Willie Curvin v. Carolyn Colvin , 778 F.3d 645 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3622
WILLIE MAE CURVIN,
Plaintiff-Appellee,
v.
CAROLYN COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13-CV-00123— J. P. Stadtmueller, Judge.
ARGUED OCTOBER 2, 2014 — DECIDED FEBRUARY 11, 2015
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
MANION, Circuit Judge. Willie Mae Curvin applied for
disability insurance benefits. Her claim was denied initially,
upon reconsideration, and after a hearing before an administra-
tive law judge (“ALJ”). The district court held that the ALJ
erred in denying Curvin benefits and vacated and remanded
the decision. We conclude that the ALJ properly applied our
precedent as well as the agency rules and regulations. Because
2 No. 13-3622
the ALJ’s decision was supported by substantial evidence, we
reverse the judgment of the district court.
I. Background
In March 2010, Curvin applied for disability benefits under
Title II of the Social Security Act, 42 U.S.C. § 401, et seq. She
alleges she became disabled beginning in January 2009 from
glaucoma, overactive thyroid, high blood pressure, difficulty
sleeping, and knee pain. The ALJ held a hearing in August
2011 at which Curvin appeared, represented by an attorney.
The ALJ denied her claim by a written decision issued in
October 2011.
After applying the five-step sequential evaluation process
mandated by the Social Security Administration, the ALJ
determined that she was not disabled and denied her claim. 20
C.F.R. § 404.1520(a). At step 1, the ALJ found that Curvin had
not engaged in substantial gainful activity since the alleged
onset of her disability. At step 2, the ALJ determined that
Curvin’s glaucoma in her right eye was a severe impairment,
and that the objective medical evidence showed that her
remaining impairments were not severe. At step 3, based on
the conclusions of Curvin’s treating and examining physicians
and the objective medical evidence, he found that Curvin did
not have an impairment or combination of impairments that
met the severity of a listed impairment. The ALJ then deter-
mined that Curvin had a residual functional capacity (“RFC”)
to perform a full range of work at all exertion levels, but with
a nonexertional limitation of no peripheral vision on her right
side due to her glaucoma. The ALJ considered all the objective
medical evidence, Curvin’s statements regarding her abilities
No. 13-3622 3
and disabilities, the opinions of two treating physicians, and
the determinations of state agency examining physicians. He
found that although Curvin’s medically determinable impair-
ments could reasonably be expected to cause her alleged
symptoms, her allegations regarding the intensity, persistence,
and limiting effects of her symptoms were not credible. The
ALJ gave great weight to Curvin’s treating ophthalmologist’s
assessment that her only work-related limitation was a loss of
peripheral vision in her right eye that prevented her from
working around machinery. He found that her remaining
impairments were either mild or controlled with medication
and therefore non-severe. Finally, at step 4, the ALJ found that
Curvin had the RFC to perform her past work as a personal
care worker, which was a medium exertional job. Thus, the ALJ
found that Curvin was not disabled at step 4. Although not
required at this point, the ALJ made an alternative finding at
step 5 of no disability. Specifically, given her age, education,
work experience, and RFC, the ALJ found that Curvin could
perform other jobs at the medium exertion level then-existing
in the national economy.
The district court vacated the ALJ’s opinion and remanded
the case after concluding that the ALJ committed error at step
2 and step 3 of the process. The district court held that the ALJ
neglected to determine Curvin’s credibility and discuss her
symptoms1 at step 2 even though he found her right-eye
glaucoma to be a severe impairment on the basis of the
objective medical evidence alone. According to the district
court, Social Security Ruling (“SSR”) 96–7p and SSR 96–3p
1
The regulations define symptoms as an individual’s own description of
his physical or mental impairment. 20 C.F.R. § 404.1528(a).
4 No. 13-3622
required the ALJ to determine Curvin’s credibility at step 2 so
that he could consider Curvin’s symptoms when deciding
whether her remaining impairments were severe or not. The
district court then decided that the ALJ should have provided
more detail at step 3 to show that he took into account all of
Curvin’s impairments. Finally, the district court concluded that
the ALJ should have specifically determined at step 3 that
Curvin had a “missing or deficient sign or laboratory finding”2
according to 20 C.F.R. § 404.1529(d)(3). The district court
believed the ALJ needed this finding to “build an ‘accurate and
logical bridge from the evidence to his conclusion’” that
Curvin’s symptoms need not be considered at step 3. McKinzey
v. Astrue, 641 F.3d 884, 889 (7th Cir. 2011). The district court
concluded that either of the ALJ’s errors at step 2 or step 3
were sufficient to warrant reversal. The Commissioner appeals.
II. Discussion
We review a district court’s ruling on a social security
disability determination de novo; we review the administrative
law judge’s decision for substantial evidence. Shideler v. Astrue,
688 F.3d 306, 310 (7th Cir. 2012). We “reverse an ALJ’s determi-
nation only where it is not supported by substantial evidence,
which means ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” McKinzey,
641 F.3d at 889 (quoting Skinner v. Astrue, 478 F.3d 836, 841 (7th
Cir. 2007)). “The ALJ must adequately discuss the issues and
must build an ‘accurate and logical bridge from the evidence
2
What is meant by “signs” and “laboratory findings” is objective medical
evidence, i.e., observable abnormalities or phenomena shown by medically
acceptable clinical or laboratory diagnostic techniques. 20 C.F.R.
§ 404.1528(b) & (c).
No. 13-3622 5
to his conclusion.’” Id. (quoting Lopez ex rel. Lopez v. Barnhart,
336 F.3d 535, 539 (7th Cir. 2003)).
A. Step 2
Regarding step 2, “[a]s long as the ALJ determines that the
claimant has one severe impairment, the ALJ will proceed to
the remaining steps of the evaluation process. … Therefore, the
step two determination of severity is ‘merely a threshold
requirement.’” Castile v. Astrue, 617 F.3d 923, 926–27 (7th Cir.
2010) (citation omitted; quoting Hickman v. Apfel, 187 F.3d 683,
688 (7th Cir. 1999)). See also Bowen v. Yuckert, 482 U.S. 137,
149–50 (1987) (disability insurance benefit payments require a
“threshold showing of medical severity”). The ALJ correctly
applied this rule. He found that Curvin had one severe
impairment, viz., the glaucoma in her right eye, and proceeded
to the remaining steps in the evaluation process.
SSR 96–7p does not require an ALJ in every case to make a
credibility determination at or before step 2.3 As the ruling
3
When taken out of context, the following passage of SSR 96–7p appears
to always require a credibility determination at step 2:
Once the [ALJ] has determined the extent to which the
individual’s symptoms limit the individual’s ability to do
basic work activities by making a finding on the credibility of
the individual’s statements, the impact of the symptoms on
the individual’s ability to function must be considered
along with the objective medical and other evidence, first
in determining whether the individual’s impairment or
combination of impairments is “severe” at step 2 of the
sequential evaluation process for determining disability
and, as necessary, at each subsequent step of the process.
Id. (emphasis added). However, a full reading of the ruling reveals that this
6 No. 13-3622
states, its purpose is to emphasize that an ALJ “must carefully
consider the individual’s statements about symptoms … if a
disability determination or decision that is fully favorable to
the individual cannot be made solely on the basis of objective
medical evidence.” Id. (emphasis added). A fully favorable
decision can only be made at step 3 or step 5, the only steps at
which a claimant can be found disabled. 20 C.F.R.
§ 404.1520(a)(4)(iii) & (v). But to get to those steps, a claimant
must pass through step 2. In Curvin’s case, the ALJ made as
favorable a determination as can be made at Step 2—that
Curvin met the threshold by having a severe impairment—on
the basis of the objective medical evidence, so an evaluation of
Curvin’s symptoms and the requisite credibility determination
were not necessary at that step.
Neither does SSR 96–3p always require a credibility
determination at step 2.4 The rule requires a careful evaluation
of symptoms when making “[a] determination that an
passage only comes into effect “if a disability determination or decision that
is fully favorable to the individual cannot be made solely on the basis of
objective medical evidence.” Id.4
The relevant portion of SSR 96–3p is as follows:
A determination that an individual’s impairment(s) is not
severe requires a careful evaluation of the medical findings
that describe the impairment(s) (i.e., the objective medical
evidence and any impairment-related symptoms), and an
informed judgment about the limitations and restrictions
the impairment(s) and related symptom(s) impose on the
individual’s physical and mental ability to do basic work
activities.
Id. (emphasis added).
No. 13-3622 7
individual’s impairment(s) is not severe.” Id. (emphasis added).
In other words, if an individual’s impairment does not appear
from the objective medical evidence to be severe, the ALJ must
then consider the limitations and restrictions caused by the
individual’s symptoms. If these additional considerations cause
“more than a minimal effect on an individual’s ability to do
basic work activities, the [ALJ] must find that the impair-
ment(s) is severe and proceed to the next step in the process even
if the objective medical evidence would not in itself establish
that the impairment(s) is severe.” Id. (emphasis added). The
consideration, therefore, of an individual’s symptoms at step
2 is done in the context of step 2’s threshold nature. “Deciding
whether impairments are severe at Step 2 is a threshold issue
only; an ALJ must continue on to the remaining steps of the
evaluation process as long as there exists even one severe
impairment.” Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir. 2012).
Thus, the ALJ applied neither SSR 96–7p nor SSR 96–3p at
step 2 because he need not do so. The objective medical
evidence was enough to find Curvin’s glaucoma to be a severe
impairment and allow her to cross Step 2’s threshold. The ALJ
did not err at step 2 by finding that Curvin’s remaining
impairments were not severe without first evaluating her
symptoms and assessing her credibility. What is more, even if
there were such an error at step 2, it would have been harmless
because the ALJ properly considered all of Curvin’s severe and
non-severe impairments, the objective medical evidence, her
symptoms, and her credibility when determining her RFC
immediately after step 3. So, “even if there were a mistake at
Step 2, it does not matter.” Arnett, 676 F.3d at 591.
8 No. 13-3622
B. Step 3
The ALJ’s determination at step 3 that Curvin’s impair-
ments did not equal the severity of a listed impairment, see 20
C.F.R. § 404.1520(a)(4)(iii), was limited to one paragraph. The
ALJ noted that neither Curvin’s treating or examining physi-
cian nor the objective medical evidence indicated that Curvin
met the standard at step 3. Although the ALJ stated that he
considered Curvin’s impairments under the appropriate
listings, he did not specify which impairments he considered
and did not specifically discuss the evidence.
Nevertheless, as mentioned, the ALJ provided the discus-
sion of Curvin’s severe and non-severe impairments, the
objective medical evidence, and her credibility directly after
step 3 when he determined her RFC. This discussion provides
the necessary detail to review the ALJ’s step 3 determination in
a meaningful way. We do not discount it simply because it
appears elsewhere in the decision. To require the ALJ to repeat
such a discussion throughout his decision would be redundant.
See Rice v. Barnhart, 384 F.3d 363, 370 n.5 (7th Cir. 2004) (“it is
proper to read the ALJ’s decision as a whole, and . . . it would
be a needless formality to have the ALJ repeat substantially
similar factual analyses at both steps three and five”); see also
Orlando v. Heckler, 776 F.2d 209, 213 (7th Cir. 1985) (“[W]e
examine the [ALJ]’s opinion as a whole to ascertain whether he
considered all of the relevant evidence, made the required
determinations, and gave supporting reasons for his deci-
sions.”). The ALJ’s discussion of Curvin’s RFC is similar in its
level of detail to that done in Pepper v. Colvin, 712 F.3d 351 (7th
Cir. 2013), which discussion we concluded was “consistent
No. 13-3622 9
with our repeated assertion that an ALJ’s adequate discussion
of the issues need not contain a complete written evaluation of
every piece of evidence.” Id. at 362 (quotations omitted). The
ALJ’s discussion at step 3, when considered in light of his
discussion of Curvin’s RFC, sufficiently met his “duty to
articulate.” Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004).
To determine whether an individual is disabled at step 3, an
ALJ must follow 20 C.F.R. § 404.1529(d)(3), which describes
how the agency decides whether the individual’s impairment
or combination of impairments are medically equal in severity
to an impairment on the list of pre-determined disabling
impairments. The regulation explains that the agency will
consider whether an individual’s symptoms and objective
medical evidence are equal in severity to those of a listed
impairment. It includes a caveat: “However, we will not
substitute your allegations of pain or other symptoms for a
missing or deficient sign or laboratory finding [i.e., objective
medical evidence] to raise the severity of your impairment(s)
to that of a listed impairment.” Id. The ALJ did not explicitly
find that Curvin was missing objective medical evidence before
he excluded a discussion of her symptoms and concluded she
was not disabled at step 3.
The regulation, however, does not require such an explicit
finding, and it was not necessary to “build an ‘accurate and
logical bridge from the evidence to his conclusion.’” McKinzey,
641 F.3d at 889. The regulation provides that an ALJ will not
consider the individual’s own allegations if the medical
evidence demonstrates a lack of severity. It is a straight
prohibition against substituting an individual’s symptoms for
objective medical evidence. Nowhere is there a requirement
10 No. 13-3622
that the ALJ make a specific finding of missing or deficient
medical evidence prior to concluding that he need not consider
an individual’s allegations of pain or other symptoms. As we
have said, an ALJ “need not provide a complete written
evaluation of every piece of testimony and evidence.” Shideler,
688 F.3d at 310. In sum, the ALJ did not err in making his Step
3 determination.
C. Credibility and RFC
Finally, we address an issue not addressed by the district
court, but raised by Curvin on appeal. She contends that the
ALJ’s RFC and credibility determinations were legally insuffi-
cient. As we stated previously, when determining Curvin’s
RFC, the ALJ discussed her severe and non-severe impair-
ments, the objective medical evidence, her symptoms, and her
credibility. The ALJ’s discussion was similar in all pertinent
respects to the RFC discussion in Pepper, which we found to be
adequate. See Pepper, 712 F.3d at 362–67. Although the ALJ
gave great weight to Curvin’s treating ophthalmologist’s
assessment that her only work-related limitation was that she
could not work around machinery, none of the opinions of her
treating or examining physicians supported her claim for
disability. This meant that her claim of disability rested mainly
on her allegations concerning her symptoms, and thus her
credibility. This makes her burden difficult. So long as an ALJ
gives specific reasons supported by the record, we will not
overturn his credibility determination unless it is patently
wrong. Pepper, 712 F.3d at 367. “Credibility determinations can
rarely be disturbed by a reviewing court, lacking as it does the
opportunity to observe the claimant testifying.”Sims v.
No. 13-3622 11
Barnhart, 442 F.3d 536, 538 (7th Cir. 2006). Here, the ALJ
discussed various inconsistencies between Curvin’s alleged
symptoms and the other evidence. For example, the eye exam
performed by her treating physician did not support her
allegations of vision loss in both eyes. Additionally, her
testimony that her sleeping disorder prevented her from
working was inconsistent with her testimony that she worked
for many years with the disorder and that medication kept it
under control. The ALJ’s credibility determination was not
patently wrong, and he provided specific reasons supported by
the record, so we will not overturn it. See Pepper, 712 F.3d at
367.
III. Conclusion
For the foregoing reasons, we hold that the district court
erred by not holding that the ALJ’s decision was supported by
substantial evidence. Accordingly, the judgment of the district
court is REVERSED.