Charles Primm v. Andrew M. Saul ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 14, 2019
Decided November 21, 2019
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 19‐1514
CHARLES PRIMM, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 17 CV 6173
ANDREW M. SAUL,
Commissioner of Social Security, Thomas M. Durkin,
Defendant‐Appellee. Judge.
ORDER
Charles Primm applied for Social Security Disability Insurance Benefits, asserting
that injuries he sustained on his last job, plus obesity and other ailments, so impaired
him that he was unable to work from May 2006 through June 2014. An administrative
law judge concluded that Primm was not disabled during that period because although
he could not perform his old job, he could do light work—a conclusion upheld by the
district court. Substantial evidence supports the ALJ’s decision, so we affirm.
No. 19‐1514 Page 2
I. Background
While working as a baggage handler for United Airlines in May 2006, Primm,
then 41 years old, injured his right shoulder, elbow, and neck. After this incident he
stopped working. In March 2014, three months before his insured status expired, Primm
applied for benefits, alleging that he had been unable to work since his injury due to
several ailments. In his initial application, he cited a torn rotator cuff, cubital tunnel
syndrome, and bulging disks in his neck. Later he added obesity, depression, anxiety,
right medial epicondylitis (elbow tendinitis), and reduced mobility due to a 1998 knee
surgery.
After Primm’s injury, MRI and EMG tests requested by Dr. Eugene Lopez, his
orthopedic surgeon, revealed “subtle” irregularity in the cartilage surrounding his right
elbow, mild impingement of his right AC joint, mild inflammatory fluid surrounding a
muscle in his right rotator cuff, and disk protrusions in his neck. Conservative
management of Primm’s elbow and shoulder pain failed to bring relief, so Dr. Lopez
performed two surgeries: one to repair the tear in Primm’s rotator cuff in October 2006
and the other to decompress and transpose a nerve in his elbow in May 2007. Dr. Lopez
reported good results from the surgeries, noting in March 2007 that he was optimistic
that Primm would “fully recover” and in July 2007 that he was doing “extremely well.”
Dr. Lopez ordered physical therapy, prescribed anti‐inflammatories, and put Primm in
a work‐conditioning program with the hope that he would return to work in a month’s
time. After an apparent gap in treatment of nearly three years, Primm returned to
Dr. Lopez in April 2010 complaining of pain in his right elbow and shoulder. Dr. Lopez
ordered imaging that revealed Primm’s elbow was normal but some abnormalities
persisted with his shoulder. Primm saw Dr. Lopez until December 2010 and was
prescribed medication for symptom relief.
As for Primm’s neck injury, imaging ordered in November 2007 revealed
multilevel mild degenerative disk changes. Primm saw Dr. Bruce Montella, a spine
specialist, but the treatment notes are not in the record. There are two letters from
Dr. Montella to Primm’s primary‐care physician, however. In June 2006 Dr. Montella
wrote that Primm had “severe and debilitating” pain from cervical disk injury and
radiculitis. In January 2008 Dr. Montella stated that Primm had “ongoing, severe, and
debilitating” cervical disk herniation, making it unreasonable for Primm to work; he
recommended physical therapy, anti‐inflammatories, and epidural steroid injections.
That same month Dr. David Spencer, a spine surgeon, performed an independent
medical examination for Primm’s worker’s compensation claim, and after reviewing the
2007 MRI and physically examining Primm, concluded that Primm was able to return to
No. 19‐1514 Page 3
work with no limitations and no further treatment. He described the degeneration in
Primm’s neck as “age‐appropriate” and found Primm’s complaints to be “subjective”
and not supported by “objective abnormalities.” In May 2009 Dr. Spencer evaluated
Primm again and repeated that no further treatment was necessary.
After December 2010 Primm did not seek treatment for more than three years,
although he had health insurance. In April 2014 Primm returned to Dr. Lopez and
reported pain in his right elbow. Dr. Lopez examined Primm, diagnosed medial and
lateral epicondylitis, restarted physical therapy, and ordered a brace, opining that
Primm would likely do well with “conservative management.” This was Primm’s last
medical visit of record before his date last insured.
Primm had his ability to work evaluated multiple times before he applied for
disability insurance because he sought worker’s compensation. In October 2008
Dr. Lopez sent Primm for a functional capacity evaluation, and the evaluator concluded
that Primm could frequently lift and carry 19.5 pounds but needed to avoid simple
grasping, pushing/pulling, and fine and gross manipulation with his right hand.
Thereafter, Dr. Lopez assigned permanent work restrictions of “light duty” with no
repetitive work and no lifting over 15 pounds. In 2011 Kari Stafseth, a certified
rehabilitation counselor who worked with Primm, opined that although Primm was
“theoretically employable,” his narrow work history, lack of transferable skills,
restricted use of his right arm, and inability to obtain employment, despite applying for
200 jobs locally, made him “totally disabled.” In June 2011 Primm was awarded
worker’s compensation benefits after an arbitrator concluded that his injury had
temporarily disabled him.
After the Social Security Administration denied Primm’s application initially and
on reconsideration, an ALJ held a hearing on Primm’s disability claim in August 2016.
Primm testified that he could not stand for more than an hour at a time and that his arm
swelled throughout the day, which he relieved by changing positions. He further stated
that none of his doctors had given him specific work restrictions other than to caution
him against using both arms to lift. And he noted that doctors had told him no further
treatment other than pain medication would help him, but that he refused to take any
medication because he feared becoming addicted to it and it made him “incoherent”
and “foggy.”
The ALJ asked a vocational expert about available work for an individual with
Primm’s age, education, and work experience, who can perform light work, with no
limitations on his ability to sit, stand, and walk, and who can: lift up to 15 pounds at a
No. 19‐1514 Page 4
time and 10 pounds frequently; never push or pull with the right arm, but push or pull
with the left arm with up to 15 pounds of force; never crawl, climb, work overhead with
either arm, or perform repetitive motions with the neck; and frequently, but not
constantly, perform manipulation with no forceful grasping or torqueing. The
vocational expert replied that such an individual could not do Primm’s past job but
could work as a sales attendant or an inspector. If the individual had no ability to reach
overhead with the right arm and the ability to manipulate objects only occasionally, the
vocational expert testified, he could perform light work as an usher or mail clerk.
After the hearing the ALJ left the record open and invited additional evidence of
Primm’s limitations. Two months later Dr. Montella submitted a Residual Functional
Capacity Questionnaire without supporting treatment notes or other records. He
opined that Primm had been precluded from work since 2006 due to: photosensitivity,
inability to concentrate, impaired sleep, and mood changes caused by headaches;
reduced neck mobility; inability to sit for longer than 20 minutes at a time, to stand for
more than 15 minutes at a time, to walk more than 2 minutes every 30 minutes, or to do
any of those activities longer than 2 hours per day; and complete inability to use his
right hand. Primm’s attorney then submitted a letter stating that the record was
complete.
The ALJ concluded in a written decision that Primm was not disabled. Applying
the standard five‐step analysis, 20 C.F.R. § 416.920(a)(4), the ALJ determined that
Primm had not engaged in substantial gainful activity between his alleged onset date
and date last insured (step one); that through his date last insured, his arthropathies
and obesity were his only severe impairments (step two); and that neither of these
impairments met the criteria of a listing (step three). The ALJ then found that Primm
had the residual functional capacity that he had first articulated to the vocational
expert. In making these findings, the ALJ concluded that the medical evidence did not
support Primm’s testimony, afforded no weight to the opinions of Dr. Montella and
Kari Stafseth, and gave great weight to Dr. Lopez’s opinions. The ALJ determined that
Primm could not perform his past work (step four) but concluded that there were a
significant number of jobs in the national economy that Primm could still perform (step
five). The Appeals Council denied Primm’s request for review, and the district court
upheld the ALJ’s decision.
II. Discussion
On appeal Primm identifies myriad purported errors. But we will uphold the
ALJ’s ruling if substantial evidence supports it. 42 U.S.C. § 405(g); Biestek v. Berryhill,
No. 19‐1514 Page 5
139 S. Ct. 1148, 1152 (2019). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Biestek, 139 S. Ct. at
1154 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Our review is
deferential; we will not reweigh the evidence or substitute our judgment for the ALJ’s,
even if reasonable minds could differ on the disability determination. L.D.R. v. Berryhill,
920 F.3d 1146, 1152 (7th Cir. 2019).
Primm first attacks the residual functional capacity assessment, contending that
the ALJ misweighed opinion evidence, failed to obtain material evidence, and wrongly
discredited his testimony. These errors, Primm argues, led the ALJ to fail to account for
the limitations caused by his knee surgery and depression.
We begin with Primm’s contention that the ALJ erred in giving no weight to the
opinion of Dr. Montella, one of Primm’s treating physicians. At the time Primm filed his
application, a treating physician’s opinion was entitled to controlling weight if well
supported by medical findings and not inconsistent with other substantial evidence.
20 C.F.R. § 404.1527(c)(2). If a treating physician’s opinion is not given controlling
weight, the ALJ was required to consider specific factors in determining what weight, if
any, to afford the opinion. Id. If the ALJ adequately considered these factors, his
decision is entitled to deference. Winsted v. Berryhill, 923 F.3d 472, 478 (7th Cir. 2019)
(citing Elder v. Astrue, 529 F.3d 408, 416 (7th Cir. 2008)).
After noting the length, frequency, and nature of the treating relationship, the
ALJ articulated several reasons for discounting Dr. Montella’s opinion. The fourth
reason—“Dr. Montella’s treatment notes are not in the record”—is dispositive because
controlling weight can be given only to opinions supported with evidence. Primm faults
the ALJ for failing to obtain these notes. But a claimant bears the burden of producing
medical evidence, Eichstadt v. Astrue, 534 F.3d 663, 668 (7th Cir. 2008), and Primm does
not claim that anything impeded him from obtaining the notes himself. Although the
ALJ should make “every reasonable effort” to develop the record, 20 C.F.R.
§ 404.1512(b)(1), an ALJ may assume that a counseled claimant “is making his strongest
case for benefits,” Schloesser v. Berryhill, 870 F.3d 712, 721 (7th Cir. 2017) (quoting Glenn
v. Sec’y of Health & Human Servs., 814 F.2d 387, 391 (7th Cir. 1987)). Primm’s reliance on
a case involving a pro se claimant, Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009), is
not convincing. The ALJ encouraged Primm’s counsel to submit more evidence and
held the record open after the hearing; later the ALJ reasonably accepted counsel’s word
that he had “submitted all of the records in this file.” Primm has provided no
explanation for why Dr. Montella’s records were not produced.
No. 19‐1514 Page 6
The ALJ could not find support for Dr. Montella’s opinions in other doctors’
records either. Primm did not report headaches when completing a questionnaire at his
final doctor’s appointment before his date last insured and reported “no headaches or
dizziness” later that year. There were also no reports of an abnormal gait, muscle
weakness, or atrophy in Primm’s legs. And in 2014 Primm did not report that his neck
was a source of his orthopedic problems, nor did he report any neck mobility issues
during the October 2008 functional capacity evaluation.
Rather, the ALJ explained that the record contradicted Dr. Montella’s opinions.
See Stepp v. Colvin, 795 F.3d 711, 719 (7th Cir. 2015) (upholding the rejection of the
treating physician’s opinion that was inconsistent with the opinions of other
physicians). Primm resumed work after his 1998 knee surgery until his 2006 injury, and
treatment notes from 2013 reported normal gait. Dr. Lopez consistently opined that
Primm could perform light work and never reported the extreme limitations that
Dr. Montella identified. And Dr. Spencer directly contradicted Dr. Montella’s
assessments: after examining Primm in January 2008 and May 2009 and reviewing his
MRI results, Dr. Spencer opined that there was “absolutely no way” that Dr. Montella
had found an objective explanation for Primm’s reported neck pain.
Two arguments related to Dr. Montella remain. First, Primm asserts that it was
impermissible for the ALJ to credit Dr. Spencer over Dr. Montella because Dr. Spencer
was a nontreating source and because the workers’ compensation decision “specifically
rejected” Dr. Spencer’s opinion. But an ALJ is entitled to credit the opinion of a
nontreating physician over a treating physician if doing so is supported by evidence,
and the ALJ here cited plenty. Hall v. Berryhill, 906 F.3d 640, 643 (7th Cir. 2018). The ALJ
was also not bound by the workers’ compensation decision, which did not apply social
security law. 20 C.F.R. § 416.904.
Second, Primm contends that the ALJ overlooked the letters from Dr. Montella to
Primm’s primary‐care physician about his neck injury. An ALJ “may not select and
discuss only that evidence that favors” his conclusion but rather must confront
opposing evidence and explain why he rejects it. Stephens v. Berryhill, 888 F.3d 323, 329
(7th Cir. 2018) (internal quotation marks and citations omitted). Even so, these two one‐
page letters contain only conclusory findings that without the supporting records,
would not have been entitled to much weight. Thus, the ALJ’s failure to mention them
was harmless error at most. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011)
(citing Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010)).
No. 19‐1514 Page 7
Primm also argues that the ALJ also improperly discounted the opinion of Kari
Stafseth, the rehabilitation counselor, that Primm was “totally disabled.” An ALJ does
not need to do more than explain the weight given to nonmedical sources. 20 C.F.R.
§ 404.1527(f)(2). After correctly determining that Stafseth was not a medical source, the
ALJ articulated two reasons for giving her opinion no weight: it was based on the
availability of jobs locally (and therefore was not based on the Social Security Act’s
standards), and it was inconsistent with Dr. Lopez’s opinions. Id. § 404.1527(c)(4), (6).
This explanation suffices.
Primm next argues that the ALJ improperly discredited his testimony. We defer
to an ALJ’s credibility assessment unless it is “patently wrong.” Murphy v. Colvin,
759 F.3d 811, 816 (7th Cir. 2014) (citing Elder, 529 F.3d at 413–14). But the ALJ must still
explain his evaluation “in a rational manner, logically,” and base it on “specific findings
and the evidence in the record.” McKinzey, 641 F.3d at 890.
Primm argues that the ALJ relied on irrelevant factors and minor inconsistencies.
We agree that one of the reasons provided by the ALJ is weak. The ALJ noted that
Primm applied to 200 jobs between August 2009 and 2010 but testified that he was
incapable of work during that period. A job search, however, may be simply “overly‐
optimistic” rather than evidence of ability to work. Gerstner v. Berryhill, 879 F.3d 257, 265
(7th Cir. 2018). But the ALJ did not view this fact in isolation. He also observed that
Primm may have lost motivation to find work in 2011 after he began receiving $300 per
week and then a lump sum of approximately $300,000 in worker’s compensation.
If that concluded the ALJ’s credibility assessment, the case might be closer, but
the ALJ pointed to many other factors. Primm regularly reported less severe symptoms
to his doctors than he testified to. And although Primm takes issue with the ALJ’s
observation that Primm reported that his pain “comes and goes,” which he argues is
typical of chronic pain, an ALJ may consider the frequency of a claimant’s pain.
20 C.F.R. § 404.1529(c)(3)(ii). Further, Primm did not receive ongoing treatment, despite
having health insurance. See Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008) (infrequent
treatment supports an adverse credibility finding). Primm argues that the ALJ ignored
his valid explanation: “at some point” doctors told him that nothing more could be
done to help him. That prognosis, however, is not in the medical record; rather, as
recently as April 2014, Dr. Lopez prescribed physical therapy, which Primm did not
attend.
Primm vaguely argues that all these inconsistencies are explained by “the fact
that [his] condition is steadily worsening.” But he did not testify to that, and it is not
No. 19‐1514 Page 8
supported by the medical record. With no other explanation to consider, the ALJ
reasonably concluded that these inconsistencies, taken together, supported a finding
that Primm exaggerated the limiting effects of his conditions.
Primm argues next that had the ALJ properly credited all the evidence, his
residual functional capacity would have been far more limited. He contends that the
ALJ ignored his depression, which would cause him to miss work and be off‐task, and
his knee injury, which is exacerbated by his obesity, limits his ability to sit, stand, or
walk. The ALJ must consider all limitations imposed by medically determinable
impairments, including by those that are not severe. 20 C.F.R. § 404.1545(a)(2). That
happened here. After permissibly giving no weight to Dr. Montella’s opinion and
finding that Primm exaggerated his symptoms, the ALJ reasonably found that nothing
in the record demonstrated that either ailment caused work‐related restrictions.
Finally, Primm charges the ALJ with accepting “without question” testimony
from the vocational expert as evidence that there were a significant number of jobs that
Primm could perform. First, he argues, the ALJ failed to acknowledge that the
vocational expert’s opinion was inconsistent with Stafseth’s and the workers’
compensation decision. As already discussed, however, the ALJ reasonably gave
Stafseth’s opinion no weight. And because the workers’ compensation decision
primarily relied on Stafseth’s opinion in concluding that Primm could not work, the
ALJ’s failure to separately discuss the decision was harmless. McKinzey, 641 F.3d at 892.
Second, Primm identifies problems with two jobs that the vocational expert
found available: (1) it is “inconceivable” that a “sales attendant” would not have to
reach overhead, as the vocational expert testified, and (2) according to the labor‐market
database Skilltran, “inspector” jobs are not available in significant numbers in the
national economy. These arguments are new on appeal, so we need not address them.
Brown v. Colvin, 845 F.3d 247, 254 (7th Cir. 2016); Schomas v. Colvin, 732 F.3d 702, 707
(7th Cir. 2013). What is more, Primm does not take issue with half the jobs the ALJ
found available to him. Usher and mail‐clerk positions account for 110,000 jobs
nationally and are therefore enough to support the ALJ’s finding. Liskowitz v. Astrue,
559 F.3d 736, 743 (7th Cir. 2009) (“1,000 jobs is a significant number”).
Because none of Primm’s challenges to the ALJ’s decision have merit and that
decision was supported by substantial evidence, we AFFIRM.