United States District Court, N.D. Indiana, South Bend Division
REGINA E. DUKE, Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.
Regina Duke appeals the Commissioner's decision to deny
disability benefits. She filed this action on September 11,
2018. [DE 1] On December 11, 2018, the Court referred the
case to Magistrate Judge John Martin for a report and
recommendation, pursuant to General Order 2018-14A, 28 U.S.C.
§ 636(b)(1)(B), Federal Rule of Civil Procedure 72(b),
and Northern District of Indiana Local Rule 72-1(b). [DE 10]
After receiving the parties' briefs, Magistrate Judge
Martin issued his report and recommendation on June 13, 2019,
recommending that the Court deny the relief sought by Ms.
Duke's opening brief and affirm the Commissioner's
decision. [DE 25] To date, no party has filed an objection to
the report and recommendation.
Court's review of a Magistrate Judge's report and
recommendation is governed by 28 U.S.C. § 636(b)(1),
which provides in part:
A judge of the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge. The judge may also receive further evidence
or recommit the matter to the magistrate judge with
Fed.R.Civ.P. 72(b), however, the Court must only make a
de novo determination of those portions of the
Magistrate Judge's report and recommendation to which
specific written objections have been made. Johnson v.
Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). If
no objection or only a partial objection is made, the Court
reviews those unobjected-to portions for clear error.
Id. In addition, failure to file objections with the
district court “waives the right to appeal all issues
addressed in the recommendation, both factual and
legal.” Id. Under the clear error standard,
the Court can only overturn a Magistrate Judge's ruling
if the Court is left with “the definite and firm
conviction that a mistake has been made.” Weeks v.
Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th
U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b) require the
parties to file objections to a report and recommendation
within fourteen (14) days of being served with a copy of the
same, and the Magistrate Judge alerted the parties to these
requirements in his filing. [DE 25 at 7-8] More than fourteen
days have passed since the parties were served with
Magistrate Judge Martin's report and recommendation and
no party has filed an objection. Consequently, the Court
considers there to be no objections to it.
reviewed the report and recommendation, the Court finds no
clear error therein. At the administrative level, the ALJ
determined that Ms. Duke suffered from severe bilateral knee
osteoarthritis and obesity, but that she nonetheless had the
capacity to perform light work, with some limitations, from
the date of alleged onset (May 30, 2012) through the date of
last insured (September 30, 2014). On appeal before this
Court, Ms. Duke only challenges whether the ALJ improperly
assigned “little weight” to the November 16,
2015, opinions of Ms. Duke's treating physician, Dr.
David Pepple. (R. 23-24; 503-04). The Magistrate Judge found
that the ALJ did not, and the Court agrees.
November 16, 2015, Dr. Pepple completed a form to reflect his
opinions that, as of May 30, 2012, Ms. Duke's severe
degenerative arthritis of the knees prevented her from
“perform[ing] any substantial amount of sustained work
activity at any time.” (R. 503). He further opined
that, since that date, she could: lift only zero to five
pounds either occasionally or frequently; stand and/or walk
less than one hour and sit less than two hours of an
eight-hour workday; and never push/pull with her feet, climb,
balance, stoop, knee, crouch, or crawl. Id. When
prompted on the form to cite clinical or lab findings that
support his arthritis diagnosis, Dr. Pepple simply stated:
“X-ray reports attached (with office notes).” (R.
504). He did not cite to any specific findings.
outlined in the Magistrate Judge's report and
recommendation, the ALJ assigned Dr. Pepple's opinions
little weight for several reasons. For one, the ALJ noted
that Dr. Pepple's report documented no clinical
findings-either his own or those of another physician-from
the relevant period suggesting that Ms. Duke could not work
during that time. To support his opinion, for example, Dr.
Pepple cited generally to an x-ray report; presumably he was
referring to the x-ray examination conducted on May 30, 2012.
(R. 479). But that examination, as the ALJ pointed
out, revealed only mild tricompartmental
osteoarthritis in Ms. Duke's knees, id.,
not the “severe” degenerative arthritis
that the November 2015 report represents was present at that
time. And, as the ALJ further noted, even when a
subsequent August 2014 x-ray revealed moderate-to-severe
tricompartmental degenerative changes and a right knee
effusion, Ms. Duke's orthopedic specialist, Dr. Jason
Hanna, reported that Ms. Duke had only been experiencing
right knee pain since May 2014, and that her pain level only
“occasionally reached 4 out of 10.” (R.
507-08) (emphasis added). It was not error for the ALJ to
discount Dr. Pepple's opinion based on these
Dr. Pepple's assertions that Ms. Duke could not lift more
than five pounds and could never stoop following May 30,
2012, were flatly belied by Ms. Duke's own hearing
testimony. As the Magistrate Judge discussed, Ms. Duke
testified to working part time at a daycare center for two
years after her alleged onset date, stating that her job
involved “a lot of bending, stooping, picking up
children, putting children down ….” (R. 84). She
also stated that while working at the daycare center, she
would lift fifty-pound children without difficulty. (R.
87-88). Although Ms. Duke eventually left this job due to
pain in her lower extremities, that does not negate the fact
she herself stated that she could indeed both stoop and lift
well over five pounds after May 30, 2012, contradicting Dr.
Pepple's opinions. Similarly, regarding Dr. Pepple's
opinion that Ms. Duke could not balance following May 30,
2012, the ALJ noted that Ms. Duke did not report using a cane
until 2014 (R. 52) and that Dr. Pepple himself did not even
prescribe a cane for her until August 2016 (R. 541), long
after the date by which he opined that she could not balance
on her own. (R. 23).
treating physician's opinion about the nature and
severity of the claimant's impairment is normally given
controlling weight so long as it is ‘well-supported by
medically acceptable clinical and laboratory diagnostic
techniques' and is consistent with substantial evidence
in the record.” Moss v. Astrue, 555 F.3d 556,
560 (7th Cir. 2009) (quoting Bauer v. Astrue, 532
F.3d 606, 608 (7th Cir. 2008)). The ALJ need only
“minimally articulate” her reasoning for
discounting a treating physician's opinions, and as the
Magistrate Judge properly concluded, the ALJ met that burden
here based on the analysis detailed above.
as for Ms. Duke's criticism that the ALJ failed to take
her long-term treatment with Dr. Pepple into account before
discounting his opinions, the Magistrate Judge correctly
observed that the ALJ's detailed discussion of Dr.
Pepple's notes throughout her opinion makes clear that
she considered Ms. Duke's entire course of treatment with
this physician. Indeed, the ALJ's opinion refers to and
incorporates Dr. Pepple's treatment notes dating as far
back as March 2011, as well as several treatment notes from
2012 to 2014. (R. 18, 22). See Retzloff v. Colvin,
673 Fed.Appx. 561, 567-68 (7th Cir. 2016) (finding that
ALJ's failure to list the factors to be considered when
evaluating opinion evidence, including length of treatment,
was “harmless, as the ALJ did discuss the relevant
points, even if not by name.”); see also Kittelson
v. Astrue, 362 Fed.Appx. 553, 557 (7th Cir. 2010)
(holding that ALJ did not fail to take regulatory factors
into account where his summary of claimant's medical
record reflected that he was aware of and considered them).
this Court does not come away from the Magistrate Judge's
findings with any such “definite and firm conviction
that a mistake has been made” that would signal clear
error. Weeks, 126 F.3d at 943. And so, for all these
reasons, the Court ADOPTS the report in its
entirety and incorporates the Magistrate Judge's
recommendations into this Order. Accordingly, the Court
DENIES the relief sought in Ms. Duke's
opening brief [DE 19] and AFFIRMS the