Garrick W. Truelove v. Nancy A. Berryhill ( 2018 )

NONPRECEDENTIAL DISPOSITION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 15, 2018
Decided November 28, 2018
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18-2119
GARRICK W. TRUELOVE, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Indiana,
Fort Wayne Division.
v. No. 17 cv 265
NANCY A. BERRYHILL, William C. Lee,
Acting Commissioner of Social Security, Judge.
Defendant-Appellee.
ORDER
Garrick Truelove applied for supplemental security income, alleging disability
based on numerous mental-health diagnoses and a right-elbow injury. An
administrative law judge determined that, despite these impairments, Truelove could
perform work at all exertional levels if the tasks were simple, routine, and repetitive.
The district court upheld that decision. Because substantial evidence supports the ALJ’s
conclusions, we affirm the judgment.
No. 18-2119 Page 2
Background
Truelove was found disabled in August 2009 because of schizoaffective disorder
and borderline intellectual functioning, but his benefits ended after a continuing
disability review in December 2012 showed that he was able to work. (That decision is
not at issue in this appeal.) Truelove filed a new application for supplemental security
income in 2013, when he was 23 years old, alleging a disability onset date of October 30,
2007. He identified several ailments that prevented him from working: intermittent
explosive personality disorder; schizoaffective disorder; cannabis abuse; mood disorder;
borderline intellectual functioning; and a history of right-elbow pain and headaches.
We focus on the impairments most relevant to Truelove’s appeal: his mental-health
conditions, causing mood swings and an inability to focus, and his elbow pain.
Truelove sought treatment for out-of-control anger in the fall of 2008.
A therapist and psychiatrist team at Northeastern Center diagnosed Truelove with
intermittent explosive disorder and a general mood disorder. He also attended therapy
there for a brief period until his insurance coverage ended.
In connection with his first application for benefits and the continuation review,
Truelove had two psychological consultative examinations with Dr. Robert Walsh—in
August 2009 and October 2012. During both exams, Truelove discussed his depression,
sleeplessness, and paranoia but denied suicidal or homicidal ideation. He reported
difficulty concentrating and controlling his anger, but he noted that he was not taking
any psychotropic medication or attending therapy. Dr. Walsh observed no memory or
concentration deficits. In the 2012 exam, Truelove reported that he was doing “pretty
good” and “used to get angry a lot but does not do that anymore.”
In June 2014, agency psychological consultant Dr. Ann Lovko reviewed
Truelove’s mental-health records and opined that he could understand, remember, and
complete unskilled tasks. Dr. Lovko also determined that he was able to engage with
co-workers and supervisors on an ongoing basis and sufficiently manage work stresses.
A second psychological consultant, Dr. Joelle J. Larsen, affirmed Dr. Lovko’s opinion.
In 2015, Truelove’s mood swings and anger sometimes led to thoughts of
self-harm. He was hospitalized for several days in February after he was found by
police on an overpass, under the influence of alcohol and marijuana, intending to jump.
To the emergency-room staff, he reported worsening depression, blackouts, and “[p]oor
No. 18-2119 Page 3
impulse control and frustration tolerance.” He also recounted an episode when he
fantasized about jumping out of a moving car.
About a month later, Truelove began outpatient psychotherapy at Northeastern
Center. In monthly therapy sessions, he initially reported anger issues, sleeplessness,
and depression, as well as suicidal and homicidal ideation. He was diagnosed with
intermittent explosive disorder, schizoaffective disorder, nicotine dependence, cannabis
abuse, and a general mood disorder. Doctors prescribed Seroquel to treat his mood
disorder and depression and increased the dose to better manage his symptoms.
Over the nine months of Truelove’s treatment, doctors at Northeastern Center
noted improvements in his mood and concentration, despite medication gaps due to
insurance issues. After only a month of increased Seroquel doses, Truelove reported
that his mood and sleep improved. After three months of medication, he recounted that
he was sleeping nine hours nightly and that his mind had stopped racing. Truelove
reported struggling with his mood later on in September 2015 but noted these
challenges occurred only if he had run out of medication. Even without consistent
medication, Truelove denied suicidal or homicidal ideation. At Truelove’s last
appointment, in December 2015, he stated that his mood was “pretty good”; he had no
concerns with sleep and denied any outbursts or violent thoughts. Though doctors
recorded Truelove’s below-average intelligence, they observed no deficits in his
memory, attention, or concentration.
Truelove also developed a physical impairment: in January 2012, he fractured his
right elbow after falling down cement steps. Orthopedic surgeon Dr. B. Matthew Hicks
immediately performed surgery, and, about two weeks later, supervising physician Dr.
Matthew J. Snyder removed the splint. Dr. Snyder also instructed Truelove to keep his
arm in a protected position, limit it to a light range of motion, and avoid lifting. The
doctor further advised Truelove to stop smoking cigarettes because it impaired his
healing. At a follow-up appointment, Dr. Hicks reported that the fracture had healed,
and he noted good alignment and position of Truelove’s elbow. He ordered physical
therapy, though Truelove did not attend.
At a consultative physical exam with agency physician Dr. H.M. Bacchus in
August 2014, Truelove described having right-arm pain, even though his elbow
reportedly had healed. Dr. Bacchus observed that Truelove had some reduced range of
motion in his spine, shoulder, and wrist and “slight atrophy” in his hand and thumb
muscles. But Dr. Bacchus also noted muscle strength and tone of 5/5 on his upper
No. 18-2119 Page 4
extremities and normal grip strength and finger manipulation. That same month,
nonexamining physician Dr. M. Brill reviewed Truelove’s records and concluded that
x-rays revealed a healed fracture, “good alignment,” and intact grip strength in the
right arm, albeit, “slight atrophy of hands and thumb muscles” and reduced range of
motion in the right elbow. A second consulting physician, Dr. J.V. Corcoran, affirmed
Dr. Brill’s determination that Truelove did not have a severe physical impairment
because he did not meet the durational requirement of 20 C.F.R. § 416.909 (requiring a
continuous year of physical impairment).
Two years later, in February and March of 2016, Dr. Trina Chapman-Smith, a
family-practice doctor, examined Truelove’s elbow at two visits. She observed full
strength in his right upper extremity and normal muscle tone in his right arm, but, for
the first time, prescribed Naproxen (pain medication) for his elbow.
Truelove’s claim for supplemental security income was denied initially and on
reconsideration, so he proceeded to a hearing before an administrative law judge.
Truelove testified in March 2016 about his challenges controlling his temper and using
his right arm. About his temper, Truelove explained that he has outbursts several times
a month, usually accompanied by blackouts when he cannot remember what happened.
He recalled how he lost his temper at prior jobs as a farmhand and factory worker
because he had difficulty remembering tasks and completing them quickly. At his last
job, in April 2014, for example, Truelove was fired for “safety reasons” after he, in
anger, held a factory grinder against his thumb.
Responding to questions about his elbow, Truelove said he sometimes has
trouble lifting with his right arm. He testified that he experiences elbow pain every
other day, but he takes medication, which reduces the pain level. Even with the pain,
Truelove said he could lift about 25 pounds by holding an object with his left arm and
balancing it on his right.
Truelove also testified about his daily activities. He recounted that he reads
newspapers daily and understands what he is reading. He reported that he sometimes
reads books and has a library card that he had recently used. Truelove also said that he
cooks twice a week, mostly using the microwave and occasionally the oven. A couple of
times a month, he grocery shops and does laundry. Truelove added that he sweeps or
vacuums weekly without difficulty.
No. 18-2119 Page 5
A vocational expert testified about Truelove’s capacity to work. The ALJ asked
the expert to consider a hypothetical claimant with Truelove’s age, vocational
background, and education, with no exertional limits; who had the mental capacity to
perform “simple, routine, and repetitive tasks” not at production pace; and who could
tolerate only occasional contact with coworkers and the public. Also, the claimant
would require normal breaks and one excused absence per month. The expert testified
that, with these limitations, the person could work as a dishwasher, a laundry worker,
and a cleaner or janitor.
The ALJ concluded that Truelove was not disabled, applying the familiar
five-step analysis. See 20 C.F.R. § 416.920(a). At step one, the ALJ determined that
Truelove had not engaged in substantial gainful employment since his application date.
At step two, the ALJ found that Truelove’s intermittent explosive personality disorder,
schizoaffective disorder, cannabis abuse, mood disorder, and borderline intellectual
functioning were severe impairments, but his elbow fracture was non-severe because
the evidence did not show it was disabling or lasted for 12 months. The ALJ assessed
that none of the conditions met or equaled a listing for a presumptively disabling
impairment under step three.
The ALJ then assigned a residual functional capacity consistent with that of the
hypothetical claimant he described to the vocational expert. The ALJ attributed some of
Truelove’s symptoms to his medically determinable impairments, but he found that
Truelove overstated the intensity, persistence, and limiting effects of the symptoms. His
mental-health records did not show ongoing issues with anger, but instead
demonstrated improvements with medication. Also, the record did not reveal any
functional limits on his daily activities because of his psychological symptoms. Finally,
at steps four and five, the ALJ determined that Truelove could not perform any past
relevant work but could do the jobs that the vocational expert identified.
The Appeals Council denied Truelove’s request for review, and the district court
upheld the ALJ’s decision.
Analysis
We will uphold the Commissioner’s decision if it is supported by substantial
evidence. 42 U.S.C. § 405(g); Walker v. Berryhill, 900 F.3d 479, 482 (7th Cir. 2018). We will
not examine the facts anew, reweigh the evidence, or substitute our judgment for the
judgment of the ALJ. See Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013).
No. 18-2119 Page 6
Addressing first his arguments about his mental health, Truelove contends on
appeal that the ALJ failed to properly incorporate into his RFC the limitations caused by
his temper and blackouts, such as the “safety risks” that once caused him to be fired
(and one time to head-butt a cow). He also argues that the ALJ overlooked his paranoia
because the RFC allows him to be around coworkers and the general public up to a
third of the time.
Truelove’s arguments about his mental impairments fall short, primarily because
he fails to identify or point to evidence of any functional limitations the ALJ should
have imposed that would take proper account of his mental impairments. An ALJ may
rely on medical evidence that the condition is treated and controlled by medication.
See Prochaska v. Barnhart, 454 F.3d 731, 737 (7th Cir. 2006). The ALJ’s decision rests on
substantial evidence in the record that Truelove has sufficiently managed his
psychological symptoms with medication, and Truelove does not counter these findings
with other evidence. He reported at his last therapy session that his mood was “pretty
good,” and he denied any outbursts or violent thoughts.
As for the “blackouts,” the ALJ cited Truelove’s mental-health records from the
Northeastern Center—in which no problems with memory or concentration were
reported—as well as Truelove’s own statements about improvements in his mood with
medication. Even so, the ALJ gave Truelove more restrictive functional limits than the
agency psychologists recommended by including in the RFC the need for normal breaks
to address Truelove’s testimony that he “spaces out” at work. Regarding paranoia,
Truelove does not point to any medical evidence that the ALJ failed to consider. Indeed,
there is no evidence about any effects of paranoia; there simply are references to his
diagnosis of schizoaffective disorder and his vague testimony that he feels paranoid in
public. The ALJ noted that the mental-health records do not show ongoing issues with
anger or paranoia.
Finally, the ALJ did not fail to address the “safety risks,” such as when Truelove
harmed himself at work out of frustration. The ALJ excluded production-pace work
from the RFC to account for Truelove’s anger when he cannot keep up with tasks.
Truelove further contends that the ALJ should have placed more pronounced
limitations on his concentration, persistence, and pace. To the extent that this is a
separate argument, Truelove fails to develop the point. Moreover, he neglected to raise
it in the district court, and therefore waives the argument. See Puffer v. Allstate Ins. Co.,
No. 18-2119 Page 7
675 F.3d 709, 718 (7th Cir. 2012). Truelove also generally argues that his low IQ required
the ALJ to impose additional, unspecified, work-related limitations. But this argument
appears in a single-sentence footnote, without record support, and so is also waived.
Long v. Teachers' Ret. Sys. of Ill., 585 F.3d 344, 349 (7th Cir. 2009). In any case, the ALJ
highlighted Truelove’s “adaptive functioning” in light of his intellectual deficits and did
not find additional restrictions necessary.
Next, Truelove challenges the ALJ’s analysis of his physical impairment, his
right-arm pain. He first says that the ALJ erred by not including right-arm limitations in
the RFC to account for his reduced range of motion in his elbow and atrophy in his
hand. Also, he says, the ALJ improperly discredited the severity of these symptoms
because of his failure to attend physical therapy for his elbow, his chronic smoking, and
his daily activities. We note, however, that the ALJ did not rely upon, or even mention,
Truelove’s smoking or his failure to do physical therapy in connection with the
credibility determination, so we do not address that portion of his argument further.
The medical reports of Truelove’s elbow injury are substantial evidence
supporting the ALJ’s decision not to include right-arm limitations in the RFC. Records
from Dr. Hicks, the orthopedic surgeon, show that his 2012 elbow fracture was fully
healed, and the consultative exam by Dr. Bacchus in 2014 revealed no functional
limitations beyond some reduced range of motion. The two reviewing physicians,
likewise, did not see evidence in the medical records of substantial impairment, let
alone one that could meet the 12-month durational requirement in § 416.909. Even
Truelove does not say what work-related limitations, if any, the healed fracture causes;
indeed, he testified he manages the pain with medication. The ALJ partially credited
Truelove’s subjective testimony that he had trouble lifting and moving his elbow but
found that he overstated its limiting effects, highlighting Dr. Chapman-Smith’s notes in
early 2016 that recorded full strength and normal range of motion.
Finally, Truelove contends that the ALJ’s adverse credibility determination
improperly rests on his daily activities, but he did not present that argument to the
district court, and it is therefore waived. See Puffer, 675 F.3d at 718. Regardless, the ALJ’s
credibility determination properly noted that Truelove performed various household
tasks and “heavy to very heavy” work in short-term jobs as a factory worker and
farmhand in the years after his fracture, which did not support a disabling elbow
impairment. See Pepper, 712 F.3d at 368–69.
The district court’s judgment upholding the ALJ’s decision is AFFIRMED.