Robert Filus v. Michael Astrue , 694 F.3d 863 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1164
R OBERT S. F ILUS,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:11-CV-00106—Roger B. Cosbey, Magistrate Judge.
S UBMITTED A UGUST 28, 2012 Œ —D ECIDED S EPTEMBER 7, 2012
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Robert Filus, a 50-year-old former
truck driver, has twice applied for disability benefits
under the Social Security Act, claiming that back problems
Œ
After examining the briefs and the record, we have
concludedthat oral argument is unnecessary. Thus, the appeal
is submitted on the briefs and the record. See F ED . R. A PP .
P. 34(a)(2)(C).
2 No. 12-1164
have left him incapable of gainful employment. An ad-
ministrative law judge concluded that Filus could
perform some light work and denied his most recent
application. Because substantial evidence supports the
ALJ’s decision, we affirm the denial of benefits.
Filus first applied for disability insurance benefits and
supplemental social security income in December of
1997, claiming that he had been disabled by back pain
since August 1996 because of a car accident. See 42 U.S.C.
§§ 423(d), 1382c(a)(3). After a hearing, the Commissioner
found that Filus could perform a restricted range of light
work and denied his application in October 1999. Filus
did not appeal.
Four years later, in 2003, Filus applied for benefits
again, asserting that new evidence showed that since 1996
his back pain disabled him. In 1999 he had visited a
neurologist, Dr. Steven Schroeder, who observed that
Filus had limited range of motion in his lower back
and decreased sensation in his left leg. Then in 2004
Filus met with Dr. Rudy Kachmann to treat him for his
lower back pain. An MRI suggested degenerative disc
disease and mild disc bulges. Dr. Kachmann described
Filus as “disabled” with “failed back syndrome” (a term
that refers to persistent back pain after surgery, though
Filus had not had surgery) and recommended that
Filus attempt “job retraining for light work.” Four
months later two state-agency physicians concluded
differently. They thought that Filus could perform
medium work; frequently climb, balance, or stoop; and
occasionally kneel, crouch, crawl, or climb ladders, ropes,
and stairs.
No. 12-1164 3
At a hearing on his application in 2007, Filus testified
that he could complete housework, prepare simple meals,
feed the birds in his yard, and climb stairs for 10 or
15 minutes at a time. He also testified that he walked
his dogs for five minutes three times a day, went
shopping, drove occasionally, and visited his parents
twice a month. Filus rated his pain at three out of ten
on the day of the hearing and acknowledged that he
could work if he “took a lot of pain pills and the ste-
roids” but stated that he did not use pain medication.
After the hearing, the ALJ engaged another medical
examiner, who concluded that Filus had no limitations
in standing, walking, reaching, handling, feeling, or
fingering. The examiner, Dr. Venkata Kancherla, observed
that Filus could walk with a normal gait, recline flat,
sit up, squat, and get on and off the exam table unassisted.
He found that Filus had limited range of motion in his
lower back and painful range of motion in his hips
but normal sensation, reflexes, and muscle strength.
Dr. Kancherla also found that Filus could lift and carry
20 pounds frequently; occasionally climb, kneel, crouch,
crawl, or stoop; push and pull with his legs with some
limitation; and stand, walk, and reach.
The ALJ ruled that Filus was not disabled and denied
his application for benefits, but the Appeals Council
remanded the case for the ALJ to consider updated treat-
ment records and the limiting effects of Filus’s symptoms.
The additional evidence consisted of another opinion
from Dr. Kachmann, to whom Filus had returned for a
second visit. Dr. Kachmann wrote that Filus could sit
4 No. 12-1164
or stand (or combine the two) for a maximum of 30 min-
utes. Filus could not frequently alternate positions;
could only occasionally kneel, crawl, crouch, or bend;
and could never climb ladders, ropes, or scaffolds.
Dr. Kachmann diagnosed him once again with failed
back syndrome, describing it as secondary to advanced
lumbar degenerative disc disease.
Two non-treating physicians also examined Filus. The
first, Dr. Kooros Sajadi, opined that Filus could sit,
stand, and walk continuously for up to 2 hour stretches,
with those stretches limited to 6 hours daily. He noted
tenderness in Filus’s lumbosacral area, and an x-ray
revealed degenerative disc space narrowing and arthritic
changes. He said that Filus could lift and carry 20 pounds
continuously and 50 pounds occasionally; reach, push,
pull, perform postural activities, and operate foot
controls without limitation; and climb stairs, ramps,
ladders, and scaffolds continuously. He diagnosed
Filus with low back pain resulting from degenerative
arthritis of the lumbar spine and degenerative disc
disease. The second physician, Dr. James Owen, noted
that Filus’s strength, sensation, and coordination were
normal, but that Filus cried during a range-of-motion
test, got on and off the exam table with obvious
discomfort, and experienced pain with squatting, walking
on his heels and toes, and tandem walking. Dr. Owen
diagnosed Filus with persistent back pain associated
with L5 radiculopathy and concluded that he would
have severe difficulty traveling, lifting, handling, and
carrying. He recommended possible surgery.
No. 12-1164 5
Filus again appeared before an ALJ in 2009. He
estimated that he could walk, stand, or sit for up to
30 minutes before he needed to change position to
relieve pain. He also testified that epidural injections
had relieved his lower back pain temporarily but that
physical therapy was unavailing. According to Filus,
stress and movement aggravated his pain, with sitting
and rising from a seated position being particularly
difficult. Filus also testified that he could get in and out
of a truck (but not a car), lift (but not carry) a gallon
of milk, do housework including sweeping and laundry,
and that he regularly drove to the store for groceries
and cigarettes.
A vocational expert testified that about 7,500 light,
unskilled jobs were available to a person who had the
residual functional capacity that the ALJ found for
Filus: the ability to perform light work with an option to
sit or stand at 30-minute intervals; frequently balance
or stoop; occasionally kneel, crouch, crawl or bend; and
avoid climbing ladders, ropes, and scaffolds. These jobs
included positions as a booth cashier and bench assem-
bler. The vocational expert acknowledged that no jobs
were available to Filus if his pain were as severe
as he claimed.
The ALJ found that Filus was not disabled and denied
benefits. Applying the familiar five-step evaluation pro-
cess, see 20 C.F.R. § 404.1520(a), the ALJ concluded
that (1) Filus had not engaged in substantial gainful
activity since his alleged onset date; (2) his degenerative
disc disease was a severe impairment; (3) this impair-
6 No. 12-1164
ment did not meet or medically equal the definition of
any impairment listed in 20 C.F.R. pt. 404, subpt. P, App. 1;
(4) Filus was incapable of performing his past work;
and (5) he nevertheless had the residual functional
capacity noted above.
The ALJ explained which opinions he had accepted
and which he had discounted in reaching these con-
clusions and why. The ALJ rejected Dr. Kachmann’s
conclusion that Filus is “disabled,” even though he is a
treating physician, because that opinion is reserved to
the Commissioner and in any case is inconsistent
with “other substantial evidence in the record.” The ALJ
did not specify that evidence, but Filus himself agreed
that by alternating between sitting and standing in 30-
minute intervals, he could relieve his pain. The ALJ
discounted Dr. Kachmann’s conclusion that Filus was
disabled because he had only limited contact with
Filus: They met just twice over three years, and the ALJ
described the second exam as “cursory” and lacking
clinical testing. Finally, the ALJ explained, Dr. Kachmann
diagnosed Filus with failed back syndrome even
though Filus had never had back surgery. The ALJ also
gave little weight to Dr. Owen’s opinion that Filus has
severe difficulties with common tasks because it was
inconsistent with other record evidence. Finally, the ALJ
discounted Dr. Sajadi’s opinion that he could complete
only six hours of an eight-hour workday (with two-hour
long stretches of standing or sitting) because it was not
supported by Dr. Sajadi’s “otherwise normal examination.”
The ALJ accepted that Filus’s impairment could cause
the symptoms he described, but he discredited Filus’s
No. 12-1164 7
testimony about the limiting effects of his pain “to the
extent” they were inconsistent with the ALJ’s determina-
tion of his residual functional capacity (sitting or standing
in alternating 30-minute intervals for light work).
Filus’s testimony regarding the severity of his symptoms,
the ALJ concluded, was undermined by his testimony
that he performed household chores and took no pain
medications. The ALJ further noted that the ALJ who
decided Filus’s 1997 claim, which had preclusive effect
for the 1996 to 1999 period, observed that he had a
history of malingering. After the Appeals Council
denied review, Filus unsuccessfully challenged in the
district court the ALJ’s decision.
Filus identifies a raft of alleged errors in his appellate
brief. He first argues that the ALJ erred in declining to
find that his impairments met the criteria of Listing 1.04A.
This listing applies to spinal disorders resulting in com-
promise of a nerve root or the spinal cord with
“evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss . . . accompanied by
sensory or reflex loss,” and, when the lower back is
involved, “a positive straight-leg raising test.” 20 C.F.R.,
pt. 404, subpt. P, App. 1, 1.04A. Although he did not
have nerve root compression, Filus urges that his
medical records compel a finding that he has the equiva-
lent of root compression. But he disregards the opinions
from the two state-agency physicians who concluded
that he did not meet or medically equal any listed im-
pairment. Because no other physician contradicted
these two opinions, the ALJ did not err in accepting
8 No. 12-1164
them. See Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir.
2004); Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir. 1988).
Filus next asserts that he satisfied the requirements
of listing 1.04C, which applies to ineffective ambulation
resulting from “lumbar spinal stenosis” with chronic
nonradicular pain and weakness. See 20 C.F.R., pt. 404,
subpt. P, App. 1, 1.04C. This listing does not apply to
Filus, however, because the record contains no evidence
that his mild stenosis affects his ability to walk. In
addition to walking around his home unassisted, he
takes care of his dogs and makes regular shopping trips.
Filus counters that his ability to walk around unassisted
does not necessarily mean that he can “ambulate” effec-
tively. The regulations describe the condition as the
inability to “sustain[] a reasonable walking pace over a
sufficient distance to be able to carry out activities of
daily living,” such as walking a block over rough or
uneven surfaces, using public transportation, shopping,
banking, and climbing a few steps with the use of a hand
rail. See 20 C.F.R. pt. 404, subpt. P, App. 1, 1.00B2b(2).
Filus’s own testimony established that he regularly
did several of these activities, and Filus identifies no
evidence suggesting that he could not do others.
Because Filus had the burden of establishing that he met
all of the requirements of a listed impairment, see
Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006);
Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999), the ALJ
did not err in finding that he could ambulate effectively.
Filus next asserts that the ALJ’s finding of his residual
functional capacity was not supported by substantial
No. 12-1164 9
evidence. We note in this connection that the ALJ made the
unhelpful statement that “the claimant’s statements
concerning the intensity, persistence and limiting effects
of these symptoms are not credible to the extent they
are inconsistent with the above residual functional
capacity assessment.” We criticized this boilerplate in
Bjornson v. Astrue, 671 F.3d 640, 644-46 (7th Cir. 2012), and
our opinion has not changed since Bjornson was is-
sued. Obvious problems include the fact that the
ALJ’s finding of residual functional capacity is not
“above” in the opinion but is yet to come, and the fact
that this statement puts the cart before the horse, in the
sense that the determination of capacity must be based
on the evidence, including the claimant’s testimony,
rather than forcing the testimony into a foregone con-
clusion. In Bjornson, this flaw required us to reverse
and remand, but that is not always necessary. If the
ALJ has otherwise explained his conclusion adequately,
the inclusion of this language can be harmless. Here,
the ALJ did offer reasons grounded in the evidence, and
so we can proceed to examine them.
Filus argues that the ALJ improperly ignored
Dr. Kachmann’s conclusion that he could sit and
stand for only 30 minutes total. But the record does
not support this contention. The ALJ addressed
Dr. Kachmann’s opinion and explained why he was
discounting it: the infrequency of treatment, the cursory
nature of the second examination, and the lack of
clinical tests. These are all reasons with support in the
record, and the ALJ was entitled to rely on them. See
20 C.F.R. § 404.1527(c)(2)-(3); SSR 96-2p, 1996 WL 374188(July 12, 1996); Elder v. Astrue, 529 F.3d 408, 415 (7th
10 No. 12-1164
Cir. 2008); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir.
2004). The ALJ also faulted Dr. Kachmann’s diagnosis
of “failed back syndrome” because Filus never had
surgery (a normal prerequisite for this conclusion). See
20 C.F.R. 404.1527(c)(2)(ii). Finally, Kachmann’s conclu-
sion that Filus could not sit and stand for longer than
30 minutes appears to be based on Filus’s report that
sitting beyond 15 minutes was painful. ALJs may
discount medical opinions based solely on the patient’s
subjective complaints, see Ketelboeter v. Astrue, 550
F.3d 620, 625 (7th Cir. 2008), and in any case Filus
himself contradicted this supposed limitation by testi-
fying that he can alternate between sitting and standing
after 30-minute intervals to relieve the pain.
Filus further contends that the ALJ erred in rejecting
portions of the reports of two non-treating physicians,
Dr. Sajadi and Dr. Owen. The ALJ, however, was not
required to afford any particular weight to these
opinions, see Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir.
2007); Wilder v. Chater, 64 F.3d 335, 337 (7th Cir. 1995).
He reasonably gave less weight to Dr. Sajadi’s conclu-
sion that Filus was limited to a six-hour day of alternating
two-hour periods of standing or sitting because it was
inconsistent with the other record evidence. Dr. Owen’s
opinion that Filus has “severe” difficulty lifting, traveling,
and carrying was likewise not supported by the other
record evidence. See 20 C.F.R. § 404.1527(c)(3)-(4) (physi-
cians’ opinions will be evaluated for supportability
and consistency); Simila v. Astrue, 573 F.3d 503, 515 (7th
Cir. 2009). The ALJ’s rejection of these two opinions was
somewhat cursory because he did not specify the “other”
record evidence that undermined the doctors’ opinions.
No. 12-1164 11
But we require only that the ALJ “minimally articulate”
his reasoning. See Berger v. Astrue, 516 F.3d 539, 545 (7th
Cir. 2008). Here, the ALJ noted that the results of
Dr. Sajadi’s examination were “overall normal” and that
Dr. Sajadi had concluded that Filus could “continuously”
push, pull, crouch, and crawl. The ALJ also explained
that all of Dr. Owen’s test results were within normal
limits and that Dr. Sajadi had found that Filus could
often climb stairs and carry 20 pounds. This is enough.
Finally, Filus argues that the ALJ unreasonably dis-
counted his testimony about the effects of his pain. An
ALJ may not reject a claimant’s testimony about limita-
tions on his daily activities solely because his testimony
is unsupported by the medical evidence. See Indoranto
v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004); Clifford v.
Apfel, 227 F.3d 863, 871 (7th Cir. 2000). Here, however, the
ALJ considered Filus’s testimony about the limiting
effects of his pain along with his testimony that he regu-
larly completed his daily household activities with-
out any pain medication—not even over-the-counter
products. In assessing a claimaint’s allegations of
disabling pain, an ALJ must consider the claimant’s daily
activities and use of pain medications, see 20 C.F.R.
§ 404.1529(c)(3); SSR 96-7p; Clifford, 227 F.3d at 871-72;
Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994). In light
of the ALJ’s explanation, we cannot say that his credi-
bility determination was patently wrong. See Elder,
529 F.3d at 414.
A FFIRMED.
9-7-12