Patricia Shumaker v. Carolyn Colvin , 632 F. App'x 861 ( 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NONPRECEDENTIAL DISPOSITION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 November 17, 2015
Decided December 10, 2015
Before
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15-1923
PATRICIA A. SHUMAKER, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Indiana,
Fort Wayne Division.
v.
No. 1:13cv268
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, Joseph S. Van Bokkelen,
Defendant-Appellee. Judge.
ORDER
Patricia Shumaker applied for Disability Insurance Benefits claiming to be
disabled by injuries from a motorcycle accident along with depression, anxiety, and
borderline intellectual functioning. An administrative law judge disbelieved her
testimony that these conditions were disabling and concluded that she retained the
residual functional capacity to perform light work with certain limitations. Shumaker
challenges this adverse credibility finding and the ALJ’s assessment of her residual
functional capacity. We conclude that substantial evidence supports the ALJ’s decision.
No. 15-1923 Page 2
Shumaker, who is currently 51 years old, has a long work history that includes
positions in factories and as a housecleaner in a nursing home. But she was thrown from
a motorcycle in July 2008 and fractured the top of her right humerus, her right shoulder
and collarbone, and a toe. Since then she has worked only a few months. In January 2011
she applied for disability benefits and alleged an onset date in June 2009, when she last
was employed. She identified four impairments: right shoulder injury, depression,
anxiety, and limited reading and writing skills.
Shumaker's accident prompted three shoulder surgeries and months of
occupational therapy. During the first surgery, four months after the accident, a plate
secured with screws was inserted into her shoulder. Two months later the doctor
released Shumaker to return to work without restriction and suggested that she take
ibuprofen for residual pain. Shumaker returned to her job as a housecleaner at the
nursing home, but in May 2009, six months after that first surgery, she still was reporting
severe shoulder pain as well as numbness in her arm. An MRI revealed a slight bulging
disc in her back but no issue with her neck. Shumaker’s doctor was skeptical that he
could do more for her and referred her to John Pritchard, a sports medicine doctor.
Shumaker met with Dr. Pritchard a few days later in June 2009, and he ordered a
CT scan and electromyogram. The EMG was normal, and the CT scan confirmed that
Shumaker’s bone fractures had healed properly, though “mild” to “moderate”
degenerative changes were detected in her right shoulder joints. The following month
Pritchard operated on that shoulder to fix a torn rotator cuff. At a follow-up exam 6
weeks later, Shumaker rated her pain as 1 or 2 out of 10. Pritchard prescribed Vicodin
and a muscle relaxant for spasms and opined that Shumaker was doing well. The range
of motion in her shoulder continued to improve with occupational therapy, and by
January 2010, 18 months after the motorcycle accident and 6 months after Shumaker’s
rotator cuff surgery, her collarbone fracture was healed completely. Shumaker still
complained of tenderness over the collarbone plate, which prompted Pritchard to
remove the plate in February 2010. He last treated Shumaker in March 2010, opining
then that her shoulder fracture was healed and in “good stead.” He recommended that
Shumaker avoid jobs involving significant overhead lifting and noted that in future
years Shumaker’s risk of arthritis in the injured shoulder would increase slightly.
In January 2011, two days before Shumaker applied for benefits, Dr. Pritchard
opined that Shumaker had a 5% impairment of her upper arm and a 3% impairment “of
the whole person.” These numbers, he said, were based on guidelines published by the
American Medical Association, see LINDA COCCHIARELLA & GUNNAR B.J. ANDERSSON,
No. 15-1923 Page 3
AM. MED. ASS’N, GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (5th ed. 2001).
He noted that he had no plans for further treatment.
The next month Shumaker was examined by two state-agency consultants,
Dr. David Ringel, an osteopathic physician, and Dr. Michael Scherbinski, a psychologist.
Ringel reported that Shumaker had limited motion and weakness in her right shoulder
and was unable to lift her arm above her head. Shumaker also told Ringel that she was
having difficulty getting dressed, but the physician observed that she was able to dress
and undress without difficulty during the examination. He also noted that her gait was
normal and that she was able to rise from her chair, climb on and off the examination
table, squat, and walk on her heels and toes without difficulty. Scherbinski administered
a mental examination from which he concluded that Shumaker’s intellectual functioning
was generally below average but still adequate to maintain employment. He noted,
though, that she might have difficulty consistently meeting demands in a work
environment because of her physical and mental-health issues.
In March and May 2011 two doctors performed “independent medical
examinations,” apparently in connection with a state-court lawsuit. See IND. R. TRIAL P.
35 (permitting civil parties to move, upon good cause shown, for court order directing
that opposing party submit to physical examination if physical condition is in
controversy). Doctor Thomas Lazoff (who specializes in physical medicine and
rehabilitation and pain medicine) examined Shumaker first. She complained of pain in
her right shoulder and upper arm, numbness in her right forearm, occasional headaches,
back pain, and neck pain. She rated her overall pain as 4 out of 10 on a good day and 8 on
a bad day, and reported taking Vicodin, Tylenol, and ibuprofen, and using ice and
heating pads to control the pain. Lazoff concurred with Dr. Pritchard that little more
could be done from a treatment perspective. Doctor Mark Reecer then examined
Shumaker. He did not detect signs of symptom magnification and opined that
Shumaker’s complaints of pain and restricted movement were consistent with her
injuries. He also opined that she likely would experience permanent chronic pain in her
right shoulder and never be able to lift her right arm above shoulder level. He did not
anticipate a need for further treatment and concluded that her arm was impaired by
23%, which, he added, was equivalent to a 14% “whole person” impairment.
The Social Security Administration initially denied Shumaker’s application in
February 2011, and did so again on reconsideration in March 2011. One year later, in
March 2012, Shumaker testified before the ALJ. Since the motorcycle accident, she
explained, her use of her right arm had been limited. She was always in pain, although
No. 15-1923 Page 4
nonprescription medication, ice, and heat had provided some relief. The toe she broke in
the motorcycle accident, Shumaker continued, causes pain when she squats, stands on
her toes, climbs or descends stairs, and walks barefoot. Twice monthly, on average, she
experiences headaches that can last a few hours or the entire day. And, she added, she
always has struggled with memory and concentration, and now has nightmares that,
along with arm pain, prevent her from sleeping more than two or three hours each night.
Shumaker also described her daily activities, which include watching television,
talking on the phone, playing computer games, sewing, visiting or shopping with her
two adult children, straightening the house, loading the dishwasher, and gardening. But
usually, she insisted, she struggles to get out of bed and relies on her husband to make
breakfast, vacuum, mop, clean the shower, push the grocery cart, and even help her
dress and brush her hair. She enjoys camping with her family, she added, although she
stays in a camper and spends most of the time seated.
A vocational expert was asked to comment on the job prospects for a claimant
with the following residual functional and mental capacity: able to lift 10 pounds
frequently and 20 pounds occasionally; capable of sitting, standing, or walking for
6 hours in an 8-hour workday; able to occasionally balance, stoop, kneel, crouch, climb
ramps or stairs but not crawl or climb ladders, ropes or scaffolds; able to frequently use
the right arm for gross manipulation and occasionally to reach or pull levers or controls;
not able to cope with hazards including moving machinery, unprotected heights, and
slippery or uneven surfaces; unable to understand, remember, or carry out detailed
instructions; not capable of performing tasks that require frequent decision-making; and
unable to tolerate sudden or unpredictable changes in the work place. Such a person, the
VE said, could not perform Shumaker’s past jobs but still could work. That would still be
true, the VE continued, if the claimant was further limited (as her lawyer asserted) to
sedentary work involving simple and routine tasks and requiring only occasional
reaching (and no overhead reaching) with the right arm, only occasional handling with
the right hand, and only incidental contact with supervisors, coworkers, and the general
public.
The ALJ applied the 5-step analysis for assessing disability, see 20 C.F.R.
§ 404.1520(a)(4), and first determined at Step 1 that Shumaker had not engaged in
substantial gainful activity since her alleged onset in June 2009.
At Step 2 the ALJ identified Shumaker’s severe impairments as mild depression,
generalized anxiety disorder, borderline intellectual functioning, past fractures of the
No. 15-1923 Page 5
right clavicle and scapula, obesity, and “disorder of the right foot.” The ALJ concluded,
however, that Shumaker’s neck pain and headaches were not severe because the MRI of
her neck had been “relatively unremarkable,” her headaches occur only occasionally,
and no doctor had mentioned any limitations caused by these conditions. At Step 3 the
ALJ concluded that Shumaker’s impairments, individually or in combination, do not
satisfy a listing for a presumptive disability.
At Step 4 the ALJ rejected as not credible Shumaker’s account of the extent of her
limitations. The ALJ started with boilerplate language reciting that, although
Shumaker’s “medically determinable impairments could reasonably be expected to
cause some of the alleged symptoms,” her “statements concerning the intensity,
persistence and limiting effects” of those symptoms “are not credible to the extent they
are inconsistent with” the ALJ’s assessment of Shumaker’s residual functioning capacity.
The ALJ then discounted Shumaker’s testimony for several reasons: The medical record
does not substantiate her account of her limitations, she had received unemployment
benefits after her alleged onset date, she had described daily activities that are
inconsistent with her alleged impairments, her medical treatment in the year preceding
the decision had been limited, and she had presented “generally unpersuasive
appearance and demeanor while testifying at the hearing.”
The ALJ gave “significant weight” to the medical opinion of Shumaker’s treating
physician, Dr. Pritchard, who suggested that her shoulder impairment and back pain
did not preclude her from working. The ALJ also gave significant weight to the
state-agency medical and psychological consultants who had opined that Shumaker
could perform unskilled light work. Finally, the ALJ gave moderate weight to the
opinions of the two doctors who had examined Shumaker in relation to the state-court
lawsuit, neither of whom suggested that Shumaker was unable to work.
At Step 5 the ALJ concluded that Shumaker no longer could perform her past jobs
but could engage in light work with some limitations.
The Appeals Council denied review, making the ALJ’s decision the final decision
of the Commissioner, see Pepper v. Colvin, 712 F.3d 351, 361 (7th Cir. 2013), and a district
judge upheld the ALJ’s decision.
On appeal Shumaker challenges the adverse credibility finding, arguing that the
ALJ improperly discounted her testimony of her right-arm limitations. But the ALJ’s
finding that Shumaker had exaggerated the extent of her limitations is supported by
No. 15-1923 Page 6
substantial evidence in the record. See 42 U.S.C. § 405(g); Jones v. Astrue, 623 F.3d 1155,
1160 (7th Cir. 2010) (giving ALJ’s credibility finding “special deference” and explaining
that reversal is warranted only if finding is “patently wrong”). None of the doctors who
examined Shumaker—including her treating physician, Dr. Pritchard—concluded that
she is completely unable to use her arm. See 20 C.F.R. § 404.1529(c)(2) (explaining that
agency will consider objective medical evidence in evaluating severity of claimant’s
symptoms). Pritchard opined that Shumaker’s use of her right arm is impaired only 5%,
Dr. Lazoff observed a slight decrease in range of motion and some tenderness over her
collarbone, and even Dr. Reecer, whose opinion is most favorable to Shumaker, thought
that her right arm was impaired only 23% (though he added that she is permanently
unable to lift or reach above the shoulder). Moreover, Shumaker testified that she tends
to her flower garden, sews, washes dishes, and folds towels, which the ALJ thought to be
tasks unlikely to be performed by someone limited to using one arm.
Shumaker insists that this reference to her daily activities is improper. As
Shumaker notes, we have criticized ALJs repeatedly for equating activities of daily living
with an ability to engage in full-time work. See, e.g., Bjornson v. Astrue, 671 F.3d 640, 647
(7th Cir. 2012); Spiva v. Astrue, 628 F.3d 346, 352 (7th Cir. 2010). But that is not what the
ALJ did. Rather, the ALJ evaluated Shumaker’s daily activities against her asserted
impairments in assessing whether she was exaggerating the effects of her impairments.
See 20 C.F.R. § 404.1529(c)(3)(i) (explaining that agency will consider daily activities in
evaluating severity of claimant’s symptoms); SSR 96-7P, 1996 WL 374186, at *3 (directing
ALJ to consider daily activities in determining credibility of claimant’s statements about
symptoms); Pepper, 712 F.3d at 369 (agreeing with ALJ’s reasoning that claimant’s daily
activities undermined her testimony about extent of her symptoms); Filus v. Astrue, 694
F.3d 863, 869 (7th Cir. 2012).
Shumaker also suggests that the ALJ should have found her credible because of
her arduous work history before the motorcycle accident. A “claimant with a good work
record is entitled to substantial credibility when claiming an inability to work because of
a disability.” Hill v. Colvin, No. 15-1230, 2015 WL 7785561, at *5 (7th Cir. 2015) (quoting
Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983)); see Singletary v. Sec’y of Health, Educ.
& Welfare, 623 F.2d 217, 219 (2d Cir. 1980) (explaining that claimant’s history of
performing demanding work over long hours “justifies the inference that when he
stopped working he did so for the reasons he testified to”); Allen v. Califano, 613 F.2d 139,
147 (6th Cir. 1980) (claimant’s significant work history “demonstrated a considerable
inclination toward employment”). But work history is just one factor among many, and
it is not dispositive. See Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998). And here the
No. 15-1923 Page 7
ALJ’s silence is not enough to negate the substantial evidence supporting the adverse
credibility finding.
Shumaker further notes that the ALJ, in finding her not credible, repeated
language that we have criticized as “meaningless boilerplate.” Parker v. Astrue, 597 F.3d
920, 922 (7th Cir. 2010); see Bjornson, 671 F.3d at 644–45; Martinez v. Astrue, 630 F.3d 693,
696 (7th Cir. 2011). But the use of boilerplate is not a ground to remand where, as here,
the ALJ has otherwise provided information that justifies her credibility determination.
See Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014); Pepper, 712 F.3d at 367–68. And if
the ALJ adequately explains her decision despite the boilerplate, this court has no reason
to expand on the ALJ’s analysis.
Shumaker further asserts in a footnote that five of the ALJ’s stated reasons for
finding her testimony not credible are either vague or missing a “logical bridge”: (1) the
medical record as a whole does not support Shumaker’s alleged limitations, (2) her daily
activities are not limited to the extent one would expect, given her complaints of
disabling pain, (3) she received unemployment benefits after the alleged onset date,
(4) her medical treatment had ended a year before the ALJ’s decision, and (5) her
appearance and demeanor at the hearing undermined her credibility. These assertions
are not developed, see Massuda v. Panda Express, Inc., 759 F.3d 779, 783 (7th Cir. 2014)
(noting lack of development was reason enough to reject plaintiff’s contention); United
States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991) (“We repeatedly have made clear
that perfunctory and undeveloped arguments, and arguments that are unsupported by
pertinent authority, are waived.”), and neither did Shumaker raise them in the district
court, see Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013) (rejecting as waived
arguments not raised in the district court); Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir.
2000) (“[I]ssues that are not raised before the district court are waived on appeal.”).
Thus, they are waived.
Shumaker also contends that the ALJ’s assessment of her residual functional
capacity fails to adequately account for all of her impairments, including her obesity and
the pain in her neck, back, and hips. But the ALJ did consider Shumaker’s obesity,
concluded that it was a severe impairment, and analyzed the effect of that impairment
on her residual functional capacity by referencing the Social Security Administration’s
guidance for obesity. See SSR 02-1P, 2002 WL 34686281. The ALJ incorporated several of
the limitations described in SSR 02-1P into Shumaker’s residual functional capacity,
including limitations on balancing, stooping, crouching, climbing ramps and stairs, and
handling hazards. See id. Moreover, Shumaker does not identify any evidence in the
No. 15-1923 Page 8
record that suggests greater limitations from her obesity than those identified by the
ALJ, and neither does she explain how her obesity exacerbated her underlying
impairments. Thus, even if the ALJ had erred in considering how Shumaker’s obesity
affects her ability to work, that error would be harmless. See Prochaska v. Barnhart, 454
F.3d 731, 736–37 (7th Cir. 2006); Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004).
As for Shumaker’s neck, back, and hip pain, the record does not support her
contention that she was limited by this pain. She did not testify about pain in her neck,
back, or hips at the hearing, and Dr. Lazoff, one of the doctors who evaluated her for the
state-court lawsuit, reviewed the MRI of Shumaker’s spine and concluded that it was
unremarkable. Dr. Ringel, the state-agency osteopathic consultant, did note back spasms
and ”range of motion deficits” in Shumaker’s neck, lower back, and hips, but this
assessment says nothing about pain. Although an ALJ must consider all of the relevant
evidence in the record in assessing the claimant’s residual functional capacity, the ALJ
need not discuss each piece of evidence in her written decision. Murphy, 759 F.3d at 817–
18; Pepper, 712 F.3d at 362; McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011). The ALJ
said enough in this instance to satisfy us that substantial evidence supports the
assessment of Shumaker’s residual functional capacity.
We thus AFFIRM the judgment of the district court.