Anderson, Thelma L. v. Barnhart, Jo Anne ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 24, 2006
Decided March 30, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-1689
THELMA L. ANDERSON, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Indianapolis Division
v.
No. 1:03CV1202 LJM
JO ANNE B. BARNHART,
Defendant-Appellee. Larry J. McKinney,
Chief Judge.
ORDER
Thelma Anderson appeals from an order upholding a determination by the
Commissioner of Social Security that she is not entitled to disability benefits.
Anderson attended special education classes from the third grade until she quit
school in the ninth grade while pregnant. She was working as a custodian for
Indiana University when she applied for Supplemental Security Income in April
2000. Anderson describes herself as a “slow learner” who cannot read or write, and
claims that mental retardation along with back and knee pain prevent her from
working.
An Administrative Law Judge (“ALJ”) conducted a hearing after the Social
Security Administration (“SSA”) denied benefits initially and on reconsideration.
The evidence was mostly documentary and largely undisputed. From the time she
No. 05-1689 Page 2
left school until 1991, when she was 26, Anderson’s only significant employment
was a summer job as a general laborer at an apartment project. That year, for
reasons not disclosed in the record, the Disability Determination Division of the
Indiana Department of Human Services asked psychologist Herbert Henry to
interview Anderson and administer an intelligence test. Anderson told Dr. Henry
she could dress herself, attend to personal hygiene, and perform simple household
chores but couldn’t shop for groceries alone because she cannot write or count
money. Anderson scored a verbal IQ of 64, a performance IQ of 71, and a full-scale
IQ of 66. Dr. Henry concluded that Anderson’s full-scale score suggested mild
retardation, but he declined to make that diagnosis because her level of functioning
seemed “adequate” except for activities involving reading and writing.
In 1993, when Anderson was 28, psychologist Paul Martin evaluated her
intelligence and vocational potential. As before, the reasons for the assessment are
not disclosed. Anderson told Dr. Martin that, except for her summer job at the
apartment project, she had worked only briefly as a bakery cashier. Anderson
described her health as generally “good” except for pain and swelling in her left
knee that had lingered after surgery to repair torn ligaments. Anderson was
generally friendly during the evaluation, but Dr. Martin found her interpersonal
style “subdued and hesitant.” He also noted that it was better to address her using
simple language even though her speech was clear and easily understood. Dr.
Martin concluded that Anderson’s presentation and interpersonal manner did not
present a vocational disadvantage, but recommended that she avoid jobs requiring
interpersonal assertiveness such as sales, teaching, or management. Anderson
scored a verbal IQ of 64, a performance IQ of 69, and an overall IQ of 65, which Dr.
Martin equated with mild mental retardation. He recommended remedial training
in math and reading but acknowledged that the process would likely be “slow and
difficult.” He also suggested Anderson would profit from hands-on job training and
with help from a job coach could succeed in unskilled, “competitive”1 work.
Anderson, though, apparently received no training and did not work again until she
started as a custodian at the university in January 1999.
Meanwhile, in January 1994, Anderson was injured in a car accident. The
emergency room physician diagnosed her with neck and back sprains and
prescribed nonsteroidal, anti-inflammatory medications for the pain. He also
recommended that she not lift more than ten pounds for a week. Anderson injured
her back again in November 1999 while hauling trash as part of her custodian job.
She attended physical therapy for several weeks and was prescribed medication for
her pain.
1
We assume this was a typo and was meant to be “repetitive” work.
No. 05-1689 Page 3
In January 2000, after the work injury, Anderson first sought treatment from
Dr. Ralph Buschbacher. She complained of constant pain and occasional burning
and tingling around her left shoulder, but Dr. Buschbacher did not think she
appeared that uncomfortable despite scoring her pain as a “10 out of 10.” After
noting normal ranges of motion in her back and neck, Dr. Buschbacher ordered an
electromyogram (EMG) that ruled out spinal nerve disease and recommended a
corticosteriod injection, which Anderson refused. He then recommended physical
therapy and suggested work restrictions.
At a follow-up exam the same month, Anderson reported feeling “quite a bit
better.” A week later she announced the improvement had been only temporary,
but Dr. Buschbacher noted she had failed to attend physical therapy as directed
and, anyway, her exam was largely unremarkable. When Anderson described her
symptoms as unchanged in late February 2000, Dr. Buschbacher ordered spinal x-
rays that proved unremarkable, restricted her from bending at work, and
recommended a lumbosacral corset to improve her posture. He further restricted
her to “sit down” work in early March after she admitted having ignored his
previous restrictions to continue performing her normal job duties. He remarked
that her pain had been “unresponsive to treatment” but opined that with two more
weeks of physical therapy she could be discharged with permanent restrictions.
Two months later in March 2000, Dr. Buschbacher found Anderson’s
condition largely unchanged but detected moderate signs of “inappropriate illness
behavior and some inconsistencies.”2 He concluded that she was only 5% impaired
and discharged her with “permanent restrictions in the light to medium physical
demand level of duty.” Anderson told Dr. Buschbacher she lost her job because she
could not perform the same functions, but it is unclear which job she lost or when
she lost it; Anderson reported working at three different jobs between January 1999
and February 2001 (one as a custodian and two as a housekeeper at hotels), but did
not specify precise employment dates.
In February 2001, after she had applied for SSI, Anderson started a new
custodian job. On September 26, 2001, about a week before she filed her application
for DIB, Anderson was seen by Nurse Practitioner Mary Blanchet. Anderson
complained of a two-week history of left shoulder pain and discomfort in her left
knee, and Blanchet noted tenderness in her left shoulder area and some crepitus3 in
2
Inappropriate or maladaptive illness behavior is a term used by doctors to
describe patients who report pain without sufficient physical cause.
3
Crepitus is defined as “the grating of a joint, often in association with
(continued...)
No. 05-1689 Page 4
her knee. An MRI revealed mild chondromalacia4 in Anderson’s knee, but no
problems in her shoulder. Blanchet prescribed ibuprofen and told Anderson to not
work for the next 24 hours.
On October 4, 2001, the day she applied for DIB, Anderson saw Dr. L.T.
Gates and complained of a two-year history of pain. He prescribed medication and
ordered an EMG of her left shoulder area. Two weeks later, when Anderson
returned to see Nurse Practitioner Blanchet, she acknowledged missing her EMG
appointment but said her pain was “greatly improved” with the new medication.
Because Anderson had often mentioned that her custodian job contributed to her
pain, Blanchet suggested she seek other employment. Anderson responded,
however, that her illiteracy restricted her employment opportunities.
In November 2001, on request of the SSA, Dr. Chamoun Chamoun examined
Anderson and noted nothing remarkable other than decreased forward flexion of
her dorsolumbar spine and left hip. After evaluating Anderson’s September 2001
MRI, Dr. Chamoun discerned no reason for her reported pain, and suspected she
might have “fibromyalgia or a malingering syndrome.”5
Dr. John McLimore examined Anderson in January 2002 after she filed a
worker’s compensation claim for a September 2001 injury. She vaguely complained
of “ill-defined” pain in her left shoulder area, but her exam was “objectively normal”
except for maladaptive illness behaviors. For instance, Dr. McLimore noted that
Anderson’s “profound” pain was reduced or extinguished entirely when she was
unaware she was being tested; where she could not lift her left arm without
reporting pain during active testing, she was able to raise it over her head without
difficulty or any sign of pain when distracted. Dr. McLimore changed her
medication and prescribed a two- to four-week conditioning program along with
tentative work restrictions limiting her from lifting more than 20 pounds.
In April 2002 Dr. F. Montoya reviewed Anderson’s medical record at the
SSA’s request. He concluded that her pain allegations exceeded medical findings
and that the evidence did not reveal a severe impairment. In June 2002 Dr. J.
3
(...continued)
osteoarthritis.” Stedman’s Medical Dictionary 424 (27th ed. 2000).
4
Chondromalacia is defined as “[s]oftening of any cartilage.” Stedman’s
Medical Dictionary 341 (27th ed. 2000).
5
Fibromyalgia is defined as a “syndrome of chronic pain of musculoskeletal
origin but uncertain cause.”
No. 05-1689 Page 5
Pressner conducted a similar review at the SSA’s request and concluded that
because her functional level was much higher than her IQ scores would suggest, she
did not need “extraordinary accommodations” to perform “simple, repetitive tasks
on a sustained basis.”
In September 2002 Anderson visited a hospital emergency room complaining
of intermittent back pain as well as neck pain and tension headaches. The
attending physician, Dr. John Sidle, diagnosed her with muscle strain, prescribed
medication and physical therapy, and recommended light duties at work for one
week. Anderson began physical therapy but was discharged after two weeks for
failing to attend. In late October 2002 she returned for follow-up with Dr. Sidle,
who continued her medication and imposed work restrictions of decreased lifting for
three months.
During her February 2003 hearing before the ALJ, Anderson testified she
was fired from her most recent job in 2001 because she could not “lift as much” after
sustaining a back injury. She said she could not do her job because she could stand
for only 10 minutes, had trouble bending, and was in constant pain, especially when
lifting more than five pounds. Anderson also stated she was regularly on
medication that was only sometimes effective. With regard to the pain in her knee,
Anderson testified that she could sometimes walk up to a half mile, but that she
tried to stay off her knee whenever possible. She also stated she tried physical
therapy three times and was told her injury was permanent and would not improve.
A typical day, she said, was spent lying down; if she needed to go out, her boyfriend
would take her. Anderson also told the ALJ she attended special education classes,
left school in the eighth or ninth grade, and was unable to read and write.
The ALJ rejected Anderson’s claim using the standard five-step analysis.
See 20 C.F.R. §§ 404.1505(a), 416.905(a); Dixon v. Massanari, 270 F.3d 1171, 1176
(7th Cir. 2001). At Steps One and Two, the ALJ concluded that Anderson had not
engaged in substantial gainful activity since her alleged February 2001 onset date,
and that she had “‘severe’ impairments consisting of chronic pain syndrome and
borderline intellectual functioning.” But at Step Three the ALJ determined that
her impairments, either alone or in combination, failed to meet or exceed the level
of severity of any listed impairment. See 20 C.F.R. Part 404, Subpart P, App. 1. At
Step Four, the ALJ concluded that Anderson was still able to perform work
requiring no more than light exertion, which included her past relevant work as a
hotel maid. Overall, however, the ALJ questioned Anderson’s credibility and cited
examples in the record indicating that her subjective complaints about the severity
of her impairments were “not reasonably consistent with the objective medical and
other evidence of record.”
No. 05-1689 Page 6
We will uphold the ALJ’s factual findings so long as they are supported by
substantial evidence and not undermined by legal error. 42 U.S.C. § 405(g); Dixon,
270 F.3d at 1176. Substantial evidence is evidence a reasonable mind could accept
as adequate to support the ALJ’s conclusion. Richardson v. Perales, 402 U.S. 389,
401 (1971); Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). The ALJ’s
decision need not address every piece of evidence or testimony, but must provide a
“logical bridge” between the evidence and his conclusions. Clifford v. Apfel, 227
F.3d 863, 872 (7th Cir. 2000). We will not reweigh the evidence or substitute our
own judgment for that of the ALJ. Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir.
2003).
Anderson argues that there is insufficient evidence supporting the ALJ’s
adverse credibility determination and the finding she could return to her job as a
hotel maid. She also attacks the ALJ’s finding that her mental and physical
impairments did not meet the requirements of Listing 12.05C, which states:
12.05 Mental Retardation: Mental retardation refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e.,
the evidence demonstrates or supports onset of the impairment before
age 22.
The required level of severity for this disorder is met when the
requirements in A, B, C, or D are satisfied.
....
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and
significant work-related limitation of function[.]
According to Anderson, the ALJ failed to address Listing 12.05C and “ignored all of
the evidence” that would prove she had a “physical or other mental impairment”
that rendered her disabled under Listing 12.05C. To the contrary, the ALJ
specifically discussed whether Anderson’s evidence met the requirements of Listing
12.05, noting disagreement between her two evaluating psychologists as to whether
she was mentally retarded. To resolve this conflict, the ALJ considered both
Dr. Pressner’s opinion that Anderson suffered only from borderline intellectual
functioning as well as her work history, which the ALJ observed stood “in stark
contrast to the deficits in adaptive functioning required for a diagnosis of even mild
mental retardation.” But even after agreeing with the finding that Anderson was
not mentally retarded, the ALJ gave her the benefit of the doubt: “I will conclude
No. 05-1689 Page 7
that she functions in the borderline range of intellectual functioning, and limit her
to work which requires no more than minimal reading, writing or arithmetic.”
Given the ALJ’s ultimate conclusion, nothing is gained by arguing Anderson’s IQ
scores render her mentally retarded. Even she admits that a score between 60 and
70 is not sufficient to meet Listing 12.05; she was also required to show that she
suffered from a physical or other mental impairment which imposed “an additional
and significant work-related limitation of function.” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.05C. Anderson argues that the evidence she provided regarding her
back and shoulder pain met this burden. She points to several excerpts from the
record where she claims the ALJ ignored or failed to credit her evidence. It
appears, however, that Anderson is the one selectively considering the evidence, not
the ALJ. For example, Anderson cites Nurse Blanchet’s report noting Anderson’s
own complaints of pain in her knee and shoulder but fails to recognize that
Blanchet ultimately found Anderson’s musculoskeletal exam benign. She also relies
on physical therapy notes describing her as having rounded shoulders and shoulder
pain, but she omits mention that this initial assessment is incomplete because she
attended only one therapy session.
The cases Anderson cites to support her argument than an ALJ may not selectively
consider the evidence are distinguishable. See, e.g., Clifford, 227 F.3d at 870(reversing because ALJ disregarded treating physician’s opinion that claimant had
arthritis without citing any conflicting evidence in the record); Godbey v. Apfel, 238
F.3d 803, 807-10 (7th Cir. 2000) (vacating and remanding because ALJ’s failure to
address significant evidence in the record prevented meaningful appellate review);
Smith v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000) (reversing because treating
physician’s failure to order x-rays was insufficient basis on which ALJ could
conclude claimant did not have arthritis). Here, rather than focusing on isolated
comments taken out of context, the ALJ’s decision reflects an analysis of the
evidence as a whole. After noting some inconsistencies in the medical evidence, the
ALJ conducted a thorough analysis into Anderson’s pain allegations. First, the ALJ
remarked that, despite exam results showing tenderness and pain to palpation, the
record did not reveal any “significant or persistent musculoskeletal or neurologic
deficits.” He also noted that, although Anderson reported that physical therapy did
not help her, she also did not attend all of her sessions as prescribed. Furthermore,
the ALJ observed that none of Anderson’s MRIs, EMGs, or x-rays suggested
anything remarkable about her condition, which led him to question the credibility
of her claims. So long as an ALJ’s credibility determinations are supported by the
record, they will be accorded “special deference.” Sienkiewicz v. Barhart, 409 F.3d
798, 803 (7th Cir. 2005). Here, at least three reports support the ALJ’s skepticism;
Dr. Buschbacher observed that Anderson did not appear to be in as much pain as
she claimed, Dr. McLimore noted that her pain almost completely disappeared
No. 05-1689 Page 8
when she did not realize she was being tested, and Dr. Chamoun suggested a
“malingering syndrome” when he found nothing on her MRI to explain her pain.
Given that the ALJ thoroughly considered Anderson’s complaints of pain, we also
reject her argument that the ALJ’s decision does not comport with Social Security
Ruling 96-7, which requires an ALJ to provide “specific reasons” for a credibility
determination and not simply state that “the individual’s allegations have been
considered” or that “the allegations are credible.” SSR 96-7p. Here again, the cases
Anderson cites to support this argument are distinguishable. See, e.g.,
Golembiewski v. Barnhart, 322 F.3d 912, 915 (7th Cir. 2003) (finding that ALJ
failed to comply with Ruling 96-7 because his decision contained no reasons why he
found the claimant’s testimony unbelievable); Lopez ex rel. Lopez v. Barnhart, 336
F.3d 535, 540 (7th Cir. 2003) (same).
Finally, Anderson argues that the ALJ’s determination that she could perform her
previous duties as a hotel maid is not supported by substantial evidence. This
argument also fails. After noting that the United States Department of Labor
categorizes the job of hotel maid as one requiring only light exertion and no more
than minimal reading, writing, and math skills, the ALJ again examined the record
to determine whether Anderson was capable of light exertion. Despite her various
doctor visits, the only work restrictions on record since her reported onset date were
for light-duty work for one week and a temporary restriction that she lift no more
than 20 pounds occasionally. Thus, substantial evidence supports the ALJ’s
conclusion that despite her educational and physical limitations she is not disabled
and is capable of working as a hotel maid as that job is customarily performed in
the national economy.
AFFIRMED.