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Devries v. Colvin

United States District Court, N.D. Indiana, South Bend Division

August 18, 2016

AMBER L. DEVRIES, Plaintiff,
v.
CAROLYN COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Plaintiff Amber Devries appeals the final decision of the Commissioner of Social Security denying her application for Child’s Insurance benefits and Supplemental Security Income benefits. [DE 1.] That decision is embodied in the written opinion of an Administrative Law Judge issued after an evidentiary hearing. Judicial review of the Commissioner’s decision is limited. If an ALJ’s findings of fact are supported by “substantial evidence, ” then they must be sustained. See 42 U.S.C. § 405(g); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In making a substantial evidence determination, I must review the record as a whole, but I can’t re-weigh the evidence or substitute my judgment for that of the ALJ. Overman, 546 F.3d at 462.

         The ALJ found that Devries had four severe impairments: a depressive disorder, a generalized anxiety disorder, attention deficit disorder and obesity. [DE 10 at 23.][1] A non-severe impairment of hypothyroidism was found to be controlled with medication. [Id. at 24.] The ALJ rejected Devries’ claims of several “non-medically determinable” impairments - osteoarthritis, ankle and knee disorders, mild mental retardation and a menstrual cycle disorder - finding no supporting diagnoses or treatment in the medical record, with a careful discussion of the medical evidence not supportive of each claim. [Id. at 24-25.]

         At the next step of the familiar sequential evaluation process, the ALJ determined that Devries’ impairments do not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [Id. at 25.] In making this determination, the ALJ discussed the opinions of various reviewing consultants, Devries’ daily activities, her school records, and the records of her treating doctors. [Id. at 25-28.]

         Ultimately, the ALJ concluded that, despite her impairments, Devries retained the residual functional capacity to lift 20 pounds occasionally and 10 pounds frequently, to stand or walk for up to 2 hours in an 8-hour workday, to sit for up to 6 hours in an 8hour workday, to occasionally stoop, kneel, crouch or crawl but never to climb ladders, ropes, or scaffolds. [Id. at 28.] These findings supported the ultimate determination that Devries is not disabled because she remains capable of performing light work comprised of simple routine and repetitive tasks, with only occasional interaction with supervisors, coworkers or the general public, and with some exertional limitations. [Id. at 28.] Based on the vocational expert’s testimony, the ALJ concluded that Devries is capable of performing jobs that exist in significant numbers in the national economy, such as various assembly positions. [Id. at 34.]

         Devries was 24 years old at the time of her hearing. [DE 10 at 46.] She lived with her grandparents, and had done so since she was a one year old. [Id.] After four years of high school, Devries finished only the 10th Grade. [Id.] Devries testified that she spends most of her day on the computer, reading, or sleeping. [Id. at 49.] She helps with the laundry but is forgetful about it. [Id. at 48.] She tries to go to the gym with her grandparents at least three times a week. [Id. at 50.] Devries testified that sitting or standing too long at one time causes her legs or back to hurt, and that walking for 30 minutes would cause her ankles to swell, although 10 minutes on the treadmill is helpful for her ankles. [Id. at 51-52.] At that time, Devries had lost more than 20 pounds (down to 282 from 304), thanks to working out at the gym, changing her eating habits and “trying to leave the house more.” [Id. at 53-54.] She testified to the anxiety she experiences if she is out of the house around people other than her family members. [Id. at 55-56.] Devries testified to the goals she has set for herself, including getting a driver’s permit, which she has done. [Id. at 57.] She is setting goals toward independence from her grandparents, including losing weight, learning to drive, and getting out of the house to socialize more. [Id. at 57-58.] Her testimony demonstrated that she imagines being able to hold down a job in the future. [Id. at 60-61.]

         Devries’ first argues that the ALJ is not permitted to deny benefits by relying on unsigned reports. In particular, Devries points to the ALJ’s reliance on the opinion of a state agency psychological consultant that Devries’ impairments did not meet or equal regulatory listings conclusively demonstrating disability. [DE 13 at 15.] Exhibits 5F and 6F in the administrative record contain the Mental Residual Functional Capacity Assessment and Psychiatric Review Technique forms attributed to Ann Lovko, Ph.D. [DE 10 at 333-350.] The Psychiatric Review concludes that Devries’ mental disorders do not meet or equal Listings 12.02 (Organic Mental Disorders), 12.04 (Affective Disorders) or 12.06 (Anxiety-Related Disorders). [Id. at 347-48.] The ALJ reviewed, relied on and adopted these findings, noting the lack of contrary evidence. [DE 10 at 25-26.] On each of the two forms, Lovko’s name is typed in the blank for her signature. [Id. at 335, 337.] Devries also points to the “great weight” the ALJ afforded the opinion of the State agency medical consultant concerning Devries’ residual functional capacity. [ DE 10 at 33, 358-365.] This Physical Residual Functional Capacity Assessment is Exhibit 8F in the administrative record. In the blank for the medical consultant’s signature, the name “A. Dobson, M.D.” is typed. [Id. at 365.]

         Devries cites regulatory language providing signature requirements for medical consultative examiners. It is true that a consultative examination report must be signed by the provider under the relevant SSA regulations:

All consultative examination reports will be personally reviewed and signed by the medical source who actually performed the examination. This attests to the fact that the medical source doing the examination or testing is solely responsible for the report contents and for the conclusions, explanations or comments provided with respect to the history, examination and evaluation of laboratory test results. The signature of the medical source on a report annotated “not proofed” or “dictated but not read” is not acceptable. A rubber stamp signature of a medical source or the medical source’s signature entered by any other person is not acceptable.

20 C.F.R. §404.1519n(e). By its terms, this regulation applies the signature requirement to reports by consultative examiners - that is, medical professionals who actually examine the applicant. Dr. Lovko and Dr. Dobson did not perform any examination of Devries, but were consultants who rendered opinions based solely on their review of the record. So the regulatory requirement Devries cites does not apply.

         Devries also relies on Terry v. Astrue, 580 F.3d 471, 476 (7th Cir. 2009), in which the Seventh Circuit cited 20 C.F.R. §404.1519o for the proposition that “an unsigned examination report may not be used to deny benefits.” Again, that limitation applies to examination reports, which Dr. Lovko’s and Dr. Dobson’s reports were not. The Court of Appeals also noted about the unsigned report in Terry that there was “nothing in the record itself that suggests the report is authored by a physician at all, let alone the specific doctor proposed by the government.” Id. By contrast, the challenged exhibits here clearly identify the doctors to whom they are attributed by name.

         The agency also points out that other administrative authority allows for electronic signatures, citing DI 26510.089 of the agency’s Program Operations Manual System or POMS. This authority provides that, with an exception not pertinent here, “[e]ach medical assessment form must have a reviewing MC/PC’s actual physical signature or an approved electronic signature.” Id. at Section A.4. Relying on the POMS passage, the agency likens the typewritten names in the signature blanks to “approved electronic signature(s).” Devries distinguishes the appearance of Dr. Lovko’s and Dr. Dobson’s typewritten names from the electronic signature of examining physician Dr. Ralph Inabnit, D.O., on his Disability Determination report, Exhibit 7F. [DE 10 at 351-357.] That report concludes with a more elaborate electronic signature:

         Electronically signed by Ralph E. Inabnit, DO on Mon Nov 05, 2012 13:16:33

Ralph Inabnit, ...

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