Michael Sosh 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NONPRECEDENTIAL DISPOSITION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 July 7, 2020
Decided July 14, 2020
Before
DIANE S. SYKES, Chief Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 19-3313
MICHAEL D. SOSH, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Indiana,
Fort Wayne Division.
v. No. 1:18-CV-249-HAB
ANDREW M. SAUL, Holly A. Brady,
Commissioner of Social Security, Judge.
Defendant-Appellee.
ORDER
Michael Sosh applied for disability benefits, asserting that he was unable to work
because of various mental and physical impairments, including chronic obstructive
pulmonary disease (COPD). After weighing the medical evidence, an administrative
law judge denied Sosh’s application, concluding that Sosh could perform a range of
light work with limitations. On appeal, Sosh contends that the ALJ erred by (1) failing
to include enough restrictions in his residual functional capacity to accommodate his
COPD, and (2) improperly rejecting the opinion of a nurse practitioner who treated his
COPD. Because substantial evidence supports the ALJ’s conclusions, we affirm.
No. 19-3313 Page 2
I. Background
A. Medical history
Sosh has various ailments that he contends contribute to his disability, including
arthritis, degenerative spinal injuries, and generalized anxiety disorder. But only one
ailment is relevant to this appeal: his diagnosis of COPD, an inflammatory disease that
obstructs airflow from the lungs.
Even before his COPD diagnosis in 2015, Sosh intermittently went to the
emergency room complaining of respiratory issues. At first, these hospital visits were
infrequent, occurring only once in 2010 and in 2011, not at all in 2012, and twice in 2013.
But Sosh’s respiratory problems intensified in 2014. In June, he went to the
emergency room because he had been sick for five days and felt like he was “gasping
for air.” Doctors diagnosed him with bronchitis and treated his symptoms using a
nebulizer. In early October, Sosh returned to the emergency room with similar
symptoms, and he was given a personal inhaler and again treated with a nebulizer. His
primary care provider then prescribed him a nebulizer for use at home “as needed …
every 6 hours.” Even with the home nebulizer, Sosh had another week-long respiratory
infection at the end of November and again needed treatment in the emergency room.
Sosh’s respiratory issues continued to worsen. In February 2015, he was
hospitalized with hypoxic respiratory failure (a lack of oxygen in the blood from
shortness of breath). He remained in the hospital for seven days before being
discharged and prescribed various medications, including a steroid (Prednisone), an
anti-inflammatory (Singulair), two preventative inhalers (Advair and Spiriva), and a
rescue inhaler (Albuterol). Upon Sosh’s discharge, a doctor noted that Sosh may have
COPD and scheduled a follow-up appointment with a pulmonary specialist.
In March 2015, Sosh saw the pulmonary specialist, Dr. Rajeev Mehta, who
diagnosed him with stage-1 COPD based in part on a pulmonary-function test that
showed mild obstruction. Notwithstanding this mild obstruction, Dr. Mehta found that
Sosh was breathing “very well,” with no chest pain, wheezing, or coughing. The doctor
also noted Sosh’s report that he had not recently used his rescue inhaler. Dr. Mehta
attributed Sosh’s hospitalization the previous month to a COPD “exacerbation,” or
flare-up.
A few months later, Sosh had another COPD exacerbation and was hospitalized
for seven days. He reported to the emergency room with shortness of breath, coughing,
No. 19-3313 Page 3
headaches, lightheadedness, and a fever, and was found to be hypoxic. Doctors treated
him with oxygen, antibiotics, steroids, inhalers, and nebulizer sessions. By his third day
in the hospital, Sosh’s symptoms had begun to improve. Dr. Mehta—the examining
doctor—reaffirmed his diagnosis of stage I COPD and recommended that Sosh continue
treatment with a nebulizer, steroids, and antibiotics.
Sosh seemed to recover over the next month. Although he had a cough and
shortness of breath, his breathing sounded normal, and there were no other signs of
pulmonary issues. Sosh then remained healthy for the rest of the year: During routine
medical appointments in August, October, and December, his lungs were clear, and he
had no respiratory complaints.
Throughout 2016, Sosh’s COPD was well managed. His lungs were clear during
routine medical appointments in January and February. And in February, Jennifer
Bow—a nurse practitioner working under Dr. Mehta—noted that Sosh’s breathing was
“doing very well,” Sosh had not experienced any further exacerbations, and he had not
recently needed to use his rescue inhaler. During routine monthly follow-ups with his
primary care provider in the spring, Sosh demonstrated wheezing and reported
increased nebulizer use because of cold weather. But other than what his primary care
provider referred to as a “slight exacerbation of COPD” in August (for which Sosh
received steroids), Sosh did not seek any treatment for respiratory issues. Nor, for most
of the year, did he exhibit respiratory symptoms.
B. Procedural history
Sosh applied for disability insurance benefits and supplemental security income,
alleging that he became disabled on September 1, 2014, after developing COPD,
sustaining injuries in his back, knee, and shoulders, and experiencing anxiety and
depression. Sosh supplemented his application with a June 2016 statement from Nurse
Practitioner Bow addressing how his COPD would affect his ability to work. Bow
described Sosh’s COPD prognosis as “slightly declining,” stated that he had good and
bad days, and opined that if he were to work, he would need one or two unscheduled
breaks per day, would be off task for 10 percent of the workday, and would miss three
days of work per month. Bow further opined that Sosh’s COPD caused him to have four
asthma attacks per year and each attack incapacitated him for one week.
Dr. J. V. Corcoran—a non-examining physician and agency consultant—also
reviewed Sosh’s medical records and concluded that Sosh’s COPD could be controlled
by limiting his exposure to pulmonary irritants. Dr. Corcoran opined that Sosh needed
No. 19-3313 Page 4
to avoid concentrated exposure to extreme temperatures and humidity and avoid even
moderate exposure to other irritants that could exacerbate his COPD like fumes, dusts,
or gasses. But Dr. Corcoran did not recommend any limitation to account for time that
Sosh would need to spend off task or absent from work, and the doctor concluded that
the record contained no evidence to support Sosh’s allegation that his COPD was
worsening.
At a hearing before an ALJ, Sosh testified that he was unable to work because of
his COPD, among other injuries and impairments. Sosh said that vacuuming the car or
taking excessively hot showers triggered his COPD. He added that, despite taking two
preventative inhalers a day as well as an emergency inhaler and nebulizer when
needed, he still had been hospitalized “a few times.”
The ALJ concluded that Sosh was not disabled. She acknowledged that Sosh had
several severe impairments (COPD, along with anxiety, carpal tunnel, obesity, and
disorders in his shoulder and back). But she concluded—based on Dr. Corcoran’s
opinion, to which she assigned “great weight”—that Sosh retained the residual
functional capacity to perform light work so long as, among other limitations, he
avoided exposure to extreme temperatures or pulmonary irritants. Relying on a
vocational expert’s testimony, the ALJ concluded that a person with Sosh’s limitations
could find work in the national economy.
The ALJ considered whether Sosh’s COPD placed additional restrictions on his
ability to work, beyond those suggested by Dr. Corcoran, but she concluded that it did
not. She first addressed whether his history of emergency treatments and
hospitalizations warranted additional restrictions. The ALJ reasoned that, apart from
isolated exacerbations in 2014 and 2015, Sosh’s COPD was relatively well controlled and
did not cause disabling symptoms or functional limitations. She also declined to adopt
the restrictions proposed by Nurse Practitioner Bow and gave Bow’s statement only
“partial weight.” She explained that Bow’s statement was inconsistent with Bow’s own
treatment records from February 2016, with Sosh’s pulmonary-function test, and with
other treatment records from Dr. Mehta and Sosh’s primary care provider.
The Appeals Council denied review, and so the ALJ’s decision was the
Commissioner’s final decision. See Jozefyk v. Berryhill, 923 F.3d 492, 496 (7th Cir. 2019).
The district court upheld the agency’s decision. It rejected Sosh’s contention that he was
entitled to further restrictions to accommodate his COPD, concluding that the ALJ gave
valid reasons for rejecting Bow’s opinion and that Sosh could not point to any evidence
warranting further restrictions.
No. 19-3313 Page 5
II. Analysis
On appeal, Sosh first contends the ALJ erred in her analysis of his residual
functional capacity because she failed to include enough restrictions to accommodate
his COPD. In particular, he argues that the ALJ ignored his need to take breaks during
work to use his nebulizer, and the likelihood—based on his history of hospital visits—
that he would need to take sick days in the future.
We are not persuaded that Sosh is entitled to any restriction related to the use of
a nebulizer at work. Although his primary care provider prescribed nebulizer
treatments for him every six hours “as needed,” the record does not indicate how often
Sosh actually needs treatments or uses his nebulizer. Sosh argues that because he was
using his nebulizer on “some basis,” the ALJ should have explained why he would not
need to use it at work. But Sosh, not the ALJ, had the burden to present medical
evidence in support of his claim. See Eichstadt v. Astrue, 534 F.3d 663, 668 (7th Cir. 2008).
A claimant who does not “identify medical evidence that would justify further
restrictions” is not entitled to remand. See Loveless v. Colvin, 810 F.3d 502, 508 (7th Cir.
2016).
Substantial evidence also supports the ALJ’s conclusion that Sosh’s emergency-
room visits and hospitalizations were isolated incidents and that Sosh’s COPD
otherwise caused no functional limitations. When medical professionals examined Sosh
between his exacerbations, they consistently noted that his lungs were clear with
normal function or only mild obstruction. And after Sosh’s release from the hospital in
June 2015, his COPD remained stable for the rest of 2015 and 2016. From that point on,
he usually exhibited no respiratory symptoms. Any symptoms that did arise were
milder than before: Sosh’s primary care provider noted wheezing and Sosh’s reports of
increased nebulizer usage in Spring 2016, but he prescribed no additional treatment;
and in August 2016, the same provider described Sosh’s symptoms as only a “slight
exacerbation of COPD.” Based on this record, the ALJ reasonably concluded that Sosh’s
COPD was “relatively under control.”
Sosh next contends that the ALJ improperly disregarded Nurse Practitioner
Bow’s opinions that he needed unscheduled breaks during the workday, would be off
task for 10 percent of the time, and would miss 3 days of work each month. Sosh
acknowledges that Bow—a nurse practitioner rather than a physician—was not an
“acceptable medical source” under the agency’s rules at the time. See SSR 06-03p. But
Sosh maintains that the ALJ still needed to weigh her opinion using the same factors
that apply to acceptable medical sources. See 20 C.F.R. § 404.1527(c).
No. 19-3313 Page 6
So long as an ALJ “minimally articulate[s]” her reasons, however, we will
uphold her decision to reject a medical opinion. Elder v. Astrue, 529 F.3d 408, 416
(7th Cir. 2008). True, the ALJ here did not explicitly consider every factor listed under
§ 404.1527(c). But for someone like Bow who was not an acceptable medical source, the
application of these factors “depends on the particular facts” and “not every factor …
will apply in every case.” 20 C.F.R. § 404.1527(f)(1).
Here, the ALJ adequately explained why she gave Bow’s opinion only partial
weight. As she aptly pointed out, Bow’s description of Sosh’s condition contradicted
multiple sources in the record. Bow opined that Sosh’s COPD was worsening, with
daily complications and incapacitating, week-long asthma attacks four times a year. In
contrast, Bow’s own treatment notes from February 2016 stated that Sosh’s COPD had
improved, and her supervisor, Dr. Mehta, diagnosed Sosh with only mild COPD. Bow’s
opinions were further contradicted by Sosh’s pulmonary-function test in 2015—which
showed only mild obstruction—and Sosh’s chest x-ray in June 2016 which showed his
lungs were clear. Finally, Sosh’s June 2016 opinion also contradicted treatment notes
from Sosh’s primary care provider which showed that Sosh had at most only two flare-
ups of his COPD in 2016, neither of which required serious treatment. Sosh’s primary
care provider even noted in July 2016 that Sosh’s “lungs [are] clear.” An ALJ is entitled
to reject a medical statement when, as here, it is contradicted by other evidence,
including the statement provider’s own treatment notes. See 20 C.F.R. § 404.1527(c)(3)–
(4); Burmester v. Berryhill, 920 F.3d 507, 512 (7th Cir. 2019).
III. Conclusion
Because substantial evidence supports the ALJ’s decision, we AFFIRM the
district court’s judgment.