Robert McGillem v. Kilolo Kijakazi ( 2022 )


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  •                         NONPRECEDENTIAL DISPOSITION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
    Argued January 25, 2022
    Decided February 8, 2022
    Before
    KENNETH F. RIPPLE, Circuit Judge
    DIANE P. WOOD, Circuit Judge
    CANDACE JACKSON-AKIWUMI, Circuit Judge
    No. 20-2912
    ROBERT McGILLEM,                               Appeal from the United States District
    Plaintiff-Appellant,                       Court for the Southern District of
    Indiana, Indianapolis Division.
    v.
    No. 1:19-cv-01852-MPB-TWP
    KILOLO KIJAKAZI, Acting
    Commissioner of Social Security                Matthew P. Brookman,
    Defendant-Appellee.                       Magistrate Judge.
    ORDER
    Robert McGillem challenges the denial of his applications for Social Security
    disability insurance benefits and supplemental security income. He argues that the
    administrative law judge who determined that he was able to perform certain light
    work despite his fecal incontinence ignored contrary evidence and failed to connect his
    conclusion to the evidence that was presented. Although this is a close case, we
    conclude that substantial evidence supports the ALJ’s decision, and so the applicable
    standard of review compels us to affirm.
    No. 20-2912                                                                        Page 2
    I
    McGillem, now 57, applied for disability insurance and supplemental security
    income in May 2013, claiming that he had been disabled since May 26, 2011. He asserted
    that he was unable to work because of a combination of mental illness, breathing issues,
    migraines, and blurred vision; notably the list did not include bowel problems or
    incontinence. An ALJ issued an unfavorable decision in October 2015, and the Appeals
    Council denied McGillem’s request for review in March 2017. In 2018, however, a
    district court remanded with instructions to take another look at McGillem’s complaints
    of bowel issues, fibromyalgia, and migraines. McGillem v. Berryhill, No.
    117CV01386MJDJMS, 
    2018 WL 656343
    , at *4 (S.D. Ind. Feb. 1, 2018). We pick up the
    story at that point.
    Medical Treatments
    In December 2011 McGillem was diagnosed with a small bowel obstruction. In
    June 2014, he was diagnosed with dyssynergic defecation, a colonic nerve condition that
    can inhibit awareness of oncoming bowel movements. This was treated with
    biofeedback therapy. Earlier that year, in February, a nurse practitioner at a
    gastroenterology clinic concluded that he likely had irritable bowel syndrome. At this
    time, McGillem experienced 3 to 4 bowel movements per day. In January 2015,
    McGillem returned to the clinic, seeking treatment for fecal incontinence. The same
    nurse practitioner noted that McGillem had no fiber in his diet and that he reported that
    the biofeedback therapy helped, but loperamide (an anti-diarrheal medication) did not.
    When McGillem returned to the clinic in May 2015, he reported that his symptoms had
    improved but not resolved, and that he now had just one bowel movement per day,
    after his evening meal. He also said that the biofeedback therapy continued to help.
    Two years later, in June 2017, McGillem again visited the clinic about his
    incontinence. A gastroenterologist noted improvement in McGillem’s symptoms and
    recorded daily use of fiber supplements and loperamide. The doctor suggested that
    McGillem cut his consumption of carbonated soda, use loperamide before meals, and
    increase his daily fiber supplementation. At the last relevant visit, which was in January
    2018, a doctor noted that McGillem’s symptoms were “stable at this time, though he is
    not on loperamide so feel [sic] there is room for improvement.”
    No. 20-2912                                                                        Page 3
    Administrative Proceedings
    A state-agency medical consultant reviewed McGillem’s medical records back in
    November 2013 and determined that he did not have any severe impairments. A second
    consulting physician affirmed this conclusion on reconsideration in February 2014.
    At a hearing before an ALJ on November 6, 2018, McGillem testified that his
    incontinence was ongoing, that he had dealt with it since childhood, and that when he
    was employed, he had handled the issue by changing clothes several times per day. He
    also testified that dietary changes and biofeedback treatment had not helped.
    The ALJ called a medical expert, who testified that McGillem’s impairments
    included irritable bowel syndrome and fecal incontinence, that his impairments did not
    meet or equal a medical listing, that his bowel issues responded to treatment, and that
    he was limited to light physical exertional work. In response to a hypothetical question
    from McGillem’s counsel, the medical expert indicated that incontinence might give rise
    to the need to change clothes or use a sanitary pad while on the job, but that it would
    not otherwise support any work-related restrictions. A vocational expert testified that
    an employer would need to assess whether an employee experiencing incontinence
    would require more breaks than other employees. He explained that a lenient employer
    might allow more frequent breaks for incidents of incontinence, but in a competitive
    work setting, unpredictable breaks would preclude employment.
    After the hearing, the ALJ issued a decision finding that McGillem was not
    disabled. Applying the standard five-step analysis, see 
    20 C.F.R. § 416.920
    (a)(4), the ALJ
    found that McGillem had not engaged in substantial gainful activity since the alleged
    onset date (step one), and that he suffered from several mental and physical
    impairments, not including any bowel-related conditions (step two). But none of these
    impairments met or equaled a listed impairment (step three). And although McGillem
    could not return to any of his previous work (step four), the ALJ concluded that he
    could perform light work with some restrictions (related to standing, walking, and
    exposure to background noises). The ALJ determined, based on the vocational expert’s
    testimony, that with this residual functional capacity McGillem could work as a sorter,
    routing clerk, or collator operator (step five). On that basis, he denied McGillem’s
    application.
    The ALJ discussed McGillem’s incontinence and irritable bowel syndrome but
    determined that they were not severe. He found that the incontinence was controlled
    when McGillem followed the prescribed treatment of loperamide, fiber
    No. 20-2912                                                                         Page 4
    supplementation, and reduced consumption of carbonated soda. Because the condition
    was treatable, the ALJ concluded, the incontinence was “a slight abnormality that
    would have no more than a minimal effect on his ability to work.” The district court
    upheld the denial of benefits.
    II
    On appeal, McGillem argues only that, because the ALJ failed adequately to
    incorporate McGillem’s incontinence into his residual functional capacity, the denial of
    benefits cannot stand. We review the ALJ’s decision directly and treat his findings are
    “conclusive” if they are supported by “substantial evidence.” See 
    42 U.S.C. § 405
    (g).
    That is defined as “such relevant evidence as a reasonable mind might accept as
    adequate to support a conclusion." Biestek v. Berryhill, 
    139 S. Ct. 1148
    , 1152 (2019).
    The ALJ’s most significant error, McGillem argues, was the failure to discuss
    McGillem’s corroborating evidence, including his diagnosis of dyssynergic defecation
    and his incontinence-related skin issues. Both of these, he contends, are objective
    evidence that supports his subjective allegations. McGillem contends that his
    dyssynergic defecation diagnosis in particular proves that incontinence will occur “on
    some regular basis,” and will therefore preclude employment if one accepts that any
    incident would result in firing. McGillem characterizes the ALJ’s findings as “an
    effective conclusion [he] … would never experience … even a single instance of fecal
    incontinence,” and he contends that this finding cannot stand for two reasons. First, the
    ALJ failed to consider evidence contrary to his conclusion, and second, the judge failed
    to build a “logical and accurate bridge” between all the evidence and his conclusion
    that McGillem could perform light work.
    This line of argument does not fairly reflect the ALJ’s opinion. The ALJ granted
    that there is objective evidence of McGillem’s incontinence. Nonetheless, the judge
    concluded, the record showed that McGillem’s condition could be controlled with
    treatment. This is a relevant consideration. See 
    20 C.F.R. § 404.1530
    ; Schmidt v. Barnhart,
    
    395 F.3d 737
    , 745 (7th Cir. 2005) (upholding ALJ’s assessment that claimant’s panic
    attacks imposed minimal work limitations when record showed they were well-
    controlled with medication). The potential causes or additional symptoms of
    McGillem’s condition (a skin rash) are not relevant to the conclusion that his
    incontinence could be controlled. Furthermore, the ALJ expressly discussed McGillem’s
    biofeedback therapy—the treatment for his dyssynergic defecation—in his analysis of
    incontinence. He did not, as McGillem contends, entirely overlook this point.
    No. 20-2912                                                                        Page 5
    McGillem also fails to support his key assertion that the diagnosis of dyssynergic
    defecation will inevitably lead to incontinence on “some regular basis.” The most that
    the record supports is a finding that McGillem may experience trouble knowing when a
    bowel movement is imminent. But McGillem does not point to any evidence that the
    condition makes incontinence inevitable, let alone that it will occur with any particular
    frequency (predictable or otherwise). And McGillem reported improvement in his
    symptoms, even with this diagnosis, from the biofeedback therapy and other prescribed
    treatment. In short, McGillem’s assertion that the dyssynergic defecation diagnosis
    necessarily precludes employment is not supported by the record and is insufficient to
    undermine the ALJ’s findings that his incontinence could be adequately controlled.
    McGillem next contends that the ALJ made the mistake of relying on his own
    medical judgments and thus failed properly to connect his conclusion that the
    incontinence was treatable to the evidence. We understand McGillem to be arguing that
    the neurological aspect of his dyssynergic defecation precludes the possibility that his
    treatments would or could be effective. But those treatments were prescribed by doctors
    who were aware (or were made aware) of his diagnosis. That they addressed the effects
    (incontinence) and not the underlying neurological cause does not make them less
    effective with respect to the ability to work without having accidents—at least not as far
    as McGillem has shown.
    Further undermining the suggestion that the ALJ impermissibly relied on his
    own medical judgment is the evidence in the record showing that McGillem’s
    symptoms improved at various times. In his February 2014 visit to the gastroenterology
    clinic, McGillem reported 3 to 4 bowel movements per day, primarily after meals. At a
    visit to the same clinic in June 2017, the treating physician noted that the frequency was
    down to one per day, that “incontinence is better than in the past,” and that McGillem
    was using the fiber supplement and loperamide daily. By citing these records, the ALJ
    appropriately relied on the medical opinions of treating physicians—opinions that are
    owed considerable weight. See 
    20 C.F.R. § 404.1527
    (c)(2); Brown v. Colvin, 
    845 F.3d 247
    ,
    251–52 (7th Cir. 2016).
    McGillem further argues that the ALJ erred in discrediting McGillem’s testimony
    that his symptoms could not be controlled. He believes that the ALJ relied on an
    “incomplete and inaccurate assessment of [McGillem’s] medication compliance.” Rather
    than showing noncompliance, McGillem argues, the record shows he “was
    communicating what was working and what was not with his treating physicians who
    adjusted medications accordingly.”
    No. 20-2912                                                                       Page 6
    But we see no reason to disturb the ALJ’s evaluation of McGillem’s credibility
    with respect to his symptoms or treatment. McGillem testified that treatments proved
    ineffective. Yet several treating providers opined that the prescribed treatment
    improved McGillem’s incontinence. So did McGillem himself in treatment visits. In
    resolving these inconsistencies, the ALJ gave less weight to McGillem’s statements
    regarding the effectiveness of treatment and the severity of his symptoms than he gave
    to the medical accounts. This was not “patently wrong” and is not a reason to reverse
    the ALJ’s determination. See Curvin v. Colvin, 
    778 F.3d 645
    , 651 (7th Cir. 2015).
    There was also a testifying medical expert on whom ALJ permissibly relied in
    assessing McGillem’s work limitations. 
    20 C.F.R. § 404.1527
    (f)(2); Rice v. Barnhart, 
    384 F.3d 363
    , 370 (7th Cir. 2004). This expert reviewed the whole record and listened to the
    testimony before opining that McGillem could perform light work. The expert noted
    several times that the medical record showed improvement when McGillem complied
    with treatment. The ALJ explained that he gave the medical expert’s opinion substantial
    weight for those reasons and because the expert’s assessment of the incontinence was
    not contradicted by any treating sources. McGillem does not state what (if any) further
    restrictions would be appropriate, or what evidence there is to support specific further
    limitations. He refers generally to time off-task and the need for frequent unpredictable
    breaks, but he does not quantify these limitations or show why they are work-
    preclusive. Medical evidence supports the existence of the condition, but the need for
    restrictions cannot be inferred from the diagnosis alone.
    We cannot say that this record lacks the “relevant evidence as a reasonable mind
    might accept as adequate” to support the ALJ’s conclusion that McGillem’s bowel
    condition was not work-preclusive. We thus AFFIRM the judgment of the district court.