Dixon, Hattie v. Barnhart, Jo Anne B. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1635
HATTIE DIXON,
Plaintiff-Appellant,
v.
LARRY G. MASSANARI, Acting Commissioner
of the Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97 C 870--Patricia J. Gorence, Magistrate Judge.
Argued September 13, 2001--Decided November 8, 2001
Before RIPPLE, ROVNER, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. Hattie Dixon
received a belated 50th birthday present
on May 10, 1995. On that date, the
Commissioner of Social Security
determined, on Dixon’s application, that
she was "disabled" as of her 50th
birthday (February 27, 1995) because then
her age, combined with her serious
medical condition, limited education,
absence of transferable work skills, and
ability to perform nothing more than
sedentary work, earned her supplemental
security income benefits under a medical-
vocational guideline. Prior to turning
50, Dixon’s age was not a recognizable
factor in deciding whether she was
entitled to benefits, and Dixon has been
trying to get those benefits since 1990
when she stopped working. This case
focuses, then, on a narrow question: Does
substantial evidence support the
Commissioner’s conclusion that she was
not disabled, as that term is defined by
law, between 1990 and the day she turned
50 in 1995.
In the course of her long battle to
secure disability benefits, Dixon has had
three hearings before administrative law
judges (ALJs), two appeals to the Social
Security Appeals Council, and two reviews
by the district court. This is her first
visit to this court.
There is no question that Dixon is
seriously ill. Dixon’s claim that
substantial evidence does not support the
Social Security Commissioner’s final
decision that she was not disabled during
the 5 years prior to her 50th birthday
rests on three sub-issues. First, Dixon
argues that, in conducting her third
administrative hearing, Administrative
Law Judge Patricia Kelly failed to
reasonably evaluate the opinions of
Dixon’s physicians. Second, she argues
that ALJ Kelly erred in concluding that
Dixon could perform sedentary work as
long as she was permitted to alternate
between sitting and standing. Third,
Dixon argues that the ALJ unreasonably
concluded that Dixon could perform a
significant number of jobs in the economy
despite her impairments.
Dixon has a ninth-grade education and,
before 1990, did some work as a bus
driver and machine operator. She stopped
working in October of 1990 when she
developed pain in the left part of her
stomach. In December 1990 Dixon first
applied for disability insurance benefits
and supplemental security income,
alleging that she was disabled as of
September 1990 due to a kidney infection
and high blood pressure. The Social
Security Administration denied Dixon’s
applications, and she began the review
process.
Although ALJ Kelly’s decision after
Dixon’s third administrative hearing is
the key matter before us, that decision
drew on earlier decisions, so all, where
pertinent, will be discussed. At Dixon’s
first administrative hearing in October
1991, ALJ Ronald G. Bernoski considered
testimony, from a vocational expert, that
more than 10,000 sedentary, unskilled
jobs existed in the Milwaukee area. After
the hearing, in January 1992, Dr. Michael
Dawson examined Dixon and noted
complaints about her diabetes, high blood
pressure, knee and back pain. He also
assessed her ability to work, indicating
that she could lift no more than 10
pounds, could neither stand nor walk for
more than 1 hour in an 8-hour workday,
and could not sit for more than 1 hours
at a time.
ALJ Bernoski issued a decision on April
16, 1992, determining that Dixon was not
disabled. In making this determination,
Bernoski found that Dixon retained the
residual functional capacity for the full
range of sedentary work and that she
could perform a significant number of
jobs in the national economy. Bernoski’s
decision specifically rejected Dr.
Dawson’s assessment of Dixon’s limited
ability to work, noting that Dawson’s
physical examination did not reveal any
significant abnormalities. The ALJ also
noted that the exam results of Dixon’s
regular physicians failed to mention
problems with her back or knees.
On August 6, 1992, the Appeals Council
vacated the ALJ’s decision and remanded,
finding that Dixon’s ability to work was
limited to jobs that allowed her to
alternate between sitting and standing.
Dixon testified at a second
administrative hearing before Bernoski in
November 1992 and said she took Motrin
for arthritis and insulin for diabetes.
At that time, she also testified that she
could stand for no more than 20 minutes
at a time, but that she could "sit at a
job" with little difficulty. A vocational
expert testified that 9,200 jobs offering
a sit/stand option existed in the Milwau
kee area. Relying on this evidence,
Bernoski issued a decision on December
23, 1992, again finding that Dixon was
not disabled. The Appeals Council denied
Dixon’s request for review, and
Bernoski’s finding became the Commission
er’s final decision. Dixon requested
judicial review in the Eastern District
of Wisconsin. On September 19, 1995, the
district court remanded, determining that
substantial evidence did not support the
Commissioner’s final decision that Dixon
was not disabled./1
ALJ Patricia Kelly conducted a third
hearing in September of 1996. Dixon
testified that she "probably could"
perform jobs, such as receptionist work,
that require little lifting and offer a
sit/stand option, as long as she was per
mitted to use the bathroom frequently,
because when her condition acted up she
had to answer the call of nature four or
five times a day. On November 26, 1996,
ALJ Kelly issued a decision finding that
Dixon could perform sedentary work that
provided a sit/stand option and that she
was therefore not disabled between
September 24, 1990 and February 27, 1995.
The Appeals Council found no basis for
disturbing this decision.
Dixon once again sought judicial review.
The parties filed cross-motions for
summary judgment, and Magistrate Judge
Patricia Gorence held that substantial
evidence supported ALJ Kelly’s decision.
And that brings us here, on Dixon’s
appeal.
Dixon’s medical problems began in 1990,
when she was diagnosed with a kidney
ailment. In February of that year,
surgeons drained her kidney and inserted
a temporary drainage stent. In October
1990, doctors diagnosed Dixon with a
kidney infection and multiple abscesses,
which they treated with antibiotics. They
inserted a drainage tube in her left
kidney on October 4, 1990, and later
replaced it with a renal stent. In
January 1991 Dixon’s treating physician,
Dr. John D. Silbar, reported that the
drainage tube made it difficult for her
to work. On February 15, 1991, Silbar
stated that Dixon was "definitely
disabled." Doctors removed the stent on
March 5, 1991. In March and April 1991,
Dixon complained of headaches and blurred
vision. An eye exam revealed that glasses
could correct her vision to 20/20.
Dixon’s treating physician, Dr. Erika
Voss, examined her on June 4, 1992,
reporting that Dixon’s high blood
pressure was stable with medications but
that her diabetes was poorly controlled.
Voss noted that Dixon had not been
complying with her diabetes treatment
regimen. After Dixon continued to
complain of blurred vision, headaches,
and dizziness, in May 1992 she went to an
eye clinic and a dietician. A July 1992
eye exam revealed no significant
abnormalities.
Dixon continued to complain of knee pain
in November 1992. X rays showed
degenerative changes in both knees. That
same month, Dixon’s attorney prepared a
questionnaire for Dr. Voss to complete.
Voss reported that Dixon’s complaints of
frequent blurred vision, severe
headaches, occasional dizziness, and
frequent urination might all be related
to elevated blood sugar. Voss wrote "yes"
next to a statement indicating that she
would expect Dixon to miss 20 or more
days of work per year due to illness.
Dixon began taking insulin in December
1992. At that time, her blood pressure
was normal. Subsequent treatment notes
indicate that Dixon failed to appear for
several medical appointments. On January
5, 1993, Dixon asked Voss for a letter of
verification stating that she was unable
to work, which Voss provided.
Orthopedic specialist Dr. Robert Jones
examined Dixon in October 1993, noting
that the range of motion in her right
knee was 0 to 120 degrees. May 1994 knee
X rays confirmed that Dixon had
osteoarthritis in both knees. Voss
prescribed a cane in June 1994. X rays
taken in August 1994 revealed no changes
from the May 1994 X rays. The radiologist
who interpreted the X rays characterized
Dixon’s right knee as "normal" for an
individual her age. Another orthopedic
specialist examined Dixon in February
1995, noting that the range of motion in
her right knee was 0 to 120 degrees and
0 to 140 in her left knee. The specialist
advised Dixon to continue taking
ibuprofen for her knee pain.
Dr. James D. Buck examined Dixon in
December 1994 and reported that her right
knee joint was "somewhat end stage" with
"somewhat increased risk for undergoing
knee replacement." He indicated that
Dixon had controlled her diabetes and
hypertension poorly.
In June 1996 Dixon underwent a third
consultative examination. Dr. Daniel B.
Jankins found that lumbar spine X rays
showed minimal degenerative changes, and
knee X rays showed no significant
abnormalities. Jankins found that Dixon
had a good range of motion in her back
and no neurological deficits in her
extremities. Dixon told Jankins that she
could lift a gallon of milk and hold a
cup of coffee without difficulty. Jankins
opined that Dixon could lift up to 10
pounds and walk for up to 2 hours in a
workday. He also stated that Dixon’s
impairments did not affect her ability to
sit.
We review de novo the district court’s
grant of summary judgment. Schoenfeld v.
Apfel, 237 F.3d 788, 792 (7th Cir. 2001).
In reviewing the Commissioner of Social
Security’s final decision, we use the
same deferential standard of review as
the district court. See id. The Social
Security Act limits the scope of judicial
review, providing that the agency’s
findings of fact are conclusive so long
as substantial evidence supports them and
no error of law occurred. See 42 U.S.C.
sec. 405(g). Substantial evidence means
such relevant evidence as a reasonable
mind might accept as adequate to support
a conclusion. See Zurawski v. Halter, 245
F.3d 881, 887 (7th Cir. 2001).
To determine disability, the ALJ makes
a five-step inquiry: (1) whether the
claimant is currently employed, (2)
whether the claimant has a severe
impairment, (3) whether the claimant’s
impairment is one that the Commissioner
considers conclusively disabling, (4) if
the claimant does not have a conclusively
disabling impairment, whether she can
perform her past relevant work, and (5)
whether the claimant is capable of
performing any work in the national econ
omy. See 20 C.F.R. sec. 404.1520;
Zurawski, 245 F.3d at 885. Dixon’s appeal
focuses on steps four and five of this
inquiry.
In making her decision, an ALJ must
articulate, at some minimum level, her
analysis of the evidence. See Zurawski,
245 F.3d at 888. She is not required to
address every piece of evidence or
testimony, but must provide some glimpse
into her reasoning. See id. at 889. Where
an ALJ denies benefits, she must build an
accurate and logical bridge from the
evidence to her conclusion. See id. at
887.
The first issue we address is whether
ALJ Kelly reasonably evaluated the
opinions of Dixon’s physicians. Dixon ar
gues that the ALJ improperly failed to
give Dr. Voss’ opinion controlling weight
as that of a treating physician. A
treating physician’s opinion is entitled
to controlling weight if it is well-
supported by medical findings and not
inconsistent with other substantial
evidence in the record. See 20 C.F.R.
sec. 404.1527(d)(2); Clifford v. Apfel,
227 F.3d 863, 870 (7th Cir. 2000).
Nonetheless, a claimant is not entitled
to disability benefits simply because her
physician states that she is "disabled"
or unable to work. See Clifford, 277 F.3d
at 870. The Commissioner, not a doctor
selected by a patient to treat her,
decides whether a claimant is disabled.
See id.; 20 C.F.R. sec. 404.1527(e)(1).
We must keep in mind the biases that a
treating physician may bring to the
disability evaluation. "The patient’s
regular physician may want to do a favor
for a friend and client, and so the
treating physician may too quickly find
disability." Stephens v. Heckler, 766
F.2d 284, 289 (7th Cir. 1985).
Additionally, we have noted that the
claimant’s regular physician may not
appreciate how her patient’s case
compares to other similar cases, and
therefore that a consulting physician’s
opinion might have the advantages of both
impartiality and expertise. See id.Here, ALJ Kelly decided not to give
Voss’ opinion controlling weight because
she seriously doubted its credibility. We
do not overturn an ALJ’s credibility
determinations unless they are "patently
wrong." See id. at 887. ALJ Kelly
determined that Voss was not completely
objective--that she gave Dixon the
benefit of the doubt whenever possible.
For example, Voss termed Dixon’s
arthritis "very severe" and prescribed a
cane, even though X rays failed to show
any serious degenerative changes and
orthopedic specialists noted that Dixon
had a fairly good range of motion and
muscle strength. Additionally, Voss
accepted Dixon’s complaints about blurred
vision at face value, even though
repeated opthalmology exams failed to
show any significant abnormalities.
Finally, ALJ Kelly questioned the
validity of Voss’ statement that Dixon
would miss more than 20 days of work per
year. As we just noted, Voss expressed
this opinion by writing "yes" next to a
question that Dixon’s attorney had pre-
typed. Voss did not elaborate on the
basis for this opinion. Thus, because she
supported it with substantial evidence,
the ALJ was not patently wrong in
determining that Voss’ opinion was not,
given all the other facts, entitled to
controlling weight.
Dixon argues that in rejecting Voss’
opinion, ALJ Kelly improperly substituted
her own judgment for that of a medical
professional. See Clifford, 227 F.3d at
870 (holding that an ALJ must not
substitute her own judgment for a
physician’s opinion without relying on
other medical evidence or authority in
the record); Schmidt v. Sullivan, 914
F.2d 117, 118 (7th Cir. 1990) (warning
that "judges, including administrative
law judges of the Social Security
Administration, must be careful not to
succumb to the temptation to play
doctor"). The cases in which we have
reversed because an ALJ impermissibly
"played doctor" are ones in which the ALJ
failed to address relevant evidence. See
Clifford, 227 F.3d at 870 (reversing
because ALJ disregarded treating
physician’s opinion that the claimant had
arthritis without citing any conflicting
evidence in the record); Green v.
Shalala, 51 F.3d 96, 101-02 (7th Cir.
1995) (reversing because ALJ, in denying
child survivor benefits to son of man who
had been missing for more than seven
years, ignored death certificate issued
by county court); Hayes v. Railroad Ret.
Bd., 966 F.2d 298, 303 (7th Cir. 1992)
(reversing because ALJ disregarded
"overwhelming corroborating medical
evidence" of claimant’s disability).
Here, ALJ Kelly thoroughly discussed the
medical evidence in making her decision:
she did not, as Dixon suggests, play
doctor.
Dixon also argues that ALJ Kelly erred
by failing to accept Dr. Dawson’s
consultative opinion. Although Kelly did
not specifically address Dr. Dawson’s
opinion, she incorporated by reference
ALJ Bernoski’s discussions of the medical
evidence. Bernoski rejected Dawson’s
opinion because objective evidence did
not support it. Specifically, Bernoski
noted that Dawson’s musculoskeletal exam
failed to show significant abnormalities
and that the exam results of Dixon’s
regular physicians did not mention
problems with her back or knees. Bernoski
also determined that Dawson based his
assessment of Dixon’s limited ability to
work on her own statements, and not on
objective findings. An ALJ may properly
reject a doctor’s opinion if it appears
to be based on a claimant’s exaggerated
subjective allegations. See Diaz v.
Chater, 55 F.3d 300, 308 (7th Cir. 1995).
In rejecting Dawson’s assessment,
Bernoski noted that he gave greater
weight to the opinions of Dr. Harry
Kanin, who treated Dixon for
hypertension, diabetes, and back
problems, and Dr. John D. Silbar, who
treated Dixon for kidney infections. When
treating and consulting physicians
present conflicting evidence, the ALJ may
decide whom to believe, so long as
substantial evidence supports that
decision. See Books v. Chater, 91 F.3d
972, 979 (7th Cir. 1996). Kanin’s opinion
placed no restrictions on Dixon’s ability
to perform sedentary work. Although
Silbar stated that Dixon was disabled in
January 1991, Bernoski determined that
Silbar based this opinion primarily on
the presence of the renal stent, which
limited her ability to work. Once doctors
removed the stent in early 1991, Bernoski
noted that it no longer limited Dixon’s
ability to work. Therefore, because ALJs
Kelly and Bernoski thoroughly discussed
the evidence, we will not overturn their
decisions to accept and reject certain
medical opinions.
We next consider whether ALJ Kelly
reasonably concluded that Dixon could
perform sedentary work with a sit/ stand
option. Residual functional capacity
(RFC) is an administrative assessment of
what work-related activities an
individual can perform despite her
limitations. See SSR 96-8p, 61 Fed. Reg.
34474, 34475 (1996); 20 C.F.R. sec.
404.1545(a). Here, ALJ Kelly determined
that Dixon retained the ability to
perform sedentary work that allowed her
to alternate between sitting and
standing. Sedentary work involves lifting
no more than 10 pounds and occasional
walking and standing. See 20 C.F.R. sec.
404.1567(a). In assessing the claimant’s
RFC, the ALJ must consider both the
medical and nonmedical evidence in the
record. See 20 C.F.R. sec. 404.1545.
Here, ALJ Kelly thoroughly reviewed the
medical and nonmedical evidence. In
arriving at her conclusion, ALJ Kelly
relied on Dixon’s own statement at the
1996 hearing that she could perform
receptionist work so long as she was able
to take frequent bathroom breaks. Kelly
also noted that X rays failed to show any
serious degenerative changes in Dixon’s
knees and that orthopedic specialists who
examined Dixon noted a fairly good range
of motion and muscle strength.
Additionally, she also noted that Dixon
did not take strong pain medications and
that her visits to physicians were only
intermittent. She also noted that Dr.
Voss never referred Dixon to a diabetes
specialist.
Kelly also found that Dixon’s statements
about her functional limitations were not
credible. Because the ALJ is in the best
position to observe witnesses, we will
not disturb her credibility
determinations as long as they find some
support in the record. See Herron v.
Shalala, 19 F.3d 329, 335 (7th Cir.
1994). Kelly noted that Dixon’s
statements about her symptoms were
"vague" and "ephemeral." Although Dixon
complained of blurred vision, repeated
opthalmological exams revealed no serious
abnormalities. Additionally, Kelly noted
that although Dixon had elevated blood
sugar levels, she did not always comply
with dietary recommendations and that her
visits to physicians were "intermittent
at best." Therefore, Kelly could have
reasonably determined that Dixon’s
testimony was not credible.
As Dixon noted, Kelly did not
specifically address how Dixon’s need for
frequent bathroom breaks would impact her
ability to work. The Commissioner argues
that Dixon waived appeal of this issue by
failing to address it before the district
court. Dixon argues that Voss’ overall
opinion "encompassed the need to
frequently urinate," and that because she
argued to the district court that ALJ
Kelly should have accepted Voss’ opinion,
she preserved the urinary frequency issue
for review. Dixon’s argument is
unpersuasive. Voss’ opinion did not
address how Dixon’s urinary frequency
would affect her ability to work. It
merely stated that Dixon’s complaints of
urinary frequency, as well as some of her
other complaints, may be related to
diabetes.
Even assuming that Dixon preserved this
issue for review, ALJ Kelly did not err.
Kelly relied on Dixon’s own testimony
that she could perform receptionist work
as long as she could take frequent
bathroom breaks. She also noted that most
of Dixon’s complaints of urinary
frequency pre-dated her diagnosis of
diabetes and appeared to be due to
urinary tract infections, which Dixon’s
doctors successfully controlled.
Finally, we must determine whether the
ALJ reasonably concluded that Dixon could
perform a significant number of jobs in
the economy despite her impairments. In
making this determination, Kelly
considered the testimony of vocational
expert Beth A. Hoynik. Hoynik testified
that there were 25,000 jobs in the
regional economy available to a
hypothetical individual aged 45 to 50
years old with a ninth-grade education,
unskilled work experience, and the
ability to perform sedentary work with a
sit/stand option. Hoynik testified that
12,500 jobs would remain available to an
individual also suffering from occasional
blurred vision, and that 7,500 jobs would
be available to someone with frequent
blurred vision.
Dixon argues that the ALJ failed to
consider that Dixon’s need to take
frequent sick days would impair her
ability to remain employed. Hoynik
testified that most employers would
tolerate 2 missed days of work per month,
but not 3. ALJ Kelly noted that 2
absences per month works out to about 20
absences per year. Therefore, substantial
evidence supported Kelly’s determination
that Dixon could perform a significant
number of jobs in the economy.
Because the ALJ carefully reviewed
Dixon’s case and supported her decision
with substantial evidence, we affirm the
district court’s grant of summary
judgment.
FOOTNOTE
/1 While her district court action was pending,
Dixon reapplied for supplemental security income.
On May 10, 1995, the agency determined that she
was disabled under the Commissioner’s medical-
vocational guidelines as of February 27, 1995,
her 50th birthday. The guidelines provide that a
claimant who is 50 years old and has a limited
education and no transferable skills is disabled
if she is limited to sedentary work. See 20
C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.10.
Given this award, Dixon’s current appeal, as we
noted up front, focuses only on the period be-
tween the alleged onset date of her disability,
September 24, 1990, and February 27, 1995, when
she turned 50 years of age.