Gudgel, Curtis D. v. Barnhart, Jo Anne ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1439
CURTIS D. GUDGEL,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. NA 02-61-C-B/H—Sarah Evans Barker, Judge.
____________
SUBMITTED JULY 8, 2003—DECIDED SEPTEMBER 26, 2003
____________
Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
PER CURIAM. Curtis D. Gudgel applied for Social Securi-
ty Disability Insurance Benefits (“DIB”) in January 2000,
claiming that he was disabled because of bone deteriora-
tion in his knees, arthritis throughout his body, a pinched
nerve in his left hand, and chronic bronchitis. Gudgel’s
claim was denied initially, upon reconsideration, and after
a hearing before an administrative law judge. The Appeals
Council declined review, making the ALJ’s decision the
final decision of the Commissioner of Social Security. The
district court affirmed, and Gudgel now appeals. Because
the ALJ’s decision is not supported by substantial evidence,
we vacate the judgment of the district court and remand.
2 No. 03-1439
Gudgel, who was 56 years old at the time of the ALJ’s
decision, has a GED and served in the military. He worked
as a service manager mechanic from 1977 until 1989. From
1989 until 1995, he was self-employed and did contract
work for Pepsi-Cola maintaining their trucks. After 1995
Gudgel performed intermittent yard work for friends
and neighbors as his only source of income. Gudgel did not
work after June 1998.
Gudgel testified at the administrative hearing that in
1989 he began experiencing generalized weakness and
fatigue that progressively worsened until he could no
longer work on a regular basis. Gudgel’s complaints in-
cluded pain from aching joints, muscle ache, and overall
weakness. Throughout the mid- and late-1990s, the doc-
tors at the Veteran’s Administration hospital ran numer-
ous diagnostic tests on Gudgel’s knees, hips, back and
shoulders, but could not determine the cause of his symp-
toms. Gudgel’s family physician, Dr. Koopman, also at-
tempted to determine the cause of Gudgel’s pain. While
examining him from 1999 through 2001, Dr. Koopman
considered several different conditions including arthritis,
fibromyalgia, and depression, but rejected each because
he could not support any diagnosis with medical evidence.
Ultimately, in mid-2001, Dr. Koopman diagnosed Gudgel
with post-polio syndrome. The symptoms of this condi-
tion, which can develop anywhere from 10 to 40 years
after recovery from polio, include muscle and joint pain,
muscle weakness and muscle atrophy. Attorneys’ Dictionary
of Medicine and Word Finder 393 (J.E. Schmidt ed., 2002).
Dr. Koopman had not considered post-polio syndrome
previously because Gudgel did not inform him until April
2001 that he had suffered from polio as a child.
Dr. Koopman referred Gudgel to a neurologist for fur-
ther testing. The neurologist, Dr. Baker, performed sev-
eral tests to determine the strength of Gudgel’s muscles
No. 03-1439 3
and possible sources of weakness. In a motor exam, Dr.
Baker found that Gudgel had “diffuse weakness” in his “hip
and shoulder” area and reported that “[i]t does appear to
be true weakness.” Dr. Baker found the test results to
be consistent with post-polio syndrome, but stated that
“[t]he only way to diagnose this is with an EMG.”
On May 10, Dr. Baker conducted an EMG to test Gudgel’s
nerve responses and confirm whether he suffered from post-
polio syndrome. Based on the test results, Dr. Baker
concluded that “[t]here are diffuse scattered chronic
neurogenic changes consistent with the diagnosis of post-
polio syndrome or other anterior horn cell disease.” Dr.
Baker listed post-polio syndrome as his diagnosis, to which
Dr. Koopman—upon receiving Dr. Baker’s report—con-
curred. Dr. Baker examined Gudgel once more the follow-
ing month and reaffirmed his assessment: Gudgel’s “EMG
was consistent with some neurogenic changes consis-
tent with post-polio syndrome.”
During the administrative hearing in November 2001, the
ALJ questioned the state’s medical expert, Dr. Hutson,
about the post-polio syndrome diagnosis. The ALJ’s line
of questioning reflected concern that Dr. Baker’s report
did not support the diagnosis:
Q: [Dr. Baker] didn’t actually say it was Post Polio, but
he said that the findings were, you know, I think,
I think the words that he used were consistent
with Post Polio.
A: Yes.
Q: So, which means it could be, but, but is that, is
that, does that pass in medical circles as a diagno-
sis, a formal diagnosis in findings?
A: Not to my knowledge, Your Honor.
Q: Okay.
4 No. 03-1439
Dr. Hutson testified that the records provided by Dr.
Baker were insufficient to support a diagnosis. Dr. Hutson
acknowledged that Dr. Baker’s physical examination re-
port showed “diffuse weakness, especially of the proximal
muscles of the hip and shoulder girdles,” and that those
findings supported Gudgel’s claims of weakness. But Dr.
Hutson also pointed out that the EMG results did not
show muscle atrophy that, in his view, would typically
accompany post-polio syndrome: “[Dr. Baker] doesn’t come
up with any specific findings here as far as atrophy or
something that polio may have invaded.” Dr. Hutson was
less conclusive about the ultimate diagnosis: “we may
be dealing with something secondary to polio here, but
we may not. This may not have nothing [sic] to do with
polio at all, since it’s not very well documented except by
his history.”
Dr. Hutson testified that he thought that the results
of Dr. Baker’s physical examination of Gudgel were more
instructive than the EMG results. Dr. Hutson stated
that Dr. Baker’s “clinical findings certainly didn’t seem to
go along with what those findings were in my opinion on
the EMG.” Dr. Hutson testified that “[u]sually when
muscles become paralyzed by polio, they become atrophy
[sic] and they’re almost nonfunctional, the basic polio
disease. They become very spindly.” When Gudgel’s at-
torney questioned Dr. Hutson about the relationship
between the EMG results and Dr. Baker’s clinical find-
ings, Dr. Hutson replied, “I’m just suggesting that the
clinical findings of examining the man, I think clinically
are more important than what you find when you stick
a needle down inside muscles and look at [sic].”
In considering Gudgel’s application for DIB, the ALJ
followed the five-step analysis set forth in 20 C.F.R.
§404.1520 and determined that Gudgel met the first
step—he had been unemployed since 1998—but failed
to meet the second step—that he suffered from a severe
No. 03-1439 5
impairment or combination of impairments. The ALJ
determined that Gudgel had not shown that his com-
plaints of pain and weakness were supported by evidence
in the record.
Relying on Dr. Hutson’s testimony, the ALJ rejected
the diagnosis of post-polio syndrome because “the evi-
dence of record simply fails to support the conclusion of
Dr. Koopman that the claimant’s subjective complaints
were attributable to post-polio syndrome during the pe-
riod prior to the expiration of his insured status.” The ALJ
did not credit Gudgel’s testimony about his pain and
muscle weakness because “his allegations were not rea-
sonably consistent with the medical evidence.” The ALJ
noted, for instance, that Gudgel damaged his credibility
“when he acknowledged that he normally did not use
the wheelchair in which he appeared at the hearing.”
Our review of the Social Security Administration’s
decision to deny disability benefits is limited to determin-
ing whether the decision “is supported by substantial
evidence” in the record. Schmidt v. Apfel, 201 F.3d 970, 972
(7th Cir. 2000). Substantial evidence is such “relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” Cannon v. Apfel, 213 F.3d 970,
974 (7th Cir. 2000) (internal quotations omitted). A treat-
ing physician’s opinion regarding the nature and severity
of a medical condition is entitled to controlling weight
if it is well supported by medical findings and not incon-
sistent with other substantial evidence in the record.
See 20 C.F.R. § 404.1527(d)(2). More weight is given
to the opinion of treating physicians because of their
greater familiarity with the claimant’s conditions and
circumstances. Clifford, 227 F.3d at 870; 20 C.F.R.
§ 404.1527(d)(2).
Gudgel contends that the ALJ improperly credited Dr.
Hutson’s testimony over the medical opinion of Drs. Baker
6 No. 03-1439
and Koopman. Gudgel argues generally that the ALJ
improperly rejected his treating physicians’ opinions
without finding contradictory evidence in the record. Gudgel
also argues that the ALJ should not have rejected Dr.
Baker’s opinion without first allowing him to provide
additional evidence to support the post-polio diagnosis.
An ALJ can reject an examining physician’s opinion
only for reasons supported by substantial evidence in the
record; a contradictory opinion of a non-examining physi-
cian does not, by itself, suffice. Moore v. Barnhart, 278
F.3d 920, 924 (9th Cir. 2002). Dr. Baker, a doctor trained
in treating neurological disorders such as post-polio syn-
drome, had the opportunity to physically examine Gudgel
on three occasions and to run a battery of tests on him.
After conducting these examinations, Dr. Baker concluded
that both clinical and diagnostic results supported the
diagnosis. The ALJ did not explain how the evidence in the
record contradicts Dr. Baker’s diagnosis of post-polio
syndrome. See Clifford, 227 F.3d at 870-71 (remanding
for ALJ to reevaluate whether treating physician’s find-
ings of disabling symptoms were entitled to controlling
weight, where ALJ did not adequately explain why those
findings were necessarily inconsistent with other med-
ical evidence of record).
Without examining Gudgel, Dr. Hutson testified that
he disagreed with Dr. Baker’s assessment of Gudgel’s con-
dition. Dr. Hutson, however, failed to identify any incon-
sistency between the post-polio diagnosis and the med-
ical record, except for his unsupported opinion that Gudgel
lacked the muscle atrophy that needed to accompany post-
polio syndrome. Moreover, Dr. Hutson’s assertion about
the absence of atrophy is questionable: a year before
Gudgel visited Dr. Baker, he was treated by a Dr. Gal-
lagher, who reported some muscle atrophy in the web
spaces of Gudgel’s hand. Neither the ALJ’s ruling nor
Dr. Hutson’s opinion addressed this finding of muscle
No. 03-1439 7
atrophy. In addition, Dr. Hutson did not rule out post-polio
syndrome, acknowledging that “we may be dealing
with something secondary to polio here, but we may not.”
Such an inconclusive opinion cannot be a proper basis
to reject a treating physician’s diagnosis that is sup-
ported by test results and consistent with the claimant’s
subjective symptoms.
The judgment of the district court is VACATED and the
case is REMANDED to the agency for further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-26-03