate Judge's report and recommendation. (Filing No. 40). The Commissioner did not respond to Buis's objections. For the reasons set forth below, the court ADOPTS in part and REJECTS in part the Magistrate Judge's report and recommendation.
Buis applied for Social Security Disability Benefits and Supplemental Social Security Income at the age of forty-six due to his "[r]heumatoid arthritis; depression; tendinitis; restless leg syndrome; neuropathy; fibromyalgia; [and] myopathy." (R. at 375). In his application, Buis reported that his ability to work is limited by his conditions because he can stand for two hours at the most, he has a great deal of pain and weakness in his hands and feet, he is forced to spend a significant amount of time in bed due to this pain, and he is now depressed by his limitations. (R. at 375).
Buis filed his application on June 30, 2006, alleging an onset date of October 14, 2003. Buis acquired sufficient quarters of coverage under sections 216(i) and 223 of the Social Security Act to remain insured through September 30, 2008 (hereinafter "the date of last insured" or "DLI"). Thus, Buis must establish disability on or before that date to be entitled to a period of disability and disability insurance benefits. Buis's application was initially denied on September 18, 2006. On January 21, 2009, a hearing was held before an Administrate Law Judge ("ALJ"). That ALJ's decision was remanded to specify Buis's sit/stand limitations. A second hearing was held on September 30, 2010, before a different ALJ, with a supplemental hearing on May 4, 2011, to allow Buis to review evidence that had been submitted anonymously. A second supplemental hearing was held on August 11, 2011, to obtain additional evidence from the vocational expert ("VE").
The second ALJ found that Buis had the following severe impairments: rheumatoid arthritis, fibromyalgia and obesity. After reviewing the mental health functional areas, the ALJ found that Buis's depression caused only a "mild" limitation. The ALJ concluded that Buis was not under a disability at any time from the alleged onset date through the date of last insured. Buis appealed to the Appeals Council, which denied his request for review. Buis filed his complaint in this court on May 30, 2013.
The court will incorporate any additional facts as necessary throughout the discussion portion. For a more thorough review of the facts, the court adopts the fact portion of the Magistrate Judge's report and recommendation. (Filing No. 39, at ECF pp. 1-8).
A. Review of Magistrate Judge's Report and Recommendation When a party raises specific objections to elements of a magistrate judge's report and recommendation, the district court reviews those elements de novo, determining for itself whether the magistrate judge's decision as to those issues is supported by substantial evidence or was the result of an error of law. FED. R. CIV. PRO. 72(b). The district court "makes the ultimate decision to adopt, reject, or modify' the report and recommendation, and it need not accept any portion as binding;" the court may, however, defer to and adopt those conclusions where a party did not timely object. Sweet v. Colvin, No. 1:12cv-00439-SEB-TAB, 2013 WL 5487358, * 1 (S.D. Ind. Sept. 30, 2013) (quoting Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 759-761 (7th Cir. 2009)).
B. Review of the ALJ's Decision
In reviewing the Commissioner's factual findings, courts are deferential; if her findings are supported by substantial evidence, then courts must affirm. See Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); see also 42 U.S.C. § 405(g). "Although a mere scintilla of proof will not suffice to uphold an ALJ's findings, the substantial evidence standard requires no more than such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Blakes v. Barnhart, 331 F.3d 565, 568 (7th Cir. 2003). In other words, substantial evidence is more than a scintilla, but less than a preponderance of the evidence. See Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). Nevertheless, the ALJ is obligated "to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a disability finding." Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). An ALJ is not required to discuss every piece of evidence, but if the decision lacks an adequate discussion of the issues, the court will remand it. See Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010). An adequate discussion ensures that the ALJ built a logical bridge from the evidence to his conclusion. Denton, 596 F.3d at 425.
Buis raises six arguments as to why the court should reverse the decision of the ALJ. They are: (1) the ALJ improperly evaluated the opinion of Buis's "treating rheumatologist, " Dr. Harry Staley; (2) the ALJ improperly evaluated whether Buis's impairment or combination of impairments met or medically equaled Listing 14.09B; (3) the ALJ improperly evaluated the medical opinions of state agency medical consultants, doctors Richard Wenzler and M. Ruiz, with regard to Buis's ability to stand and walk during an eight hour work day; (4) the ALJ improperly evaluated the credibility of the testimony of Buis; (5) the ALJ's step five finding was not supported by substantial evidence because the vocational expert failed to provide a proper foundation for the number of jobs; and (6) the ALJ failed to evaluate the medical opinion of Dr. Susan Schneider. The Magistrate Judge rejected each of the six reasons. Buis objects to each of the six conclusions of the Magistrate Judge in his report and recommendation. The court will consider each in turn.
A. The Opinions of Dr. Harry Staley
Buis first argues that the ALJ committed reversible error by failing to consider the September 12, 2010, assessment of Dr. Staley, Buis's treating rheumatologist. That assessment noted that Buis had "intermittent pain and swelling; erosions of joints at base of toes in both feet; chronic pain in fingers of both hands with swelling and chronic pain in both shoulders and both knee[s]." (R. 1319). Additionally, he noted that the pain was moderate to severe. (R. 1319). The report states that emotional distress and/or psychological factors contribute to Buis's symptoms and functional limitations. (R. 1320). Additionally, Dr. Staley estimated the number of hours Buis can sit and stand/walk during an 8 hour workday; he found that Buis could not maintain full time employment and would miss more than three days of work per month. (R. 1321-1322, 1324). Further, Dr. Staley found that Buis has significant limitations in doing repetitive handling or fingering. Specifically, Dr. Staley estimated that during an 8-hour workday, Buis could perform handling and fingering with each hand for only 1/3 of an 8-hour workday (R. 1323-1324). Finally, Dr. Staley said he did not know if the limitations he set forth would have been better or worse when he first started treating Buis in July of 2006. (R. 1324).
Notably, the ALJ did not discuss this particular report; this much is undisputed. (R. 20-22). Rather the dispute centers around whether reversible error was committed in not discussing the report and what weight must be given to the report. According to Buis, this report is entitled to controlling weight because it was prepared by a treating physician. The Magistrate Judge first found that the report was not entitled to controlling weight because it is not supported by clinical and laboratory findings necessary to warrant controlling weight pursuant to Social Security Ruling 96-8p. Second, the Magistrate Judge concluded that even if it were adequately supported, it is irrelevant because the report post-dated the date of last insured and does not relate back to Buis's pre-DLI condition. The court will consider the second argument first.
The Magistrate Judge relied on Eichstadt v. Astrue, 534 F.3d 663 (7th Cir. 2008) to reach his conclusion. In Eichstadt, the Seventh Circuit found that the ALJ did not fail to consider evidence, contrary to the claimant's allegations. Id. at 667. The Court reasoned that the ALJ had considered such evidence but found it to be irrelevant because it did not address the correct time period. Id. Additionally, the Court emphasized that the ALJ gave ...