Lora Simons v. Andrew Saul ( 2020 )

NONPRECEDENTIAL DISPOSITION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 May 26, 2020
Decided June 12, 2020
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-2332
LORA S. SIMONS, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Illi-
nois.
v.
No. 18-cv-00961
ANDREW M. SAUL,
Defendant-Appellee. Donald G. Wilkerson,
Magistrate Judge.
ORDER
Plaintiff Lora Simons filed for Supplemental Security Income benefits, but an
administrative law judge (ALJ) determined she was not disabled under the relevant
regulations. Simons appeals this denial of benefits, and we affirm. Substantial evidence
supports the ALJ’s decision that Simons was not disabled.
Simons suffers from back pain, depression, and anxiety. She has been prescribed
medication for these conditions over the course of a long treatment history.
No. 19-2332 Page 2
According to medical records, Simons had three lumbar spine surgeries between
2000 and 2002. Simons, for a time, also had a spinal cord stimulator installed after a
failed back surgery. In 2008, Simons was diagnosed with post-laminectomy syndrome,
also known as “failed back surgery syndrome,” referring to persistent pain experienced
after a spinal surgery. In 2009 and 2010, Simons saw a pain management specialist who
noted that Simons suffered from decreased range of motion and prescribed her Oxyco-
done. Other doctors in 2010 and 2011 continued to prescribe opioid painkillers.
In 2012, Simons began seeing a primary care physician, Dr. Thomas Black. Dr.
Black prescribed Vicodin for pain and Xanax for anxiety. Dr. Black also referred Simons
to Dr. Lucy Field for mental health counseling. Dr. Field apparently did not keep notes
for Simons but made several referrals to Dr. Black for anti-depression medications and
Adderall. Through 2015, Dr. Black continued to prescribe her pain medication and an-
ti-depressants. Dr. Black advised Simons to try to avoid the painkillers when she needed
to concentrate on a task.
Simons filed her claim for disability benefits in October 2014, and a series of re-
views by state consultants followed. At a consultation in February 2015, Dr. Andrew
Koerber examined Simons. The doctor noted Simons was in pain and walked slowly
with an abnormal gait. She had trouble performing tandem, heel, and toe walks. She also
had decreased range of motion in various joints. Dr. Koerber opined that Simons could
sit, stand, or move for about 30 minutes at a time for a total of four hours a day.
That same month, Dr. Paul Schneider, a consulting psychologist, evaluated Si-
mons. Dr. Schneider opined that Simons’s primary impairment was decreased concen-
tration due to the high dosage of her prescribed Xanax.
In March 2015, a state agency consultant reviewed Simons’s medical records and
determined she had the residual functional capacity 1 to perform light work; a second
state consultant essentially concurred in May 2015. At the same time, a state psycholog-
ical consultant reviewed Simons’s records and determined that she had “sustained
concentration and persistence limitations.” The psychological consultant further rated
Simons as “moderately limited” in her ability to maintain concentration, to work within
a schedule, to maintain regular attendance, and to perform at a consistent pace. The
consultant agreed with Dr. Schneider that Simons’s concentration issues probably
1
Residual functional capacity, or RFC, refers to the most work an applicant can perform despite any im-
pairments. See 20 C.F.R. § 404.1545(a)(1).
No. 19-2332 Page 3
stemmed from Xanax use. The report concluded that Simons could manage simple tasks
under limited pressure.
From 2015 to 2017, Simons saw a new primary care physician, Dr. Michael
Rawlings, for back pain. Dr. Rawlings prescribed Oxycontin and hydrocodone for pain
relief. In a September 2016 exam, Dr. Rawlings noted that Simons expressed pain but
had normal strength and gait.
In 2017, the ALJ held an evidentiary hearing to assess the evidence regarding
Simons’s claimed disability. At the hearing, Simons represented herself pro se and testi-
fied that she could stand for about fifteen minutes at a time and could sit for fifteen to
twenty minutes before pain required her to shift her posture. Simons stated she could lift
seven pounds and did “little projects,” including some limited grocery shopping and
food preparation. Simons further testified she had anxiety being around others and had
trouble with concentration and memory. Simons also noted that she was no longer tak-
ing Xanax.
A vocational expert (VE) also took the stand to respond to hypothetical questions
from the ALJ. Based on the hypotheticals, the VE testified that someone with impair-
ments like Simons could work as a hand packager, small product assembler, or inspec-
tor. The VE additionally identified sedentary work that such a person could perform.
After hearing the evidence, the ALJ determined that Simons had the RFC to work
at a light exertional level, on simple, routine, and repetitive tasks. Such work could re-
quire only simple work-related decisions. Further, the ALJ found that there was a sig-
nificant number of positions in the national economy that Simons could perform and
thus denied her disability claim. 2 Simons appealed the decision under 42 U.S.C. § 405(g)
to the United States District Court for the Southern District of Illinois, and a magistrate
judge reviewed it. The magistrate judge determined that substantial evidence supported
the ALJ’s decision and affirmed the denial of benefits. Simons timely appealed to this
Court.
2
If there are a significant number of jobs available in the national economy to an applicant despite her
limitations, an ALJ will find the applicant not disabled. See Bird v. Berryhill, 847 F.3d 911, 913 (7th Cir. 2017)
(“[T]he SSA’s disability determination … asks whether a medically determinable impairment prevents the
claimant from engaging in past relevant work or any substantial gainful work that exists in the national
economy.”) (citations omitted).
No. 19-2332 Page 4
“We review the district court’s judgment de novo, meaning that we review the
ALJ’s decision directly.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). This standard is
“very deferential” to the ALJ. Id. We ask whether “substantial evidence” supports the
ALJ’s decision. Id. (citing 42 U.S.C. § 405(g)). Substantial evidence is “such relevant evi-
dence as a reasonable mind might accept as adequate to support a conclusion.” Id. (cita-
tion omitted).
Our role is therefore limited: we may not usurp the ALJ’s judgment by reevalu-
ating evidence or making our own credibility determinations. In fact, even if reasonable
minds could differ concerning whether Simons is “disabled,” 3 we must affirm the ALJ’s
denial of her disability claim if the record adequately supports it. Id.
While the ALJ’s opinion was not as fulsome as others we have reviewed, it was
adequate. Cf. Filus v. Astrue, 694 F.3d 863, 869 (7th Cir. 2012) (describing ALJ’s opinion as
“somewhat cursory” but holding that reference to doctor’s examination results “[was]
enough.”). We thus turn to Simons’s contentions to the contrary: she argues that the ALJ
erred by (1) failing to adequately address her mental impairments, including her limited
ability to concentrate, (2) failing to adequately discuss her treatment for back pain and
impairments, and (3) placing undue weight on her ability to perform modest household
tasks.
Simons asserts that the ALJ erred by finding she could perform (as the magistrate
judge summarized) “simple, routine, repetitive tasks involving only simple work related
decisions with few, if any, work place changes requiring quota based production as
opposed to production requirements.” According to Simons, this finding ignores her
deficits in maintaining concentration, persistence, or pace of work. Such limitations are
among those a VE must consider when testifying to the ALJ. Varga v. Colvin, 794 F.3d 809,
813 (7th Cir. 2015).
As described above, two state agency consulting physicians opined in early 2015
that Simons had moderate limitations in her:
ability to maintain attention and concentration for extended periods; abil-
ity to perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerances; and ability to complete a
3
An individual is disabled “if [s]he is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment” that is either terminal or expected to last at least a
year. 42 U.S.C. § 1382c(3)(A).
No. 19-2332 Page 5
normal workday and workweek without interruptions from psychologi-
cally based symptoms and to perform at a consistent past without an un-
reasonable number and length of rest periods.
Simons claims that the ALJ needed to ask the VE what the combined effect of
these limitations would have on her ability to perform substantive gainful work. Not
doing so, says Simons, omitted a critical aspect of the evidence. But the state consultants
and an examining physician believed Simons’s concentration issues stemmed from ex-
cessive Xanax use. As Simons testified that she was no longer taking the drug, it was
reasonable for the ALJ to place reduced weight on Simons’s previous, drug-caused
concentration impairment in making his disability determination.
The state agency consultants further found that Simons was moderately limited in
her ability to complete a workday. As such, Simons contends that the ALJ should have
asked the VE two additional questions: “1) What is the employer tolerance for off task
behavior for the representative jobs you have identified, and 2) What is employer tol-
erance for the frequency by which an employee can exceed the employer tolerance for
off task behavior?” Simons insists that if the ALJ had asked these questions, the VE likely
would have testified that Simons was incapable of maintaining any employment.
The record shows that the ALJ asked appropriate questions and that the VE’s
responses supported a denial of disability benefits. The ALJ asked the VE to consider a
hypothetical worker with no past relevant work, the ability to perform only “light work
as defined in the regulations, occasional postural activities, the work should be limited to
simple, routine and repetitive tasks involving only simple work-related decisions with
few if any workplace changes and requiring quota based production … as opposed to
production requirements.” After the VE responded that such a person could find work
in the national economy, the ALJ continued to refine the parameters to reflect additional
limitations in the hypothetical worker’s abilities.
Q: For my next hypothetical … I’m also going to add in that they would
need the option to sit and stand at will provided they’re not off task more
than 15 percent of the work day … [and have] no more than occasional
contact with supervisors, incidental contact with co-workers and no con-
tact with the public.
The VE responded “same jobs, same numbers” and the ALJ added further detail to the
hypothetical: “everything from hypothetical two but we’re going to reduce to sedentary
work.” The VE identified several examples of possible jobs, including bench hand, se-
No. 19-2332 Page 6
curity monitor, and clerical sorter. Finally, the ALJ and VE’s colloquy established certain
conditions which would prevent employment:
Q: All right, and if an individual were off task for any reason more than 15
percent of a work day would they have the ability to do those jobs or any
other jobs?
A: No competitive full time employment.
Q: All right, and if an individual were to miss two or more days a month
on a consistent basis would they be able to do those or any other jobs?
A: No competitive full time employment.
The ALJ’s first three hypotheticals were consistent with the limitations expressed
in the medical record. While Simons may now wish that the ALJ had asked certain other
questions, “a significant omission is usually required before this court will find that the
Secretary failed to assist pro se claimants in developing the record fully and fairly.” Luna
v. Shalala, 22 F.3d 687, 692 (7th Cir. 1994). There was no such “significant omission” here.
Id. The questions reflected the “light work” the reviewing consultants believed Simons
could undertake and were consistent with the state psychological consultant’s conclu-
sion that she could manage simple tasks with limited pressure and complexity.
In sum, Simons “has not pointed to any specific facts that were not brought out
during the hearing nor has she provided any new medical evidence. Mere conjecture or
speculation that additional evidence might have been obtained in the case is insufficient
to warrant a remand.” Binion v. Shalala, 13 F.3d 243, 246 (7th Cir. 1994). The record
supports the ALJ’s opinion.
Simons next contends that the ALJ failed to adequately account for her mental
health impairments, ignoring the duration of her mental health treatment and the sig-
nificant doses of psychopharmaceuticals she took for depression. According to Simons,
the ALJ failed to build the necessary logical and evidentiary bridge to reach a “not disa-
bled” finding. But Simons fails to explain how additional references to her mental health
treatment would have affected a disability determination; neither the duration of her
mental health treatment nor her depression medication establish an inability to work.
The ALJ noted Simons’s mental health issues but determined that, considered in isola-
tion or in combination, none met or exceeded the statutory criteria for finding disability.
Simons has not presented any evidence that would show that finding to be error.
No. 19-2332 Page 7
Simons maintains that the ALJ failed to discuss pertinent evidence related to her
back pain and impairment; specifically, he made no mention of the medications pre-
scribed for lumbar-related pain or of her diagnoses for post-laminectomy syndrome. As
an initial matter, while the ALJ may not have referred to post-laminectomy or failed back
surgery syndrome by name, his determination is replete with references to Simons’s
back pain, surgery, and treatment. The ALJ found Simons’s back issues were significant;
hence, any failure to list an additional back-related diagnosis was at most harmless error.
It is true that the ALJ did not extensively discuss Simons’s various prescriptions
for pain medication related to her back. He did, however, note that Simons testified she
was being conservatively treated with medication, and further that the medical records
reflected stable or improving pain with medication. The ALJ’s choice not to list Simons’s
prescriptions in detail does not constitute reversible error. “The ALJ is not required to
address every piece of evidence or testimony presented, but must provide an accurate
and logical bridge between the evidence and her conclusion that a claimant is not disa-
bled.” Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012) (citation and internal quotation
marks omitted).
Regarding her back impairment, Simons contends that the ALJ did not discuss the
findings Dr. Koerber made during his February 2015 examination, including “antalgic
and slow gait; decreased sensation in the left leg, moderate trouble preforming a tandem
walk; the inability to perform a toe walk; mild trouble performing a heel walk; … she
could only squat down about three quarters of the way due to pain;” and limited flexion.
Simons reasons that an “ALJ may not selectively discuss portions of a physician’s report
that support a finding of non-disability while ignoring other portions that suggest a
disability.” Gerstner v. Berryhill, 879 F.3d 257, 262 (7th Cir. 2018) (citation omitted).
The ALJ’s decision to discount Dr. Koerber’s findings had a sound basis in the
record: Dr. Koerber’s findings were contradicted by Simons’s own primary care physi-
cian, Dr. Rawlings, who found normal gait and strength. “[W]hen assessing conflicting
medical evidence, an ALJ must decide, based on several considerations, which doctor to
believe.” Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) (describing Books v. Chater,
91 F.3d 972, 979 (7th Cir. 1996)). Not only was Dr. Rawlings’s examination more recent
than Dr. Koerber’s, but Dr. Rawlings was Simons’s treating physician. See Clifford v. Ap-
fel, 227 F.3d 863, 870 (7th Cir. 2000) (“[M]ore weight is generally given to the opinion of a
treating physician because of his greater familiarity with the claimant's conditions and
circumstances.”).
No. 19-2332 Page 8
Here, Simons’s objection improperly asks us to reweigh the evidence, giving
precedence to an older examination over a newer one. The ALJ’s decision, however, is
supported by the findings of the more recent examination. In such a situation, it was
reasonable for the ALJ to discount Dr. Koerber’s findings in favor of Dr. Rawlings’s.
Finally, in denying Simons’s disability claim, the ALJ listed the following activi-
ties in which Simons engaged:
She can stand for 15 minutes and sit for 20 minutes before she must change
positions. She can lift a gallon of milk. Despite these allegations, the
claimant reported she is able to help care for her dog, go out to the grocery
store, drive a car, wash dishes, and prepare food.
An ALJ may consider a claimant’s daily activities when assessing her alleged
symptoms. See 20 C.F.R. § 404.1529(c)(3)(i). But “we have cautioned the Social Security
Administration against placing undue weight on a claimant’s household activities in
assessing the claimant’s ability to hold a job outside the home.” Craft v. Astrue, 539 F.3d
668, 680 (7th Cir. 2008) (citation omitted). Simons argues that the ALJ inappropriately
weighed her household activities and “failed to consider the difference between a per-
son’s being able to engage in sporadic physical activities and her being able to work
eight hours a day five consecutive days of the week.” Carradine v. Barnhart, 360 F.3d 751,
755 (7th Cir. 2004).
The ALJ did not reach his decision by exaggerating the extent to which these
mundane tasks reveal Simons’s ability to work. Rather, he discussed them in the context
of objective findings contravening, in part, the level of pain and disability to which Si-
mons testified. We do not require an ALJ to credit a plaintiff’s testimony regarding his or
her subjective perception of pain. See Simila v. Astrue, 573 F.3d 503, 519 (7th Cir. 2009)
(concluding it was appropriate for ALJ to consider objective evidence regarding claim-
ant’s pain alongside other factors, including claimant’s activity levels). It was not error to
list these household tasks, along with other medical opinions, to evaluate Simons’s sub-
jective allegations regarding the debilitating effect of her pain.
For the foregoing reasons, we AFFIRM the judgment of the district court.