Stacy Perkins v. Carolyn Colvin , 632 F. App'x 849 ( 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NONPRECEDENTIAL DISPOSITION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
Submitted December 4, 2015*
Decided December 7, 2015
Before
KENNETH F. RIPPLE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 15-1708
STACY K. PERKINS Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 1:13-cv-01428-TWP-DML
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, Tanya Walton Pratt,
Defendant-Appellee. Judge.
ORDER
Stacy Perkins, a 55-year-old who claims that he is disabled due to back pain,
shoulder pain, depression, and anxiety appeals the district court’s judgment upholding
the Social Security Administration’s denial of his application for Disability Insurance
Benefits and Supplemental Security Income. An administrative law judge denied
* After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 15-1708 Page 2
benefits because she found that suitable jobs exist for Perkins given his residual
functional capacity. On appeal Perkins challenges the ALJ’s decision on two grounds,
but both are waived because they were not raised in the district court. We thus affirm the
judgment.
Perkins injured his back on the job in 2006 while working for Chrysler
Corporation in California. He was diagnosed with lower back strain and treated with
pain medication, physical therapy, and steroid injections. In May 2007, after returning to
work, Perkins complained of worsening symptoms with the pain radiating into his legs.
X-rays were unremarkable, and an MRI revealed disc protrusion and mild narrowing of
the spinal canal but no evidence of nerve root displacement. Perkins stopped working in
July 2007 and moved to Indiana two months later. In October 2007, in connection with
an ongoing claim in California for workers’ compensation, an orthopedist completed a
functional capacity evaluation, which led to restrictions on lifting, bending, and twisting.
The following month the orthopedist recommended pain management and possibly
retraining for a job less physically demanding than the warehouse work that Perkins had
been doing for Chrysler. The results of a physical evaluation in April 2008 were normal,
except for a decreased range of motion and tenderness in the paralumbar region. Perkins
was discharged from treatment in September 2008, apparently for “lack of compliance.”
Perkins applied for benefits in December 2008. A consultative examination in
February 2009 indicated reduced mobility in his lower back and his right shoulder but
otherwise yielded normal results. That same month two state-agency physicians
evaluated the medical record and concluded that Perkins had the residual functional
capacity to perform light work. In March 2009 the Social Security Administration issued
its initial decision denying benefits, and then in mid-May the agency denied
reconsideration.
In late May 2009 Perkins saw a family physician, Dr. Charles Platz. The results of
a physical examination during that visit were normal except for stiffness and tenderness
in Perkins’s lower back. At the time Perkins was not taking any medications, and he told
Dr. Platz that he was not anxious or depressed. A year later, though, when Perkins next
saw Dr. Platz in April and May 2010, he complained of depression and worsening back
pain. A physical examination was normal, however, other than disclosing tenderness in
the lower back.
Perkins returned to Dr. Platz in November 2010 with similar complaints. In early
March 2011, about a week before the first of two hearings before the ALJ, Dr. Platz
No. 15-1708 Page 3
completed written assessments of Perkins’s physical and mental residual functional
capacity and asserted that he was limited to a greater extent than previously reported.
The doctor opined that Perkins could sit, stand, or walk only for a maximum of one hour
each during a work day; that he could not lift or carry any weight; and that pain and
fatigue severely impaired his ability to perform nonexertional functions.
At the end of March 2011, the ALJ issued a decision denying benefits. When
Perkins sought review of that decision, however, the Appeals Council discovered that
the audio recording of the hearing was partially inaudible and thus remanded for a new
hearing, which was conducted in March 2012.
Meanwhile, Perkins had refiled his application for disability benefits (the reason
is not disclosed in the record, but the new application was simply merged with the
existing application). A state-agency psychologist examined Perkins in August 2011 and
opined that, during a typical 8-hour workday, he could remember and follow simple
instructions and engage in appropriate social behavior. The psychologist further opined
that Perkins’s functional limitations were at most mild. That same month Perkins also
was examined by a state-agency physician. He observed that Perkins’s posture and gait
were normal and that he showed normal strength in all major muscle groups except for a
minimal deficit in his right arm. The physician added, though, that during the
examination Perkins could not walk, squat, or stand on his heels or toes without
difficulty, and that his range of motion was limited in the lower back, right shoulder,
and hips. In September 2011 Perkins returned for another physical consultative
evaluation. This time Perkins said that he was in too much pain to participate fully in the
examination, and the physician noted tenderness in the lower back. Still, the physician
concluded that Perkins showed normal grip strength, and fine-finger skills. Dr. Platz
provided another assessment of Perkins’s residual functional capacity in January 2012;
his opinion about Perkins’s limitations remained unchanged from his March 2011
assessment.
Perkins testified at both hearings. He explained that he had last worked in July
2007. As a result of his 2006 workplace injury, he said, he had received short-term
disability payments and a “buyout” from Chrysler, as well as an award from the
Workers’ Compensation Appeals Board in California. He testified that he had tried but
failed at do vocational rehabilitation because he could not comprehend the material.
Perkins recounted experiencing pain in his lower back that radiates to his legs and limits
his ability to sit, stand, bend, and lift. He takes medication for his back pain and
depression, Perkins continued, but that medication, although helpful, knocks him out
No. 15-1708 Page 4
and then wears off. He added that he cries some nights because of depression and that
he has difficulty concentrating on reading material. At both hearings, a vocational expert
testified that a person of Perkins’s age, education, and work experience with a residual
functional capacity limiting him to a reduced range of light work could not perform
Perkins’s past jobs but could perform other jobs including inspector, assembler, and
production planning clerk.
On April 9, 2012, after the second hearing, the ALJ denied benefits using the
five-step framework. See 20 C.F.R. §§ 404.1520, 416.920. The ALJ found that Perkins was
not employed (Step 1); he suffered from depression and degenerative disc disease of the
lumbar spine, both severe (Step 2); his impairments did not meet or equal the severity of
an impairment listed in the Social Security regulations (Step 3); he was not capable of
performing his past work (Step 4); and suitable jobs were available in the national
economy (Step 5). In reaching her conclusions at Steps 4 and 5, the ALJ concluded that
Perkins had the residual functional capacity to perform light work as defined in 20
C.F.R. § 404.1567(b) and § 416.967(b), except that he is limited to unskilled, sedentary
work involving simple, routine, repetitive, concrete, and tangible tasks; only occasional
use of foot controls or occasional climbing of ramps and stairs; and no climbing of
ladders, ropes, or scaffolds. These restrictions are not as limiting as those recommended
by Dr. Platz. In July 2013 the Appeals Council declined to review that determination,
making the ALJ’s ruling the final decision of the Commissioner. See Varga v. Colvin, 794
F.3d 809, 813 (7th Cir. 2015); Moore v. Colvin, 743 F.3d 1118, 1120 (7th Cir. 2014).
In September 2013, Perkins brought an action in the district court for judicial
review of the ALJ’s adverse decision. See 42 U.S.C. § 405(g). At some point after the ALJ
had denied benefits, Perkins filed a new application for disability alleging the same
onset date as before. There is scant information in the record relating to this new
application. What is known, though, is that the Social Security Administration, after
reviewing the new application, notified Perkins in January 2014 that he met the medical
requirements for disability benefits as of April 10, 2012, one day after the ALJ had issued
the adverse decision now under review. Armed with this new, favorable ruling, Perkins
argued in the district court that the ALJ necessarily had erred because, according to
Perkins, the medical evidence was the same in both administrative matters. In its March
2015 decision, however, the district court rejected that contention, relying on the
agency’s correspondence notifying Perkins of its decision on his new application. That
document (a copy of which Perkins had submitted to the district court) explains that the
favorable decision rests on specific medical records received by the agency in 2013, after
No. 15-1708 Page 5
the unfavorable 2012 decision. The district court also concluded that the ALJ’s decision
was supported by substantial evidence.
On appeal, Perkins no longer argues that the ALJ erred due to the perceived
inconsistency between the agency’s January 2014 decision and the ALJ’s denial of
benefits in April 2012. Instead, in this court he presents claims that were not brought in
the district court and thus are waived. See Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir.
2013); Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001); Shramek v. Apfel, 226 F.3d 809,
811 (7th Cir. 2000); Ehrhart v. Secretary of Health and Human Serv., 969 F.2d 534, 537 n.4 (7th
Cir. 1992). In any event, we would reject these new contentions even if they had not been
waived.
Perkins would argue that the ALJ failed to consider the workers’ compensation
decision from California. That decision, Perkins says, establishes that he was
permanently disabled by his workplace injury in 2006 and thus entitled to Social
Security benefits. Yet the California decision, which was part of the evidence before the
ALJ, does not find that Perkins is unable to engage in any substantial gainful activity,
which is the standard for disability under the Social Security Act. See 42 U.S.C. § 423(d);
Weatherbee v. Astrue, 649 F.3d 565, 568 (7th Cir. 2011); Liskowitz v. Astrue, 559 F.3d 736,
739-40 (7th Cir. 2009). Rather, the California decision declares Perkins to have a
permanent disability of 32%. Permanent disability under the California labor code
involves an impairment of earning capacity, impairment of the normal use of a limb, or a
competitive handicap in the open labor market, but the worker can receive benefits
whether or not employed, including when employed at the very job held prior to the
injury. See Brodie v. Workers' Comp. Appeals Bd., 156 P.3d 1100, 1104 (Cal. 2007); Scalice v.
Performance Cleaning Sys., 57 Cal. Rptr. 2d 711, 717 (Cal. Ct. App. 1996); Universal City
Studios, Inc. v. Workers’ Comp. Appeals Bd., 160 Cal. Rptr. 597, 606–07 (Cal. Ct. App. 1979).
Even if the ALJ should have explicitly discussed the California decision, that decision
was not binding on the ALJ because it is not based on Social Security law. See 20 C.F.R.
§ 416.904; Allord v. Barnhart, 455 F.3d 818, 820 (7th Cir. 2006); Clifford v. Apfel, 227 F.3d
863, 874 (7th Cir. 2000).
In addition, Perkins would argue that his depression and anxiety compelled a
finding of disability because he was assessed a score of 60 on the Global Assessment of
Functioning metric during his mental status examination in August 2011. Once again
Perkins is incorrect.
No. 15-1708 Page 6
A single GAF score at a particular point in time, in particular a score that signals
psychological symptoms that are somewhere between mild and moderate, is not
conclusive of a disability. See Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). GAF
scores are not static and depend on how the patient feels the day he is examined. Voigt v.
Colvin, 781 F.3d 871, 875 (7th Cir. 2015). The GAF scale is used in making treatment
decisions and does not reflect the clinician’s opinion of functional capacity, see Denton,
596 F.3d at 425, and in fact the psychologist who assessed the score of 60 also concluded
that Perkins could work. There is no requirement that an ALJ determine the extent of an
individual’s disability based entirely on a GAF score. See Howard v. Comm’r of Soc. Sec.,
276 F.3d 235, 241 (6th Cir. 2002).
Accordingly, the judgment is AFFIRMED.