Rasmussen, Tamera v. Astrue, Michael , 254 F. App'x 542 ( 2007 )

NONPRECEDENTIAL DISPOSITION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
Submitted October 31, 2007*
Decided November 6, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-1771
TAMERA L. RASMUSSEN, Appeal from the United States
Plaintiff-Appellant, District Court for the Central
District of Illinois.
v.
No. 05-1315
MICHAEL J. ASTRUE,
Defendant-Appellee. Joe Billy McDade,
Judge.
ORDER
Tamera Rasmussen applied for Disability Insurance Benefits and
Supplemental Security Income, claiming that she cannot work because she suffers
from chronic back and knee pain, anxiety, depression, borderline intellectual
functioning, bone spurs in her heels, obesity, fibromyalgia, and a heart condition.
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 07-1771 Page 2
After her claim was administratively denied, an administrative law judge conducted
a hearing. The ALJ found that Rasmussen’s impairments did not render her
disabled, and the Social Security Appeals Council denied Rasmussen’s request for
review. The district court affirmed, finding that the ALJ’s decision was supported
by substantial evidence. Rasmussen appeals, and we also affirm.
At the hearing before the ALJ, Rasmussen provided testimonial and
documentary evidence to support her claim. She stated that the primary reason she
cannot work is her disabling knee and back pain. Rasmussen testified that her
medications—Alprazolam and Methadone, which treat her anxiety and pain
symptoms—make her drowsy but are otherwise effective. She has a heart condition
from using the diet drug Fen-Phen, but Rasmussen said this causes no problems for
her aside from occasionally affecting her breathing at night. She testified that her
pain severely limits her mobility. For example, at any one time she can sit for only
up to half an hour, stand for only five minutes, walk for only a couple of minutes,
and lift only six pounds. Nevertheless, Rasmussen also reported regularly
vacuuming, dusting, cooking, and sweeping.
Rasmussen also described her educational and work history. She does not
have a high school degree, but she completed the eleventh grade in a special-
education program. Over the years, Rasmussen worked in a variety of unskilled
and semi-skilled jobs, including dishwashing and cooking at a restaurant, managing
a cheese shop, serving food in a nursing home, grooming dogs, hand-packaging
surgical gloves in a factory, and cashiering at Goodwill, a gas station, and a video
store. At the time of the hearing, Rasmussen had not worked in nearly one year,
having left her last job as a cashier because she could not stand or stay awake for
her entire four-to-six-hour shift.
To support her testimony, Rasmussen provided medical evidence
documenting her physical and mental health. Her medical records show that she
has consistently sought treatment for back, knee, and heel pain over the past nine
years. Her treating physicians, however, have uniformly found only mild physical
evidence corroborating Rasmussen’s complaints, diagnosing at most some disc
degeneration in her spine and a bone spur on her heel. Rasmussen also underwent
several surgeries in 1999, including a hysterectomy, a breast lumpectomy, and
surgery for gallstones and urinary incontinence. Her medical records do not reveal
any continued complaints related to these surgeries. Rasmussen’s primary-care
physician has prescribed drugs to treat her anxiety and depression, although
Rasmussen has not seen a mental-health specialist.
Rasmussen’s medical records also document numerous emergency-room visits
at various hospitals—nearly 50 ER visits between 1998 and 2001 alone—seeking
treatment for pain and prescriptions for Vicodin, to which she eventually developed
an addiction. She additionally sought prescriptions for Vicodin from several
No. 07-1771 Page 3
primary-care doctors. Rasmussen justified her requests for Vicodin by explaining
that she had injured herself performing a wide range of demanding activities
including mowing her lawn, climbing a ladder, and painting her mother’s house.
The ALJ considered psychological and physical evaluations requested by the
state agency. Dr. Spence, the evaluating psychologist, diagnosed Rasmussen with
dysthymia (a mild form of depression), borderline intellectual functioning, and
anxiety disorder. Dr. Spence found that, even given these psychological limitations,
Rasmussen could follow instructions, handle funds, and complete short tasks over
an extended period so long as she could do so in a low-stress environment. The
medical examiner, Dr. Katchen, noted that Rasmussen had some nerve pain and
moderate weakness in her left leg that could be aggravated by extended movement.
Dr. Katchen also observed that Rasmussen has a systolic ejection murmur, but no
cardiac decompensation, and that she suffers from obesity and chronic shortness of
breath. Dr. Katchen concluded that although she could not find any physical
abnormality explaining Rasmussen’s back or knee pain, Rasmussen did have mild
to moderate difficulty walking, hopping, and squatting.
A vocational expert testified at the hearing regarding the employment
prospects for a hypothetical person with Rasmussen’s education and work
experience and the capacity to perform medium or light work requiring only simple,
routine, low-stress tasks. The vocational expert opined that such a person could
perform Rasmussen’s past jobs as a hand packager or a cashier. The vocational
expert also testified that many Illinois jobs satisfied Rasmussen’s work restrictions.
However, he admitted that if Rasmussen’s claims of disabling pain were believable,
she would not be able to work at these jobs. The vocational expert did not consider
whether Rasmussen’s medications might change his assessment.
After considering all the proffered evidence, the ALJ concluded that
Rasmussen was not disabled. In so finding, the ALJ applied the five-step analysis
described in 20 C.F.R. § 404.1520(a)(4)(i)-(v) to find that Rasmussen had not
engaged in substantial gainful employment since the alleged onset of her disability
(step one); that her combined physical and mental conditions constituted a severe
impairment (step two); but that these impairments did not qualify as any listed
impairment (step three). The ALJ placed particular emphasis on Rasmussen’s
drug-seeking behavior, admissions of physically strenuous activities, and the
absence of medical records corroborating her reports of disabling pain to conclude
that Rasmussen’s testimony regarding her pain and limitations was not credible.
After determining that Rasmussen retained the residual functional capacity to
perform medium work, the ALJ concluded that Rasmussen could perform her past
relevant work as a hand packager (step four) and that, in the alternative, she could
perform other light or sedentary work in the national economy (step five).
No. 07-1771 Page 4
Rasmussen presents four challenges on appeal. She first contests the ALJ’s
conclusion that her testimony was not credible. Rasmussen next contends that the
ALJ erred in concluding that substantial evidence supported denying her benefits.
Third, Rasmussen argues that new evidence of her disability warrants remand
under 42 U.S.C. § 405(g). Finally, Rasmussen raises two procedural challenges: she
argues that the district court erroneously granted an extension of time to the
government to file its brief and that the ALJ improperly failed to consider a letter
from Rasmussen’s counsel.
Because the Social Security Appeals Council denied Rasmussen’s request for
review, the ALJ’s decision is the final decision of the Commissioner of Social
Security. See Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). In reviewing
that decision, we are limited to examining whether it is supported by substantial
evidence. 42 U.S.C. § 405(g); Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007).
Substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Skinner, 478 F.3d at 841 (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Id. Although we may not
substitute our judgment for that of the ALJ, the ALJ must at least minimally
articulate the analysis of the evidence with enough detail and clarity to permit
meaningful appellate review. Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005).
Rasmussen first challenges the ALJ’s finding that her testimony was not
credible. The ALJ is best situated to assess witness testimony and demeanor, so we
will not disturb credibility determinations as long as they are supported by the
record. Schmidt v. Astrue, 496 F.3d 833, 843 (7th Cir. 2007). We will therefore only
reverse the ALJ's credibility determination if Rasmussen can show that it was
“patently wrong.” Id. She has not done so.
The record amply supports the ALJ’s conclusion that Rasmussen’s assertions
of severe chronic pain are not supported by clinical diagnoses. Although an ALJ
may not ignore a claimant’s subjective reports of pain simply because they are not
fully supported by objective medical evidence, discrepancies between objective
evidence and self-reports may suggest symptom exaggeration. Sienkiewicz v.
Barnhart, 409 F.3d 798, 804 (7th Cir. 2005). Here, the ALJ properly considered
Rasmussen’s testimony in light of the factors enumerated in SSR 96-7p and
concluded that Rasmussen had significant functional limitations that precluded
some, but not all, work. See 20 C.F.R. § 404.1529(c)(3). Moreover, Rasmussen’s
doctors consistently found that she has at most mild back and knee problems. It
was not patently wrong for the ALJ to place more weight on the medical record than
on Rasmussen’s testimony regarding her pain.
The record also supports the ALJ’s finding that Rasmussen’s numerous
emergency-room visits were motivated more by her desire to acquire Vicodin than
by injury or pain. Rasmussen’s doctors expressed concern about her Vicodin
No. 07-1771 Page 5
consumption; one doctor noted that Rasmussen photocopied a prescription for
Vicodin (although Rasmussen vehemently denies this), and Rasmussen herself
concedes that she has a history of Vicodin addiction. And the record supports the
ALJ’s conclusion that Rasmussen was less than credible because she engaged in
activities (such as lawn-mowing) that were inconsistent with her claims of disabling
pain. See Prochaska v. Barnhart, 454 F.3d 731, 737-38 (7th Cir. 2006) (upholding
ALJ’s finding that claimant was not credible where her description of daily
activities was inconsistent with her purported disability). On this record, it was
reasonable for the ALJ to find Rasmussen’s testimony not credible.
Rasmussen next asserts that the ALJ’s decision is not supported by
substantial evidence. She argues that, given the vocational expert’s testimony that
he did not consider the side effects of her medications when assessing her job
prospects, the ALJ should have concluded that those side effects impair her ability
to work. But Rasmussen has presented no evidence of her medication’s side effects
beyond her own testimony, nor do the medical records support her claim that the
drowsiness caused by her medications is so disabling that she cannot work.
Although the ALJ could have addressed Rasmussen’s drowsiness more
comprehensively, we concur with the district court’s conclusion that the failure to
do so is harmless. See Prochaska, 454 F.3d at 736-37 (holding that the ALJ’s failure
to explicitly address claimant’s obesity was harmless because she failed to point to
any evidence supporting her claim that her obesity significantly exacerbated her
physical impairments). Rasmussen also contends that the ALJ should have given
greater weight to the vocational expert’s testimony that someone with all of
Rasmussen’s self-reported limitations could not work. But the ALJ’s credibility
determination, together with the absence of any medical records corroborating
Rasmussen’s self-reported pain, support the conclusion that she can work.
Rasmussen has not shown that the ALJ's decision is unsupported by substantial
evidence.
Rasmussen next argues that the Appeals Council and the district court
should have considered additional evidence she provided after the ALJ denied her
claim. As an initial matter, we cannot consider Rasmussen’s new evidence in
reviewing the ALJ’s decision. See 42 U.S.C. § 405(g). But a reviewing court may
remand for additional evidence to be considered if it is both new and material, and
if there exists “good cause for the failure to incorporate such evidence into the
record in a prior proceeding.” Id.; Schmidt v. Barnhart, 395 F.3d 737, 741-42 (7th
Cir. 2005). Evidence counts as new if it was “not in existence or available to the
claimant at the time of the administrative proceeding.” Schmidt, 395 F.3d at 741-
42 (citation omitted). And it is material only if it is reasonably probable that the
ALJ would have reached a different conclusion if he had considered the evidence.
Id. New evidence is therefore material only if it is relevant to the claimant’s
condition “during the relevant time period encompassed by the disability
application under review.” Id. (citation omitted).
No. 07-1771 Page 6
Rasmussen’s new evidence falls into two categories. First, she argues that
we should remand the case back to the Commission to consider certain documents
she submitted to the Appeals Council, but not to the ALJ. But the Appeals Council
did consider Rasmussen’s additional evidence when concluding that it was
insufficient to warrant review of the ALJ’s decision. Rasmussen’s request for a
remand on this ground is without merit. Rasmussen also argues we should remand
so the Commission may consider a second category of documents she provided to the
district court, but not to the Appeals Council or the ALJ. But these documents
describe her health only after the date that the ALJ denied her claim, so they are
not material. See Schmidt, 395 F.3d at 742. Remand based on this evidence is
inappropriate as well, and Rasmussen’s only remedy is to file a new claim for
benefits.
Finally, Rasmussen raises two procedural issues. She first argues that the
district court erred in granting the government’s request to extend the time to file
its brief. Federal Rule of Civil Procedure 6(b)(2) grants district courts the power to
impose and enforce deadlines, see Raymond v. Ameritech Corp., 442 F.3d 600, 605
(7th Cir. 2006), and we review an exercise of that power only for abuse of discretion,
id. at 606. In this case, the Commissioner of Social Security did not receive the
district court’s scheduling order from the U.S. Attorney’s office until nearly two
months after the deadline to file its brief had passed. As soon as counsel learned of
the missed deadline, she promptly moved for an extension. Under these facts, it
was not an abuse of discretion for the district court to extend the deadline,
especially because Rasmussen has not shown that she was prejudiced by the
extension. See Pioneer Inv. Servs. Co. v. Brunswick Ass. Ltd. P’ship, 507 U.S. 380,
395 (1993).
Rasmussen also asserts that the ALJ erred in denying her benefits on the day
after her attorney sent a letter to the ALJ because the timing suggests that the ALJ
could not have possibly considered her attorney’s letter. But the attorney’s letter
merely summarized evidence already in the record—evidence that the ALJ
considered in his decision. Even if Rasmussen is right and the ALJ did not receive
or read the letter before rendering his decision, he did not err in failing to consider a
summary letter where the underlying evidence highlighted by the letter was
already part of the basis for his decision.
AFFIRMED.