Elder, Dianna R. v. Astrue, Michael J. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2185
DIANNA R. ELDER,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 05 C 651—Allen Sharp, Judge.
____________
ARGUED APRIL 4, 2008—DECIDED JUNE 16, 2008
____________
Before POSNER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Dianna Elder applied for Disabil-
ity Insurance Benefits and Supplemental Security In-
come (SSI), claiming that her fibromyalgia rendered her
disabled as that term is defined by the Social Security Act
(“the Act”), 42 U.S.C. § 301 et seq. The administrative law
judge (ALJ) denied Elder’s claims in November 2004. After
the Social Security Appeals Council (“Appeals Council”)
declined Elder’s request for review, the district court
affirmed the ALJ’s decision. Elder now argues that the
ALJ’s decision was wrong; in Elder’s view, the ALJ errone-
2 No. 07-2185
ously concluded that her descriptions of the severity
her ailments were not credible, and improperly evaluated
the medical opinions of two of her treating physicians.
We affirm.
I. HISTORY
Elder filed an application for disability and SSI claims
in November 1999, alleging that her fibromyalgia and
depression rendered her disabled as of August 12, 1998. As
Elder explained in her application, she was 34 years old on
her claimed onset date, had a high school education,
and had worked at a factory operated by Eaton Corpora-
tion as a mold operator and bench assembler. She also
stated that she was five feet, eleven inches tall (a mea-
surement that, for some reason, changes throughout the
record), and weighed 316 pounds; however, as her attorney
repeatedly stated at oral argument, Elder based her
claims on the severity of her fibromyalgia and depression,
and not on her obesity.
Elder’s claims of disability originated in August 1998,
when she sought treatment from her family doctor,
Dr. James Hanus, for pain in her arms and legs. Aware
that Elder had complained of similar pain in the past,
Dr. Hanus provided a preliminary diagnosis of fibro-
myalgia. He then referred Elder to Dr. Steven Ko, a
rheumatologist, to confirm his assessment and to pro-
vide treatment for her pain.
Dr. Ko diagnosed Elder with fibromyalgia when he
first treated her in September 1998. When Dr. Ko inquired
about the severity of her condition, Elder explained that,
because of the pain, she had difficulty walking, climbing
stairs, sitting, and accomplishing everyday activities,
No. 07-2185 3
such as cooking, washing dishes, and doing laundry.
Elder also stated, however, that she was able to man-
euver up and down the stairs at her home, and that she
did most of the housework and shopping for her family.
In all, Elder stated that her ability to function was a 3 on
a scale of 1 to 5, which, Dr. Ko stated, was “okay.” Dr.
Ko prescribed to Elder pain medication, and instructed
her to exercise regularly.
Elder visited Dr. Ko eight times over the following
year, and during this time she provided mixed reports
regarding the severity of her condition. On occasion,
Elder reported to Dr. Ko that her fibromyalgia had gotten
much worse; at other times, she stated that her pain had
subsided. And although Elder’s descriptions of her pain
fluctuated, she regularly told Dr. Ko that she was following
his instructions to exercise. For instance, in November
1998, Elder informed Dr. Ko that she had participated in
an aquatic-exercise class, but stopped attending for a
while after “overdo[ing] it one day.” However, she also
stated that she “[went] out three times a week for ap-
proximately twenty minutes at a time” without any
problem, and that she was able to walk about “one-and-a
half miles.” At an appointment in January 1999, Elder
reported that she had returned to the aquatic-exercise
class, and had since been able to participate in the program
three times a week without any pain. Likewise, in June
1999, Elder informed Dr. Ko that she was exercising on a
stair-step machine at home three times a day for five to
ten minutes each time.
In response to Elder’s reports of her ability to exercise
regularly, Dr. Ko opined at the June 1999 appointment that
Elder could “probably go back to work on a part-time
basis or at a reduced capacity.” He therefore advised
4 No. 07-2185
Elder to obtain a functional capacity evaluation from a
physical therapist so she could seek “an alternative
vocation.” But at Elder’s final appointment with Dr. Ko in
August 1999, she informed him that “she was not able to
obtain the functional capacity evaluation for her work,”
and had not pursued any type of “vocational rehab.” Elder
did state, though, that she was still exercising—“walking
almost a mile a day,” and continuing to participate “in a
water exercise program.” Dr. Ko noted that he had done
all that he could for Elder, including having encouraged
her to “look into vocational rehab programs where she
could look into alternative work.” He thus concluded
that there was no other treatment that he could provide to
her, and discharged her from his care. Shortly thereafter,
Elder returned to Dr. Hanus to discuss the status of her
treatment and to review her medical records so she
could prepare her disability and SSI application.
Elder filed her application, and while it was pending
she underwent a consultative medical examination by
Dr. Michael Holton. Elder did not complain to Dr. Holton
about any debilitating pain; she instead informed him
that she could “walk about 2-3 blocks level at a leisurely
pace or up less than 1 flight of steps generally without
increased discomfort or difficulty.” Based on Elder’s
statements and his own examination, Dr. Holton deter-
mined that, although Elder had fibromyalgia, she had no
difficulty walking, had normal muscle strength and tone,
and could grip 25 pounds with both hands.
Also during this time, Elder continued to seek treatment
from Dr. Hanus for various ailments, such as vertigo,
sinus infections, and issues related to her diabetes mellitus.
She also saw Dr. Hanus for, as she put it, “a recheck of her
fibromyalgia,” although Dr. Hanus’s medical records from
No. 07-2185 5
this period show that he did nothing more than note
Elder’s complaints of pain, prescribe her different
kinds of pain medication, and provide her with medical
excuses from work. Nevertheless, Dr. Hanus sent a letter
to the Social Security Commission, in which he stated
that Elder had “one of the [worst] cases of fibromyalgia
that [he had] ever seen,” and further opined that she
was disabled.
The ALJ held a hearing on Elder’s claims in October
2001. Elder testified at the hearing that her fibromyalgia
caused her pain “all over,” and that the pain sapped her
energy, caused her to be depressed, and prevented her
from doing “anything.” Shortly thereafter, the ALJ denied
Elder’s claim. However, Elder sought review from the
Appeals Council, and in May 2003 the Appeals Council
remanded her case to allow the ALJ the chance to obtain
additional medical evidence both explaining how
Elder’s fibromyalgia contributed to her depression and
specifying the nature and severity of Elder’s ailments. The
Appeals Council also stated that the new evidence
could include additional consultative medical examina-
tions.
On remand, the ALJ obliged the Appeals Council, and
ordered Elder to undergo additional consultative med-
ical examinations. Accordingly, Elder was examined
by, among other doctors, Dr. Bhuependra Shah, who
focused his examination on Elder’s neurological health
and muscle strength. As relevant here, Dr. Shah opined
that Dr. Hanus’s and Dr. Ko’s medical records revealed
that Elder’s fibromyalgia was “unremarkable.” Dr. Ko
further stated that Elder’s strength was normal, and that
she could lift and carry 25 pounds occasionally and 20
pounds frequently. Dr. Hanus also submitted additional
6 No. 07-2185
information to supplement his earlier statements sup-
porting Elder’s disability claims. Specifically, Dr. Hanus
stated that, because of her fibromyalgia, Elder could
rarely lift more than 10 pounds and never could lift more
than 20 pounds.
The ALJ held a second hearing on Elder’s claims in
March 2004, and at that hearing Elder provided a much
more detailed description of the severity of her
fibromyalgia than she did at her first hearing. She de-
scribed that, on a good day, she could do the laundry and
wash the dishes, but on days when her fibromyalgia
“flared-up” the pain was so intense that the only thing that
she could do was lie in bed and periodically walk to the
restroom. But when Elder was confronted with Dr. Ko’s
medical records from November 1998, she denied
having told him that she was able to walk a mile-and-a-
half a day; as Elder put it, “[t]here was no possible way”
that she could have walked that far. And although Elder
admitted to having participated in some aquatic-aerobics
classes, she stated that—contrary to what Dr. Ko re-
corded—she was unable to complete more than five to
ten minutes of the classes because of her pain.
Shortly after the second hearing, the ALJ again denied
Elder’s claims. The ALJ reached its conclusion after he con-
ducted the five-step sequential analysis required by 20
C.F.R. § 404.1520(a)(4)(i)-(v). Specifically, the ALJ found
that Elder had not performed substantial gainful work
since seeking treatment for her fibromyalgia and depres-
sion (Step One), and that although Elder’s ailments were
severe (Step Two), they did not meet or medically equal
any of the impairments listed in Appendix 1, Subpart P,
Regulation No. 4 of the Social Security regulations (Step
Three).
No. 07-2185 7
Because the ALJ made no disability determination at
Step Three, he proceeded to formulate Elder’s residual
functional capacity (RFC), which is, in layman’s terms,
her maximum work capability. See id. § 404.1520(e); Butera
v. Apfel, 173 F.3d 1049, 1054 (7th Cir. 1999). As a part of his
formulation, the ALJ first determined that Elder did not
present credible testimony regarding the severity of her
ailments. As the ALJ saw it, Elder offered only “self-
serving testimony that she was not exercising as much
or doing as much at home as Dr. Ko asserted in his treat-
ment records.” After all, the ALJ pointed out, Dr. Ko
“repeatedly remarked” in his medical records that
Elder informed him that she “was participating in water
aerobics and walking a mile to a mile and one half per
day,” that “she did most of the housework and shopping,”
and that she was able to care for her family. The ALJ next
determined that Dr. Ko’s records did not support
Elder’s claim that she had “no capacity for work” be-
cause he repeatedly instructed her to “go to vocational
rehabilitation to get help finding an alternate job that did
not require as much physical exertion.” The ALJ likewise
declined to afford “substantial weight” to Dr. Hanus’s
opinion that Elder could not work because Dr. Hanus
did not perform a “thorough” medical examination to
corroborate Elder’s descriptions of the severity of her
fibromyalgia. Indeed, the ALJ continued, Dr. Hanus was
merely a “family practitioner” and “not a specialist” in
fibromyalgia, and, as such, was concerned with only
Elder’s general health and well-being. The ALJ then
determined that Dr. Horton’s and Dr. Shah’s medical
opinions supported a finding that Elder could, in fact,
perform “a limited range” of light work. And looking to
those opinions, the ALJ ascertained that Elder retained
an RFC to lift or carry 20 pounds occasionally and
8 No. 07-2185
10 pounds frequently, to alternate sitting and standing
throughout the day, and to walk up to one-and-one-half
miles at a time.
The ALJ then determined that, given her RFC, Elder
could not perform her past occupation as a mold operator
and bench assembler (Step Four). But, the ALJ con-
cluded, Elder’s RFC did not prevent her from holding a
job that required her to perform light work, such as a
position as an office helper, cashier, or maid (Step Five).
The ALJ therefore concluded that Elder was not disabled
under the Act, and denied her claims for disability and
SSI benefits.
Elder again sought review from the Appeals Council.
But, unlike earlier, the Appeals Council denied review.
Elder then appealed the ALJ’s decision to the district court,
see Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005),
which, in turn, determined that the ALJ’s findings did
not “run afoul of the decisions of the Court of Appeals in
this circuit.” The court accordingly entered judgment
for the Commissioner.
II. ANALYSIS
On appeal, Elder challenges only the ALJ’s RFC formula-
tion. Specifically, Elder contends that the ALJ com-
mitted two errors that led him to underrepresent the
severity of her fibromyalgia and depression when deter-
mining her RFC. First, Elder asserts that the ALJ errone-
ously concluded that her testimony regarding the severity
of her conditions was not credible. Second, Elder argues
that the ALJ “improperly evaluated” the medical opinions
of Dr. Ko and Dr. Hanus.
No. 07-2185 9
We review the district court’s judgment de novo, see
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007), meaning
that we review the ALJ’s decision directly, see Schmidt v.
Astrue, 496 F.3d 833, 841 (7th Cir. 2007). However, in so
doing, we apply a very deferential standard of review. See
id.; Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).
Specifically, we review the ALJ’s decision to see if it is
supported by “substantial evidence,” 42 U.S.C. § 405(g);
see also Schmidt, 496 F.3d at 841, meaning “ ‘such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion,’ ” Skinner, 478 F.3d at 841 (quot-
ing Richardson v. Perales, 402 U.S. 389, 401 (1971)). As such,
our role is extremely limited. We are not allowed to
displace the ALJ’s judgment by reconsidering facts or
evidence, or by making independent credibility deter-
minations. See Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir.
2003). In fact, even if “ ‘reasonable minds could differ
concerning whether [Elder] is disabled,’ ” we must never-
theless affirm the ALJ’s decision denying her claims if
the decision is adequately supported. Schmidt, 496 F.3d
at 842 (quoting Books v. Chater, 91 F.3d 972, 978 (7th Cir.
1996)).
A. The ALJ’s adverse credibility determination
Elder first challenges the ALJ’s determination that her
testimony regarding the severity of her fibromyalgia and
depression was not credible. In so contesting, she makes a
bevy of conflated arguments involving the ALJ’s purported
refusal to consider certain medical evidence that, she
asserts, would have bolstered her credibility. However,
Elder’s points are misguided, if not irrelevant altogether.
When assessing an ALJ’s credibility determination, we do
not, as Elder suggests, undertake a de novo review of the
10 No. 07-2185
medical evidence that was presented to the ALJ. Instead,
we merely examine whether the ALJ’s determination
was reasoned and supported. See Jens, 347 F.3d at 213-14;
Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). It is only
when the ALJ’s determination lacks any explanation or
support that we will declare it to be “ ‘patently wrong,’ ”
Jens, 347 F.3d at 213 (quoting Powers, 207 F.3d at 435),
and deserving of reversal.
Elder’s challenge is short-lived. The ALJ clearly pro-
vided a reason for his adverse credibility determination:
he stated that Elder’s testimony regarding the severity
of her fibromyalgia and depression contradicted what
she told Dr. Ko. The record supports this explanation. At
her hearing, Elder described her inability to complete
more than five to ten minutes of the aquatic-aerobics
classes, and that “[t]here was no possible way” that she
was able to walk a mile a day; she also stated that on days
in which her fibromyalgia was at its worst, the most that
she could do was lie in bed and occasionally walk to the
restroom. And although Elder reported to Dr. Ko on sev-
eral occasions that her fibromyalgia had worsened, she
regularly informed him that, notwithstanding her pain, she
was able to function and to exercise regularly—including
participating in aquatic-exercise classes up to “three times
a week” and regularly walking extended distances. It was
well within the ALJ’s authority to disregard Elder’s
testimony because it conflicted with what she told Dr. Ko.
See Powers, 207 F.3d at 435 (“[T]he discrepancy between the
minimal impairment expected from [claimant’s] conditions
and her testimony of debilitating pain casts doubt on her
credibility.”); see also Brewer v. Chater, 103 F.3d 1384, 1392 &
n.11 (7th Cir. 1997) (“It is the responsibility of the ALJ, not
of a reviewing court, to resolve conflicting evidence and
No. 07-2185 11
to make credibility determinations. . . . The ALJ’s credit-
ing of [claimant’s] contemporaneous statements con-
cerning her job duties and his discounting of her later
statements at the hearing were proper.”); Limberopoulos v.
Shalala, 17 F.3d 975, 978-79 (7th Cir. 1994); Anderson v.
Sullivan, 925 F.2d 220, 222 (7th Cir. 1991). We thus cannot
say that the ALJ was patently wrong in doing so.
B. The ALJ’s evaluation of Dr. Ko’s and Dr. Hanus’s medical
opinions
Elder also argues that the ALJ erred by inadequately
reviewing Dr. Ko’s medical opinions and by failing to
afford Dr. Hanus’s medical opinions “substantial weight.”
As to Dr. Ko’s opinions, Elder contends that the ALJ did
not consider specific statements that Dr. Ko made in his
medical records that support a disability finding. Specifi-
cally, Elder asserts that Dr. Ko stated that she “could
probably go back to work on a part-time basis at a re-
duced capacity.” According to Elder, these statements
proved that she could work on a part-time basis only, and
thus was disabled. See Bladow v. Apfel, 205 F.3d 356, 359 (8th
Cir. 2000) (explaining that, under Social Security Ruling 96-
8p, ability to work only part-time mandates disability
finding); Kelley v. Apfel, 185 F.3d 1211, 1214-15 (11th Cir.
1999) (same). Elder therefore argues that the ALJ erred by
completely failing to evaluate this evidence of her disabil-
ity.
However, Elder misconstrues Dr. Ko’s statements and
inflates their importance. Dr. Ko did not opine, as Elder
puts it, that she “could probably go back to work on a part-
time basis at a reduced capacity.” Instead, Dr. Ko stated
that Elder could go back to work either “on a part-time
12 No. 07-2185
basis” or “at a reduced capacity”—meaning that she could
work on a full-time basis so long as she found a
new job that required less exertion than her job at
Eaton Corporation. Indeed, the fact that Dr. Ko regularly
and repeatedly urged Elder to seek vocational rehabilita-
tion for help with finding a less strenuous job reveals
that he believed that she could work full-time. Simply
put, the record does not support Elder’s assertion that
Dr. Ko opined that she could work only part-time.
Even more, the ALJ ultimately agreed with Dr. Ko’s
assessment that Elder could work full-time “at a reduced
capacity.” The ALJ stated that Dr. Ko’s medical opinions
did not support Elder’s claim that she had “no capacity
for work,” and formulated an RFC that reflected that
she could work full-time “at a reduced capacity.” The
ALJ even explicitly determined at Step Four that Elder
could not go back to work at Eaton Corporation given
her RFC, but could, nevertheless, perform “a limited
range” of light work. Elder’s argument that the ALJ
ignored Dr. Ko’s opinion is therefore meritless.
Equally meritless is Elder’s argument that the ALJ failed
to afford “substantial weight” to Dr. Hanus’s medical
opinions. Elder asserts that, after she was discharged
from Dr. Ko’s care, she saw Dr. Hanus for fibromyalgia-
related pain “every two and-a-half months.” And based on
examinations performed during that period, Elder con-
tinues, Dr. Hanus concluded that she could rarely lift
more than 10 pounds and could never lift more than
20 pounds—conclusions that the ALJ was wrong to dis-
count.
The parties do not dispute that Dr. Hanus was Elder’s
treating physician. And a treating physician’s opinion
regarding the nature and severity of a medical condition
No. 07-2185 13
is entitled to controlling weight if it is (1) supported by
medical findings; and (2) consistent with substantial
evidence in the record. See 20 C.F.R. § 404.1527(d)(2);
Skarbek, 390 F.3d at 503. A decision to deny a physi-
cian’s opinion controlling weight does not prevent the
ALJ from considering it, however, and the ALJ may
still look to the opinion after opting to afford it less eviden-
tiary weight. Exactly how much weight the ALJ affords
depends on a number of factors, such as the length, nature,
and extent of the physician and claimant’s treat-
ment relationship, see 20 C.F.R. § 404.1527(d)(2)(I)-(ii),
whether the physician supported his or her opinions
with sufficient explanations, see id. § 404.1527(d)(3), and
whether the physician specializes in the medical condi-
tions at issue, see id. § 404.1527(d)(5). See also Hofslien v.
Barnhart, 439 F.3d 375, 377 (7th Cir. 2006). If the ALJ
discounts the physician’s opinion after considering
these factors, we must allow that decision to stand so
long as the ALJ “ ‘minimally articulate[d]’ ” his reasons—a
very deferential standard that we have, in fact, deemed
“lax.” Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008)
(quoting Rice v. Barnhart, 384 F.3d 363, 372 (7th Cir. 2004)).
Elder does not argue that Dr. Hanus’s opinions should
have been afforded controlling weight; she has thus
waived the point. See APS Sports Collectibles, Inc. v. Sports
Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002). But even if
she had raised the issue, her argument would have
failed. Dr. Hanus’s opinion that Elder could rarely lift
more than 10 pounds and could never lift more than
20 pounds conflicted with substantial medical evidence
showing that Elder’s fibromyalgia was not disabling.
Specifically, Dr. Holton determined that Elder had no
difficulty walking, had normal muscle strength and tone,
14 No. 07-2185
and could grip 25 pounds with both hands. Dr. Shah
proffered a similar assessment, while adding that Elder
could lift and carry 25 pounds occasionally and 20 pounds
frequently; Dr. Shah also opined that Elder’s fibromyalgia
was “unremarkable.” In light of these conflicting medical
opinions, we cannot see how Dr. Hanus’s opinion could
have been afforded controlling weight. See Skarbek, 390
F.3d at 503.
But that aside, the ALJ did not err by refusing to afford
Dr. Hanus’s opinion even “substantial weight.” The ALJ
explained that he discounted Dr. Hanus’s opinion be-
cause he was “not a specialist” in fibromyalgia, and failed
to conduct “a thorough corroborating medical exam” to
assess the severity of Elder’s conditions. These reasons
are sound and supported by the record. Elder does not
dispute that Dr. Hanus was not a specialist in fibro-
myalgia—nor could she because Dr. Hanus is not a
rheumatologist. See Sarchet v. Chater, 78 F.3d 305, 307 (7th
Cir. 1996) (“Fibromyalgia is a rheumatic disease and the
relevant specialist is a rheumatologist.”); see also 20 C.F.R.
§ 404.1527(d)(5) (“We generally give more weight to the
opinion of a specialist about medical issues related to his
or her area of specialty than to the opinion of a source
who is not a specialist.”). Moreover, the record does
not show that Dr. Hanus conducted a medical
exam—much less a “thorough” one—corroborating Elder’s
claims of the severity of her fibromyalgia. Although
Dr. Hanus offered a preliminary diagnosis of Elder’s
fibromyalgia, he referred her to Dr. Ko’s care both to
confirm that diagnosis and to provide specialized treat-
ment for her ailments. See id. § 404.1527(d)(2)(ii) (“For
example, if your ophthalmologist notices that you have
complained of neck pain during your eye examinations,
No. 07-2185 15
we will consider his or her opinion with respect to your
neck pain, but we will give it less weight than that of
another physician who has treated you for the neck pain.”).
And even after Dr. Ko discharged Elder, Dr. Hanus did
nothing to assess the severity of her ailments; indeed,
Dr. Hanus offered only general palliative care in the
form of pain medication and medical excuses from
work. See id. (“We will look at the treatment the source
has provided and at the kinds and extent of examina-
tions and testing the source has performed . . . .”). Thus, it
makes no difference if Elder saw Dr. Hanus “every two-
and-a-half months”; what does matter is that Dr. Hanus
did not confirm the severity of Elder’s fibromyalgia
with medical examinations or tests. See id. § 404.1527(d)(3)
(“The better an explanation a source provides for an
opinion, the more weight we will give that opinion.”). And
because the ALJ “minimally articulated” his reasons for
declining to afford Dr. Hanus’s medical opinion “substan-
tial weight,” see Berger, 516 F.3d at 545, we see no fault in
his determination.
III. CONCLUSION
We AFFIRM the district court’s judgment.
USCA-02-C-0072—6-16-08