Ladonesty Fowlkes v. Kilolo Kijakazi ( 2021 )

NONPRECEDENTIAL DISPOSITION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
Submitted November 8, 2021*
Decided November 9, 2021
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-1303
LADONESTY FOWLKES, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 19-CV-1648
KILOLO KIJAKAZI, Acting William E. Duffin,
Commissioner of Social Security, Magistrate Judge.
Defendant-Appellee.
ORDER
Ladonesty Fowlkes applied for supplemental security income, asserting a
disability based on chronic back and shoulder pain. But his sworn testimony and
medical records contradicted that assertion. He appeals the district court’s judgment
upholding the administrative law judge’s denial of benefits. Because the ALJ’s ruling
that Fowlkes was not disabled is supported by substantial evidence, we affirm.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 21-1303 Page 2
Fowlkes contends that since 2013 he has been unable to maintain substantial
employment because of back and shoulder pain. His medical records show that he
complained of back pain then, and X-rays confirmed mild degeneration in his lower
back. He underwent two surgeries on his shoulders, and his doctors prescribed opioid
treatment and physical therapy. Medical records give conflicting reports on how
Fowlkes responded to treatment. Some report that he had limited motion and
tenderness, as well as some constipation from the opioids. Others report normal
motion, no tenderness, and no adverse effects. In 2016, after he applied for benefits, his
primary doctor, Soliven Bautista, wrote that “chronic pain” rendered Fowlkes
“incapable” of “even ‘low stress’ jobs.” But Fowlkes told his medical providers that his
pain medicine managed his symptoms. He was able to work at acting jobs, albeit
earning only minimal income, and his travel—to visit family and to pursue the acting
roles—kept him so busy that he discontinued physical therapy. He could also play
basketball and bowl, though sports yielded some new pain. In 2016, two agency
consultants assessed that the minimal degeneration in Fowlkes’s spine permitted him to
handle light work with restrictions in his posture. His medical records from 2017 and
2018 note a normal range of motion in his spine, no tenderness in the musculoskeletal
system, normal back strength, and an ability to walk with a steady gait. At points
during that period Fowlkes denied having any back pain, muscle aches, joint pain,
stiffness, or muscle twitching.
After reviewing this evidence and following the familiar five-step analysis,
20 C.F.R. § 416.920, the ALJ found that Fowlkes was not disabled. He was not engaged
in substantial gainful activity (step one), and had severe impairments from bilateral
shoulder repairs, and mild cervical and lumbar disc disease (step two). These, however,
did not meet or equal an impairment that would have made Fowlkes presumptively
disabled (step three). The ALJ assessed that Fowlkes had the residual capacity for some
light work, reasoning that Fowlkes’s assertions of pain were refuted by his medical
records, his testimony about his activities, the efficacy of his opioid therapy, and the
medical consultants’ opinions. Because objective medical reports did not support Dr.
Bautista’s opinion that Fowlkes was totally disabled, the ALJ did not credit it. After
determining that Fowlkes had no past relevant work (step four), the ALJ found that the
national economy had a significant number of jobs that Fowlkes, with his limitations,
could still perform, such as hand packager, labeler, or inserter (step five).
The district court, with a magistrate judge presiding by consent, upheld the ALJ’s
decision. In denying relief, the court was not swayed by Fowlkes’s submission of a
No. 21-1303 Page 3
then-recent, two-sentence letter from Dr. Bautista asserting that Fowlkes was “currently
unable to work due to a chronic medical condition.”
On appeal, Fowlkes argues that the ALJ wrongly denied him benefits. We will,
however, uphold that ruling if it is supported by substantial evidence, 42 U.S.C.
§ 405(g), which is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(citation omitted). We do not reweigh the evidence or resolve conflicts in it. Burmester v.
Berryhill, 920 F.3d 507, 510 (7th Cir. 2019). Under this deferential standard, we will
“reverse only if the record ‘compels’ a contrary result.” Borovsky v. Holder, 612 F.3d 917,
921 (7th Cir. 2010) (citation omitted).
Fowlkes first argues that, in deciding whether he was disabled, the ALJ erred by
not considering adverse side effects of his opioid treatment. But the record shows that
the ALJ did so when he relied on objective medical records. See 20 C.F.R. § 416.921. As
the ALJ noted, the medical records confirmed that Fowlkes faced no adverse side effects
from opioids, except an occasional report of constipation, which Fowlkes does not say
was disabling. Rather, Fowlkes consistently told medical providers the opioid treatment
helped him. Thus, substantial evidence defeats this argument.
Second, Fowlkes contests how the ALJ evaluated his residual capacity to work,
but substantial evidence supports the ALJ’s decision. To begin, Fowlkes objects to the
ALJ’s reliance on the medical consultants’ opinions, rather than that from Dr. Bautista.
But the ALJ need not give a treating physician’s assessment controlling weight if it
conflicts with other substantial evidence. 20 C.F.R. § 416.927(c)(2), (4); Karr v. Saul,
989 F.3d 508, 512 (7th Cir. 2021). That occurred here: Dr. Bautista’s opinion that Fowlkes
could not work conflicted with his contemporaneous observations about Fowlkes’s
mobility and with other records corroborating normal movement. Fowlkes next argues
that Dr. Bautista’s letter to the district court that Fowlkes could not work requires a
remand. But that letter contained no new assertions, so it was properly ignored.
See 42 U.S.C. § 405(g). Fowlkes also contends that the ALJ placed undue weight on his
acting roles. But when assessing his residual capacity, the ALJ rightly considered,
among other evidence, Fowlkes’s mobility as reflected in those activities. See 20 C.F.R.
§ 416.945(a). Also, the ALJ did not treat those roles as gainful employment, given that
he found that Fowlkes was not employed. Finally, Fowlkes argues his opioid medicine
may affect his ability to drive a car and to operate a forklift. But the jobs that the ALJ
determined were available to him (like hand packager) do not require those activities.
No. 21-1303 Page 4
We can readily dispatch Fowlkes’s remaining arguments. He questions the ALJ’s
reliance on a vocational expert, but he fails to identify any specific flaws in that expert’s
report, and he did not object to the vocational expert at the time of the hearing. So any
objections are waived as undeveloped. See Griffin v. TeamCare, 909 F.3d 842, 846 (7th Cir.
2018). Fowlkes also maintains that the ALJ did not write a clear enough decision. But as
we have recounted, the decision reflects a thorough review of the evidence and
explanation of how the ALJ weighed it. The ALJ also connected that evidence to his
legal conclusion with a “logical bridge,” as we require. See Varga v. Colvin, 794 F.3d 809,
813 (7th Cir. 2015).
We have considered Fowlkes’s remaining arguments, and none has merit.
AFFIRMED