Burton, Robert W. v. Barnhart, Jo Anne B. , 203 F. App'x 737 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 3, 2006
Decided November 1, 2006
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-1394
ROBERT BURTON, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of
Indiana, Indianapolis Division.
v.
No. 04 C 1941
JO ANNE B. BARNHART,
Commissioner of Social Security, David F. Hamilton,
Defendant-Appellee. Judge.
ORDER
Robert Burton applied for disability insurance benefits in April 2002,
claiming that he was disabled due to diabetes polyneuropathy and anxiety. His
claim was denied initially, upon reconsideration, and after a hearing before an ALJ.
The ALJ found that, although Burton had severe impairments, they did not equal a
listed impairment and he was capable of sedentary work. Because the ALJ’s
decision is supported by substantial evidence, we affirm the denial of benefits.
At the time of his hearing, Burton was 33 years old and had attended college
for two years. Beginning in 1997 he worked as a loan officer for a cash advance
company. He then worked full time as an aide for a home health care company
until he could no longer perform the lifting required of that job. In February 2002
the company transferred him to the position of “scheduler” and reduced him to
No. 06-1394 Page 2
part-time hours, but in April 2002 he voluntarily quit working because his back
pain caused him to miss too much work.
Burton testified that he first experienced back pain that made it difficult for
him to work in August 2001. Burton suffers from a pars defect in his lower back
that, he said, bothers him “the majority” of the time. To alleviate the pain, he uses,
in addition to other unspecified drugs, a duragesic patch and receives injections in
his lower spine every two or three months. He said that the injections sometimes
help but that the patch makes him vomit and fall asleep. He admitted, however,
that the side effects from the medications are not as bad now as they once were. In
addition, when he has back pain, he said, he must lie on the floor for up to two or
three hours.
Burton also testified that he has “emotional problems” that interfere with his
ability to work. In particular, Burton said that he has suffered for many years from
anxiety, which causes him to become nervous around strangers and large crowds of
people. Paxil controlled the anxiety in the past. Following an automobile accident
in March 2003, however, he began experiencing increased emotional problems and
sought psychiatric treatment. First, he said that he sought treatment because he
could no longer ride in a car. He then said that he sought treatment because he
began hearing “voices in his head” again.1 Approximately a week or two prior to the
hearing, however, he started taking Trazodone to quiet the voices and said that it
has “made it better to where [the voices are] less frequent.” But the combination of
the Trazodone with his other medications caused him to respond slowly when
someone talked to him. When asked by the ALJ whether his problems dealing with
people or being in crowds had anything to do with the voices, Burton responded
with a third reason for seeking treatment: “I don’t know. I went to the psychiatrist
because I have a problem that whenever I go into a crowd of people I freeze up.” He
explained that he had been able to perform his job as a health aide despite the
anxiety because he worked only with people he already knew but, for example,
could not go shopping by himself. And, although his supervisors reported that
Burton performed his job well and left work only because of his back pain, Burton
said that many times he missed work due to anxiety but never told his supervisors
about his anxiety because he did not want them to think he was “crazy.”
1
He said he first heard voices 10 to 15 years ago. At that time he was
hospitalized and diagnosed with schizophrenia. He received social security benefits
for approximately six years, but after attending vocational training and responding
favorably to medication he discontinued benefits and began working again. He then
stopped taking his medications because he was “doing better.”
No. 06-1394 Page 3
According to Burton, he is unable to work. He testified that due to his back
pain he cannot “project–like with a broken arm” and cannot predict his pain levels
from day to day. He also cannot sit for very long, has to lie down when his back
hurts, and occasionally cannot get out of bed until the pain medications “kick in.”
He explained that he has “a tendency to zone out” when he takes his medication
and has had to hire a homemaker to do chores around his apartment 10 hours a
month because: “[S]ome days I can do some housecleaning, but other days no.
Some days I can’t even get out of bed . . . . Because I have too many problems with
my back and the medicine I’m on and the mental problems–I’ll go haywire.”
Moreover, he said that he cannot participate in vocational training because he
thinks it unlikely that he could find “somewhere” that would understand his
limitations. But, he said, he will “try anything.”
Burton’s medical history reveals regular treatment for back pain. From
December 2001 to June 2003 Dennis F. Lawton, M.D. saw Burton for complaints of
neck, leg, and back pain, and diagnosed Burton with diabetes, polyneuropathy, and
severe back pain. Although the majority of Burton’s visits to Lawton were to adjust
his medications in an attempt to manage his pain while minimizing the side effects,
Lawton’s notes reveal that Burton received relief from his pain with the duragesic
patch and a TENS unit. Nevertheless in May 2002, November 2002, and May 2003,
Lawton declared Burton fully disabled and restricted him from performing any
work. In May 2003, however, Lawton noted “possible release from restriction in six
months.” Burton then sought treatment for his back pain from Robert A. Lillo,
M.D. From April 2003 to January 2004, Lillo’s notes reveal that he performed a
physical examination of Burton and diagnosed minor disc protrusions and chronic
low back pain. He treated Burton with pars and epidural injections and
recommended physical therapy. The injections did not initially help alleviate
Burton’s pain, but by August 2003 Lillo observed that he had a “nice response” to
the injections and noted: “I do not think there is much to do here. I think the main
thing would be to have him increase his fitness and stop smoking.” In May 2003
Burton also sought treatment from Jeffrey A. Heavilon, M.D. Heavilon observed
that Burton could “move fairly easily from a seated to standing position,” and that
he was able to “walk on toes and heels without any weakness.” He diagnosed a pars
defect at L5 and “nonradicular low back pain,” noted that an operation was not
likely to improve Burton’s condition, and recommended that Burton “be as active as
possible, control his weight, and discontinue smoking.”
Burton’s medical history also corroborates his testimony that he received
regular treatment for generalized anxiety and panic disorder. In December 2001
Burton first told Lawton that he had “always had some nerve problems” and
explained that he became anxious when meeting new people. Lawton diagnosed
panic disorder and prescribed Paxil. One month later Burton reported that the
Paxil controlled his anxiety. In February 2003, however, Burton reported that “his
No. 06-1394 Page 4
nerves are shot.” And in July 2003 he told Lawton that the Paxil no longer
controlled his “nervousness.”
Burton then sought treatment from Brairwood Clinic because he felt
“extremely nervous and anxious in all areas of his life.” Briarwood’s intake notes
reveal that Burton contacted the clinic in July 2003, reporting that he had been in
an automobile accident in March 2003 and had since experienced nightmares and
could no longer ride in a car. He also reported that he had “diminished interest in
all activities, feelings of detachment from others, irritability, hyper-vigilant, strong
physical sensations, difficulty concentrating, [and] feelings of distress about
accident.” After scheduling and cancelling appointments in August, September, and
October, Burton met with Rebecca Licht, a mental health counselor, in December
2003 at which time he reported hearing voices, having suicidal thoughts, and being
deeply depressed. Burton also told Licht that he had been diagnosed with
schizophrenia and was afraid to go out in public. Licht met with Burton three times
and in January 2004 referred him to Brian Bertsch, M.D., a psychiatrist. The
record does not contain Bertsch’s file or the results of any psychological testing he
may have performed.
Three state agency physicians submitted written assessments of Burton in
conjunction with his application for benefits. Ceola Berry, Ph.D., met with Burton
in August 2002 and reported that he suffered from “mood disorder due to medical
condition of diabetic neuropathy with generalized anxiety and panic features,” as
well as obesity, diabetic neuropathy, and hypertension. At the consultation, Burton
complained of poor balance; pain in his arms, legs, and lower back; panic attacks;
trouble staying asleep; and irritability. He denied delusions or hallucinations.
Berry observed that Burton ambulated without aid, was calm, and exhibited
“adequate concentration, judgment, insight and impulse control.” In October 2002
R. Wanzler, M.D., completed a Physical Residual Functional Capacity Assessment
and J. Pressner, Ph.D., completed a Psychiatric Review Technique. As to Burton’s
physical limitations, Wanzler opined that Burton could lift 10 to 20 pounds and
could sit, stand or walk for a total of six hours a day. With respect to Burton’s
emotional limitations, Pressner opined that Burton suffered from affective and
anxiety-related disorders but was not severely impaired.
In addition, at the February 2004 hearing a medical expert and a vocational
expert testified at the ALJ’s request. The medical expert, Dr. Richard Hutson,
explained that Burton suffered from a pars defect with “mild slippage” of the
vertebra and degenerative disk disease. He opined that he would limit Burton to
sedentary work with a sit/stand option, no overhead reaching, and no repeated
twisting or trunk vibration. Given the limitations recommended by the medical
expert and Burton’s transferable skills, Gail Ditmore, the vocational expert,
testified that Burton could perform work as an assembler, inspector, or record clerk.
No. 06-1394 Page 5
She opined, however, that if he was required to lie down for a couple hours each
day, was absent more than two days a month, or could not concentrate for 15
minutes each hour, work would be impossible.
At the ALJ’s request Burton supplemented the record following the hearing.
He submitted a Mental Residual Functional Capacity Assessment completed by
Dr. Bertsch, the psychiatrist he had consulted in January and February 2004. After
meeting with Burton only two times, Bertsch reported that Burton suffered from
schizoaffective disorder, generalized anxiety, a persistent depressed mood, dulled
cognitive skills, poor concentration and memory, and disorganized thinking. He
opined that, even though Burton has “fairly good insight and judgment and lives
within his limitations,” he would be absent from work more than three times a
month and that “consistency would rarely be maintained on any mild or moderately
stressful job.” Bertsch noted, however, that no limitations existed on Burton’s
ability to perform “the activities of daily living.” But Bertsch again did not provide
his file or the results of any clinical testing he performed before arriving at his
diagnosis.
Following the five sequential steps laid out in 20 C.F.R. § 404.1520(a)-(f), the
ALJ found that (1) Burton had not performed substantial work since his alleged
onset date of April 2002; (2) his physical impairments were severe; (3) his physical
complaints did not meet or equal a listed impairment; (4) he could not perform his
past relevant work but had transferable skills; and (5) there were jobs available to
him because he could perform sedentary work. Of significance for this appeal, the
ALJ refused to give Dr. Bertsch’s March 2004 report controlling weight because
although “the doctor does have a treating relationship with the claimant, the
treatment history is quite brief, as he was only seen twice.” The ALJ also found
Burton’s subjective complaints of pain “not entirely credible.” The ALJ explained
that evidence established that Burton engaged in activities, such as independently
maintaining his appearance, housekeeping, and bowling, that “are not limited to
the extent one would expect” of someone complaining of disabling pain and mental
impairment. The ALJ also noted that Burton’s “generally unpersuasive appearance
and demeanor while testifying at the hearing” was a factor in his decision. The
Appeals Council declined review, and the ALJ’s decision became the final decision of
the Commissioner of Social Security. The district court affirmed in a thorough,
well-reasoned decision.
We will uphold the ALJ’s decision if it is supported by substantial evidence.
Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). An ALJ’s findings are
supported by substantial evidence if they identify supporting evidence in the record
and adequately discuss the issues. Golembiewski v. Barnhart, 322 F.3d 912, 915
(7th Cir. 2003).
No. 06-1394 Page 6
Burton first challenges the ALJ’s decision to discount Dr. Bertsch’s opinion,
which if properly credited would compel a finding that Burton was unable to work
because he opined that Burton would miss work more than three days a month.
Burton argues that the ALJ erroneously discounted Bertsch’s opinion because it
was based upon only two meetings and was inconsistent with the opinions of the
state’s psychologists. Burton also contends that the ALJ failed to consider that his
mental condition deteriorated between the time of the state’s evaluations in August
and October 2002 and Bertsch’s March 2004 report.
An ALJ must “give controlling weight to the medical opinion of a treating
physician if it is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and not inconsistent with the other substantial evidence.”
Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir. 2006). When a treating
physician’s views do not meet this standard, however, the ALJ may discount the
opinion because “a claimant is not entitled to disability benefits simply because [his]
physician states that [he] is ‘disabled’ or unable to work.” Dixon v. Massanari, 270
F.3d 1171, 1177 (7th Cir. 2001).
Here the ALJ permissibly discounted Dr. Bertsch’s March 2004 opinion that
Burton suffered from mental limitations that would cause him to miss work more
than three days a month. Contrary to Burton’s contentions, the ALJ did not
discount Bertsch’s March 2004 opinion merely because it was inconsistent with the
state’s reports. The ALJ also noted that “the doctor apparently relied quite heavily
on the subjective report of symptoms and limitations provided by the claimant.”
Indeed, even though the ALJ asked Burton to supplement his submissions after the
administrative hearing, the record is devoid of any reports of clinical or laboratory
testing Bertsch may have performed to support his conclusions concerning Burton’s
mental limitations. Bertsch’s March 2004 opinion therefore appears to be based
solely upon subjective complaints that Burton made to him. In addition, the ALJ
was allowed to consider how often Bertsch treated Burton. See 20 C.F.R.
§ 404.1527(d); Hofslien, 439 F.3d at 377 (questioning the “meaning and utility” of
the treating physician rule). And as the district court noted, the ALJ “generously”
referred to Bertsch as Burton’s “treating physician” because he had met with
Burton on only two occasions. See Hofslien, 439 F.3d at 377 (explaining that the
advantage a “treating physician has over other physicians . . . is that he has spent
more time with the claimant”).
Citing Clifford v. Apfel, 227 F.3d 863 (7th Cir. 2000), Burton contends that
Bertsch’s opinion—even if based on treatment for only a short time—reflected a
deterioration of his mental condition that the ALJ was “required to consider” when
evaluating Bertsch’s opinion. See Clifford, 227 F.3d at 870-71 (stating in dictum
that “[i]t does not appear from the record that the ALJ considered [the] possibility”
No. 06-1394 Page 7
that claimant’s condition may have worsened). In Clifford we instructed the ALJ to
reevaluate whether the claimant’s treating physician’s opinion was entitled to
controlling weight because, among other things, evidence in the record suggested
that the claimant’s condition had deteriorated since the state physicians had
rendered their opinions. Id. at 871. The treating physician’s disability finding,
however, was based upon his examination of Clifford’s x-rays and a physical
examination. Id. at 867. In contrast, the record in Burton’s case contains no
evidence of clinical or diagnostic testing to support Bertsch’s opinion that Burton’s
condition had deteriorated. Accordingly, on this record, the ALJ’s decision not to
grant Bertsch’s March 2004 opinion controlling weight was proper. See White v.
Barnhart, 415 F.3d 654, 659 (7th Cir. 2005) (upholding ALJ’s decision to discount
treating physician’s residual functional capacity evaluation because it was not
supported by objective medical evidence and was inconsistent with other evidence).
Burton also challenges the ALJ’s finding that he was not “entirely credible,”
arguing that the ALJ failed to properly consider his testimony concerning daily
activities, subjective complaints of pain, and the side effects of his medications. See
S.S.R. 96-7. He insists that the ALJ should have accorded greater weight to his
testimony that he must lie down during the day to relieve his back pain and must
frequently take days off due to disabling pain, “mental condition,” and doctor’s
appointments. And, he says, the ALJ failed to adequately discuss his reasons for
rejecting his testimony. If his testimony concerning his limitations were properly
credited, he says, he would be unable to work.
When assessing an individual’s credibility, an ALJ must consider evidence in
the record regarding the individual’s daily activities as they relate to his symptoms
and treatment regimen. See Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783, 787
(7th Cir. 2003); C.F.R. § 404.1529; S.S.R. 96-7p. The ALJ may not ignore subjective
complaints of pain solely because they are unsupported by medical evidence,
Schmidt v. Barnhart, 395 F.3d 737, 746-47 (7th Cir. 2005), but may consider
discrepancies between the objective medical evidence and the degree of pain
complained of, Sienkiewicz v. Barnhart, 409 F.3d 798, 804 (7th Cir. 2005); Powers v.
Apfel, 207 F.3d 431, 435-36 (7th Cir. 2000). Because the ALJ is best positioned to
judge a witness’s truthfulness, we will overturn an ALJ’s credibility determination
only if it is patently wrong. Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004).
The ALJ supported his credibility determination with a reasoned discussion
of the record in light of these rules. The ALJ first explained that the discrepancy
between Burton’s assertions that he could not engage in substantial gainful activity
and his ability to perform daily activities such as keeping his home clean and
maintaining his personal hygiene called into question his allegations that he was
unable to perform “substantial gainful activity.” Although an ALJ may not rely
solely on an individual’s ability to engage in sporadic physical activities to
No. 06-1394 Page 8
determine that the individual can work 8-hours a day, five days a week, see
Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004), the ALJ in this case noted
that Burton had also routinely engaged in other activities outside his home. For
example, the ALJ noted that Burton sustained an injury while bowling 18 months
after he claimed to be totally disabled due to debilitating back pain and fear of
being in public. Similarly, the ALJ noted that, contrary to Burton’s contentions
that his pain was severe and his medications provided little relief, the objective
medical evidence showed that his mental and physical impairments were “slight”
and that he had responded favorably to both his pain and psychiatric drugs. In
addition, the ALJ was allowed to consider Burton’s physical appearance and
demeanor at the hearing as one factor in assessing Burton’s credibility. See Powers,
207 F.3d at 436. Thus the ALJ’s credibility determination complied with Social
Security Regulation 96-7p.
AFFIRMED.