United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF
Baker United States Magistrate Judge
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
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.
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.
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.
The ALJ's RFC Finding
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.
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.
the ALJ supports her conclusion by noting that Lavender had a
good response to treatment, including both surgeries during
the period at issue. 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.
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
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.
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.
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 ...