Linda Green v. Carolyn Colvin , 605 F. App'x 553 ( 2015 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 16, 2014
Decided March 13, 2015
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 14-2136
LINDA F. GREEN, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 1:12-cv-01875-SEB-TAB
CAROLYN W. COLVIN, Acting
Commissioner of Social Security, Sarah Evans Barker,
Defendant-Appellee. Judge.
ORDER
Linda Green applied for disability benefits based on a combination of
impairments that she asserted had the overall effect of preventing her from working.
An administrative law judge concluded, however, that some of Green’s alleged
symptoms were not credible and that although other symptoms were severe, Green
retained the residual functional capacity to perform her past job as a florist. The judge
therefore denied her claim, and the Social Security Administration declined to take
further action. Green appealed, first to the district court, which affirmed the agency’s
decision, and now to this court. She contends that the ALJ erred in those two critical
findings. While a reasonable person may have seen things differently, we conclude that
No. 14-2136 Page 2
substantial evidence supports the ALJ’s credibility and residual-functional-capacity
determinations, and we therefore affirm.
I
Green asserts that she first became disabled on June 30, 2008, at age 56, based on
four primary sets of impairments. The first set involves two intestinal issues for which
she was treated before her onset date. She was diagnosed in 2007 with a hernia, which
was surgically repaired that year. Also that year, Dr. Michael Elmore diagnosed her
with ulcerative proctosigmoiditis, a type of ulcerative colitis, or bowel inflammation.
STEDMAN’S MED. DICTIONARY 1452 (2000); Bret A. Lashner, Ulcerative Colitis, CLEVELAND
CLINIC, http://www.clevelandclinicmeded.com/medicalpubs/disease
management/gastroenterology/ulcerative-colitis/ (last visited March 7, 2015, as were all
websites cited in this order). Green told Dr. Elmore in late 2007 that “[s]he has very little
abdominal pain unless she sits for long periods of time.” He advised her to take Asacol
to treat the inflammation. She reported no further intestinal issues after 2007.
Second, Green’s medical records reveal a history and treatment of thyroid
illnesses. In spring 2007, Dr. Brian Miles, her primary care physician, diagnosed her
with Hashimoto’s thyroiditis, and Dr. Michael Stack confirmed the diagnosis later that
year. This is an autoimmune disease that inflames the thyroid, potentially reduces its
function, and may result in constipation, difficulty concentrating or thinking, an
enlarged neck, and fatigue. See Chronic Thyroiditis, NAT’L INST. OF HEALTH (May 10,
2014), http://www.nlm.nih.gov/medlineplus/ency/article/000371.htm. Her thyroiditis
was treated with a thyroid hormone replacement; as a result, her level of thyroid
stimulating hormone, which had been high (but still within normal range) returned to a
lower level by July 2007. A year later another test showed the level to be well above the
normal range, but it dropped substantially by April 2009 and was below the normal
range in August. In October 2009, after her last date insured (March 31, 2009), Green
reported sudden swelling in her neck and difficulty swallowing. Dr. Miles referred her
to a specialist, and a biopsy revealed that Green had Non-Hodgkin’s Lymphoma in her
thyroid. She was treated with chemotherapy, which achieved “complete remission”
about a half-year later, by May 2010.
Third, Green suffered from head pains. At doctors’ visits throughout 2007, Green
reported having headaches. In May 2009, Green visited Dr. Miles and reported pain in
the back of her head and trouble with her memory. An MRI of her brain showed no
abnormalities except for a few lesions that were consistent with migraine headaches. A
No. 14-2136 Page 3
month later, Green reported to Dr. John Munshower, a neurologist, that, until two
weeks earlier, she had had six months of daily, throbbing headaches. Dr. Munshower
suggested a trial course of Topamax, after which the record reveals no further
headache-related issues.
Finally Green was treated for musculoskeletal pain. First, in 2007, Dr. Michael
Stack, a rheumatologist, treated her for polyarthralgia, or non-inflammatory pain in
joints. See STEDMAN’S MED. DICTIONARY 149 (2000); Joint Pain, NAT’L INST. OF HEALTH
(Apr. 18, 2014), http://www.nlm.nih.gov/medlineplus/ency/article/003261.htm. After
noting that Green was obese and that the surgery to correct her hernia had decreased
her activity, Dr. Stack found that some of her finger joints were swollen, her right knee
showed popping and some slipping, and she had some osteoarthritis. But, he
concluded, most of her complaints could be addressed with exercise. Second, in early
2008, Dr. Jeffery Whitaker, an orthopedist, and Dr. Miles both concluded that Green had
bursitis in her left shoulder, and she received a cortisone injection for it. Third, Dr. Miles
diagnosed her in the spring of 2008 with plantar fasciitis in her left heel, but Green
declined a steroid shot to address any pain. Fourth, Dr. Miles found tenderness and
swelling in both knees for which he prescribed Celebrex (which she later stopped taking
because of side effects). Imaging, though, showed normal knees with “minimal
spurring” on the left patella. Last, in April 2009, Green reported to Dr. Miles pain and
difficulty in movement in her right shoulder. Dr. Miles diagnosed her with bursitis, and
she accepted a steroid injection to treat it.
At a hearing before an ALJ, Green supplemented her medical records with
testimony about her reduced physical and mental abilities. She reported that during the
insured period, she owned three family flower shops and employed several people. But
she eventually became extremely tired and would easily become confused, to the point
where she could not drive without getting lost or take care of customers. On one
occasion she failed to recognize her husband’s voice. She testified that a doctor
informed her she had been having “mini-strokes.” Green recalled that she could not lift
the five-gallon buckets in which the flowers were shipped, that her right hand hurt so
much she could not turn doorknobs with it, and that she had frequent difficulty
swallowing and breathing.
The ALJ also heard briefly from a vocational expert. The expert testified that, as
generally performed, Green’s work as a florist qualified as light work, but Green’s own
description included some as medium work.
No. 14-2136 Page 4
The ALJ conducted the familiar five-step evaluation required by regulation,
beginning with the first three steps. See 20 C.F.R. § 404.1520(a). At step one, the ALJ
concluded that there was insufficient evidence to determine whether Green had
engaged in substantial gainful activity during the insured period. (The ALJ could have
denied benefits based on this insufficiency of proof, see 20 C.F.R. § 404.1512; Callaghan v.
Shalala, 992 F.2d 692, 696 (7th Cir. 1993), but she did not rest her decision on this basis,
and the government properly does not attempt to do so here. See SEC v. Chenery Corp.,
318 U.S. 80, 87–88 (1943); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010).) At step two,
the ALJ determined that Green had several severe impairments: Hashimoto’s
thyroiditis, plantar fasciitis, osteoarthritis, bursitis, obesity, and polyarthralgia. But, she
added, there was insufficient evidence that the thyroid lymphoma or alleged
mini-strokes produced medically determinable impairments during the insured period.
At step three, the ALJ concluded that Green’s severe impairments did not equal the
severity of any of the impairments listed in 20 C.F.R., Subpart P, Appendix 1.
Step four required the ALJ to determine Green’s residual functional capacity.
See 20 C.F.R. § 404.1545. The judge concluded that Green could engage in light work,
including work as a florist as that job is generally performed. See 20 C.F.R.
§ 404.1567(b). She also found Green’s asserted limitations not to be credible, reciting
boilerplate that Green’s statements about her limitations “are not credible to the extent
they are inconsistent with the above residual functional capacity assessment.” But the
ALJ also explained her conclusion more specifically, referring in particular to Green’s
asserted musculoskeletal and head pains. First, the judge noted that Dr. Stack had
suggested that Green’s joint pain could be dealt with through exercise; other than
cortisone injections, she did not need significant treatment for the pain of her bursitis or
plantar fasciitis; and imaging of her knees in fall 2008 revealed nothing particularly
abnormal. Second, although Green reported daily migraines in May 2009 (for which she
received Topamax), the neurologist’s examination did not reveal any substantial
abnormalities. Third, the ALJ added that two state medical consultants both concluded
that “there was insufficient evidence to establish severe impairments prior to the
claimant’s date last insured.”
After pursuing her administrative remedies, Green came to federal court. A
magistrate judge recommended that her appeal be denied. The recommendation
criticized the ALJ for failing to question the vocational expert more closely about
Green’s ability to perform past relevant work or other jobs. But Green does not ground
her appeal in this criticism, and so any argument about it is waived. See United States v.
Thornton, 642 F.3d 599, 606 (7th Cir. 2011). The district court adopted the magistrate
No. 14-2136 Page 5
judge’s recommendations and affirmed the denial of benefits to Green.
II
On appeal Green challenges the ALJ’s credibility finding on two grounds. First,
she contends that the finding should be overturned because the ALJ used boilerplate
language in concluding that her testimony about the severity of her pain was not
credible. Green is correct that this boilerplate is not helpful and ought to have been
omitted. See Bjornson v. Astrue, 671 F.3d 640, 645–46 (7th Cir. 2012); Filus v. Astrue, 694
F.3d 863, 868 (7th Cir. 2012). But its inclusion here is harmless because the ALJ has
“offer[ed] reasons grounded in the evidence” that support her determination. See Filus,
694 F.3d at 868; see also Pepper v. Colvin, 712 F.3d 351, 367–68 (7th Cir. 2013). First, Dr.
Stack concluded that exercise could resolve much of Green’s asserted joint pain. Second,
beyond a cortisone shot, her doctors did not recommend any significant treatment for
her left-shoulder bursitis or her plantar fasciitis. Third, various imaging tests of her legs
and a neurologist’s sensory exam did not confirm anything significant. Although, to be
credible, the severity of a claimant’s symptoms need not be supported by objective
medical evidence, see 20 C.F.R. § 404.1529(c)(2)–(3); Schmidt v. Barnhart, 395 F.3d 737,
746–47 (7th Cir. 2005), here the ALJ disbelieved Green for reasons that go beyond the
absence of objective evidence. Finally, the ALJ also relied on the analyses of two state
medical consultants, who both found insufficient evidence of disabling impairments.
The credibility finding is therefore grounded in meaningful evidence.
Green next argues that the ALJ misjudged her credibility about her asserted
fatigue and inability to focus, problems that she attributes to her thyroid ailments. She
contends that the ALJ should have analyzed together the effects of Hashimoto’s
thyroiditis (diagnosed in spring 2007, before the alleged onset date) and her thyroid
lymphoma (diagnosed in November 2009, after the date last insured). But the possibility
that these two diseases are related does not mean that either one (or both together)
caused Green to be disabled during the insured period, which is what Green must
show. See Shideler v. Astrue, 688 F.3d 306, 311 (7th Cir. 2012). The record, in fact, could
fairly be read to show that she was not. During the insured period, to treat her
thyroiditis Green took thyroid-replacement therapy, which kept her thyroid levels
largely normal. And the lymphoma went into “complete remission.” The ALJ thus
properly based her credibility finding on “the lack of evidence available” regarding
thyroid ailments before her date last insured. See Eichstadt v. Astrue, 534 F.3d 663, 668
(7th Cir. 2008). Nothing in the record suggests that this finding is “patently wrong.”
See Shideler, 688 F.3d at 310–11; Elder v. Astrue, 529 F.3d 408, 413–14 (7th Cir. 2008).
No. 14-2136 Page 6
Next Green contends that the ALJ erred in determining her residual functional
capacity. Green accuses the ALJ of not considering the combined effects of her
impairments, including her headaches and the pain in her shoulders, arms, and fingers.
But the ALJ did consider these impairments and rejected them as non-disabling. The
neurologist who treated her found no neurological abnormalities; the rheumatologist
suggested that Green could alleviate her joint and muscle complaints through exercise;
the orthopedist, after finding some decreased range of motion in her shoulder,
administered a steroid shot for pain; and when she returned months later to her
primary care physician with similar complaints, she needed no further, significant
treatment. It is true that the ALJ did not mention that Green had reported having
headaches or shoulder pain at several appointments. But “an ALJ need not mention
every piece of evidence” as long as the ALJ has not “cherry-picked facts” to support her
conclusion. See Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010); see also Simila v.
Astrue, 573 F.3d 503, 516 (7th Cir. 2009). The ALJ here did not commit that sin.
Finally, Green argues that the ALJ failed to consider the effects of her intestinal
conditions. She points to her ulcerative colitis and asserts that Dr. Elmore’s note—that
Green had “very little abdominal pain unless she sits for long periods of time”—has
controlling weight as a treating specialist’s opinion. But Green points to no evidence
that her ulcerative colitis continued into the period after her alleged onset date; in fact
the record suggests that her drug therapy largely removed her abdominal pain. And Dr.
Elmore’s note was part of the doctor’s recital of his patient’s reported history, not part
of his assessment or medical opinion. See 20 C.F.R. § 404.1527(a)(2).
The judgment of the district court is AFFIRMED.