Manley, Scott v. Barnhart, Jo Anne B.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 2, 2005
Decided November 17, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 04-3617
Appeal from the United States District
SCOTT MANLEY, Court for the Eastern District of
Plaintiff-Appellant, Wisconsin
v. No. 03-C-337
JO ANNE BARNHART, Rudolph T. Randa,
Defendant-Appellee. Chief Judge.
ORDER
Scott Manley, who suffers from Chronic Fatigue Syndrome (CFS), applied to
the Social Security Administration for disability insurance benefits. His claim was
denied and his appeal to an Administrative Law Judge (ALJ) was unsuccessful,
who concluded that Manley was able to work in the national economy. The appeals
council denied Manley’s request for review and the district court upheld the ALJ’s
decision. We affirm.
At a hearing before the ALJ, Manley testified as follows. In 1996, he began
receiving treatment for viral meningeal encephalitis1, and in early 1997 he suffered
1
“An inflammation of the brain and its membranes” that is caused by a virus.
(continued...)
No. 04-3617 Page 2
a grand mal seizure. Several months later, in June 1997, he underwent open-heart
surgery focusing on an aortic valve replacement. He believes that these ordeals led
soon thereafter to an onslaught of symptoms—headaches, dizziness,
lightheadedness, confusion, difficulty with balance, and persistent fatigue—that
were ultimately diagnosed as CFS. These symptoms interfered with his work as an
assembler of pool and spa pumps; he became unsteady on his feet, so his employer
created a sedentary position for him scheduling orders on a computer. But even
this proved too much. Manley’s health problems caused him to miss work for weeks
at a time, and on occasion he needed a family member to drive him home after only
a few hours on the job. By October 1999, he could persevere no longer and he
stopped working altogether.
Manley’s daily activities are now more constricted. He reads the Bible and
Sports Illustrated magazine, and watches the news on television, but has difficulty
focusing and so usually abandons these activities after short periods. He watches
over the family’s dogs, collects and sorts the mail, washes the dishes, and
occasionally does laundry. On the advice of his physicians, he leaves the house for
short walks of fifteen to twenty minutes several times a week, but says that this
activity always leaves him drained and he is required to rest or sleep for several
hours afterward. From time to time, Manley drives to his parents’ house for lunch,
and frequently accompanies his wife to church on Sundays.
A number of physicians have examined Manley—many of them upon referral
from his general practitioner, Dr. Britton Kolar—drawing various conclusions as to
the cause and severity of his symptoms. Dr. Robert Henderson, a cardiologist,
treated Manley for a severe headache and unexplained vision loss in February
1998, and noted that these problems had “[c]leared completely,” that Manley’s
“cardiac exam was unremarkable, except for his cardiovascular examination,” and
that a slight abnormality in his EEG was neither a “significant or diagnostic”
problem. Dr. Henderson again treated Manley in December and stated, “I am not
sure what this symptom of lightheadedness is, but I think it is clearly non-cardiac.”
He opined that it was probably caused by a reaction to Dilantin, a drug used to
control seizures.
Dr. Stanley Boyer, a neurologist, treated Manley from May 1998 to June
1999. He described Manley’s symptoms of dizziness, lightheadedness, imbalance,
and disequilibrium as “rather vague and non-specific,” and found no explanation for
them. Like Dr. Henderson, Dr. Boyer believed that Manley’s problems were caused
by a reaction to Dilantin; Manley was “much improved” after discontinuing his use
1
(...continued)
Stedman’s Medical Dictionary 1091 (27th ed. 2000).
No. 04-3617 Page 3
of the drug. Dr. Boyer ran a series of tests—MRIs, an EEG, a brainstem auditory
evoked response test, blood cultures, and a chemistry panel—all of which came back
normal. In May 1999, Dr. Boyer responded to Manley’s questions about returning
to work, saying that he did not think “there would be any harm from him going
back to work if he can tolerate it.” In June 1999, Dr. Boyer stated, “I do not have
any other useful suggestions at this time.”
Next Manley visited Dr. Brad Beinlich, another neurologist. In December
1999, Dr. Beinlich noted that the “etiology” of Manley’s symptoms was “unclear,”
and recommended that his doctors “continue with treatment focused on depression
and anxiety.” In March 2000, Dr. Beinlich stated that Manley appeared “very
pleasant,” and was “in no apparent distress.” He noted “some mental fatigue as
well as mild to moderate depression,” concluding that Manley’s symptoms “fall[ ]
within the range of chronic fatigue syndrome.”
Dr. Beinlich referred Manley to Dr. Jerry Halsten for a neuropsychological
evaluation in February 2000. Dr. Halsten administered a series of physical,
cognitive, and psychological tests and determined that Manley’s “current estimated
general intellectual functioning is within the Average range”; that he did “not
display a decline in global cognitive functioning relative to his intellectual ability”
but did have a “slight decrease” in “mental efficiency that is entirely consistent with
his history of coronary problems”; and that he exhibited “mild to moderate
symptoms of depression.” Dr. Halsten observed that Manley “has clearly
experienced rapid fatigue in the work environment,” and was “likely to experience
significant mental fatigue if he works shifts exceeding eight hours or he works
nighttime or early morning hours.”
In April 2000, Manley visited Dr. Robert Gordon for a psychological
evaluation. Dr. Gordon concluded that Manley “can be diagnosed as having an
adjustment disorder with mixed emotional features. It is judged that he is capable
of independently managing any benefits that might be granted to him.”
Meanwhile Dr. Kolar, Manley’s general practitioner, continued to treat him
for fatigue and cardiac irregularities throughout this period. In February 2000, he
noted Manley’s complaints of “increased cardiac irregularity and rapid pulse,” but
stated that “[h]e appeared very compensated and had no significant complaints.”
He stated that Manley’s “chronic fatigue syndrome” was “ongoing with [a] profound
impact on [his] daily life.” In June 2000, Dr. Kolar completed a “Physician’s
Statement of Disability” form, listing diagnoses of “viral meningoencephalitis with
multiple somatic complaints & chronic fatigue,” but concluding that his “etiology
remains obscure.” He checked boxes indicating that Manley could not walk for
more than a total of two-and-a-half hours per day, stand more than two hours, or sit
more than five-and-a-half hours; rated Manley with a class two “slight” cardiac
No. 04-3617 Page 4
limitation; and opined that he should be limited to sedentary work. In noting
Manley’s attempts to maintain a normal lifestyle in April 2001, Dr. Kolar reported
that “he cannot be up for more than one hour at a time without overwhelming
fatigue. This requires that he either rest or sleep.” In June 2001, Dr. Kolar stated
that Manley was “much the same with his usual fatigue precluding regular
activity.” He noted Manley’s “perception of increasing cardiac irregularity,” but
stated that his “[v]alve sounds are clear. There is no obvious diastolic murmur
audible. . . . Peripheral pulses are intact.”
Manley visited an endocrinologist, Dr. Richard Weirich, in July and August
2000. In July Dr. Weirich stated that Manley was “in no acute distress,” and
performed a cardiac exam, “which reveal[ed] a regular rate and rhythm without
extra heart sounds or congestive heart failure signs.” Dr. Weirich ruled out
endocrinopathy and stated that his primary concern was pituitary disfunction. But
a battery of tests came back with unremarkable results, and Dr. Weirich concluded
that the “lack of true symptoms and signs that could be identified by physical
examination lead me at this point . . . to stop further workup.” He said that
Manley’s personal treating physician should continue to treat for “potential chronic
fatigue syndrome” or fibromyalgia, and made “a strong recommendation for the
patient to return to work as soon as possible despite ongoing symptoms.”
Finally, Manley’s file was evaluated by two state physicians and two state
psychologists in conjunction with his application for disability benefits. In April
2000, the first state physician noted Manley’s aortic valve replacement, his history
of meningitis, and his chronic fatigue, and concluded that Manley could lift fifty
pounds occasionally and twenty-five pounds frequently; could stand or walk six
hours in an eight-hour workday; and could sit for six hours in a normal workday.
The first psychologist stated that Manley had “[a]djustment disorder with mixed
emotional features,” and noted his diminished appetite, difficulty sleeping, and
decreased energy. The psychologist concluded that Manley had “slight” limitations
on his daily activities, his ability to maintain social functioning, and his difficulties
with concentration, persistence, and pace. In September 2000, the second state
physician’s conclusions mirrored the earlier report, except for stating that Manley
could lift only twenty pounds occasionally and ten pounds frequently. The
physician noted that the “[l]imitations described above result from complaints of
fatigue given physical exams & lab studies WNL [within normal limits].” The
second psychologist’s report is identical to the first, except for noting that Manley’s
symptoms were “compatible with chronic fatigue syndrome.”
The ALJ denied the application, finding that Manley had failed to
demonstrate that he was disabled under the Social Security Act. Applying the five-
step analysis set out in 20 C.F.R. §§ 404.1520 and 416.920, the ALJ in July 2001
found that Manley (1) has not engaged in gainful activity since October 15, 1999;
No. 04-3617 Page 5
(2) has a severe impairment that (3) does not meet a listing in the appendix to the
Social Security regulations; (4) could not perform his past relevant work; but (5)
retains the residual functional capacity (RFC) to perform other work. In reaching
this conclusion, the ALJ placed less than controlling weight on his personal
physician’s findings because they were based on Manley’s subjective complaints
rather than objective evidence, and were “internally inconsistent” regarding
Manley’s heart condition. Also, the ALJ relied on the testimony of a vocational
expert (VE) in concluding that there are jobs in the national economy that
accommodate Manley’s limitations. The ALJ also found that Manley’s “complaints
and allegations about his limitations and impairments are not fully credible,”
noting inconsistencies between his activity level and his statements to doctors. The
district court affirmed, finding that substantial evidence supports the ALJ’s
decision.
This court must also affirm the ALJ’s decision if it is supported by
substantial evidence that a reasonable mind could accept as adequate. Sienkiewicz
v. Barnhart, 409 F.3d 798, 802 (7th Cir. 2005). This standard of review is limited;
we will not substitute our judgment for the ALJ’s by reconsidering facts, reweighing
evidence, or deciding questions of credibility. Id.On appeal Manley initially challenges the ALJ’s RFC finding, specifically the
decision to give less than controlling weight to the assessment of treating physician
Dr. Kolar. Manley disagrees that Dr. Kolar’s assessment was based on subjective
complaints rather than objective evidence, contending that a patient’s complaints
are a permissible grounds for diagnoses in CFS cases. The opinions of treating
physicians such as Dr. Kolar are accorded controlling weight, but not if they are
inconsistent with the other objective evidence in the record, such as the findings of
other examining physicians. White v. Barnhart, 415 F.3d 654, 659 (7th Cir. 2005);
20 C.F.R. § 404.1527(d)(2), (5). Moreover, courts have cautioned that claims of
disability based on amorphous pain disorders such as CFS and fibromyalgia often
must center around the subjective complaints of the patient, since they have few
objective indicators. See Mastro v. Apfel, 270 F.3d 171, 176–77 (4th Cir. 2001);
Sarchet v. Chater, 78 F.3d 305, 306–07 (7th Cir. 1996). But the severity of these
disorders varies, and the claimant’s subjective complaints need not be accepted
insofar as they clash with other evidence in the record. See Dunahoo v. Apfel, 241
F.3d 1033, 1038 (8th Cir. 2001); see also Carradine v. Barnhart, 360 F.3d 751, 764
(7th Cir. 2004) (Coffey, J., dissenting) (noting that “rely[ing] solely on a claimant’s
subjective testimony . . . possesses a greater potential for manipulation because
outward manifestations of pain can easily be contrived by a calculating claimant”)
(internal quotation marks ommitted).
Here the ALJ permissibly disfavored Dr. Kolar’s findings because they
conflict with substantial objective evidence in the form of the assessments of other
No. 04-3617 Page 6
examining and treating physicians. See Carradine, 360 F.3d at 773 (Coffey, J.,
dissenting) (quoting Social Security Ruling 96–7p) (stressing the importance of the
“consistency of the individual’s statements with other information in the case
record, including reports and observations by other persons concerning the
individual’s daily activities”). No other physician placed such restrictive limits on
Manley’s ability to function on a daily basis, and three of them—Drs. Gordon,
Halsten, and Weirich—suggested or stated outright that he was capable of working
for extended periods of time, with Dr. Weirich even giving a “strong
recommendation” that he return to work. In contrast, Dr. Kolar’s reports often give
the impression of simply recording Manley’s complaints, calling into question the
objective basis for his conclusions. See White, 415 F.3d at 659. While another
factfinder might nonetheless be tempted to side with Dr. Kolar for his greater
familiarity with Manley’s case, this court has previously noted the possibility that a
treating physician may be biased to help a friend and patient. See Dixon v.
Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001). Substantial evidence supports the
ALJ’s decision to place less weight on Dr. Kolar’s findings.2
In a poorly developed follow-up argument, Manley contends that even if the
ALJ permissibly disfavored Dr. Kolar’s more sympathetic opinion, the ALJ failed to
state what weight he accorded it. This argument also fails. We can find no case
holding that an ALJ who explains the basis for disfavoring a treating physician’s
opinion must also state precisely how much weight—beyond “not controlling”—he
places on it. Compare Langley v. Barnhart, 373 F.3d 1116, 1122–23 (10th Cir. 2004)
(reversing ALJ for placing less weight on treating physician where ALJ failed
adequately to explain decision); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544–46
(6th Cir. 2004) (same); Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003)
(same), with Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004) (affirming
placement of less weight on treating physician because ALJ provided sufficient
reasons for decision, even though he did not describe how much weight it received).
Next Manley challenges the hypothetical the ALJ posed to the vocational
expert, contending that it was incomplete because rather than stating that the
hypothetical individual must be able to alternate between standing and sitting “at
will,” the ALJ merely said that the individual “[c]ould alternate” between standing
2
The same logic dooms Manley’s challenge to the ALJ’s decision to exclude from
the RFC finding a discussion of Manley’s inability to work on a sustained basis.
Although Manley consistently complained of the need to sleep frequently and rest after
activity, none of the examining physicians prescribed such limitations except Dr.
Kolar, who acknowledged Manley’s complaints rather than stating that such
restrictions were necessary.
No. 04-3617 Page 7
and sitting “throughout an eight-hour day,” after stating that he “could only sit up
to one hour at a time or stand up to one our at a time.”
Although we agree that the hypothetical could have been more precisely
worded, we disagree that this was fatal. We have repeatedly held that a
hypothetical is not defective simply for failing to include each and every detail of
the applicant’s disability, provided there are indications that the VE reviewed the
entire record prior to the hearing. Ragsdale v. Shalala, 53 F.3d 816, 820 (7th Cir.
1995); Ehrhart v. Sec’y of Health & Human Servs., 969 F.2d 534, 540 (7th Cir.
1992). Here, the distinction between “alternate at will” and “alternate throughout
the day” is subtle to begin with, but any ambiguity is resolved by the VE’s assertion
that he had reviewed the entire record and listened to the Manleys’ testimony. See
Tr. at 58–59. We did limit the Ehrhart principle somewhat in Young v. Barnhart,
362 F.3d 995, 1003–04 (7th Cir. 2004), stating that relying on the VE’s familiarity
with the record may be inappropriate when the ALJ asks multiple fact-sensitive
hypotheticals that rule out key disability factors. Here, the ALJ did ask several
hypothetical questions with varying disability limitations. But it is not the case
that some hypotheticals allowed Manley to alternate between sitting or standing at
will while others required him to sit or stand for an hour at a time. Thus nothing
would keep the VE in interpreting the ALJ’s hypothetical from considering
Manley’s earlier statements that he could only stand or sit for very limited
stretches.
Manley raises two other challenges to the ALJ’s hypothetical question, and to
the VE’s testimony, but he has forfeited both arguments. He first contends that the
hypothetical was also incomplete because it made no mention of his mental
limitations, but he failed to raise this issue before the district court. See Shramek
v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000). Second, he argues that the ALJ
impermissibly neglected to ask the VE whether his conclusion that Manley could
still perform many jobs in the national economy conflicts with the Dictionary of
Occupational Titles, but he didn’t challenge the VE on this point during his cross-
examination, relieving the ALJ of any obligation to ask. See Barrett v. Barnhart,
355 F.3d 1065, 1067 (7th Cir. 2004); Donahue v. Barnhart, 279 F.3d 441, 446–47
(7th Cir. 2002); cf. McKinnie v. Barnhart, 368 F.3d 907, 910–11 (7th Cir. 2004).
Finally, Manley challenges the ALJ’s adverse credibility determination,
contending that it is incomplete and at times wrong. It is true that the credibility
finding may not be supported by substantial evidence. The government concedes
that the ALJ erred in one of his reasons for discrediting Manley: the incorrect
observation that Manley kept working beyond the date on which he allegedly
became disabled. And the other major reason—a perceived inconsistency because
Manley’s testimony suggests his symptoms worsened over the summer of 2000 even
though he stated to doctors that his condition was unchanged—is also shaky, for
No. 04-3617 Page 8
Manley did tell Dr. Kolar in June 2000 that he had experienced “a decrease in his
physical activity.” However, because the ALJ relied very little on the credibility
finding in determining that Manley was not disabled—weighing instead the many
doctor’s reports in the record—these errors are harmless. See Frank v. Barnhart,
326 F.3d 618, 621–22 (5th Cir. 2003).
For the foregoing reasons, we AFFIRM the judgment of the district court.