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Lavender v. Berryhill

United States District Court, S.D. Indiana, Indianapolis Division

May 17, 2018

KENNETH LAVENDER, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF COMPLAINT

          Tim A. Baker United States Magistrate Judge

         I. Introduction

         Plaintiff Kenneth Lavender has a long history of bilateral knee problems, with several past surgeries. He remained working while receiving injections from the Veterans Administration for pain in the right knee, until he further injured it at work. After the injury, Lavender received a worker's compensation settlement through his employer and required arthroscopic surgery to repair a torn meniscus. His recovery was complicated by a blood clot in his leg, but with physical therapy he was released back to work at maximum medical improvement with a 10% permanent partial impairment and permanent postural restrictions. More than a year after the injury, Lavender filed for disability insurance benefits and supplemental security income from the Social Security Administration asserting a complete inability to engage in substantial gainful activity. While awaiting his hearing with an Administrative Law Judge, Lavender suffered a second meniscus tear in the same knee, which again required arthroscopic surgery.

         Following SSA's denial of his applications for benefits, Lavender filed this suit asserting that the ALJ's conclusion that he could sustain the ability to stand and walk most of the day in order to complete light work is not supported by substantial evidence. He further asserts that the ALJ's decision to give limited weight to the opinion of a treating specialist and the Appeals Council's decision that evidence submitted after the hearing was not new and material are contrary to the regulations. [Filing No. 17.] As explained below, the ALJ's decision is far from perfect, but nevertheless, the Court denies Lavender's request to remand his claims and affirms the ALJ's decision.

         II. Background

         The SSA denied Lavender's DIB and SSI applications both initially and upon reconsideration. The ALJ held a hearing and issued a decision finding that Lavender was not disabled. The ALJ found Lavender had the following severe impairments: “osteoarthritis of the bilateral knees, obesity, and diabetes.” [Filing No. 13-2, at ECF p. 32; R. at 31.] In light of the entire record, the ALJ found that Lavender retained the residual functional capacity to perform a reduced range of light work including the ability to stand and walk for six hours out of an eight hour day with the opportunity to alternate positions for one to two minutes every thirty minutes. The ALJ's RFC finding stated that Lavender “can never climb, ladders, ropes, or scaffolds; he can perform all other postural activities on an occasional basis . . . .” [Filing No. 13-2, at ECF p. 33; R. at 32.] With the assistance of a vocational expert, the ALJ found that Lavender was unable to return to his past relevant work as a maintenance mechanic based on the RFC finding. However, the VE testified based on a consideration of Lavender's age, education, work experience, and RFC, that he retained the ability to perform other light jobs that exist in significant numbers in the national economy, including representative occupations as a survey worker clerk, information clerk, and cashier.

         Lavender appealed the ALJ's March 15, 2016, decision to the Appeals Council and submitted additional medical evidence, consisting of an April 7, 2016, VA compensation and pension assessment. [Filing No. 13-15, at ECF p. 43-56; R. at 1081-94.] The Appeals Council denied Lavender's request for review and this suit followed.

         III. Discussion

         A. The ALJ's RFC Finding

         Lavender takes issue with the ALJ's RFC finding, specifically arguing the ALJ's conclusion that he would be capable of standing and/or walking for a total of six hours in an eight-hour workday is not supported by substantial evidence. When an applicant appeals an adverse benefits decision, this Court's role is limited to ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for the ALJ's decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For the purpose of judicial review, “[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation omitted). To determine whether substantial evidence exists, the Court reviews the record as a whole but is not allowed to substitute its judgment for the ALJ's "by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility." Williams v. Apfel, 179 F.3d 1066, 1071-72 (7th Cir. 1999) (internal quotations omitted). Lavender argues that the standing and walking conclusion in particular is inconsistent with a history of arthritis, meniscal tears, multiple surgeries including two since the alleged onset date, numerous injections, an antalgic gait even with a cane, objective diagnostic imaging, crepitus, limited range of motion, and complaints of pain and weakness, all predominantly involving Lavender's knees. However, the Court does not agree under the deferential standard that the ALJ's conclusion is unsupported.

         First, the ALJ's decision adequately sets forth the potentially conflicting evidence that Lavender cites, including the treatment history, complaints, and objective testing. [Filing No. 13-2, at ECF p. 34; R. at 33.] While the “ALJ need not discuss every piece of evidence in the record . . . the ALJ may not ignore an entire line of evidence that is contrary to the ruling.” Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003) (citation omitted). The Court cannot conclude that the ALJ was not aware of the evidence that Lavender offers and otherwise does not see any significant omissions in the ALJ's discussion of the evidence.

         Second, the ALJ supports her conclusion by noting that Lavender had a good response to treatment, including both surgeries during the period at issue.[1] The ALJ cited findings from the consultative examination performed between the two surgeries, indicating “normal posture and an antalgic gait with good stability, fair speed, and fair sustainability (Ex. 5F/4).” [Filing No. 13-2, at ECF p. 35; R. at 34 (citing Filing No. 13-9, at ECF p. 88; R. at 583.] The ALJ also cited to some of the most recent evidence of record, an examination following the second surgery that indicated normal gait and station with no focal weakness. [Filing No. 13-15, at ECF p. 39; R. at 1077.] Despite the ALJ offering limited evidentiary support by citation to the record showing improvement, the Court finds adequate relevant evidence that a reasonable mind could come to her conclusion, including the two examinations and additional evidence detailed later in this order in connection with specific arguments.

         Third, the ALJ gave great weight to the opinions of two state agency medical consultants who reviewed a partial record and determined that Lavender was capable of a reduced range of light work consistent with the ALJ's RFC. [Filing No. 13-2, at ECF p. 36; R. at 35 (citing Filing No. 13-3, at ECF p. 15-17; R. at 89-91; Filing No. 13-3, at ECF p. 37-39; R. at 111-13).] The ALJ noted that their opinions were consistent with the updated record as a whole, including treatment that had been “largely beneficial.” [Filing No. 13-2, at ECF p. 36; R. at 35.] The Court does not agree with Lavender that the ALJ never explained the evidence that supported her RFC finding.

         Lavender's general argument is little more than an invitation to the Court to reweigh the evidence. Even if the Court agreed that the evidence Lavender suggests conflicts with the ALJ's RFC finding, or was persuasive in establishing a disability, the governing standard precludes relief. Indeed, the Seventh Circuit has recognized that “challenges to the sufficiency of the evidence rarely succeed” under this standard. Schmidt v. Barnhart, 395 F.3d 737 (7th Cir. 2005). The Court does not find the ALJ's conclusion to lack substantial support. However, the Court will address more specific arguments that Lavender makes in connection with his general argument above.

         B. Pain Medication

         Lavender takes issue with the ALJ's conclusion that his refusal to take pain medication undermined his allegations regarding the severity of his pain. In support, Lavender relies on the Seventh Circuit precedent in Childress, “[s]imilarly, it was wrong of the administrative law judge to fault Childress for not taking strong opioids for pain, when his medical conditions did not require them and, as is now well known, opioids can be very dangerous.” Childress v. Colvin, 845 F.3d 789, 793 (7th Cir. 2017). Childress involved a challenge to an ALJ's credibility finding, an argument that Lavender does not directly make here. Id. at 790. The claim also involved a whole host of predominantly cardiac and lung impairments, though it did also include complaints of leg pain. Id. at 790-91.

         Lavender's argument again challenges the ALJ's decision under a deferential standard, albeit implicitly this time. An ALJ's credibility determination will not be overturned unless “patently wrong.” Herron v. Shalala,19 F.3d 329, 335 (7th Cir. 1995); see also Elder v. Astrue,529 F.3d 408, 413-14 (7th Cir. 2008) (“[i]t is only when the ALJ's determination lacks any explanation or support that we will declare it ‘patently wrong'”); Prochaska v. Barnhart,454 F.3d 731, 738 (7th Cir. 2006) (“[o]nly if ...


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