Carmella LaBonne v. Michael Astrue , 341 F. App'x 220 ( 2009 )

NONPRECEDENTIAL DISPOSITION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 June 9, 2009
Decided August 14, 2009
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-3800
CARMELLA LABONNE, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of
Wisconsin.
v.
No. 07-cv-727-bbc
MICHAEL J. ASTRUE,
Commissioner of Social Security, Barbara B. Crabb,
Defendant-Appellee. Chief Judge.
ORDER
Carmella Labonne applied for disability insurance benefits, claiming that since May
2004 her ability to work was limited by congestive heart failure, back and neck pain, breast
cancer, and panic disorder. The administrative law judge found that Labonne was not
disabled between May 2004 and September 2006 (the date of her 50th birthday), but that
she became disabled after September 2006 upon entering a new age classification. In a
thorough 27-page order, the district court upheld the ALJ’s determination. On appeal
Labonne challenges the ALJ’s decision that she was not disabled for the 28 months between
May 2004 and September 2006. Her principal arguments are that the ALJ did not give
No. 08-3341 Page 2
sufficient weight to the functional evaluations made by her treating physician and her
treating nurse, and that the ALJ unreasonably discredited her account of her functional
limitations. We affirm.
Labonne was born in 1956 and has a tenth-grade education. She was treated for
various heart ailments throughout the 1990s. She also had breast cancer, undergoing
rounds of chemotherapy and radiation between the removal of a lump in 1997 and then the
breast in 2001. In 2001 she also had a cervical fusion of her neck.
In October 2003 Labonne was diagnosed with frequent tachycardia, or rapid heart-
beat, STEDMAN’S M EDICAL D ICTIONARY 1931 (28th ed. 2006), and anxiety disorder. The
following month Dr. Imran Niazi, Labonne’s cardiologist since 1996, reassured her that her
heart was healthy. In April 2004 a family physician prescribed medication for Labonne’s
anxiety and the next month the physician reported that it was in remission.
In September 2004 Dr. Niazi noted that Labonne’s heartbeat continued to race
approximately three times a month and speculated that she had moderate cardiomegaly, as
well as prominent pericardial effusion (that is, fluid was escaping from the tissue
surrounding her heart, STEDMAN’S M EDICAL D ICTIONARY at 616, 1457), but he recommended
no treatment if she had a normal ejection fraction (that is, if her heart expelled a normal
amount of blood during contraction, see id. at 769).
Labonne first sought treatment for back and neck pain in November 2004. A
neurosurgeon found that an MRI of her cervical spine was for the most part unremarkable
and opined that her back pain was caused by “decreased disk space height and hydration”
and that her neck pain was “due to muscular strain.” He recommended she use a brace,
stretch daily, and exercise.
In January 2005 Labonne consulted Dr. Maciolek, a rheumatologist, who reported
that CT scans revealed premature lumbar and cervical degenerative disease. He noted,
among other things, that her extremities were of normal strength, and that her spine
contour, grip, joints, and reflexes were all normal. He recommended that she take a muscle
relaxant and move regularly. Dr. Maciolek noted that Labonne would likely be incapable
of doing most of the work available to someone with a tenth-grade education, including
sedentary work, because she would have to move frequently to alleviate pain.
Also in April Labonne complained of a cold and was seen for the first time by Nurse
Nancy Asencio, who thereafter began coordinating her care. At that visit, Labonne told
Asencio that her October 2004 EKG was normal.
No. 08-3341 Page 3
In September 2005 Labonne saw Dr. Niazi after a CT scan in connection with follow-
up for her breast cancer revealed pericardial effusion. Based on her complaints of early
satiety and “bloating,” Dr. Niazi suspected that symptoms of heart failure may have
manifested as early as February 2005. He performed an EKG and found, additionally, an
ejection fraction of approximately 30 to 35% (the normal is 55% or greater, see STEDMAN’S
M EDICAL D ICTIONARY at 769), and an enlarged heart. Labonne was diagnosed with atrial
flutter and heart failure, and in September she underwent flutter ablation and had a
biventrical defibrillator/pacemaker implanted. A few days later she applied for federal
disability insurance benefits, asserting that she had been unable to work since May 2004.
In November 2005 a state-agency physician completed a functional-capacity
assessment in which he concluded, after reviewing the medical record, that Labonne could
frequently carry light objects, sit and stand for extended periods, and occasionally climb
stairs, stoop, kneel, crouch, and crawl. The physician disagreed with Dr. Maciolek’s
opinion that Labonne could not work in a sedentary capacity given Dr. Maciolek’s
observations that she had normal gait, strength in her extremities, and reflexes.
In February 2006 Dr. Niazi completed a functional-capacity questionnaire in which
he identified Labonne’s symptoms as shortness of breath, fatigue, weakness, nausea,
palpitations, and dizziness. He ticked off the side effects of Labonne’s twelve prescribed
medications as including frequent urination, muscle weakness, and fatigue. He opined,
among other things, that her cardiac condition would interfere with her attention and
concentration; that she could walk only less than a mile without pain; that she could stand
and sit for only short periods, and that her legs would need to be elevated to heart level for
most of the time that she sat. Dr. Niazi concluded that Labonne was incapable of
performing even low stress jobs. But he did not respond to a question asking him to
identify the onset date of her symptoms and limitations.
Also in March 2006 Nurse Asencio completed a functional capacity-questionnaire in
which she reported Labonne’s symptoms: persistent arrythmias; fatigue; shortness of
breath; and persistent, crushing back pain that could be exacerbated by daily activities and
alleviated only by Vicodin and frequent bed rest. The Vicodin and her anxiety medications
caused drowsiness, and her cardiac medications caused frequent urination. Labonne could
not undergo surgery because of her “cardiac status,” and she could not walk a block
without rest, stand for 15 minutes without a significant increase in pain, nor extend her
arms without pain.
In September 2006, upon a request from Labonne’s attorney, Dr. Niazi submitted a
new copy of the functional-capacity questionnaire in which he identified February 22, 2005,
as the earliest date of Labonne’s symptoms and limitations. But in another form that
No. 08-3341 Page 4
Dr. Niazi submitted later that month, he moved up the disability onset date—without
explanation—to May 15, 2004.
In October 2006 an EKG revealed that Labonne’s ejection fraction was 55%; that her
left ventrical was of normal size and systolic function; and that her right ventricle was
probably of normal size.
At the hearing Labonne testified to the following. She stopped working at her
brother’s restaurant in May 2004, and her symptoms forced her to stop working altogether
three months later. On a typical day she did some light child care or household chores, but
fatigue forced her to return to bed repeatedly. Her degenerative disk disease caused back
and leg pain, which prevented her from sitting for more than short periods; she walked, at
most, just to the mailbox and back. Depressed since her breast cancer diagnosis, she also
suffered sporadic bouts of anxiety and side effects from her medications including
dizziness and drowsiness. She drove two or three times a week to her daughter’s school,
shopped for groceries with her husband, and sometimes cooked.
The ALJ asked a vocational expert about the jobs available to an individual who
could, among other things, do light work; occasionally climb, stoop, bend, crouch, crawl, or
kneel; stand or sit for no more than 30 minutes at a time; and had satisfactory if limited
ability to maintain attention and concentration and deal with work stresses. The VE
answered that there were about 18,000 jobs available in Wisconsin for someone with those
limitations, including file clerk, information clerk, and procurement clerk. The VE added,
however, that no jobs were available to an individual who had to lie down at unscheduled
intervals.
The ALJ evaluated Labonne’s disability claim using the standard five-step analysis
required by the applicable regulations. See 20 C.F.R. §§ 404.1520, 416.920. Overall the ALJ
determined that Labonne became disabled as of September 25, 2006, because she attained a
new age classification but that she was not disabled before that date. The ALJ determined
at step two that Labonne had not engaged in substantial activity since May 15, 2004. At
step three the ALJ determined that Labonne’s cancer was not a severe impairment because
it had not recurred. He classified her back impairment and cardiomyopathy as severe,
although he noted that her lumbar disc disease was only mild, as suggested by scans from
November 2004, and that her cardiomyopathy had not yet been documented (it would not
be documented until late 2005). At step four the ALJ determined that Labonne’s severe
impairments did not qualify as one of the presumptively disabling illnesses listed in 20
C.F.R. Part 404, Subpart P, Appendix 1.
At step five the ALJ agreed with the state-agency physicians that Labonne could
perform sedentary work. The ALJ noted that Labonne testified that she did light
No. 08-3341 Page 5
housework and child care and that she attributed her fatigue and shortness of breath to
congestive heart failure. The ALJ found incredible Labonne’s testimony concerning the
intensity, persistence, and limiting effects of her illnesses given the results of the October
2006 cardiac evaluation, which suggested that her cardiomyopathy had improved. And the
ALJ doubted that Labonne’s anxiety and depression seriously impaired her functioning
because she had never received significant treatment for a mental condition.
The ALJ also questioned the accuracy of evaluations made by Labonne’s treating
sources. He doubted Nurse Asencio’s assessment regarding Labonne’s back impairments
absent documentation of a severe spinal condition, frequent complaints of back pain, and
epidural injections or other significant treatments. The ALJ also was skeptical of
Dr. Niazi’s assessment, which he suspected was compromised by sympathy for Labonne’s
claim. The ALJ noted that on the functional-capacity questionnaire, Dr. Niazi
amended—without explanation—Labonne’s onset date of disability to May 2004, even
though her cardiomyopathy was not diagnosed until late 2005.
The Appeals Council denied Labonne’s request for review. The district court
upheld the ALJ’s decision. It determined that the ALJ reasonably concluded that
Dr. Niazi’s decision to change the disability onset date to May 2004 undermined his
credibility. It agreed that Nurse Asencio’s opinion was entitled to little weight because the
medical evidence was inconsistent with her assessment. Similarly the district court found
Labonne incredible because the improvement in her heart condition and the mild treatment
she received for her intermittent complaints of back pain were not consistent with her
testimony concerning the severity of her symptoms. And while the district court noted that
the ALJ did not discuss the side effects of Labonne’s medication, it concluded that the error
was harmless because, among other things, while the potential side effects of the
medication could be extreme, Labonne admitted that she was only mildly affected by
secondary effects of her medication (for example, she testified that she was able to drive her
child to school). The ALJ also appeared to have accommodated the potential medication
side effects by restricting her exposure to hazards such as dangerous machinery and
heights.
We uphold an ALJ’s denial of disability unless the decision is not supported by
substantial evidence or is based on an error of law. 42 U.S.C. § 405(g); Skinner v. Astrue, 478
F.3d 836, 841 (7th Cir. 2007); Rice v. Barnhart, 384 F.3d 363, 368-69 (7th Cir. 2004).
Substantial evidence exists if a reasonable person could conclude there is enough evidence
to support the decision. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Rice, 382 F.3d at
369.
On appeal Labonne first contends that the ALJ’s decision was unsupported by
substantial evidence because he credited the opinions of the state-agency doctor, who
No. 08-3341 Page 6
determined that she could do sedentary work, over those of Dr. Niazi, who said she could
not. She insists that Dr. Niazi’s long relationship with her and his specialty in cardiology
should have compelled the ALJ to favor Dr. Niazi’s opinion over the state-agency
physician, who never examined her and whose specialty was not identified.
An ALJ must identify a flaw in the treating physician’s analysis before rejecting it
for the opinion of a state-agency doctor. Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008);
Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). But an ALJ may reject a treating
physician’s opinion over doubts about the physician’s impartiality, particularly since
treating physicians can be overly sympathetic to their patients’ disability claims. See
Hofslien v. Barnhart, 439 F.3d 375, 377 (7th Cir. 2006); Dixon v. Massanari, 270 F.3d 1171, 1177
(7th Cir. 2001). We uphold all but the most patently erroneous assessments of a treating
physician’s bias. See Dixon, 270 F.3d at 1177.
Labonne’s arguments fail because, as the district court concluded, the ALJ
reasonably found that Dr. Niazi’s assessment was not impartial. Without explanation
Dr. Niazi amended the disability onset date on Labonne’s functional-capacity questionnaire
from February 2005 to May 2004—the date Labonne insists she became disabled. But there
is little evidence to support Dr. Niazi’s choice of a May 2004 disability-onset date. It is true
that Dr. Niazi reported in September 2004 that Labonne’s heartbeat raced approximately
three times a month and speculated that she had moderate cardiomegaly, as well as
prominent pericardial effusion. But none of these conditions appear to be serious because
at that time Dr. Niazi recommended no treatment, and indeed, as late as April 2005,
Labonne reported to Nurse Asencio that her October 2004 EKG was normal. Furthermore
Dr. Niazi suggested that symptoms of heart failure may have begun to appear as early as
February 2005, but nothing in the record reflects his concern that symptoms manifested as
early as May 2004. And as for Labonne’s other illnesses, in May 2004 Labonne’s anxiety
and panic disorders were in remission and she did not seek treatment for back pain before
November 2004, when the doctor recommended only that she wear a brace and exercise.
Labonne insists that the ALJ should have contacted Dr. Niazi to clarify why he
moved up the onset date to May 2004. But as the government points out, Labonne never
raised this argument to the district court, and has thus waived it on appeal. Skarbek v.
Barnhart, 390 F.3d 500, 505 (7th Cir. 2004).
Labonne also challenges the ALJ’s adverse credibility finding. First she contends
that the ALJ erroneously found that she had only modest functional limitation based on her
testimony regarding her daily activities. She insists, to the contrary, that those activities
were entirely consistent with her statement that she needs to lie down frequently.
No. 08-3341 Page 7
However, the ALJ discredited Labonne’s testimony not because of her account of
her daily activities, but rather because of her improved ejection fraction. And that finding
was reasonable. We uphold an ALJ’s finding regarding the credibility of a claimant’s
reported limitations as long as the record provides some support for it. Dixon, 270 F.3d at
1178-79. Dr. Niazi’s opinion that Labonne needed no treatment as long as her ejection
fraction was normal substantiated the ALJ’s conclusion that her improved ejection-fraction
undermined her account of the extent of her limitations.
As for her second challenge to the ALJ’s credibility finding, Labonne argues that the
ALJ failed to consider whether her medications could have caused the fatigue she
described. But an ALJ is not required to provide a complete written evaluation of each
piece of evidence, Rice, 384 F.3d at 371, including the side effects of medication, see Nelson v.
Sec’y of Health and Human Servs., 770 F.2d 682, 685 (7th Cir. 1985). Aside from Labonne’s
testimony that her medications caused dizziness and drowsiness, the record contains
virtually no evidence that she complained of her medications causing significant side
effects.
Thirdly, Labonne argues that the ALJ impermissibly discredited her testimony
regarding the effects of her depression and anxiety. But the ALJ reasonably concluded that
her anxiety had only a limited effect on her capabilities because, after a May 2004 report
that the anxiety was in remission, there is no record of her seeking treatment for a
potentially disabling mental condition.
Finally Labonne argues that the ALJ’s rejection of Nurse Asencio’s assessment was
not supported by substantial evidence. She insists that the ALJ “played doctor” by
assuming, without medical evidence, that the degenerative-disk disease documented in her
August 2005 MRI could not have caused the disabling pain that Nurse Asencio described.
Indeed, she asserts, Dr. Maciolek’s opinion, which the ALJ failed to mention, supported
Asencio’s assessment that her back pain precluded her from working. And even if her back
pain could not account for all of her functional limitations, she adds, the ALJ failed to
recognize that in Nurse Asencio’s opinion the totality of her impairments caused her
functional limitations.
An ALJ is required to examine the evidence favoring a claim as well as the evidence
favoring its rejection. Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001). In addition the
ALJ must assess the aggregate effects of a claimant’s impairments. Getch v. Astrue, 539 F.3d
473, 483 (7 th Cir. 2008). But the ALJ may credit a specialist over a treating source,
particularly when the treating source has seen the claimant only infrequently. See Hofslien,
439 F.3d at 379.
No. 08-3341 Page 8
The ALJ here was entitled to give little weight to Asencio’s opinion because Asencio
saw Labonne only twice, once for a cold and once for complaints of back pain; Asencio did
not specialize in any of Labonne’s impairments; and the specialists who did evaluate
Labonne did not corroborate Asencio’s opinion that Labonne’s back pain was severe; none,
including Dr. Maciolek, mentioned the possibility of treatments more aggressive than pain
medication and exercise. Moreover the ALJ was not required to mention Dr. Maciolek’s
opinion in light of his reliance on the assessment of the state-agency physician (Dr. Lu) who
discounted Dr. Maciolek’s assessment as internally inconsistent and unsupported. As Dr.
Lu observed, Dr. Maciolek’s opinion that Labonne could not even perform sedentary work
did not square with the normal gait, leg and arm strength, reflexes and straight leg raise
test results that were documented during Dr. Maciolek’s sole examination of Labonne. Dr.
Chan subsequently affirmed Dr. Lu’s assessment.
Conclusion
The ALJ’s decision was supported by substantial evidence and is not based on an
erroneous application of law. The judgment of the district court supporting the ALJ’s
decision is AFFIRMED.