Clemons, Dorothy v. Barnhart, Jo Anne

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 18, 2005*
Decided August 31, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 04-4131
DOROTHY CLEMONS, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division
v.
No. 03 C 4200
JO ANNE B. BARNHART,
Defendant-Appellee. Harry D. Leinenweber
Judge.
ORDER
Dorothy Clemons applied for disability benefits and supplemental security
income in March 2000 on the basis of osteoarthritis and asthma dating from 1999.
Her claim was denied initially, upon reconsideration, and after a hearing before an
Administrative Law Judge (“ALJ”). The district court upheld the denial, and we
affirm.
*
Dorothy Clemons moved to waive oral argument. Accordingly, this appeal is
submitted on the briefs and record. See Fed. R. App. P. 34(a)(2).
No. 04-4131 Page 2
In her submissions to the Social Security Administration, Clemons described
constant pain in her back, neck, shoulder, hands, knees, and feet. To relieve the
pain, she relied on pain-killers, warm baths or a heating pad, and topical arthritis
medicine. According to Clemons, the pain prevented her from walking “for long,”
running, or “throwing a ball.” She said she spent her days watching television or
“lying down,” and left the house about twice a week to dine, attend church, or see
movies. She said she sometimes did laundry and was able to dress herself but
needed help with buttons and with her hair. She also stated that she suffered from
severe asthma that kept her awake at night and impaired her ability to cook, shop,
and perform household chores.
Physicians evaluated Clemons’ health several times between January 2000
and March 2002. In January she was hospitalized with pneumonia and her treating
physician, Dr. Thomas Liske, reported that she was in general good-health, took no
medications, could walk a mile, and climb nine steps. Liske noted that Clemons
smoked five cigarettes per day, had smoked since the age of sixteen, and that her
last bout of pneumonia occurred approximately three years ago. During a follow-up
visit in March, Liske reported Clemons’ pulmonary function was normal, with no
signs of pneumonia or asthma.
In May 2000, the Bureau of Disability Determination Services asked
Dr. Roopa Karri to examine Clemons. He determined that she suffered from
asthma, emphysema, arthritis of her knees, wrists and hands, hypertension, and a
history of recent pneumonia. Clemons falsely told Karri she did not smoke. In July
of that year, Dr. Virgilio Pilail prepared a Physical Residual Function Capacity
Assessment for Clemons stating that she could lift twenty pounds occasionally or
ten pounds frequently; stand, walk and/or sit for six hours in an eight-hour day;
engage in unlimited pushing and pulling; occasionally climb, kneel or crawl;
frequently balance, stoop or crouch; and could not tolerate concentrated exposure to
fumes, odors, dusts, gases, or poor ventilation.
Clemons visited Dr. Liske again in June 2000 and told him she felt well aside
from a cough. Liske prescribed Celebrex for an exacerbation of arthritis in her
knees and ankles and noted that an x-ray of her chest was within normal limits.
Two months later, Liske reported that Clemons was “better overall.” In May 2001
and November 2001 Clemons suffered acute episodes of bronchitis which cleared up
in response to medication. Finally, in 2002, Clemons saw Liske for back pain. A
Magnetic Resonance Image (MRI) showed some mild disk bulging and mild
degenerative changes, but no significant spinal canal narrowing.
At the time of her hearing before the ALJ in April 2002, Clemons was 53
years old, 5'2" tall and weighed 160 pounds. She testified, at slight variance from
her application, that she drove approximately once a week; regularly visited with
No. 04-4131 Page 3
neighbors and family, attended church, and went shopping; performed household
chores such as cooking, washing dishes, cleaning, and laundry; and took care of her
own bathing, dressing, and grooming. Despite doctors’ orders to stop smoking, she
admitted that she smoked four cigarettes per day. She further testified that her
ailments included constant knee pain, intermittent back pain that was exacerbated
by sitting, pain in her non-dominant right hand, asthma, seasonal pneumonia, and
general olfactory sensitivity to perfumes and strong odors. On a scale of one to ten,
she rated her pain as a “nine.”
Clemons described her prior work as a “packer” and “roper” for a
meat-packing plant from 1977 to 1995. This job required her to be on her feet all
day and included tasks such as tying ropes around packed meat products, lifting
thirty to fifty pound boxes, and moving stacks of boxes that might weigh up to 500
pounds on wheeled hand-trucks. She recounted that in 1995 she suffered a
work-related shoulder injury that required surgery; she did not return to work after
the surgery because, according to Clemons, she was having difficulty breathing and
the cold temperatures in the plant made her uncomfortable.
The ALJ denied Clemons’ application despite the fact that her impairments
prevented her from returning to her past work because she retained the capacity to
perform light-level work. In reaching this conclusion the ALJ relied on vocational
expert (“VE”) testimony that a person with Clemons’ abilities and limitations could
perform any of 7,000 light-level roping or packing jobs or 10,000 light-level cashier
jobs in the Chicago area. The ALJ discredited her subjective complaints, pointing
out that the medical evidence did not support her description of her limitations and
that she misled an evaluating physician about her smoking habit.
This court will uphold the ALJ’s decision if it is supported by substantial
evidence in the record. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004).
Evidence is “substantial” when a reasonable person would find it sufficient to
support the decision. Id.Clemons makes three main arguments. First, she contends that the ALJ
wrongly determined that she was not credible because she exaggerated her pain
and lied about smoking. An ALJ’s credibility determination is given “special
deference” and must be upheld unless the claimant shows it to be “patently wrong.”
Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). Clemons contends that she was
not exaggerating about her pain; but the MRI report characterized her condition as
mild, and she does not challenge the other evidence the ALJ relied on: the absence
of any observable pathology to explain her reports of knee pain, her ability to walk
without the aid of an assistive device, and the doctor’s report that she had
“pain-free straight leg raising and full range of motion of her hips, ankles and
spine.” As to her smoking, Clemons argues that under Shramek v. Apfel, 226 F.3d
No. 04-4131 Page 4
809, 812-13 (7th Cir. 2000), her smoking does not undermine her credibility. But
the ALJ did not reject her credibility merely because she smoked. Rather, the ALJ
found that her lie about smoking detracted from her believability as a witness. The
ALJ’s reasons for discounting Clemons’ testimony are thus specific and supported
by the record and therefore we will not disturb his credibility determination. See
Skarbek v. Barnhart, 390 F.3d 500, 504-05 (7th Cir. 2004).
Second, Clemons contends that the ALJ failed to compare her record evidence
to the listing of impairments in the Social Security regulations. The burden of proof
on this issue is Clemons’, see Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999),
but not only did she fail to point to any evidence that she meets a listed
impairment, she conceded in April 2002 that her impairments did not meet any
listing. In any event, the ALJ compared the evidence of record to listings that
specifically address musculoskeletal and respiratory impairments, and found that
her impairments did not meet or equal either listing. See 20 C.F.R. Part 404
Subpart P, Appendix 1 §§ 1.00, 3.00. The doctor that reviewed her record for the
agency also found that her impairments did not equal a listing, and the ALJ was
free to rely on that determination as well. See Scheck v. Barnhart, 357 F.3d 697,
700-01 (7th Cir. 2004).
Third, Clemons contends that the ALJ failed to consider all of her medical
conditions in crafting her RFC. Specifically, Clemons asserts that the ALJ ignored
evidence that she suffered chronic obstructive pulmonary disease (COPD),
granulomatous disease with parenchymal scarring, emphysema, dyspnea,
pneumonia, recent pneumonia, bronchitis, musculoskeletal problems,
thrombocythemia, adenopathy, hypertension, and obesity. According to the two
doctors who made reports of Clemons’ pulmonary function, she had little or no
pulmonary obstruction. Those doctors necessarily considered the first seven
ailments she mentions because all are forms or causes of pulmonary obstruction.
The ALJ cited the doctors’ reports and thereby incorporated consideration of
Clemons’ pulmonary ailments into his decision. See Skarbek, 390 F.3d at 504. In
addition, the ALJ considered Clemons’ asserted musculoskeletal problems when he
discussed her MRI report. Although the ALJ did not explicitly consider her
thrombocythemia, adenopathy, hypertension, and obesity, according to Dr. Pilail’s
report these illnesses were insignificant in determining her present limitations. An
ALJ is not required to address every inconsequential point a claimant raises. See
Johansen v. Barnhart, 314 F.3d 283, 288 (7th Cir. 2002). The ALJ properly
discussed only Clemons’ main ailments, concluding that her back condition was
No. 04-4131 Page 5
“mild,” that her asthma was “under control,” and that she experienced no functional
limitations related to arthritis. See id. at 288-89.1
The ALJ did not, as Clemons contends, rely on his own “hunches” instead of
medical authority in refusing to find her mild back condition disabling. We will
generally find that an ALJ has abandoned his role as a decision-maker only if he
has “failed to address relevant evidence” in reaching his conclusions. Dixon v.
Massanari, 270 F.3d 1171, 1177-78 (7th Cir. 2001). Here, the ALJ accurately noted
that the only medical evidence of record showed that Clemons had only mild back
problems, and he permissibly discredited her subjective claim of extreme pain.
Neither did the ALJ err, as Clemons suggests, by allowing the VE to determine
which jobs might include concentrated exposure to pulmonary irritants. This is
precisely the sort of question that an ALJ regularly enlists a VE to answer. See
Fast v. Barnhart, 397 F.3d 468, 470 (7th Cir. 2005) (ALJ must consult VE to
determine range of work that a claimant with non-exertional impairments may
perform).
Finally Clemons contends that the hypothetical question posed by the ALJ to
the VE was incomplete. It is true that the question did not include a listing of all of
her ailments, but a laundry list of illnesses is unnecessary. Instead, a hypothetical
must include “all limitations supported by medical evidence in the record.” Steele
v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002) (emphasis in the original). The
hypothetical the ALJ posed to the VE addressed every limitation that Dr. Pilail
found to be supported by the medical evidence. The hypothetical question posed to
the VE was supported by medical evidence and therefore the ALJ’s conclusion,
supported by the VE’s testimony that Clemons could perform light work, was based
on substantial evidence. See id.; Donahue v. Barnhart, 279 F.3d 441, 446-47 (7th
Cir. 2002); Cass v. Shalala, 8 F.3d 552, 555-56 (7th Cir. 1993).
AFFIRMED.
1
Even Clemons seemed less concerned with her other ailments since she failed
to mention them at her hearing or in any of her other submissions. Her first request
for review of the ALJ’s decision focused on her claims of arthritis, pain, and asthma and
did not include the laundry list she presents to us.