Claude Britt v. Nancy Berryhill , 889 F.3d 422 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2896
CLAUDE C. BRITT,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
Social Security Administration
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 10320 — M. David Weisman, Magistrate Judge.
____________________
ARGUED APRIL 24, 2018 — DECIDED MAY 4, 2018
____________________
Before BAUER, EASTERBROOK, and KANNE, Circuit Judges.
PER CURIAM. Claude Britt, now 55, applied for Disability
Insurance Benefits and Supplemental Security Income after a
construction crane toppled over and smashed his big toe. An
administrative law judge (“ALJ”) granted Britt benefits for the
period beginning in March 2013, but denied him benefits for
the four-year period immediately preceding that time because
2 No. 17-2896
he could perform sedentary work. On appeal Britt argues that
the ALJ disregarded his testimony about his need to elevate
his foot, as well as an orthopedic surgeon’s report about the
same, and gave too little weight to an agency doctor’s opinion
that he could work for only 3.5 hours in a day. Substantial ev-
idence supports the ALJ’s decision, so we affirm the judg-
ment.
I. BACKGROUND
While Claude Britt was working on a construction site in
May 2008, a crane crushed his right foot’s big toe. An emer-
gency-room physician ordered an x-ray that revealed a frac-
ture in the tip of Britt’s toe, as well as a laceration—injuries
that understandably caused pain and swelling. The doctor re-
moved Britt’s nail, gave him a tetanus shot, and instructed
him to elevate his foot and follow up with an orthopedic sur-
geon.
Four days later, the orthopedic surgeon, Dr. Anand Vora,
saw Britt and opined that he could return to work in a week
but in the meantime should elevate his foot to reduce swell-
ing. The following week the doctor noted continuing pain and
swelling, but he added that Britt could return to work “walk-
ing less than one hour a day in a seated job” and elevating his
foot as needed. (A.R. 627.)
Britt then began visiting another orthopedic surgeon, Dr.
Paul DeFrino, who supervised the healing process. The swell-
ing in Britt’s toe gradually subsided, and by September 2008,
Dr. DeFrino opined that Britt was ready for light-duty work.
Dr. Brian Toolan, an orthopedic surgeon specializing in
foot and ankle disorders at The University of Chicago Medical
Center then evaluated Britt in November 2008 and concluded
No. 17-2896 3
that Britt should be able to return to seated “light” work
within three to four months. (A.R. 660, 656.) Dr. Toolan noted
that Britt’s complaints of a hypersensitive nerve were subjec-
tive in nature and that there were no discrete objective find-
ings to corroborate them. A month later, Dr. Toolan again
opined that Britt was capable of “light duty work.” (A.R. 821.)
In January 2009, Dr. Toolan declined to see Britt again to eval-
uate his suitability for an inpatient pain-management pro-
gram; the doctor clarified that Britt had been offered a partial
toe amputation but had chosen not to pursue that option to
treat his pain.
In February 2009, Britt consulted Dr. Steven Kodros, an-
other orthopedic surgeon, who identified inconsistencies be-
tween Britt’s condition at his appointment and the other evi-
dence in the record. At Britt’s appointment, Britt was hyper-
sensitive and had a significant limp, and yet in four surveil-
lance videos that were gathered as part of Britt’s workers’
compensation case, Britt walked normally and briskly.
Throughout the following year, Britt’s condition persisted.
In March 2009, after undergoing a functional capacity evalu-
ation, as recommended by Dr. Toolan, a physical therapist
cleared Britt to work immediately at a “physical demand
level” that was characterized as heavy. (A.R. 750–51.) That
month Britt was fired, he says, “because of [his] condition(s).”
(A.R. 499.) By June, a certified rehabilitation counselor con-
cluded that Britt could work as a security guard, telemarketer,
or light manufacturer. By late 2010, Dr. DeFrino characterized
Britt’s pain as persistent and opined that he could perform
only sedentary work because of his swelling, pain, hypersen-
sitivity, and stiffness.
4 No. 17-2896
In late 2011, a state-agency physician, Dr. Bharati Jhaveri,
reviewed Britt’s records and concluded that he could perform
medium work based on his ability to squat, ambulate for 50
feet unassisted, and move his ankles through their full ranges.
Britt had normal motor strength in all extremities. Dr. Jhaveri
characterized Britt as only “partially credible” based on in-
consistencies between the clinical findings and Britt’s denials
that he could lift heavy items and walk at the same time or
that he could stay on his feet for more than 20 minutes. (A.R.
178–82.)
In mid-2013, Dr. Carolyn Hildreth, an internist, performed
a consultative examination and opined that Britt could work
for only 3.5 hours a day. She did not identify medical or clini-
cal findings to support this assessment. Dr. Hildreth did note
that Britt had an abnormal gait, required the use of a cane and
walker, had “severe difficulty” when attempting to walk on
his toes and heels, and that Britt reported that he was lying
down for eight to ten hours a day. (A.R. 981–82, 986.) Never-
theless, he could still move about, frequently lift and carry up
to 10 pounds, and occasionally lift and carry 11–20 pounds.
Britt applied in February 2011 for Disability Insurance
Benefits and Supplemental Security Income, alleging a disa-
bility onset date of March 31, 2009. At a hearing before an ALJ,
Britt testified that he could only lie in bed with his foot ele-
vated and had “never, ever, ever been in this kind of pain.”
(A.R. 121.) The ALJ nevertheless determined that he was not
disabled. The Appeals Council then remanded so that the ALJ
could specify the evidence supporting the assessed limita-
tions and consider Medical Vocational Rule 201.21, which di-
rects a finding of disability for individuals approaching age
50.
No. 17-2896 5
At a second hearing before another ALJ, Britt testified that
elevating his foot at home and work relieved throbbing pain
that felt like someone was stabbing him in the leg. The pain
relief would last about an hour, but the pain always returned.
A vocational expert then opined that someone with Britt’s re-
sidual functional capacity before March 7, 2013, could have
been an assembler, sorter, or visual inspector. But if Britt had
to elevate his foot for a couple of hours each day, the voca-
tional expert continued, he would be precluded from those
jobs.
Applying the familiar five-step analysis, the ALJ decided
that Britt was disabled beginning on March 7, 2013. The ALJ
determined that Britt had not been engaged in substantial
gainful activity since his alleged onset date (step one), had a
severe impairment of “right foot crush injury with neuropa-
thy” (step two), and that Britt’s impairment did not meet or
medically equal a listing (step three). Britt’s residual func-
tional capacity (“RFC”) included the ability to perform seden-
tary work as defined by 20 C.F.R. § 404.1567(a) and
§ 416.967(a) except that he required the use of a cane to am-
bulate in the workplace. The ALJ declined to find that Britt
needed to elevate his foot at work, because his testimony to
that effect was inconsistent with other medical evidence in the
record and “not fully credible.” At step four, the ALJ found
that Britt could not perform any past relevant work.
Then, the ALJ applied the grids and concluded that Britt
became disabled six months before his fiftieth birthday, on
March 7, 2013, though he was not disabled before that point.
On March 7, Britt’s limitation to sedentary work rendered him
disabled and entitled to Supplemental Security Income bene-
6 No. 17-2896
fits. See 20 C.F.R. § 404.1563. But Britt was not entitled to Dis-
ability Insurance Benefits because he was not disabled before
his date last insured, September 30, 2012. The Appeals Coun-
cil denied Britt’s request for review.
Britt appealed to the district court, and a magistrate judge,
presiding with the parties’ consent, upheld the ALJ’s decision.
Britt’s appeal from the district court order upholding the de-
cision is before us now.
II. ANALYSIS
Britt argues that the ALJ erred in its determination of his
residual functional capacity by failing to evaluate his testi-
mony about his need to elevate his foot, as well as an ortho-
pedic surgeon’s report that Britt should elevate his foot “as
necessary,” and by giving too little weight to an agency doc-
tor’s opinion that he could work for only 3.5 hours in a day.
But substantial evidence supports the ALJ’s decision, so his
argument fails. See White v. Sullivan, 965 F.2d 133, 136 (7th Cir.
1992).
Britt’s strongest argument is that the ALJ failed to evaluate
his testimony that he needed to elevate his foot as a treatment
measure to reduce pain. That restriction is outcome-determi-
native because the vocational expert testified that elevating
his foot during working hours would exclude all jobs. Britt
maintains that the case must be remanded because the ALJ
acknowledged his claim that he must elevate his foot at work
but failed to explain why that limitation was not included in
the RFC. ALJs must confront evidence that supports a finding
of disabled, like Britt’s testimony, and then explain why it was
rejected. See O’Connor-Spinner v. Astrue, 627 F.3d 614, 621 (7th
Cir. 2010). And RFC assessments must explain why a reported
No. 17-2896 7
limitation is or is not consistent with the evidence in the rec-
ord. SSR 16-3p, 2017 WL 5180304, at *8.
But the ALJ did explain in his decision why he rejected
Britt’s testimony. It is true that the ALJ described Britt as “not
fully credible,” a phrase that this court has previously criti-
cized because it is too ambiguous. See Martinez v. Astrue, 630
F.3d 693, 696–97 (7th Cir. 2011); Parker v. Astrue, 597 F.3d 920,
922 (7th Cir. 2010). Nevertheless, the ALJ also explained that
he gave “great weight” to Dr. Slodki’s testimony that elevation
was not medically necessary. The ALJ justified this determi-
nation by noting that Dr. Slodki’s opinion was consistent with
the objective medical evidence. No further explanation was
required.
Britt next contends that the ALJ erred by not evaluating
Dr. Vora’s opinion that Britt should elevate his foot “as
needed.” But here too there was no error because that recom-
mendation was a temporary measure. Dr. Vora recom-
mended—immediately after the injury and almost a year be-
fore Britt’s alleged onset date—merely that Britt elevate his
foot to reduce swelling. No objective medical evidence post-
dating Britt’s alleged onset date supports his allegation that
he must elevate his leg at work. In fact, Dr. Slodki—the medi-
cal expert who testified at Britt’s first hearing—opined that el-
evation was not medically necessary after the alleged onset
date. Moreover, the doctors who treated him proposed other
solutions to mitigate Britt’s pain, such as a partial toe ampu-
tation, which Britt declined to pursue. No treating doctor sug-
gested foot elevation beyond the immediate aftermath of the
injury. An ALJ must accord controlling weight to a treating
source’s opinion if it is consistent with other substantial evi-
dence in the record. 20 C.F.R. § 404.1527(c)(2); Schaaf v. Astrue,
8 No. 17-2896
602 F.3d 869, 875 (7th Cir. 2010). But Dr. Vora’s opinion sug-
gesting that Britt elevate his foot in the short-term does not
translate into a long-term need, so the ALJ was entitled to
limit it to its proper context.
Britt’s final argument is that the ALJ gave insufficient
weight to the agency’s examining expert, Dr. Hildreth, who
opined that he could work only 3.5 hours a day—a figure in-
consistent with full-time employment. Britt believes that the
ALJ wrongly discounted this opinion by according it only
“moderate” weight.
But the ALJ adequately explained that he gave only “mod-
erate” weight to this opinion because the doctor relied on
Britt’s subjective complaints that the ALJ discounted as “not
fully credible.” For example, Britt had an abnormal gait, used
a rolling walker at the appointment, and said that he was lay-
ing down eight to ten hours a day. But there was video evi-
dence in the record of Britt walking normally, even briskly.
“[D]iscrepancies between the objective evidence and self-re-
ports may suggest symptom exaggeration.” Jones v. Astrue,
623 F.3d 1155, 1161 (7th Cir. 2010). An ALJ can give less than
controlling weight to medical opinions based on subjective re-
ports and can even reject a doctor’s opinion entirely if it ap-
pears based on a claimant’s exaggerated subjective allega-
tions. Alvarado v. Colvin, 836 F.3d 744, 748 (7th Cir. 2016); Dixon
v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). Based on the
inconsistencies between Dr. Hildreth’s opinion and other evi-
dence such as the videos, the ALJ reasonably discounted Dr.
Hildreth’s opinion.
Finally, to the extent Britt believes that the ALJ should
have re-contacted Dr. Hildreth for an explanation regarding
No. 17-2896 9
the inconsistencies between her report and those of other doc-
tors, the ALJ was not required to do so because the record
contained adequate information for the ALJ to render a deci-
sion. See Skinner v. Astrue, 478 F.3d 836, 843–44 (7th Cir. 2007).
With the information at hand, the ALJ was entitled to decide
whether to believe Dr. Hildreth or the other doctors, as long
as substantial evidence supported that decision. See Dixon,
270 F.3d at 1178. The ALJ reasonably gave less weight to Dr.
Hildreth’s opinion gleaned from just one examination, com-
pared to Britt’s long-term doctors, such as Dr. DeFrino, who
saw Britt repeatedly during the relevant time period and ulti-
mately opined that he could perform sedentary work.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.