Iris Durham v. Kilolo Kijakazi ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3235
IRIS J. DURHAM,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:20-cv-00623 — J. Phil Gilbert, Judge.
____________________
ARGUED SEPTEMBER 15, 2022 — DECIDED NOVEMBER 21, 2022
____________________
Before SYKES, Chief Judge, RIPPLE and KIRSCH, Circuit
Judges.
RIPPLE, Circuit Judge. Iris J. Durham filed for disability ben-
efits on September 12, 2017. An Administrative Law Judge
(“ALJ”) considered her claim and concluded that
Ms. Durham’s diabetes, hypertension, and tachycardia were
limiting, but not disabling, conditions. On review, the district
court concluded that substantial evidence supported the
ALJ’s determination.
2 No. 21-3235
Seeking further review in this court, Ms. Durham now
contends that the ALJ relied on outdated evidence and over-
stepped his authority by interpreting, without supporting
medical opinions, the results of medical tests. We cannot ac-
cept Ms. Durham’s submission. The record reveals that the
ALJ carefully considered Ms. Durham’s entire medical his-
tory and relied on the opinions of her treating physicians in
reaching his conclusions about her physical limitations. We
therefore affirm the judgment of the district court.
I.
BACKGROUND
A.
At the time Ms. Durham applied for benefits, she was
forty-six years old and had been diagnosed with diabetes and
hypertension. Her records reveal that she was seen by a phy-
sician’s assistant, Sherry Locey, in February 2016, June 2016,
and January 2017 for these conditions, as well as neck pain.
On March 3, 2017, Ms. Durham returned to Ms. Locey,
with a new complaint: heart palpitations. She had been expe-
riencing symptoms, which included shortness of breath and
lightheadedness, for about three weeks. Ms. Durham re-
ported that she had experienced these symptoms in the past
(about a year and a half before), but they seemed worse to her
this time. Ms. Locey ordered tests, including Holter monitor-
ing, and referred Ms. Durham to a cardiologist.
Later in March, Ms. Durham saw Dr. Mohamed Ibrahim
for follow-up on her heart palpitations. The Holter monitor-
ing ordered by Ms. Locey revealed premature ventricular
contractions and tachycardia for thirty percent of monitored
beats. Dr. Ibrahim ordered an electrocardiogram (“EKG”),
No. 21-3235 3
blood panel, and myocardial perfusion scan. He also coun-
seled her to reduce her caffeine intake (she reported drinking
five Mountain Dews per day) and, more generally, to adopt a
healthy lifestyle.
On April 20, 2017, Ms. Durham returned to Dr. Ibrahim to
review her test results. Her stress test with myocardial perfu-
sion study was normal. Ms. Durham had reduced her caffeine
intake significantly and was having only occasional palpita-
tions. Dr. Ibrahim adjusted one medication. He also noted
that her lipoprotein levels were not satisfactory and again en-
couraged her to work on a healthy lifestyle.
On September 21, 2017, Ms. Locey saw Ms. Durham for
both diabetes and heart palpitations. During that visit,
Ms. Durham complained of tingling in her feet. She also
stated that her heart palpitations had worsened; she ex-
plained that she had not been taking her prescribed medica-
tion because she had lost her medical card and could not af-
ford the prescription. Ms. Locey ordered bloodwork and sent
a note to Dr. Ibrahim concerning Ms. Durham’s inability to
afford her medication.
The following week, Ms. Durham went to Good Samaritan
Regional Health Center Emergency Room due to chest pain,
accompanied by lightheadedness and shortness of breath.
The chest pain was intermittent, correlated with walking, and
had begun three to five hours prior. The hospital treated her
with metoprolol, which eased her palpitations. She was dis-
charged the same day with a prescription for metoprolol.
On October 5, 2017, Ms. Durham had a follow-up appoint-
ment with Dr. Ibrahim. She reported that she was doing well
with the medication and had “[n]o recent palpitations, pre-
4 No. 21-3235
1
syncope or syncope.” The same day, Ms. Durham also saw
Ms. Locey for ongoing treatment for her diabetes. She re-
ported bilateral foot pain. She also stated that her palpitations
2
were “better, but not completely gone.”
Almost nine months later, on July 31, 2018, Ms. Durham
returned to Ms. Locey, complaining of an increase in head-
aches and some breakthrough tachycardia, especially when
she worked out in the heat. She saw Ms. Locey again on Au-
gust 29, 2018, and on February 12, 2019, for diabetes manage-
ment. Ms. Durham was counselled to increase physical activ-
ity and decrease calorie intake.
Ms. Durham returned to Ms. Locey on March 26, 2019, due
to shortness of breath, palpitations, and occasional faintness.
After examining Ms. Durham, Ms. Locey ordered a chest
x-ray, stress test, EKG, Holter monitoring, and blood work.
The following week, Ms. Durham was admitted to Good
Samaritan Hospital due to “exertional shortness of breath and
3
palpitations.” She was seen by interventional cardiologist,
Dr. Labroo, as well as electrophysiologist, Dr. Binh Nguyen.
An EKG and a stress test were performed. “Cardiology …
suggest[ed] [an] outpatient sleep study” and “recommended
medical management with continuation of her metoprolol
4
with extra PRN beta blocker for palpitations.” As
Ms. Durham’s palpitations had resolved, she “was
1 A.R. 288.
2 Id. at 390.
3 Id. at 579.
4 Id. at 580.
No. 21-3235 5
discharged in stable condition” the following day and re-
5
ferred to Dr. Nguyen for follow-up.
At her April 9, 2019 appointment, Dr. Nguyen discontin-
ued Ms. Durham’s beta blocker and prescribed Sotalol.
Dr. Nguyen discussed ordering a cardiac catheterization for
further evaluation of her symptoms. On April 22, 2019, a pre-
procedure examination revealed that Ms. Durham had no car-
diac instability, “no acute problems, [and] no functional limi-
6
tations.” Ms. Durham underwent a cardiac catheterization,
and the results were normal. Following the catheterization,
Dr. Nguyen reported the results to Ms. Locey. Regarding the
plan for Ms. Durham’s care, Dr. Nguyen listed:
1. Refill aldactone
2. Continue with current medications
7
3. Return in 3 months[.]
No further procedures were recommended, and no re-
strictions were placed on Ms. Durham.
B.
On September 12, 2017, Ms. Durham applied for disability
benefits alleging an onset date of March 1, 2016. On her appli-
cation for benefits, she listed the following conditions that
limited her ability to work:
1. Diabetes
5 Id.
6 Id. at 660 (capitalization removed).
7 Id. at 733.
6 No. 21-3235
2. Swollen feet and legs
3. High blood pressure
4. Pain in feet
8
5. High cholesterol[.]
An agency consulting physician noted Ms. Durham’s records
had been received from Ms. Locey and identified
Ms. Durham’s impairments as diabetes mellitus, essential hy-
pertension, and obesity. The consulting physician provided
the following explanation for the physical and postural limi-
tations noted in her report:
Clmt has dx in file of DM, HBP and obesity (BMI
42.2), Clmt had echo completed 4/17 showing
60% EF. Clmt has hx of tingling in her feet, re-
ports of not always being complaint [sic] with
medications. Most recent physical apt 10/17 re-
ports clmt ambulated normally, had full rom in
all joints/spine, no difficulties with any extrem-
ity, c/o joint pain and bilateral foot pain, diabetic
foot exam revealed normal inspection, motor
9
strength normal.
Ms. Durham’s claim was denied at the initial review level.
On reconsideration, a different agency consulting physi-
cian reviewed Ms. Durham’s records, which included Dr. Ib-
rahim’s treatment notes through June 2, 2018. Ms. Durham’s
8 Id. at 197.
9 Id. at 75.
No. 21-3235 7
claim again was denied, and her case was referred to an ALJ
for a hearing.
At the May 17, 2019 hearing, Ms. Durham testified that she
had last worked in 2017 as a personal assistant for a home
health care service. She testified that she could no longer do
10
that job because of her “neuropathy.” She also testified that
she was not pursuing other jobs because of her “spells,” com-
prised of dizziness, lightheadedness, and shortness of
11
breath. She explained that standing exacerbated the neurop-
athy pain, but she still experienced pain even when sitting
and lying down. She testified that she was relying more on
her son to take care of the grocery shopping. Although she
still fixed meals, she brought a chair into the kitchen so that
she could sit down if she got tired. She also was attending
fewer of her children’s sporting events because she could not
walk for any prolonged period.
In response to the ALJ’s question as to whether she could
perform sedentary work, she replied: “My thing with that is
per doctor’s orders, they told me to prop my feet up because
12
of the swelling and because of my heart condition.” When
the ALJ asked if that was documented, counsel for
Ms. Durham responded: “I did not see it in the records,
13
Judge.” According to Ms. Durham, these instructions were
given to her by Dr. Labroo while she was in the hospital.
10 Id. at 39.
11 Id. at 40.
12 Id. at 41.
13 Id.
8 No. 21-3235
A vocational expert also testified at the hearing. The ALJ
posed a hypothetical question to the expert regarding an in-
dividual who mirrored Ms. Durham in age, work history, and
education. In the hypothetical, the claimant could perform
only sedentary work, “[c]ould only occasionally climb ramps
and stairs; never ladders, ropes, and scaffolds. She c[ould] oc-
casionally stoop, kneel, crouch, and crawl. [She] must avoid
unprotected elevations[,] … being near dangerous moving
machinery[,] … [and] concentrated exposure to extreme heat
14
or humidity.” The vocational expert testified that such an in-
dividual could perform the jobs of document preparer, recep-
tionist/information clerk, telephone quotation clerk, and ad-
dresser.
On June 13, 2019, the ALJ issued an unfavorable decision,
concluding the Ms. Durham’s impairments permitted the per-
formance of other work. The ALJ found that Ms. Durham had
the following severe impairments: diabetes, hypertension, ep-
15
isodes of “nonsustained V-tach,” and obesity. The ALJ then
noted each of Ms. Durham’s encounters with her health care
providers regarding her diabetes and heart issues. He con-
cluded that, although Ms. Durham’s medical records were
consistent with her claims of pain, “when considered as a
whole, [they] were not supportive of the contention that the
existence of [her] impairment[s] would be preclusive of all
16
types of work.” The ALJ specifically noted that, although
Ms. Durham testified at the hearing that she needed to
14 Id. at 56–57.
15 Id. at 16.
16 Id. at 21.
No. 21-3235 9
“elevate her legs,” “[s]uch a limitation[] was not noted in her
function reports,” and “[t]here [wa]s no indication that any
provider ha[d] recommended the claimant elevate her legs. In
addition, her mild exam findings; her limited specialty
care/follow-up; and her improvement with medication d[id]
not support further limitations as those detailed in the highly
17
restrictive residual functioning capacity.”
The ALJ also referenced the opinions of the agency’s med-
ical consultants and found that “[t]heir opinions [we]re con-
sistent with the claimant’s … mild exam findings; her limited
specialty care/ follow-up; and her improvement with medica-
18
tions; and her activities of daily living.” Overall, the ALJ
19
found the opinions “somewhat persuasive.”
The ALJ then concluded that Ms. Durham’s statements re-
garding her “impairments and her resulting limitations
[we]re not entirely consistent with the objective medical evi-
20
dence.” “Taking into consideration the claimant’s subjective
complaints, as well as the objective medical evidence,” the
ALJ concluded that Ms. Durham was “capable of exertionally
21
sedentary work.” However, her “ability to perform exertion-
ally sedentary work [wa]s reduced somewhat by the addi-
tional limitations set forth in the residual functional
17 Id. at 22.
18 Id.
19 Id.
20 Id.
21 Id.
10 No. 21-3235
22
capacity.” Because the vocational expert had concluded that
there were jobs in the national economy that were both sed-
entary and could accommodate the other restrictions in the
hypothetical scenario, the ALJ concluded that Ms. Durham
was not disabled.
After the Appeals Council denied review, Ms. Durham
filed this action in district court on June 28, 2020, seeking ju-
dicial review of the Commissioner’s unfavorable decision.
On October 4, 2021, the district court entered a decision af-
firming the Commissioner’s final determination.
II.
We review de novo the district court’s judgment affirming
the Commissioner’s decision, but we apply the deferential
“substantial evidence” standard when reviewing the ALJ’s
decision. 42 U.S.C. § 405(g); see also, e.g., Skinner v. Astrue, 478
F.3d 836, 841 (7th Cir. 2007). Substantial evidence is “such rel-
evant evidence as a reasonable mind might accept as ade-
quate to support a conclusion.” Simila v. Astrue, 573 F.3d 503,
513 (7th Cir. 2009) (quoting Craft v. Astrue, 539 F.3d 668, 673
(7th Cir. 2008)). “[W]hatever the meaning of ‘substantial’ in
other contexts,” the Supreme Court has made clear that in the
disability context, “the threshold for such evidentiary suffi-
ciency is not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154
(2019).
A.
Ms. Durham’s primary argument is that the ALJ relied on
stale opinions of medical experts in rendering his decision.
According to Ms. Durham, neither of the consulting agency
22 Id.No. 21-3235 11
physicians considered her cardiac arrhythmia and related
symptoms. She also maintains that these experts’ opinions
cannot be relied upon given her hospitalization in April 2019
and the results of her follow-up tests. She asserts that the ALJ
“should have re-submitted [her] case to medical expert scru-
tiny in light of th[is] potentially determinative and highly
23
complex medical evidence.” Because no medical expert in-
terpreted this evidence, Ms. Durham submits, the ALJ imper-
missibly “played doctor” in concluding that this evidence did
not establish complete disability.
Had the ALJ, as Ms. Durham suggests, relied heavily on
the opinions of the consulting physicians who failed to recog-
nize Ms. Durham’s tachycardia, that would raise concern. The
ALJ, however, found the consulting physicians’ assessments
24
only “somewhat persuasive.” Instead, the ALJ primarily re-
lied on Ms. Durham’s treatment records. These records
served as the basis for his conclusion that Ms. Durham’s tach-
ycardia was a severe impairment and for the restrictions that
he incorporated into his hypothetical question to the voca-
tional expert. Additionally, although neither agency consult-
ing physician explicitly mentioned tachycardia, the last
agency consulting physician evaluated Ms. Durham’s records
as of June 5, 2018. The records included Ms. Durham’s treat-
ment by Dr. Ibrahim through June 2, 2018, which revealed
that Ms. Durham had been diagnosed with tachycardia in
March 2017 and that her condition was largely controlled
through medication.
23 Appellant’s Br. 12.
24 A.R. 22.
12 No. 21-3235
Moreover, had the ALJ interpreted results of “highly com-
plex” medical tests on his own, that would be problematic.
For instance, we repeatedly have criticized ALJs for interpret-
ing the results of an MRI and using that interpretation as a
basis for denying benefits. In one such case, McHenry v. Ber-
ryhill, 911 F.3d 866, 871 (7th Cir. 2018), an MRI revealed that
the claimant “had multiple impinged nerves in addition to
spinal cord compression.” However, without the input of a
medical expert, “the ALJ independently … compared the MRI
results with earlier medical records” to determine the exist-
ence and level of the claimant’s impairments. Id. We held that
the ALJ had overstepped his role, noting that we had stated
“that an ALJ may not ‘play[] doctor’ and interpret ‘new and
potentially decisive medical evidence’ without medical scru-
tiny.” Id. (quoting Goins v. Colvin, 764 F.3d 677, 680 (7th Cir.
2014)); see also Akin v. Berryhill, 887 F.3d 314, 317–18 (7th Cir.
2018) (stating that “without an expert opinion interpreting the
MRI results in the record, the ALJ was not qualified to con-
clude that the MRI results were ‘consistent’ with his assess-
ment”). We reiterated that “[a]n ALJ may not conclude, with-
out medical input, that a claimant’s most recent MRI results
are ‘consistent’ with the ALJ’s conclusions about her impair-
ments.” McHenry, 911 F.3d at 871 (quoting Akin, 887 F.3d at
317–18). Because in McHenry “the ALJ alone [had] compared
the test results with earlier treatment records” to determine
the severity of the impairment during the relevant time pe-
riod, we concluded that the ALJ’s decision was not supported
by substantial evidence. Id. at 871–72.
This line of cases, however, is not relevant to
Ms. Durham’s situation. Some of Ms. Durham’s tests certainly
were complex. But the ALJ did not attempt to interpret, on his
own, the significance of any of these medical tests or
No. 21-3235 13
procedures. Rather, he relied, as he should, on the conclusions
of her treating physicians. The most recent evaluation per-
formed by a cardiologist revealed that Ms. Durham had “mild
systemic disease, no acute problems, and no functional limi-
25
tations.” The same report indicated that she had no cardiac
instability. Thus, Ms. Durham’s treating cardiologist did all of
the interpretation of her exam and procedures; the ALJ simply
restated those findings.
Finally, nothing that occurred in April 2019 suggests a ma-
terial change in Ms. Durham’s situation that merited re-sub-
mission to a consulting physician. In April 2019, she went to
Good Samaritan Hospital due to “exertional shortness of
26
breath and palpitations.” Cardiology was consulted, and an
EKG and stress test were performed. Her symptoms were re-
solved with medication, and she was released the following
day. This 2019 hospital visit thus bears a significant resem-
blance to her emergency-room visit in September 2017. At that
time, Ms. Durham sought treatment at Good Samaritan Hos-
pital when she experienced shortness of breath and chest
pains. Her caregivers administered metoprolol and dis-
charged her with a prescription and instructions to follow up
with treating physicians. When she followed up with Ms. Lo-
cey and Dr. Ibrahim, she reported that her palpitations largely
were controlled, and that she had experienced no fainting,
chest pain, or breathing issues. Thus, in both 2017 and 2019,
Ms. Durham experienced some additional symptoms for a
short period of time, no new issues were discovered, and her
25 Id. at 21 (ALJ’s opinion); id. at 660 (report) (capitalization removed).
26 Id. at 579.
14 No. 21-3235
medications were adjusted. Her 2019 hospital visit cannot be
characterized as having presented “new” developments,
much less potentially dispositive ones, that require an addi-
tional opinion of a medical expert. See Pavlicek v. Saul, 994 F.3d
777, 783–84 (7th Cir. 2021) (evidence of bodily tremors that re-
sulted in emergency room visits did not require new medical
opinion because treatment notes regarding tremors were in
the record during agency physician’s review).
In sum, although Ms. Durham claims that the testing done
in April 2019 rendered the medical opinions stale, the results
of that testing—as interpreted by her physicians, not the
ALJ—do not reveal a worsening of her condition such that re-
submission to a medical expert was required.
B.
Ms. Durham also faults the ALJ for failing to include in his
hypothetical question “any … time off task to address
27
[Ms. Durham’s] ventricular tachycardia.” According to
Ms. Durham, the ALJ’s failure to include this limitation—or
any limitation addressing her “spells”—renders his conclu-
28
sion unsustainable.
An ALJ must include in his hypothetical question “all of a
claimant’s limitations supported by the medical record.” Deb-
orah M. v. Saul, 994 F.3d 785, 791 (7th Cir. 2021). Here, how-
ever, there is no evidence in the record to support a time-off-
task limitation. Ms. Durham testified that her spells happen
“frequently” and that she needs to “prop [her] feet up” when
27 Appellant’s Br. 19.
28 Id. at 22.
No. 21-3235 15
29
she feels dizziness coming on. However, the ALJ noted that
this aspect of Ms. Durham’s testimony was not supported by
any medical record, and Ms. Durham has not invited our at-
tention to any. Moreover, during the hearing, Ms. Durham’s
counsel did not elicit any further evidence about the “fre-
quency” of the spells or how long they last.
Furthermore, contrary to Ms. Durham’s assertion, the ALJ
did include limitations in his hypothetical question that ac-
counted for Ms. Durham’s tachycardic events. Ms. Durham
testified that she experiences “spells” upon exertion, espe-
cially in the heat. The ALJ therefore limited Ms. Durham to
sedentary work and further provided that she could not be
30
exposed “to extreme heat or humidity.” Additionally, the
ALJ limited Ms. Durham to jobs where, if she experienced a
“spell,” she would not pose a danger to herself or to others.
Specifically, the ALJ noted that she could never climb “lad-
ders, ropes, and scaffolds”; “must avoid unprotected eleva-
tions”; and could not be near “dangerous moving machin-
31
ery.” Indeed, these limitations went beyond those imposed
by any medical opinion.
The burden was on Ms. Durham to “prove she is disabled
by producing medical evidence.” Gedatus v. Saul, 994 F.3d 893,
905 (7th Cir. 2021). However, she has failed to come forward
with medical evidence to establish that her tachycardia would
impede her ability to do sedentary work or that it required
29 A.R. 40–42.
30 Id. at 57.
31 Id.
16 No. 21-3235
any limitations beyond those set forth by the ALJ in his hypo-
thetical question.
Conclusion
Here, the ALJ thoroughly reviewed Ms. Durham’s medi-
cal history. He did not ignore relevant evidence or fail to in-
clude necessary limitations in his hypothetical question to the
vocational expert. His decision was supported by substantial
evidence. We therefore affirm the judgment of the district
court denying benefits.
AFFIRMED