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McCalip v. Berryhill

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

July 9, 2018

KELLY R. MCCALIP, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER ON MCCALIP'S BRIEF IN SUPPORT OF APPEAL

          TIM A. BAKER UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff Kelly R. McCalip appeals the Social Security Administration's denial of her application for disability benefits. McCalip claims she became disabled on April 6, 2010, but her date last insured is June 30, 2010. Therefore, the Administrative Law Judge's job was not to determine if McCalip was disabled at the time of the hearing. Rather, the ALJ's inquiry was to determine if McCalip was disabled during an extremely short eligibility period, which was more than three years before she filed her application for disability benefits. The issue on appeal is whether the ALJ erred in his calculation of McCalip's residual functional capacity by failing to properly weigh medical opinions or by failing to properly evaluate McCalip's testimony. As explained below, the ALJ's decision regarding medical opinions is supported by substantial evidence, and his assessment of McCalip's testimony is not patently erroneous. Therefore, the Court denies McCalip's request for remand [Filing No. 16] and affirms the ALJ's decision.

         II. Background

         In evaluating McCalip's claim, the ALJ used the SSA's five-step sequential process. See 20 C.F.R. § 404.1520(a) (explaining the five-step process). At step one, the ALJ determined that McCalip was employed during the relevant period, but her work did not rise to the level of substantially gainful employment. At step two, the ALJ determined that McCalip was severely impaired with fibromyalgia, degenerative disc disease, hypertension, and obesity. However, at step three, the ALJ determined that McCalip's combination of impairments did not meet the severity requirements of any listed impairment, so McCalip was not presumptively disabled. 20 C.F.R. pt. 404, subpt. P, app. 1. Instead, the ALJ proceeded with the analysis by evaluating McCalip's RFC, meaning her ability to perform work activities despite her impairments. 20 C.F.R. § 404.1545(a)(1). The ALJ determined that McCalip had the RFC to perform medium work except that she could not crawl or climb ladders, ropes, or scaffolding. The ALJ did not follow treating neurologist Dr. Silbert's opinion that McCalip has been disabled since December 2008.

         At step four, the ALJ determined that McCalip's RFC allowed her to perform past relevant work as a shipping and receiving clerk, a nanny, or a daycare worker. Therefore, the ALJ determined that McCalip was not disabled. Even if McCalip were unable to perform her past relevant work, the ALJ alternatively determined at step five that McCalip's age, education, experience, and RFC enabled her to work in jobs that existed in significant numbers in the national economy. Therefore, the issue on appeal is whether the ALJ erred in weighing medical opinions or in his evaluation of McCalip's testimony.

         III. Discussion

         McCalip argues that substantial evidence does not support the ALJ's calculation of McCalip's RFC. In support of this argument, McCalip contends that the ALJ erred in weighing medical opinions and that the ALJ failed to properly evaluate her testimony. McCalip's arguments are not persuasive. On review, the Court exercises deference and evaluates whether the ALJ's decision is supported by “substantial evidence.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1979)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. This means that substantial evidence is “more than a mere scintilla but may be less than a preponderance” of the evidence. Id. However, the Court will not “reweigh the evidence or substitute [the Court's] judgment for that of the ALJ.” Murphy v. Colvin, 759 F.3d 811, 815 (7th Cir. 2014) (quoting Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013)). Instead, the Court will analyze whether the ALJ performed his duty to “minimally articulate” his reasoning and provide a logical bridge from the evidence to his conclusion. Berger v. Astrue, 516 F.3d 539, 544-45 (7th Cir. 2008).

         A. The ALJ Did Not Err in Weighing Medical Opinions

         McCalip argues that the ALJ erred when weighing various medical opinions. In support, she first argues that the ALJ improperly disregarded Dr. Silbert's opinion merely because it was retrospective. McCalip next contends that the ALJ played doctor by assuming the supporting clinical and diagnostic findings could not result in the physical limitations in Dr. Silbert's retrospective opinion. McCalip also maintains that Dr. Silbert's opinion is well supported and consistent with the record, and therefore should have been afforded controlling weight. Alternatively, McCalip argues that if the ALJ reasonably declined to afford Dr. Silbert's opinion controlling weight, then the ALJ failed to weigh the relevant regulatory factors required by 20 C.F.R. § 404.1527(c). Last, McCalip argues that the ALJ played doctor when he concluded, without citing medical evidence, that McCalip was physically limited to a range of medium work. These arguments are not persuasive.

         A doctor's opinion is retrospective if (1) it requires the doctor to look back in time to opine whether the claimant was impaired at an earlier date, and (2) that doctor did not come to the same conclusion at that earlier date. See Estok v. Apfel, 152 F.3d 636, 640 (7th Cir. 1998). ALJs may consider retrospective medical opinions only if the opinion is corroborated by evidence contemporaneous with the eligibility period.[1] See Estok, 152 F.3d at 638. If a retrospective opinion by a treating physician is corroborated with medical evidence contemporaneous with the eligibility period, then the treating physician rule applies. Johnson v. Berryhill, No. 3:17CV-46-PPS, 2018 U.S. Dist. LEXIS 44239, at *7 (N.D. Ind. Mar. 19, 2018) (quoting Martinez v. Massanari, 242 F.Supp.2d 372, 377 (S.D.N.Y. 2003)); Blom v. Barnhart, 363 F.Supp.2d 1041, 1049 (E.D. Wis. 2005) (same). In other words, a treating physician's corroborated retrospective opinion is due controlling weight unless it is inconsistent with the medical evidence or compelling non-medical evidence. Johnson, 2018 U.S. Dist. LEXIS 44239, at *7.

         The ALJ did not discount Dr. Silbert's opinion merely because it was retrospective. Rather, the ALJ discounted Dr. Silbert's opinion because it was not corroborated and was inconsistent with the record evidence. The ALJ strongly implied that McCalip's only relevant contemporaneous medical evidence, her evaluations with Dr. Johnson, did not corroborate Dr. Silbert's opinion that McCalip was disabled during the brief eligibility period in 2010. [Filing No. 9-2, at ECF p. 26, R. at 25 (“I noted no clinical findings in these treatment notes to suggest significant limitations let alone disabling ones.”).] Additionally, the ALJ reasonably concluded that McCalip's ability to work as a nanny during the eligibility period “casts serious doubts” on the past severity of her impairments. [Filing No. 9-2, at ECF p. 23, R. at 22.]

         McCalip counters that Dr. Silbert's opinion was based on objective and clinical findings that were consistent with and corroborated by evidence pre-dating McCalip's eligibility period. To be sure, McCalip was diagnosed with “mild” degenerative disc disease based on an MRI before the brief eligibility period. [Filing No. 16, at ECF p. 4.] Still, nothing in the record indicates that this diagnosed disease was disabling during the relevant period. In fact, McCalip does not allege she became disabled until six months after the diagnosis. While this diagnosis could corroborate a retrospective opinion that McCalip has degenerative disc disease, it is not enough to corroborate Dr. Silbert's 2014 opinion that the severity of McCalip's impairments must have rendered her disabled years earlier.

         McCalip also contends that an MRI shortly after the eligibility period further corroborates Dr. Silbert's opinion. But McCalip concedes that this subsequent MRI “revealed no significant change from the previous [MRI]” taken before the eligibility period. [Filing No. 16, at ECF p. 6.] Given that the first MRI does not corroborate Dr. Silbert's opinion, the second MRI fares no better. At a minimum, the “mild” nature of the MRI findings [id.], is further evidence ...


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