Smith, Clint v. Apfel, Kenneth S. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1065
CLINT SMITH,
Plaintiff-Appellant,
v.
KENNETH APFEL, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 1139--Morton Denlow, Magistrate Judge.
Argued July 12, 2000--Decided November 3, 2000
Before Ripple, Rovner, and Williams, Circuit Judges.
Rovner, Circuit Judge. Clint Smith, a sixty-four
year old man with an eighth-grade education,
applied for disability insurance benefits,
alleging that he cannot work because he suffers
from arthritis, back pain, an ulcer, liver
cirrhosis, and hypertension. An Administrative
Law Judge ("ALJ") concluded that Mr. Smith did
not have a disability as defined under the Social
Security Act, and that his skills and residual
functional capacity allowed him to perform a
significant number of jobs in the national
economy, including that of a forklift operator.
The Appeals Council denied Mr. Smith’s request
for review, and the district court affirmed. On
appeal, Mr. Smith (now limiting his claim
primarily to arthritis and hypertension) argues
that the ALJ made flawed credibility
determinations, ignored evidence of his
arthritis, and improperly credited the opinion of
a consulting physician over that of his own
treating physician. Because the ALJ’s decision is
not supported by substantial evidence, we
reverse.
I.
Mr. Smith worked for twenty-four years as a
supervisor at a plating company, where he
operated a conveyor belt, ran a forklift and
completed reports. After he was laid off in 1984,
Mr. Smith worked for the City of Chicago for
about three months in 1986 or 1987 while on
"public aid," and in 1988 he was awarded
disability insurance benefits due to alcoholism.
After a 1996 amendment to the Social Security
Act eliminated alcoholism as a basis for
obtaining disability insurance, see Pub. L. 104-
121, the Social Security Administration ("SSA")
notified Mr. Smith that his benefits would cease
in January 1997 unless he could show that he
continued to be disabled and that his alcoholism
was not a contributing factor to his disability.
Mr. Smith requested a review of the notification,
claiming that he was unable to work because of
arthritis throughout his body, a bad back, an
ulcer, and cirrhosis of the liver.
According to the treatment notes of Dr. James
Baraglia, Mr. Smith’s treating physician since
1978, Mr. Smith began in 1985 to complain of pain
in his right ankle, left knee, shoulders and
back. Dr. Baraglia diagnosed arthritis. X-rays
taken in 1987 indicated early degenerative
disease and loose calcification in Mr. Smith’s
left knee and possible calcification or old
trauma in his right ankle. A 1989 X-ray revealed
no arthritic changes in Mr. Smith’s left
shoulder. No references to pain or arthritis
appear to have been recorded between 1991 and
1995, but in 1996, osteoarthritis was noted under
the "problem list" portion of Dr. Baraglia’s
progress notes for Mr. Smith. Dr. Baraglia
prescribed non-aspirin for Mr. Smith’s pain,
noting that Mr. Smith should avoid prescription
"NSAID’s" (nonsteroidal anti-inflammatory drugs
used to relieve pain, stiffness, and
inflammation) because of previous
gastrointestinal bleeding. Most recently in
November 1996, the doctor prescribed medication
for hypertension.
After Mr. Smith requested a review of SSA’s
notification that his benefits would cease, he
was examined by Dr. Sanjay Bharti, a consultative
physician, in August 1996. Dr. Bharti observed
that Mr. Smith had no limitation of movement
except in his right ankle, which was slightly
everted (turned out). The doctor noted that Mr.
Smith walked on only half of his right foot, but
he had a normal gait and could walk on his heels
and toes. An X-ray revealed mild to moderate
degenerative changes in his right ankle. The rest
of Mr. Smith’s joint movements, Dr. Bharti
observed, were normal, and he was able to "do his
daily living without much of a problem." Dr.
Bharti noted that Mr. Smith could squat and touch
his toes, and was able to put on his clothes
relatively quickly. Although Mr. Smith indicated
that he had back pain if he bent over, lifted
anything over 50 pounds, or if he sat or stood
too long, Dr. Bharti observed that Mr. Smith had
full range of motion in his back. He likewise
noted normal strength and no sensory deficit to
pinprick or touch.
Also in August, state agency physician Dr.
Victoria Dow assessed Mr. Smith’s residual
functional capacity based on Dr. Bharti’s
examination. Dr. Dow opined that Mr. Smith had
mild degenerative joint disease (osteoarthritis)
in his ankle and his range of motion was reduced
in that area, but that his daily activities were
not significantly restricted. She also opined
that Mr. Smith had probable degenerative joint
disease in the lumbar area, but that he had a
normal range of motion in his lower back. Dr. Dow
concluded that Mr. Smith could occasionally lift
and/or carry up to 50 pounds and frequently lift
and/or carry up to 25 pounds, and that he could
stand and/or walk and sit (with normal breaks)
about six hours in an eight-hour workday.
Four months later in December 1996, Dr.
Baraglia completed an assessment of Mr. Smith’s
physical ability to do work-related activities.
Dr. Baraglia estimated Mr. Smith’s capabilities
more conservatively than Dr. Dow, opining that
Mr. Smith could occasionally lift only 20 pounds
because of arthritis in his shoulders and left
elbow. Further, Dr. Baraglia opined that Mr.
Smith could not stand or walk at all in an eight-
hour workday, and only occasionally could climb,
balance or stoop due to arthritis in his knees.
Dr. Baraglia also determined that Mr. Smith had
no sitting limitation, but limited Mr. Smith’s
abilities to reach, handle, push, and pull
because of his arthritis.
Two months later in February 1997, Dr. Baraglia
completed another questionnaire as to Mr. Smith’s
physical residual functional capacity, this one
opining that Mr. Smith could not walk even one
block without rest or severe pain. Dr. Baraglia’s
February assessment also opined that Mr. Smith
could occasionally lift and carry no more than 10
pounds, and indicated that he could stand, walk
and sit about four of eight hours intermittently,
but no more than one hour at a time. Dr. Baraglia
also opined that Mr. Smith could bend and twist
only 20 percent of the day, a significant decline
from Dr. Bharti’s observation that he had full
range of motion in his back.
At a hearing before the ALJ in April 1997, Mr.
Smith testified that he was unable to work
because of arthritis, particularly in his
shoulders and neck, and that his knee was "shot."
He told the ALJ that he has had an everted right
ankle all his life. According to Mr. Smith, he
had severe pain 2 or 3 times a week at night when
he was laying down, and took six extra-strength
non-aspirin a day to lessen the pain. He
testified that he was taking medication for
hypertension that controlled his high blood
pressure "most of the time," but he still became
"woozy" about 2 or 3 times a week when he bent
over.
Mr. Smith told the ALJ that he could stand for
20 to 25 minutes at a time, and walk 3 to 4
blocks when he felt like it. He also was able to
sit for 25 to 30 minutes before standing up to
avoid getting stiff. Mr. Smith testified that he
could regularly lift 15 to 20 pounds with one
hand and 25 to 30 pounds with both, but had
problems lifting anything heavier than 50 pounds.
He told the ALJ that he lived alone in a first-
floor apartment, and could bathe, feed and dress
himself, do his own grocery shopping, do his
laundry, cook and clean his apartment.
Also at the hearing, a vocational expert ("VE")
testified about the number of jobs available for
someone with Mr. Smith’s skills and limitations.
The VE testified that Mr. Smith’s past work was
heavy in physical demand and semi-skilled. In
response to a hypothetical question posed by the
ALJ, the VE explained that if Mr. Smith had the
limitations set forth in either of Dr. Baraglia’s
December 1996 or February 1997 assessments, he
would be limited to sedentary work, and in view
of his age, eighth-grade education, and past
relevant work, there would be no transferability
of his skills. The VE testified, however, that
although Dr. Dow’s assessment would not allow for
past relevant work, it would allow for medium
exertional work, and that Mr. Smith had skills
readily transferable to the position of forklift
operator.
After applying the five-step sequential process
for evaluating if a claimant has met the burden
of establishing disability, see 20 C.F.R. sec.
404.1520, the ALJ concluded that Mr. Smith was
not disabled as defined in the Social Security
Act. The ALJ found that Mr. Smith had not been
gainfully employed since January 1985. The ALJ
next determined that Mr. Smith had a severe
"inverted" right foot, hypertension without
evidence of end-organ damage, and mild hearing
loss in the left ear;/1 however, he did not have
an impairment or combination of impairments
listed in or medically equal to one listed in 20
C.F.R. pt. 404, subpt. P, app. 1. The ALJ further
concluded that Mr. Smith was unable to perform
his past relevant work as a planing factory
supervisor, but his residual functional capacity
allowed him to perform medium work, except for
lifting in excess of 50 pounds occasionally and
25 pounds frequently, or working in environments
where he would be exposed to more than mild noise
levels. The ALJ found that although his
additional nonexertional limitations precluded
Mr. Smith from performing the full range of
medium work, there were a significant number of
jobs in the national economy that he could
perform, notably that of a forklift operator.
In analyzing Mr. Smith’s capacity to work, the
ALJ discredited Mr. Smith’s complaints of pain.
The ALJ observed, for instance, that his claimed
levels of pain and functional limitation were not
borne out by the clinical signs and findings. The
ALJ also noted inconsistencies within Mr. Smith’s
testimony as well as inconsistencies between his
testimony and statements he made to Dr. Bharti.
The ALJ also discounted Mr. Smith’s treating
physician’s (Dr. Baraglia) two assessments of Mr.
Smith’s capacity to work because they were
mutually inconsistent and unsupported by the
clinical signs and findings, and concluded that
the doctor was "leaning over backwards to favor
his patient."
Mr. Smith appealed the ALJ’s adverse decision.
The Appeals Council denied Mr. Smith’s request
for review. Mr. Smith then filed a complaint in
the district court. After the parties filed
cross-motions for summary judgment, a magistrate
judge, presiding with the parties’ consent,
granted the Commissioner’s motion and denied Mr.
Smith’s. The magistrate judge concluded that
substantial evidence in the record supported the
ALJ’s findings.
II.
On appeal, Mr. Smith confines his claimed
disability to arthritis-induced pain in his right
ankle, knees, shoulders and elbow, as well as
dizziness caused by hypertension. He argues that
the ALJ’s decision is not supported by
substantial evidence because the ALJ made flawed
credibility determinations, erroneously made an
independent medical determination that he did not
suffer from arthritis, and failed to properly
weigh the medical opinions pursuant to 20 C.F.R.
sec. 404.1527(d). We agree.
Because the Appeals Council found no basis for
further review, the ALJ’s findings constitute the
final decision of the Commissioner of the SSA.
See Luna v. Shalala, 22 F.3d 687, 689 (7th Cir.
1994). We will affirm an ALJ’s decision only if
it is supported by substantial evidence, which is
evidence "a reasonable mind might accept as
adequate to support a conclusion." See Powers v.
Apfel, 207 F.3d 431, 434 (7th Cir. 2000) (quoting
Diaz v. Chater, 55 F.3d 300, 305 (7th Cir. 1995)).
We are troubled by the ALJ’s credibility
findings in this case. The ALJ discounted the
functional limitations set forth by Mr. Smith’s
treating physician, Dr. Baraglia, because they
were "not based on persuasive or even reasonable
evidence." In particular, the ALJ pointed out
that Dr. Baraglia failed to order X-rays to
confirm the presence of arthritis. The failure to
order X-rays, however, is not an appropriate
basis to wholly discredit Dr. Baraglia’s opinion.
The ALJ disregarded evidence that as early as
1987, X-rays had revealed that Mr. Smith was
experiencing the onset of degenerative disease in
his knee. Over the course of nearly ten years,
this "early" degeneration would presumably have
advanced, as X-rays of Mr. Smith’s ankle taken in
1987 and 1996 had indicated. If the ALJ was
concerned that the medical evidence was
insufficient to determine whether Mr. Smith was
disabled, he should have ordered more recent X-
rays. See 20 C.F.R. sec. 404.1517.
Although a claimant has the burden to prove
disability, the ALJ has a duty to develop a full
and fair record. See Thompson v. Sullivan, 933
F.2d 581, 585 (7th Cir. 1991). Failure to fulfill
this obligation is "good cause" to remand for
gathering of additional evidence. Id. at 586. We
fail to see how the ALJ could have properly
assessed the extent of Mr. Smith’s arthritis
without more updated X-rays. Given that the most
current X-rays of Mr. Smith’s knee were taken
nearly ten years before the hearing and revealed
the early stages of degenerative disease, it was
incumbent upon the ALJ to order additional X-rays
to ascertain the extent of the degeneration of
Mr. Smith’s knee. See id. at 587 ("[g]iven that
the last x-rays of [the claimant’s] spine were
taken in December of 1978, the ALJ’s duty to
sufficiently develop the record [by 1987] would
suggest the need to order additional x-rays or
other imaging tests to ascertain the extent of
degeneration of [the claimant’s] back and neck").
For the same reason, we disagree with the ALJ
that the absence of objective clinical findings
was a sufficient basis not to afford Dr.
Baraglia’s opinion controlling weight. See 20
C.F.R. sec. 404.1527(d)(2).
Mr. Smith also argues that the ALJ failed to
explicitly consider the effect of his
hypertension-induced dizziness on his ability to
work. By November 1996, Mr. Smith’s blood
pressure had risen to such a degree that his
doctor had prescribed medication. The ALJ found
that Mr. Smith suffered from "hypertension
without evidence of end-organ damage," yet never
commented as to any less damaging but nonetheless
significant effects of hypertension, if any, on
Mr. Smith’s suitability as a forklift operator.
Indeed, there is no indication that the VE ever
considered dizziness as a possible impediment to
safe operation of a forklift; the ALJ inquired
only as to Mr. Smith’s employability in view of
the functional limitation assessments provided by
Drs. Baraglia and Dow. The ALJ’s failure to
consider the evidence of dizziness alone
precludes us from "evaluat[ing] . . . whether
substantial evidence existed to support the ALJ’s
finding," see Herron v. Shalala, 19 F.3d 329, 334
(7th Cir. 1994) (remanding case where ALJ failed
to consider evidence relating to claimant’s hand
impairment), but we are also troubled by the
ALJ’s failure to address the VE’s testimony that
a forklift required "frequent to constant" use of
his right ankle to operate the foot controls, in
view of Mr. Smith’s most recent X-ray indicating
mild to moderate degeneration in that precise
area. See DeFrancesco v. Bowen, 867 F.2d 1040,
1044 (7th Cir. 1989) (remand warranted where ALJ
deemed claimant’s occasional confusion of brake
with gas pedals due to numb feet only slight
restriction on ability to work). An ALJ may not
simply select and discuss only that evidence
which favors his ultimate conclusion. See Herron,
19 F.3d at 333. Rather, an ALJ’s decision must be
based upon consideration of all the relevant
evidence. Id. Accordingly, we REVERSE the district
court’s decision granting summary judgment in
favor of the Commissioner and REMAND the case for
further consideration consistent with this
opinion.
/1 In August 1986, Mr. Smith was diagnosed with
moderate sensoneural hearing loss in his right
ear, with normal hearing at 4 kilohertz. Mr.
Smith testified at the hearing that he has a
problem with "roaring" in his right ear, but that
he still could hear the TV, radio and
conversation.
RIPPLE, Circuit Judge, dissenting. In this
appeal, we must consider whether the ALJ
reasonably found Mr. Smith capable of performing
a significant number of jobs in the national
economy at the medium exertional level and
therefore not disabled within the meaning of the
Social Security Act. Mr. Smith contends that the
ALJ made flawed credibility determinations and
improperly credited the opinion of a consulting
physician over that of his treating physician.
The majority agrees with Mr. Smith and therefore
reverses the decision to deny him benefits.
Because I believe that the ALJ’s decision is
supported by substantial evidence, I respectfully
dissent.
I
In my view, the majority opinion fails to give
sufficient deference to the findings of the
ALJ./1 It is axiomatic that we will affirm the
ALJ’s decision as long as it is supported by
substantial evidence. See Herron v. Shalala, 19
F.3d 329, 333 (7th Cir. 1994); Jones v. Shalala,
10 F.3d 522, 523 (7th Cir. 1993); see also 42
U.S.C. sec. 405(g) (requiring that "[t]he
findings of the Commissioner of Social Security
as to any fact, if supported by substantial
evidence, shall be conclusive"). Therefore, the
question before this court is whether the ALJ’s
findings were supported by substantial evidence.
See Books v. Chater, 91 F.3d 972, 977 (7th Cir.
1996); Diaz v. Chater, 55 F.3d 300, 306 (7th Cir.
1995). Substantial evidence is defined as no more
than "such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion." Books, 91 F.3d at 977-78 (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Given the deferential standard of review, Mr.
Smith faces an uphill battle in his attempt to
overturn an ALJ’s finding that he is not
disabled. See DeFrancesco v. Bowen, 867 F.2d 1040(7th Cir. 1989). "Although we review the entire
record, we may not decide the facts anew, reweigh
the evidence, or substitute our own judgment for
that of the [ALJ]." Herron, 19 F.3d at 333.
II
Substantial evidence supports the ALJ’s finding
that Mr. Smith was not credible in his pain
complaints. At the beginning of the discussion,
we must recall that the ALJ’s credibility
determination is entitled to special deference
because the ALJ is in the "best position to see
and hear the witnesses and assess their
forthrightness." Powers v. Apfel, 207 F.3d 431,
435 (7th Cir. 2000). Accordingly, an ALJ’s
credibility determination will not be disturbed
unless the claimant can show that it was patently
wrong. See Diaz v. Chater, 55 F.3d 300, 308 (7th
Cir. 1995). In this case, the ALJ based his
credibility determination on a number of facts
and observations. First, the ALJ concluded that
the level of pain and functional limitations that
Mr. Smith complained of were not supported by the
clinical signs and findings. See A.R.27. Although
Dr. Baraglia noted Mr. Smith’s subjective
complaints of pain since 1985, his treatment
notes did not contain objective medical data or
record any functional limitations. Moreover, Dr.
Bharti observed that Mr. Smith had no limitation
of strength or motion anywhere except his right
ankle. Although Dr. Bharti noted that Mr. Smith’s
ankle was "slightly everted and there was a
restriction in flexion and extension at that
joint," he also found that Mr. Smith was still
able to squat, touch his toes, walk normally and
to perform his daily activities. See A.R.199.
It is true that, under the regulatory scheme,
an ALJ may not reject a claimant’s statements
concerning the intensity or persistence of his
symptoms solely because they are not fully
supported by medical evidence. See 20 C.F.R. sec.
404.1529(c)(2); see also Knight v. Chater, 55
F.3d 309, 314 (7th Cir. 1995). However, it is
also true that an ALJ may consider the lack of
medical evidence as probative of the claimant’s
credibility. See Powers, 207 F.3d at 435 ("The
discrepancy between the degree of pain attested
to by the witness and that suggested by the
medical evidence is probative that the witness
may be exaggerating her condition."). Clinical
signs and laboratory findings are useful
indicators of disability and can assist the ALJ
in making reasonable conclusions about the
intensity and persistence of the claimant’s
symptoms and the effect those symptoms may have
on the claimant’s ability to work. See 20 C.F.R.
sec. 404.1529(c)(2).
More importantly, the ALJ in this case did not
base its decision on the absence of objective
medical evidence alone. The ALJ also found
numerous inconsistencies within Mr. Smith’s
testimony and inconsistencies between his
testimony and the statements he made to Dr.
Bharti. For example, the ALJ noted that "while
the claimant first said that he can lift only 30
pounds, he then admitted that he told the
consulting physician that his symptoms only
worsen when he lifts up to 50 pounds." See
A.R.27. Similarly, the ALJ was troubled by Mr.
Smith’s inconsistent testimony regarding his
ability to stand and walk. See id. The ALJ was
also disturbed by Mr. Smith’s conflicting
explanations for leaving his job. The ALJ noted
that Mr. Smith testified that he was laid off,
but that he told the consulting physician he quit
working because of problems associated with his
arthritis. See id. In addition to these
inconsistencies, the ALJ also observed that Mr.
Smith’s pain complaints were inconsistent with
his minimal, non-prescription treatment (6 non-
aspirin a day), his ability to perform his daily
activities without much difficulty, and his
appearance and demeanor at the hearing. See
A.R.27, 30. Based on the evidence of record, the
ALJ’s determination that Mr. Smith’s subjective
complaints were less than credible was not
patently wrong. See Knight, 55 F.3d at 314 ("An
ALJ may discount subjective complaints of pain
that are inconsistent with the evidence as a
whole.").
III
Likewise, the ALJ’s decision to credit the
opinion of Dr. Bharti over that of Dr. Baraglia
was supported by substantial evidence. Title 20
of the Code of Federal Regulations, sec.
404.1527(d), sets forth how an ALJ should weigh
various medical opinions. Under the regulation,
opinions from treating sources are generally
given great weight. See 20 C.F.R. sec.
404.1527(d)(2). This policy is based upon the
agency’s belief that treating physicians "are
likely to be the medical professionals most able
to provide a detailed, longitudinal picture of
[the claimant’s] medical impairment(s)." See id.Accordingly, if the ALJ finds that the opinion of
a treating physician is "well-supported by
medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent
with the other substantial evidence in [the
claimant’s] case record," it will be given
controlling weight. See id. But when the opinion
of a treating physician is not supported by
medical evidence and is inconsistent with the
substantial evidence in the claimant’s record,
the ALJ will not give the opinion controlling
weight. See id. Instead, the ALJ will determine
independently the weight to give the opinion on
the basis of the following factors: the length,
frequency, nature and extent of the treatment
relationship; the degree to which the medical
signs and laboratory findings support the
opinion; the consistency of the opinion with the
record as a whole; and the specialization of the
physician. See 20 C.F.R. sec. 404.1527(d)(2),
(3), (4) & (5).
In this case, the ALJ was not persuaded by Mr.
Smith’s description of his symptoms and
limitations and found that Dr. Baraglia’s
opinion, which was largely based upon Mr. Smith’s
subjective complaints, was entitled to little
weight. Upon review of all the evidence in the
record, the ALJ decided to credit the opinion of
Dr. Bharti, the consulting physician, over that
of Dr. Baraglia. The ALJ was entitled to make
this determination. See Reynolds v. Bowen, 844
F.2d 451, 455 (7th Cir. 1988) ("[W]hile the
treating physician’s opinion is important, it is
not the final word on a claimant’s disability.");
accord Chamberlain v. Shalala, 47 F.3d 1489, 1494
(8th Cir. 1995) ("[A] treating physician’s
opinion is not conclusive in determining
disability status and must be supported by
medically acceptable clinical or diagnostic
data.") (quotations and citations omitted).
Nothing in the regulatory scheme or the precedent
of this court "mandates that the opinion of a
treating physician always be accepted over that
of a consulting physician, only that the relative
merits of both be duly considered." Books, 91
F.3d at 979. In this case, the ALJ took into
account the relevant criteria in determining the
weight to give Dr. Baraglia’s opinion and
provided sufficient explanation for his decision.
See 20 C.F.R. sec. 404.1527(d)(2) (requiring the
ALJ to provide good reasons for the weight given
to the claimant’s treating physician).
The ALJ recognized that Dr. Baraglia was able
to observe the claimant over a prolonged period,
see Stephens v. Heckler, 766 F.2d 284, 288 (7th
Cir. 1994), and noted that the opinion of a
treating physician is normally given great
weight. See A.R.28. Nevertheless, the ALJ
concluded that there was substantial reason to
believe that Dr. Baraglia’s opinion was not
credible. Id. Specifically, the ALJ rejected Dr.
Baraglia’s assessment of Mr. Smith’s capacity to
work because (1) it was not supported by clinical
signs and findings, (2) it was internally
inconsistent, and (3) it was inconsistent with
the other substantial evidence in Mr. Smith’s
record. See id.First, the ALJ found that Dr. Baraglia’s
opinion was not based on objective medical
evidence. See A.R.26 (stating that Dr. Baraglia’s
assessment of Mr. Smith’s residual functional
capacity "shows no objective medical basis in
clinical signs, findings or abnormalities by
which to substantiate the indicated
restrictions"). A thorough review of Mr. Smith’s
case record reveals that this finding is
essentially correct. Although Dr. Baraglia
diagnosed severe arthritis, his treatment notes
contain little more than Mr. Smith’s subjective
complaints of pain. The only X-rays contained in
Dr. Baraglia’s reports were from 1987 and 1989,
and they revealed only minimal or non-existent
degenerative changes (with the exception of Mr.
Smith’s right ankle), and Dr. Baraglia’s
treatment notes did not indicate any restrictions
on Mr. Smith’s functional capacity due to his
condition. At minimum, the absence of laboratory
findings from Dr. Baraglia’s reports is a factor
that the ALJ could consider in determining the
weight to give Dr. Baraglia’s opinion. See 20
C.F.R. sec. 404.1527(d)(3) ("The more a medical
source presents relevant evidence to support an
opinion, particularly medical signs and
laboratory findings, the more weight [the ALJ]
will give that opinion."); see also Henderson v.
Apfel, 179 F.3d 507, 514 (7th Cir. 1999) ("An ALJ
need not give controlling weight to a treating
physician’s opinion if it is not supported by
objective clinical findings."); Nelson v. Apfel,
131 F.3d 1228, 1237 (7th Cir. 1997) ("The ALJ
should consider and discuss all medical evidence
that is credible, supported by clinical findings,
and relevant to the question at hand."); Whitney
v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982)
("The weight given a physician’s statement
depends upon the extent to which it is supported
by medically acceptable clinical and laboratory
diagnostic techniques.") (quotations and
citations omitted); accord Cutlip v. Secretary of
Health & Human Servs., 25 F.3d 284, 287 (6th Cir.
1994) (per curiam) ("[The treating physician’s]
opinions are only accorded great weight when they
are supported by sufficient clinical findings.").
Second, the ALJ found Dr. Baraglia’s opinion to
be internally inconsistent. Within a two month
period, Dr. Baraglia completed two written
assessments of Mr. Smith’s functional capacity.
Curiously, the latter assessment suggested that
Mr. Smith’s condition had worsened dramatically
in some ways, but improved (almost miraculously)
in others. For example, in the December 1996
assessment, Dr. Baraglia indicated that there was
no limitation in the claimant’s ability to sit
for prolonged periods, see A.R.228, but in the
February 1997 assessment, Dr. Baraglia indicated
that Mr. Smith could only sit for about four
hours, see A.R.242. Additionally, Dr. Baraglia’s
February assessment noted that Mr. Smith could
occasionally lift and carry no more than 10
pounds, see id., an assessment 50% less than the
20 pound-estimate he made only two months
earlier, see id. at 227. At the same time, Dr.
Baraglia opined in the first assessment that Mr.
Smith could not stand or walk any hours out of an
eight-hour work day, see A.R.228, but in the
latter assessment, he indicated that Mr. Smith
could stand or walk four hours out of an eight-
hour work day with normal breaks, see A.R.242.
Significantly, these discernible discrepancies
were not resolved by Dr. Baraglia’s treatment
notes. He provided no explanation for his changed
impression of Mr. Smith’s functional capacity;
indeed, Dr. Baraglia’s treatment notes from
January 1997, one month before he completed the
second assessment, indicated that Mr. Smith was
"doing well" and that his blood pressure was
stable. See A.R.26.
Finally, the ALJ also found Dr. Baraglia’s
assessment to be inconsistent with the other
substantial evidence in Mr. Smith’s record. Dr.
Bharti, who examined Mr. Smith in August 1996,
noted that the claimant complained of arthritis
in his knees, ankles, and shoulders, but
indicated that his examination revealed that the
claimant had no limitation of motion, except in
his right ankle. See A.R.199. Although Dr. Bharti
found his ankle to be slightly everted, the rest
of Mr. Smith’s joint movements were normal. See
id. Dr. Bharti further indicated that Mr. Smith
had normal strength in all of his limbs, no
sensory deficit to pinprick or touch, and
positive straight leg raising at 70 degrees. See
A.R.198. As to the limitations presented by Mr.
Smith’s right ankle, Dr. Bharti noted that the
claimant walked on only half of his right foot,
but that he had normal gait and could walk on his
heels and toes. See id. Based on his findings, an
X-ray was taken of Mr. Smith’s ankle, which
revealed only mild to moderate degenerative
changes. See A.R.201. Not only were Dr.
Baraglia’s restrictive assessments of Mr. Smith’s
functional capacity inconsistent with Dr.
Bharti’s overall findings, but they also failed
to mention the one objective impairment Mr. Smith
apparently has. In the December 1996 assessment,
Dr. Baraglia was asked to explain the medical
findings that, in his opinion, prevent Mr. Smith
from standing or walking. In response to this
question, Dr. Baraglia listed only "bilateral
knee arthritis." See A.R.228. Similarly, in the
February 1997 assessment, he was asked to
characterize the location and nature of Mr.
Smith’s pain. Again, Dr. Baraglia failed to
mention Mr. Smith’s right ankle; he stated only
"severe knee and shoulder pain." See A.R.240.
Furthermore, Dr. Baraglia’s restrictive
assessments appear to contradict the claimant’s
own testimony. Dr. Baraglia noted dramatic
changes in Mr. Smith’s condition between December
1996 and February 1997. Mr. Smith testified at
the hearing, however, that his condition had not
changed between December 1996 and the date of the
hearing in April 1997. Nor do Dr. Baraglia’s
treatment notes reveal the reason for the
decline; his most recent examination of Mr. Smith
appears to have been in November 1996, and no
complaints of arthritic pain or limitation of
movement were recorded. See A.R.224. Similarly,
Dr. Baraglia indicated (in the February 1997
assessment) that Mr. Smith could never carry more
than ten pounds. Mr. Smith, however, testified
that he could carry up to thirty pounds, and that
he regularly carried groceries weighing fifteen
to twenty pounds. See A.R.27. And although Mr.
Smith testified in April 1997 that he regularly
walks four blocks (and that walking sometimes
makes his symptoms better), Dr. Baraglia
indicated in December 1996 that he could not
stand or walk at all in an eight hour day, and in
February 1997 indicated that Mr. Smith was
incapable of walking one block without rest. See
A.R.241.
In light of these inconsistencies and the
"paucity of objective medical evidence," the ALJ
reasonably could have determined that the
evidence as a whole did not lend credibility to
Dr. Baraglia’s restrictive assessment of Mr.
Smith’s functional capacity. See A.R.28. As this
court has noted, and the ALJ was obviously
mindful, a claimant’s treating physician may be
biased in favor of the claimant. See A.R.28-29;
see also Butera v. Apfel, 173 F.3d 1049, 1056
(7th Cir. 1999); Books, 91 F.3d at 979; Micus v.
Bowen, 979 F.2d 602, 608 (7th Cir. 1992);
Stephens, 766 F.2d at 289 ("The patient’s regular
physician may want to do a favor for a friend and
client, and so the treating physician may too
quickly find disability."). Or just as plausibly,
the treating physician "may lack an appreciation
of how one case compares with other related
cases." Stephens, 766 F.2d at 289. In the end,
when there are conflicting medical opinions, "it
is up to the ALJ to decide which doctor to
believe--the treating physician who has
experience and knowledge of the case, but may be
biased, or . . . the consulting physician, who
may bring expertise and knowledge of similar
cases--subject only to the requirement that the
ALJ’s decision be supported by substantial
evidence." Books, 91 F.3d at 979 (quoting Micus,
979 F.2d at 608).
IV
The majority also concludes that the ALJ’s
decision is not supported by substantial evidence
because he had a duty to supplement the record
with more recent X-rays of Mr. Smith’s knees and
shoulders (in addition to his right ankle). Based
on the facts of this case, I cannot accept this
conclusion because it is contrary to the
Secretary’s regulations and the weight of
authority in this circuit. Although "[i]t is a
basic obligation of the ALJ to develop a full and
fair record," Smith v. Secretary of Health,
Education and Welfare, 587 F.2d 857, 860 (7th
Cir. 1978), how much evidence to gather is a
subject on which this court "generally respect[s]
the [ALJ’s] reasoned judgment." Luna v. Shalala,
22 F.3d 687, 692 (7th Cir. 1994). If the ALJ is
able to weigh the record evidence and determine
whether the claimant is disabled based on that
evidence, then he is not required to obtain
additional evidence. See Henderson, 179 F.3d at
513.
I respectfully submit that majority opinion
takes this "basic obligation" too far. "[I]t was
[Mr. Smith’s] duty, under 20 C.F.R. sec.
404.1512(a), to bring to the ALJ’s attention
everything that shows that he is disabled." Luna,
22 F.3d at 693. Accordingly, Mr. Smith was
obligated to "furnish medical and other evidence
that the ALJ [could] use to reach conclusions
about his medical impairment and its effect on
his ability to work on a sustained basis." Id. In
this case, the ALJ probed into all of the
relevant areas and examined all of the evidence
before him. X-rays revealed minimal degenerative
changes in Mr. Smith’s knee in 1987 and no
arthritic changes in his shoulder in 1989. See
A.R.158, 159. Also, Dr. Bharti observed in 1996
that Mr. Smith had no limitation of motion
anywhere but his right ankle. See A.R.199.
Furthermore, Mr. Smith had told Dr. Bharti that
his knee did not pose much of a problem, and that
his symptoms generally arose only if he bent over
or tried to lift more than 50 pounds. See
A.R.196. Dr. Bharti likewise observed that Mr.
Smith could squat, touch his toes, and walk on
his toes and heels. See A.R.198. On the basis of
Dr. Bharti’s examination, X-rays were taken of
Mr. Smith’s right ankle, but no other X-rays were
ordered. See A.R.201. The ALJ was not obligated
to order any other X-rays because the evidence
before the ALJ was sufficient for him to assess
Mr. Smith’s alleged disability without them. See
20 C.F.R. sec. 404.1527(c). The ALJ reasonably
could have concluded that, if Mr. Smith’s
condition had been serious enough to warrant
additional X-rays (in addition to his right
ankle), then his treating physician would have
ordered these X-rays.
Notwithstanding this evidence and the reasonable
conclusions that could be drawn from it, the
majority believes that the ALJ failed to satisfy
his obligation. The majority relies primarily
upon Thompson v. Sullivan, 933 F.2d 581 (7th Cir.
1991) for this proposition. Thompson, however, is
not altogether relevant to this case because it
applies the heightened duty that an ALJ owes to
unrepresented claimants. See Thompson, 933 F.2d
at 585 ("[W]here the disability benefits claimant
is unassisted by counsel, the ALJ has a duty
scrupulously and conscientiously [to] probe into,
inquire of, and explore for all the relevant
facts.") (quotations and citations omitted). In
Thompson, this court recognized that the ALJ’s
obligation is greater when the claimant is
unrepresented and unfamiliar with the hearing
process. See id. at 586 ("The special duty
assigned to the ALJ ’requires, essentially, a
record which shows that the claimant was not
prejudiced by lack of counsel.’") (citing Smith
v. Schweiker, 677 F.2d 826, 829 (11th Cir.
1982)). But in the present case, Mr. Smith was
represented by counsel throughout the hearing
process; therefore, the heightened obligation
does not apply.
Moreover, the facts in Thompson are very
different from the facts in this case. First, the
claimant in Thompson was never examined by a
consultative physician. Rather, a state agency
physician reviewed the claimant’s medical records
and assessed his residual functional capacity on
this basis alone. Next, the ALJ failed to pose a
single question regarding Thompson’s consumption
of alcohol or how drinking affected his
activities, even though the medical records
indicated possible alcohol abuse. Furthermore,
the ALJ found Thompson’s complaints to be
"generally credible," yet found that Thompson was
not disabled based on the medical evidence.
Thompson, 933 F.2d at 587. Given these facts,
this court correctly concluded that "[t]he ALJ
should have taken additional steps to develop the
record fully and fairly." Id. Specifically, we
noted that "[a]t the very least, more thorough
questioning of Thompson would have been
appropriate." Id. On the facts presented by
Thompson, we also noted that additional
examinations "would have contributed to better
development of the record," but we did not hold
that the ALJ was required to order additional X-
rays. Id. In light of these differences, I
believe that the majority’s reliance on Thompson
is misplaced. Accordingly, the ALJ was not
obligated to order additional X-rays and he
fulfilled his duty to fully and fairly develop
the record.
V
I cannot accept the majority’s conclusion that
the ALJ failed to take into account the effect of
Mr. Smith’s complaints of dizziness due to
hypertension on his ability to work. Although the
ALJ did not address in his written opinion the
effect of his hypertension, we have repeatedly
noted that the ALJ is not required to evaluate in
writing every piece of evidence submitted. See
Books, 91 F.3d at 980. "All we require is that
the ALJ sufficiently articulate his assessment of
the evidence to assure us that the ALJ considered
the important evidence . . . [and to enable] us
to trace the path of the ALJ’s reasoning." Id.(quotations and citations omitted). "[T]he weight
to be given to this evidence remained within the
discretion of the ALJ." Diaz, 55 F.3d at 309.
Here, there was substantial evidence from which
the ALJ could conclude that Mr. Smith’s
subjective complaints of dizziness exaggerated
his condition. Initially, I note that there is
nothing in the ALJ’s findings that would limit
the ALJ’s credibility assessment of Mr. Smith to
his complaints of arthritic pain. The ALJ found
that "[t]he claimant’s subjective physical
complaints [were] not credible based on the
clinical signs and findings, which do not
reasonably establish the presence of underlying
impairments, either alone or in combination, that
could reasonably produce pain and functional
limitation of the nature and location alleged."
A.R.30.
Additionally, Dr. Bharti noted in August 1996
that there was no evidence of complications
arising from Mr. Smith’s history of hypertension;
in fact, Mr. Smith told the doctor that "it had
settled down." A.R.196-97. Likewise, Dr.
Baraglia’s treatment notes did not indicate any
complaints of dizziness since 1989; nor did the
doctor’s December 1996 and February 1997
assessments mention dizziness as a basis for Mr.
Smith’s limitations. Furthermore, Mr. Smith
testified at the hearing that the medication he
was taking controlled his blood pressure most of
the time. See A.R.69. When asked how his high
blood pressure prevented him from working, Mr.
Smith responded that on average, he would become
dizzy two or three times a week when he bent
over. See id. Evaluating the evidence as a whole,
the ALJ reasonably could have concluded that Mr.
Smith’s hypertension did not significantly impair
his ability to work.
VI
Finally, the ALJ’s finding that any pain or
limitation of motion in Mr. Smith’s ankle would
not prevent him from performing medium work was
supported by substantial evidence. There is no
indication that the ALJ failed to consider Mr.
Smith’s most recent X-ray indicating mild to
moderate degeneration; indeed, the ALJ expressly
found that Mr. Smith’s right foot was severely
inverted and that he suffered from "slight
sclerosis." See A.R.27. Nevertheless, the ALJ was
entitled to give credence to Dr. Bharti’s report,
which indicated that Mr. Smith’s ambulation was
normal despite his impairment. Furthermore, the
ALJ properly noted that the claimant had admitted
that "this long-standing eversion of the right
foot did not prevent him from doing his past work
which required prolonged periods of standing and
walking." A.R.27. Given this evidence, I cannot
conclude that the ALJ’s conclusion was patently
wrong, even if we would have reached a different
conclusion.
Conclusion
Because I believe that the ALJ’s conclusion is
supported by substantial evidence, and that
reasonable minds could differ concerning whether
Smith is disabled, I would affirm the ALJ’s
decision to deny him benefits.
/1 Because the Appeals Council found no basis for
further review, the ALJ’s findings constitute the
final decision of the Commissioner of the SSA.
See Herron v. Shalala, 19 F.3d 329, 332 (7th Cir.
1994).