Alena Denton v. Michael Astrue ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3088
A LENA D ENTON,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08 C 2134—Harold A. Baker, Judge.
A RGUED JANUARY 26, 2010—D ECIDED F EBRUARY 25, 2010
Before B AUER, P OSNER, and K ANNE, Circuit Judges.
P ER C URIAM. Alena Denton applied for disability bene-
fits for the two-year period between April 2004 and
March 2006, claiming that she could not work because
of fibromyalgia, hypothyroidism, and depression. Ac-
cording to Denton’s treating physician, Denton could not
work because she could lift and carry less than ten
pounds and could not reach overhead. The administra-
2 No. 09-3088
tive law judge (ALJ) agreed with these physical con-
straints—but concluded that even with these limitations
there were still more than 26,000 positions within her
capacity. On appeal Denton contends the ALJ reached this
conclusion only by improperly ignoring the symptoms of
her depression and other evidence suggesting disability.
The ALJ did, however, assess all this evidence, and his
conclusion was reasoned and supported by substantial
evidence. Accordingly, we affirm.
I. B ACKGROUND
Denton, 38 years old at the alleged onset of disability,
worked as a hand packager when pain from lifting
began to affect her. In August 2003 she began to exper-
ience right elbow pain, especially when lifting 50-pound
bags at work. Her family doctor diagnosed right medial
epicondylitis (also known as “golfer’s elbow”), told her
to lift no more than 10 pounds, and placed her on light
duty at work. Yet a month later, she continued to report
elbow pain. The family doctor told her to stop working
temporarily and attend physical therapy. The next
month the doctor released Denton to light duty at work
for 4-hour shifts, with a 10-pound lifting restriction.
Her pain continued, though, so her doctor referred
Denton to an orthopedist. The orthopedist also diag-
nosed right medial epicondylitis, prescribed naproxen
and a steroid shot, and gave Denton an elbow brace.
He told Denton to avoid repeatedly using her right arm
and to lift no more than five pounds. Although Denton’s
pain improved after the injection, she continued to have
No. 09-3088 3
forearm pain, which prompted the orthopedist to order
two further tests, an electromyogram (EMG) and magnetic
resonance imaging (MRI). These revealed possible carpal
tunnel syndrome and mild degenerative changes.
By April 2004, the date that Denton claims her
disability started, Denton had stopped working altogether,
citing the unavailability of light-duty work. Because the
orthopedist believed that neither the EMG nor the MRI
could fully explain Denton’s continued pain, he referred
Denton to Dr. Ruth Craddock, a rheumatologist, for a
second opinion.
Denton first visited Craddock in June 2004. At that
time Craddock noted tenderness in Denton’s forearms
and in several other areas. Craddock observed, though,
that Denton had full range of motion and full grip
strength. Craddock concluded that Denton originally
sustained an overuse injury that had developed into
fibromyalgia. 1 In addition, after observing an abnormal
thyroid function, Craddock theorized that if Denton were
developing hypothyroidism, it would help explain her
musculoskeletal pain.
1
Fibromyalgia is typically diagnosed by a showing of pain
in 11 of 18 specified tender-point sites. Pain is assessed on a
four-point scale, with two points indicating moderate or
greater pain. See Frederick Wolfe, et al., The American College
of Rheumatology 1990 Criteria for the Classification of
Fibromyalgia: Report of the Multicenter Criteria Committee, 33
A RTHRITIS & R HEUMATISM 160 (1990), available at http://www.
rheumatology.org/publications/classification/fibromyalgia/
1990_Criteria_for_Classification_Fibro.pdf.
4 No. 09-3088
Craddock repeated these findings about fibromyalgia
a month later and advised her that she could nonetheless
seek work. Specifically Craddock told Denton that she
could seek “retraining along the lines of office work or
something that would not result in such repetitive
motion to the right upper extremity.” When Denton
continued to report tenderness in August 2004, Craddock
prescribed Lexapro to relieve the pain, but did not
alter the conclusion that Denton could perform non-
repetitive office work.
Denton told Craddock that she was not working or
using her arms because of pain, and asked Craddock to
list Denton’s limitations on her long-term disability
insurance claim. Craddock wrote in October 2004 that
Denton was fatigued, but nonetheless had an unlimited
ability to sit, and could stand and walk. Denton could
lift and carry ten pounds and push and pull five
pounds, but only with her left hand. She could not lift,
carry, push, or pull with her right hand. Craddock also
said that Denton could not tolerate temperature
extremes, wet or humid conditions, vibration, odors,
fumes, or particles. She also could not work around
heavy machinery because her medicine made her dizzy.
Finally Craddock again speculated to Denton that
hypothyroidism might be a significant cause of her symp-
toms but did not prescribe medication for her thyroid.
To treat her continuing pain, in October 2004 her
family physician prescribed physical therapy and a
transcutaneous electrical nerve stimulation unit. Exam-
ination by Craddock three months later continued to
No. 09-3088 5
reveal some tenderness, though Denton was “far less
tender” the following month. Four months later, in
June 2005, Denton’s gynecologist prescribed Synthroid
for Denton’s potentially worsening hypothyroidism.
After applying for disability benefits, Denton was
directed to see Dr. Jerry Boyd for a consultive psycho-
logical evaluation in July 2005, to whom she reported that
she had been depressed for the past year. Boyd found
normal memory and intellectual functioning, and no
evidence of hallucinations, delusions, psychosis, or para-
noia. He concluded that she had a depressive disorder,
but that it was in partial remission because of her
Lexapro regimen. He also assigned a Global Assessment
of Functionality (GAF) score of 60. A review of Boyd’s
evaluation by another state agency psychologist con-
cluded that Denton did not have a severe mental impair-
ment.
In September 2005, two months later, Denton visited
Craddock again. The doctor adjusted Denton’s medica-
tion based on her reported overwhelming fatigue and
muscle tenderness. Craddock opined during this visit
that Denton’s fatigue and pain precluded her from
working overtime, but again she did not exclude all
regular-hour work.
In January 2006, without visiting Craddock, Denton
requested that she complete a “fibromyalgia worksheet.”
On that form, Craddock confirmed that Denton suffered
from fatigue, sleep disturbance, and morning stiffness,
and noted that Denton suffered from pain at a number of
tender points. In her handwritten notes, Craddock added
6 No. 09-3088
that Denton “remains disabled, unable to do her job @ this
time.” A “Residual Functional Capacity Report” that
Craddock completed the same day concluded, without
citing any clinical tests, that Denton was unable to
perform a sedentary job as “defined by Social Security
regulations.” Craddock also noted that Denton would
require more than one hour of break time during an eight-
hour work shift and that Denton could be expected to
miss about three days of work each month.
Denton next visited Craddock in March 2006 and then
again in August 2006. At the March visit, Craddock
adjusted Denton’s pain medication because she con-
tinued to report pain and fatigue. By August Craddock
summarized Denton’s past ability to work: “I have stated
on multiple occasions that [Denton] should probably be
able to return to work in some capacity,” and though
she could not return to her previous work, she should
be able to perform “fairly sedentary activity.”
Denton claims that she was disabled from April 10, 2004
through March 15, 2006. In a 23-page order, the ALJ
detailed the decision to deny disability benefits. The ALJ
found that Denton had severe impairments, namely fibro-
myalgia and hypothyroidism but not depression. In
determining Denton’s residual functional capacity (RFC),
the ALJ relied primarily on the October 2004 evaluation
by Craddock, finding that Denton could not lift, carry,
push, or pull more than five pounds but could sit, stand
and walk. The ALJ also determined that Denton could
only occasionally reach with her right arm, frequently
reach with her left arm, but never reach overhead with
No. 09-3088 7
either arm. Finally, the ALJ also adopted Craddock’s
opinion about Denton’s environmental constraints and
restrictions around unprotected heights and hazardous
machinery.
Based on these limitations, the ALJ agreed with Denton
that she could not return to her previous work as a hand
packager. But consistent with the vocational expert’s
testimony and Craddock’s opinions during all of
Denton’s office visits from 2004 to August 2006 (though
contrary to the form Craddock completed in January 2006
without seeing Denton), the ALJ concluded that Denton
could engage in some but not all sedentary work. The ALJ
specifically identified sedentary work as a surveillance
system monitor or circuit board screener—and that
more than 26,000 of these positions exist in Illinois. Ac-
cordingly, the ALJ concluded that Denton was not
disabled for the period of April 10, 2004 to March 15, 2006.
The Appeals Council denied review. On judicial review,
the magistrate judge recommended that the ALJ’s decision
be affirmed, and the district court adopted the report,
affirming the Commissioner’s decision.
II. A NALYSIS
Denton’s appeal generally focuses on two claimed
deficiencies with the ALJ’s decision: (1) the ALJ failed to
consider adequately all the evidence of her depression-
related symptoms and (2) the ALJ’s decision is not
based on substantial evidence.
8 No. 09-3088
1. Consideration of Depression
First, Denton argues that the ALJ erred by not con-
sidering the symptoms of her depression, and the related
factors of her fatigue, sleep difficulties, when formulating
her residual functional capacity. When determining a
claimant’s RFC, the ALJ must consider the combination
of all limitations on the ability to work, including those
that do not individually rise to the level of a severe im-
pairment. 20 C.F.R. § 404.1523; Terry v. Astrue, 580 F.3d 471,
477 (7th Cir. 2009); Villano v. Astrue, 556 F.3d 558, 563 (7th
Cir. 2009). A failure to fully consider the impact of non-
severe impairments requires reversal. Golembiewski v.
Barnhart, 322 F.3d 912, 918 (7th Cir. 2003).
The ALJ did fully consider the impact of her depression
and the related symptoms, both in discussing whether
her depression was a severe impairment (a point
Denton no longer presses) and also in the context of
their affect on her fibromyalgia. Specifically, the ALJ
noted that Denton did not seek out treatment for depres-
sion during the period of purported disability. Further,
she never mentioned lack of interest in activities, social
isolation, or mood swings to her treating doctors. (Her
brief cites only reports of these symptoms on disability
applications and not in medical reports.) Denton bears
the burden of producing medical records showing her
impairment, and if she never sought medical treatment
for a condition, then she cannot meet that burden. 20
C.F.R. § 404.1512(c); Scheck v. Barnhart, 357 F.3d 697, 702
(7th Cir. 2004). And the other symptoms that Denton
did mention to her treating doctors—her trouble sleeping
No. 09-3088 9
and fatigue—were also addressed by the ALJ in formu-
lating the RFC. Although Denton contended that her
fatigue prevented her from working full time during the
period of disability, the ALJ concluded that Craddock’s
evaluation did not support this finding because her
evaluation suggested only a limitation on overtime
work because of fatigue.
Denton next claims that the ALJ gave insufficient
weight to Craddock’s January 2006 evaluation. She argues
that this evaluation shows that her depression left her
“disabled,” unable to perform sedentary work, and likely
to miss three days of work monthly. Denton concludes
that this opinion should have received controlling
weight because Craddock was her treating physician.
Denton is incorrect. First, the opinion of a treating physi-
cian is entitled to controlling weight only if supported
by objective medical evidence. 20 C.F.R. § 404.1527(d)(2).
And the ALJ is not required to give controlling weight
to the ultimate conclusion of disability—a finding specifi-
cally reserved for the Commissioner. Id. § 404.1527(e)(1);
Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001).
Here, the conclusions about no sedentary work and
missing days of work were not based on objective
evidence and contradicted two of Craddock’s earlier
evaluations that were: More than a year earlier, in mid-
2004, Craddock reported that Denton could perform non-
repetitive office work, and a year later, in Septem-
ber 2005, she concluded that Denton could not work
overtime (implying that mere full-time work was possi-
ble). Even though a claimant’s condition may worsen, a
10 No. 09-3088
medical expert is obligated to point to objective medical
evidence to explain the worsening prognosis. See Skarbek
v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (concluding
that the ALJ was entitled to discount an opinion when
the physician did not identify medical evidence that
would support the greater limitation). In this case,
Craddock did not do that. She wrote the January 2006
report in the middle of a six-month stretch during
which Craddock did not examine Denton, and Craddock
cites to no objective medical evidence for her conclu-
sions that Denton could not perform sedentary work or
would miss three days of work per month. See, e.g.,
Haynes v. Barnhart, 416 F.3d 621, 630 (7th Cir. 2005) (disre-
garding contention that claimant would require three
days off per month when there was no elaboration or
explanation for that conclusion); Dixon v. Massanari, 270
F.3d 1171, 1177 (7th Cir. 2001) (disregarding contention
that claimant would miss 20 days of work each year
without explanation).
Beyond this, Denton also ignores that not long after the
January 2006 report, Craddock stated again that Denton
has indeed been able to work. Craddock commented in
August 2006 that, upon examining Denton on multiple
earlier occasions, she believed that Denton could return
to work. Craddock saw Denton only once after her period
of purported disability, so Craddock’s comment that
she found Denton able to work on “multiple occasions”
includes the period of her claimed disability and is in-
consistent with Craddock’s clinically unsubstantiated
assessment in January 2006 that Denton could not
perform sedentary work. Accordingly the ALJ did not err
No. 09-3088 11
in discounting Craddock’s evaluation in January 2006
about no sedentary work and possible missed days of
work. See 20 C.F.R. § 404.1527(d)(2); Ketelboeter v. Astrue,
550 F.3d 620, 625 (7th Cir. 2008) (noting that the ALJ
may discount treating physician’s opinions that are
internally inconsistent).2
The ALJ’s view of how depression affected Denton’s
RFC was also consistent with the opinion of the state
agency psychologist, Dr. Boyd. Boyd concluded that
although Denton had a depressive disorder, it was in
partial remission because she took Lexapro for her
fibromyalgia. Despite her remitting depression, Boyd
pointed to no limitation on her ability to work, concluding
that she could follow moderately complex instructions.
The ALJ was entitled to rely on medical experts when
no contrary evidence is presented. See Flener ex rel. Flener
v. Barnhart, 361 F.3d 442, 448 (7th Cir. 2004).
Denton also contends that the ALJ erred by refusing to
consider Boyd’s GAF score of 60. GAF scores, defined
in A M . P SYCHIATRIC A SS’N, D IAGNOSTIC & S TATISTICAL
M ANUAL OF M ENTAL D ISORDERS 32-34 (Text Revision, 4th
ed. 2000), are “useful for planning treatment,” and are
measures of both severity of symptoms and functional
level. Id. at 32. Because the “final GAF rating always
2
In her appellate brief, Denton also relies on Craddock’s
January 2005 letter to Denton’s insurance company, but because
that letter was not provided to the ALJ, it is not part of the
record on review. 42 U.S.C. § 405(g); Rice v. Barnhart, 384
F.3d 363, 366 n.2 (7th Cir. 2004).
12 No. 09-3088
reflects the worse of the two,” id. at 33, the score does not
reflect the clinician’s opinion of functional capacity.
Accordingly, “nowhere do the Social Security regulations
or case law require an ALJ to determine the extent of an
individual’s disability based entirely on his GAF score.”
Wilkins v. Barnhart, 69 F. App’x 775, 780 (7th Cir. 2003)
(citing Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241
(6th Cir. 2002)). Rather than rely on the unexplained
numerical score assigned by Boyd, the ALJ’s ultimate
finding of no disability was substantially supported
by Boyd’s narrative finding that Denton had no sig-
nificant mental impairments.
Finally, Denton focuses on her use of Lexapro as estab-
lishing the extent of her depression. Although Lexapro
is an antidepressant, Denton was prescribed it to treat
her fibromyalgia, not depression. And even if Denton
had been taking Lexapro for depression, that would not
warrant inclusion in her RFC if the prescription con-
trolled her depression, as the evidence suggested. See
Prochaska v. Barnhart, 454 F.3d 731, 737 (7th Cir. 2006)
(concluding that depression was not disabling because
it was controlled).
2. Substantial Evidence
Second, apart from the issue of depression, Denton
contends that the ALJ’s finding of no disability was not
supported by substantial evidence because the ALJ
ignored her hypothyroidism, her experience with
physical therapy, and her tender-points diagnostic (which
produced the fibromyalgia diagnosis). An ALJ has the
No. 09-3088 13
obligation to consider all relevant medical evidence and
cannot simply cherry-pick facts that support a finding
of non-disability while ignoring evidence that points to a
disability finding. Myles v. Astrue, 582 F.3d 672, 678 (7th
Cir. 2009). But an ALJ need not mention every piece of
evidence, so long he builds a logical bridge from the
evidence to his conclusion. Getch v. Astrue, 539 F.3d 473,
480 (7th Cir. 2008).
The ALJ specifically addressed all the evidence that
Denton points out, though he did not assign the signifi-
cance to it that Denton prefers. The ALJ described
Denton’s battle with hypothyroidism and considered it
a severe impairment. But because the record contains
only sporadic references to thyroid function, and only
speculation on the potential impact that thyroid func-
tion might have on her condition, the ALJ was unable
to conclude that her thyroid function affected her
ability to work. Furthermore, Denton took Synthroid for
hypothyroidism in June 2005, and after that point there
is no mention of hypothyroidism or its symptoms in
the medical record. On this record, the ALJ did not err
in concluding that the condition was well-controlled
and not affecting her capacity to work. See Luna v.
Shalala, 22 F.3d 687, 693 (7th Cir. 1994) (noting that the
claimant “must furnish medical and other evidence that
the ALJ can use to reach conclusions about his medical
impairment and its effect on his ability to work on a
sustained basis.”)
Likewise, Denton’s disagreement with the significance
that the ALJ attributed to her physical therapy and
14 No. 09-3088
fibromyalgia is meritless. The ALJ detailed Denton’s
attempts at physical therapy, noting that despite regular
therapy, Denton was unable to resolve fully her pain
and lack of mobility in her arms. The ALJ accepted
Denton’s and her doctor’s conclusions that, because of
pain, she was limited in her ability to push, pull, lift, and
carry, imposing a limitation even more onerous than
suggested by Craddock in October 2004. The ALJ
accepted Craddock’s opinion that Denton’s fibromyalgia
prevented her from performing the full range of
sedentary work. But “a finding that an individual has
the ability to do less than a full range of sedentary
work does not necessarily equate with a decision of ‘dis-
abled.’ ” SSR-96p, 61 Fed. Reg. 34,478, 34,479 (July 2,
1996); Buchholtz v. Barnhart, 98 F. App’x 540, 547 (7th Cir.
2004); Lauer v. Apfel, 169 F.3d 489, 493 (7th Cir. 1999). The
ALJ, relying on Craddock’s October 2004 evaluation, and
the testimony of the vocational expert, concluded that
despite her limitations Denton could perform full-
time work.
III. C ONCLUSION
Accordingly, we A FFIRM the judgment of the district
court.
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