United States District Court, S.D. Indiana, Indianapolis Division
KELLY R. MCCALIP, Plaintiff,
NANCY A. BERRYHILL, Defendant.
ORDER ON MCCALIP'S BRIEF IN SUPPORT OF
BAKER UNITED STATES MAGISTRATE JUDGE
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.
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.
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
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).
The ALJ Did Not Err in Weighing Medical Opinions
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.
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. 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.
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.]
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
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 ...