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Fortenberry v. Berryhill

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

November 14, 2017

NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, [1] Defendant.



         Jenny Fortenberry appeals the Social Security Administration's final decision denying her application for disability benefits. That denial is in a written decision of an Administrative Law Judge, entered after a hearing at which Fortenberry appeared and testified.[2] [AR at 19-31; AR at 41-109.] At the time of the hearing in February 2015, Fortenberry was 50 years old. [AR at 28.] She was 46 on the date she alleges her disability began. [Id.] She did not graduate from high school, only attending school to 10th grade. [AR at 51.] Fortenberry had previously worked as a housecleaner, a cashier, and a waitress. [AR 52-58.] She had last worked in 2011, and claims that she became unable to work because of a disabling condition as of August 5, 2011. [AR at 60, 239.]

         The ALJ found that Fortenberry has four severe impairments: degenerative disc disease, carpal tunnel syndrome, depression and anxiety. [AR at 22.] The ALJ also found that Fortenberry has the non-severe impairment of fibromyalgia. [Id.] The ALJ concluded that Fortenberry‘s severe impairments do not conclusively establish disability by meeting or medically equaling the severity of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. [AR at 22.] At the ALJ's hearing, Fortenberry conceded this. [AR at 45.]

         The ALJ found that Fortenberry possessed the residual functional capacity to perform less than light work [AR at 24], and was actually still capable of performing her past relevant work as a housekeeper/cleaner [AR at 28]. In addition, based on the ALJ's findings as to Fortenberry's residual functional capacity, as well as her age, education and work experience, the ALJ concluded that Fortenberry can perform several other jobs at the light exertional level that exist in significant numbers in the national economy, and that Fortenberry is not disabled. [AR at 28-29.]

         Fortenberry asks me to reverse the ALJ's decision or remand the case for further proceedings by the Social Security Administration. My role is not to determine from scratch whether or not Fortenberry is disabled and entitled to benefits. Instead, my review of the ALJ's findings is deferential, to determine whether the ALJ applied the correct legal standards and whether the decision is supported by substantial evidence. Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012); Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). If substantial evidence supports the Commissioner's factual findings, they are conclusive. 42 U.S.C. §405(g).

         What is “substantial evidence?” The term suggests a rigorous review is required. But it's helpful on occasion to remind ourselves just how low the Supreme Court has defined the standard of review. The Court has told us that while it is more than a “scintilla” of evidence, it's less than a preponderance of the evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The review of an ALJ's findings is a light and deferential one. The ALJ should be affirmed if the decision is supported by “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. Id.

         Fortenberry offers two specific challenges to the ALJ's decision. The first deals with how the ALJ evaluated the opinion evidence of Fortenberry's doctors. The second concerns how the ALJ evaluated Fortenberry's limitations and impairments, and whether they were adequately accounted for in the residual functional capacity analysis.

         1. Analysis of Medical Opinion Evidence

         Fortenberry argues that the ALJ failed to properly weigh medical opinion evidence. The ALJ decided to give little weight to the opinions of Fortenberry's treating physician, Dr. John Kelly, and the consultative examiner, Dr. Bharat Pithadia. But the ALJ chose to give considerable weight to the opinions of state agency consultants who did not examine Fortenberry and which were rendered longer ago and without benefit of much of the medical evidence in the record. Here's what the ALJ said about the opinions of Dr. Kelly:

The undersigned affords little weight to the opinions of Dr. John Kelly (Exhibits 9F; 14F). While he is a treating source of the claimant, Dr. Kelly's opinions are not consistent with the record as a whole. Dr. Kelly's opinion as to the claimant' physical limitations include a number of extreme limitations that are not supported by the record, including a complete inability to lift any weight at all off the floor or stoop. Dr. Kelly also rendered an opinion as [to] the claimant's mental limitations, despite that being somewhat outside of his realm of expertise as a primary care provider, but these reported limitations are grossly inconsistent with the record. As previously discussed, the claimant has never treated with a psychiatric expert. Dr. Kelly indicated that the claimant had poor to no ability to demonstrate reliability or behave in an emotionality [sic] stable manner (Exhibit 9F/3). He also indicated that the claimant had extreme loss in her ability to respond appropriately to usual works [sic] situations and make simple work-related decisions, but could still somehow manage her benefits in her own best interest. However, the record indicates the claimant has never needed to be hospitalized for psychiatric reasons, and has never even treated with a psychological expert, making these reported limitations somewhat dubious. The claimant also reports that most of her limitations are physical in nature, not mental (Exhibit 3E). Accordingly, the undersigned finds that Dr. Kelly's opinion is not consistent with the record and affords it little weight.

[AR at 27.]

         “While a treating physician's opinion is usually entitled to controlling weight, it must be ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques' and not contradicted by other substantial evidence.” Lloyd v. Berryhill, 682 Fed.Appx. 491, 496 (7th Cir. 2017), citing 20 C.F.R. §404.1527(c)(2). If an ALJ chooses to reject a treating physician's opinion he has to give good reasons for doing so after considering the following factors:

(1) whether the physician examined the claimant, (2) whether the physician treated the claimant, and if so, the duration of overall treatment and the thoroughness and frequency of examinations, (3) whether other medical evidence supports the physician's opinion, (4) whether the physician's opinion is consistent with the record, and (5) whether the opinion relates to the physician's specialty.

Brown v. Colvin, 845 F.3d 247, 252 (7th Cir. 2016).

         In this case, the ALJ attributed his disregard of Dr. Kelly's opinions to their extreme nature, which the ALJ found to be inconsistent with the medical record. [AR at 27.] Review of the medical record, which consists largely of Dr. Kelly's treatment of Fortenberry, confirms the reasonableness of the ALJ's conclusion, as ...

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