Hosea Matthews 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NONPRECEDENTIAL DISPOSITION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 October 6, 2020
Decided November 5, 2020
Before
DIANE P. WOOD, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-3529
HOSEA MATTHEWS, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v. No. 18 C 2926
ANDREW M. SAUL, Jeffrey I. Cummings,
Commissioner of Social Security, Magistrate Judge.
Defendant-Appellee.
ORDER
Hosea Matthews, a 25-year-old man suffering from narcolepsy, challenges the
denial of his applications for Social Security benefits. He argues that the administrative
law judge failed to account for all the functional limitations supported by the record—
that he took at least one nap per day, and that he had limits in concentration,
persistence, and pace—and improperly discounted his subjective accounts of the
severity and limiting effects of his narcolepsy. So, Matthews asserts, the residual
functional capacity determined by the ALJ was insufficiently restrictive. While one
could read the record to lead to such a result, that is not our task on appeal. Substantial
evidence—including the opinions of the agency doctors and the testifying expert—
supports the ALJ’s conclusion, so we affirm.
No. 19-3529 Page 2
Background
In October 2014, Matthews, then 19 years old, applied for child’s disability
insurance benefits and supplemental security income, asserting he had been unable to
work since July 2014 because he kept falling asleep. The Social Security Administration
denied his claims at all levels of review. Because Matthews challenges only the ALJ’s
assessment of his narcolepsy, we focus on that aspect of his medical history.
Five months before applying for benefits, Matthews saw Linda Hushaw, a nurse
practitioner, complaining of too much sleep after a car accident the day before when he
had fallen asleep while driving. Her notes reflect that Matthews reported he exercised
and had active hobbies. Hushaw advised Matthews to “avoid driving or operating
dangerous machinery or engag[ing] in any other high risk activity,” and she referred
him to a neurologist.
A month later, Matthews saw Dr. Ahmad Agha for a sleep consultation. At his
first appointment, Matthews complained of excessive daytime sleepiness and decreased
energy for many years. He said he usually slept between 10:00 p.m. and 4:00 a.m. and
that he took a daily nap. Dr. Agha referred him for a sleep study, which indicated
narcolepsy. Dr. Agha then confirmed the diagnosis, prescribed Provigil, and told
Matthews to avoid driving.
Days later, Matthews saw nurse practitioner Hushaw again and reported that
due to a lack of insurance coverage he was unable to get the Provigil Dr. Agha had
prescribed. Hushaw’s notes reflect that Matthews denied fatigue and that he exercised
and had active hobbies. (Matthews saw Hushaw four more times over the next two
years for unrelated issues like asthma and allergies, and her notes reflect that Matthews
generally denied fatigue, exercised, and had active hobbies.)
Over the next two years, Matthews had five more appointments with Dr. Agha,
who prescribed different medications to alleviate Matthews’s complaints of excessive
daytime sleepiness. Dr. Agha prescribed Ritalin, but Matthews said he was still sleepy
on the medicine. He would wake at 8:00 a.m., take the medicine, then nap for 30
minutes, and at 5:00 p.m. he would go back to sleep. So Dr. Agha prescribed him
Provigil (again), as well. A few months later, Matthews explained he could not obtain
Provigil and that Ritalin was not helping much as after a few hours of taking it, he again
became very sleepy. Dr. Agha noted that because of his insurance Matthews was very
limited with medication choices. But he prescribed Nuvigil, noting that it should be
approved by his insurance company and instructed Matthews to “[t]ake caution
No. 19-3529 Page 3
driving, avoid alcohol, nicotine, stick to [a] routine, [and] exercise.” Matthews later
described his routine while taking Nuvigil: he would go to bed at 10:00 p.m., wake at
7:00 a.m., take the medicine, and sleep in the car (presumably at the landscaping job he
held around this time) before arriving home at 5:00 p.m. Dr. Agha suggested that he
“try no nap.”
Two doctors acting as agency consultants reviewed Matthews’s record in
connection with his applications for benefits. In January 2015, after reviewing
Dr. Agha’s notes, Dr. Richard Bilinsky concluded that Matthews’s statements regarding
his symptoms from narcolepsy were only partially credible because they were not fully
supported by the objective evidence. But because of Matthews’s narcolepsy,
Dr. Bilinsky limited Matthews to never using ladders, ropes, and scaffolding; only
occasionally using stairs; and avoiding even moderate exposure to hazards like
machinery and heights.
Later, at the reconsideration stage, Leah Holly, D.O., largely agreed with
Dr. Bilinsky’s conclusions. At this time, Matthews reported that although there had
been no changes in his condition since his initial applications, he could (and did) fall
asleep at any given time, including while bathing, eating, and using the toilet. His daily
activities—which included performing household chores, walking, driving a car, and
riding a bike—had not changed. Dr. Holly concluded that although Matthews reported
that narcolepsy caused significant interference with his activities during the day, the
evidence did “not reveal specific limitations, quantify, or describe such [interference].”
She agreed with the limits Dr. Bilinsky put on Matthews and added that he should
avoid “driving, [] unprotected heights, open bodies of water[,] and hazardous moving
machinery.”
At a December 2016 hearing before the ALJ, Matthews testified about two jobs he
held briefly that year. He first worked full-time for two to three months at a
landscaping company owned by his mother’s best friend before he was fired for falling
asleep while putting equipment away. He said he often slept while his team was
driving around. Then Matthews worked part-time at a tire shop, where he also slept
often, until the shop closed after a few weeks. On his narcolepsy more generally,
Matthews testified that during his senior year of high school his problems with sleeping
“really got bad.” The ALJ asked Matthews how often he would sleep during the day,
and Matthews said that even though he slept through the night, he would fall asleep “a
lot … like six times” per day. Matthews said his medications were not helping as he was
“starting to get immune” to them, but his doctors told him there was little more they
No. 19-3529 Page 4
could do other than offering him different medicines, some of which his insurance did
not cover.
Dr. Sai Nimmagadda, a specialist in pulmonary medicine and pediatrics, also
testified as a medical expert. Based on the record, he identified multiple functional
limitations, including Matthews only occasionally using stairs; never climbing
scaffolding; and avoiding dangerous machinery, unprotected heights, and commercial
driving. Dr. Nimmagadda testified that these limitations, which were “variable through
the record in sustainability,” were all the limitations he would define from the record.
In the record he did not see the frequency of the narcoleptic episodes that Matthews
described. And, Dr. Nimmagadda stated, “[t]he claimants who have this narcolepsy”
often have daytime somnolence, adding that these episodes would have a variable
although some effect on his concentration, persistence, and pace.
In posing hypothetical questions to a vocational expert (“VE”), the ALJ first
described a person with physical restrictions (such as avoiding workplace hazards and
operating a motor vehicle but occasionally using stairs) and limits to “simple, routine
tasks and to making simple work-related decisions.” The VE responded that the person
could work as a housekeeping cleaner, laundry laborer, or transportation cleaner—jobs
that allow for three regular breaks and other bathroom breaks. But one break per hour
would not be tolerated, the VE said, and the person could be off task only ten percent of
the time. When Matthews’s counsel posited the person needing two more 20-minute
breaks at random times throughout the day, the VE responded that such breaks would
not be acceptable.
Applying the standard five-step process, see 20 C.F.R. §§ 404.1520, 416.920, the
ALJ concluded that Matthews’s recurrent hypersomnia and narcolepsy were severe
impairments, but neither—alone or in combination—met or equaled a listing consistent
with a presumptive disability. The ALJ determined that Matthews had the residual
functional capacity to perform a full range of work with certain non-exertional
limitations, including avoiding workplace hazards and driving, and could perform
“simple, routine tasks and make simple work related decisions.” The ALJ concluded
that with those limitations, and consistent with the VE’s opinion, Matthews could work
in jobs available in the national economy and therefore was not disabled.
The ALJ found that Matthews’s statements regarding the severity of his
limitations—including that he would sleep six times per day, would fall asleep only an
hour after waking, and got little benefit from his medication—were less than fully
consistent with the record. The multiple medical opinions in this case were generally
No. 19-3529 Page 5
consistent with one another, restricting Matthews only from workplace hazards or
driving.1 Matthews had also reported that his medication had helped him, and he
failed to seek additional care from Dr. Agha for almost a year after, as Matthews
testified, his condition had worsened. And the medical record, including his treatment
providers’ notes, did not support any additional restrictions in his RFC.
The ALJ also explained that Matthews’s daily activities did not reflect symptoms
as severe as he alleged. Matthews testified he did chores in the morning, and he had
reported in May 2015 that he drove a car and rode a bike. While he said that he fell
asleep while completing activities, there were no records of treatment for injuries from
falls or accidents. The ALJ also noted that, given his three-month full-time employment
as a landscaper, “[o]ne would assume” that if Matthews had been falling asleep six
times per day, he would have been fired “well before” he was.
The Appeals Council denied review. The district court upheld the ALJ’s decision,
finding it supported by substantial evidence, including by every medical opinion in the
record.
Analysis
This court reviews the district court’s decision de novo in determining whether
the ALJ’s decision was based on substantial evidence. Stephens v. Berryhill, 888 F.3d 323,
327 (7th Cir. 2018). Substantial evidence 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) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
On appeal, Matthews argues the ALJ overstated his residual functional capacity
(RFC) by failing to account for his limitations in concentration, persistence, and pace,
and his need to nap at least once per day. In Matthews’s view, the medical expert’s
testimony and other professionals’ opinions require these limitations.
We have closely examined Matthews’s arguments and the evidence, but we find
no opinion in this record which explicitly identified the functional limitations he
believes should have been included. Rather, the assigned RFC is consistent with, and
1 The ALJ gave “great weight” to the opinions of Matthews’s treatment
providers and the testifying expert. But among the agency consultants, she placed
greater weight on Dr. Holly’s opinion than Dr. Bilinsky’s, because the latter omitted
limits on certain workplace hazards and driving.
No. 19-3529 Page 6
encompasses the scope of, the limitations set forth in the state agency consultants’ and
testifying medical expert’s opinions. These opinions were also consistent with those of
Matthews’s treatment providers. So we see no error in the ALJ relying upon their
opinions. See Rice v. Barnhart, 384 F.3d 363, 370 (7th Cir. 2004) (no error where record
lacked doctor’s opinion containing greater limits than those found by ALJ).
Matthews asserts the ALJ ignored the medical expert’s testimony that he would
have impaired concentration, persistence, and pace during the day. But the ALJ credited
every limitation that the medical expert identified, including those concerning
workplace hazards and driving. Indeed, the expert stated those were “all of the
limitations he would define from the record.” True, under examination by Matthews’s
attorney the expert testified that narcolepsy would have some effects on concentration,
persistence, and pace owing to daytime somnolence.2 But the expert did not testify that
these effects required another functional limitation. Matthews’s counsel had the
opportunity, which was not taken, to question the expert further as to whether the
narcolepsy merited any additional limitations. Because Matthews was represented by
counsel at the hearing, he is “presumed to have made h[is] best case before the ALJ.”
Summers v. Berryhill, 864 F.3d 523, 527 (7th Cir. 2017). True, the ALJ could have asked
the expert herself, but it is Matthews’s burden, not the ALJ’s, to prove that he is
disabled. Id. Further, Matthews does not take issue with the ALJ’s finding that his
impairment in concentration, persistence, and pace was only “mild”—the lowest
designation on the five-point scale, other than “none.” 20 C.F.R. § 404.1520a(c)(4).
Relatedly, Matthews argues the ALJ’s failure to account for his daytime
sleepiness and napping is inconsistent with the medical opinions. He asserts that any
doctor who limited his exposure to workplace hazards and prohibited driving must
have credited that he will be excessively drowsy or fall asleep uncontrollably. He
contends these same symptoms would necessarily cause him to nap and be “off-task
and ‘unreliable’ at random times” throughout the day as well, so the absence of such
limitations in the RFC is inherently illogical.
But Matthews’s assertion does not necessarily follow, as the options were not so
sharply defined. And the medical opinions do not have the breadth Matthews attributes
2 The Commissioner argues that the expert was testifying only generally on this
point. The testimony is not entirely clear; the expert began by discussing “[t]he
claimants” with narcolepsy. But his later answers, including those most relevant here,
used the word “he,” presumably referring to Matthews.
No. 19-3529 Page 7
to them. The ALJ could have reasonably (as discussed below) credited the existence of
his symptoms while discounting their purported severity and frequency. Even if the
evidence could support additional limitations, such as time off-task or added breaks,
the record evidence did not require the ALJ to draw this conclusion. “[T]he resolution
of competing arguments based on the record is for the ALJ, not the court.” Donahue v.
Barnhart, 279 F.3d 441, 444 (7th Cir. 2002). This is another area where Matthews,
knowing the scope of the opinions before the hearing, could have better developed this
proof before the ALJ.
Because such limitations on Matthews’s functional capacity were not present in
any of the medical opinions, the only way the ALJ could determine whether those
limitations were necessary was by assessing Matthews’s credibility. Matthews argues
the ALJ erred regardless of this assessment. But, as explained above, the medical record
alone does not require the limitations he seeks. Even Matthews’s best example of
additional limits in his providers’ notes—that Dr. Agha told him to try “no nap” during
the day—is subject to a credibility assessment because the doctor relied on Matthews’s
subjective descriptions in arriving at this directive. See Mitze v. Colvin, 782 F.3d 879,
881-82 (7th Cir. 2015). And Matthews had the chance to bring forth more direct
evidence in support of his position, but he failed to do so.
In any event, Matthews argues the ALJ improperly discounted his allegations
regarding the severity and limiting effects of his narcolepsy. To evaluate Matthews’s
subjective symptoms, the ALJ needed to consider the objective medical evidence and
other evidence, including medical opinions, his treatment providers’ notes, his daily
activities, and his work history. See 20 C.F.R. § 404.1529(c). Matthews first asserts that
the ALJ failed to explain how his daily activities—including performing his chores,
driving a car, and riding a bike—are inconsistent with his self-reported symptoms.
Matthews adds that the ALJ made only assumptions about his attempts to work and
ignored his treatment providers’ notes that he experienced daytime fatigue despite his
medication.3
3The Commissioner concedes the ALJ erred by drawing a negative inference
from Matthews’s failure to pursue follow-up treatment without asking for an
explanation, Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012), but argues that the error
is harmless. We agree because the other evidence the ALJ cited adequately supports her
conclusion.
No. 19-3529 Page 8
The record demonstrates that the ALJ considered the relevant regulatory factors.
It is true that on certain points her reasoning was not airtight. As examples, the ALJ
inferred that, if Matthews fell asleep as often as he claimed, he would not risk riding a
bike or driving a car when he may hurt himself or others, and the record lacked
evidence of treatment for any related falls or injuries to himself or to others. Yet
Matthews may have made imprudent decisions in taking these risks and been fortunate
to not cause any injuries to himself or to others.4 The ALJ also inferred that Matthews
would have been fired “well before” three months into his landscaping job if he slept so
often. But she did not consider that Matthews’s boss—his mother’s best friend—may
have been more tolerant. Finally, she noted that Matthews’s providers’ notes, including
one that Ritalin helped for only a few hours before he became sleepy again, were
inconsistent with his claim that he could stay awake only for one hour before again
falling asleep. In either rendering, though, the Ritalin wore off quickly.
Our review of the ALJ’s consideration of this entire record presents a close call.
Indeed, at oral argument before us the Commissioner conceded that the record could be
read differently than the ALJ did. Despite this parity, we cannot conclude that the ALJ’s
partially adverse credibility finding, overall, was “patently wrong.” Summers v.
Berryhill, 864 F.3d 523, 528 (7th Cir. 2017) (quoting Eichstadt v. Astrue, 534 F.3d 663,
667-68 (7th Cir. 2008)). Substantial evidence in this record supports the ALJ’s conclusion
that Matthews’s complaints were not entirely consistent with the record. As discussed
earlier, the ALJ credited every medical opinion in the record, including those of the
agency consultants and testifying expert who found Matthews’s reported symptoms to
be only partially consistent with the record. Further, the providers’ notes did not
support Matthews’s testimony that despite his medication he fell asleep several times a
day, especially when he reported exercising and having active hobbies. And if his
complaints were accurate, it is reasonable to infer that Matthews would have avoided
driving and biking. So, the ALJ permissibly found that, rather than being “undisputed”
as Matthews argues, his assertions regarding his napping—whether six times a day (as
he testified) or once (as he now argues)—lacked credibility. We are to give the ALJ’s
credibility finding “special deference,” Summers, 864 F.3d at 528, and Matthews’s appeal
4 Matthews now suggests he could schedule these sorts of activities around his
sleepiness. But in the agency proceedings he said he can fall asleep at any given time
and described unexpectedly passing out in the middle of activities, such as loading
equipment in the landscaping truck.
No. 19-3529 Page 9
to us to “reweigh the evidence or substitute our judgment for that of the [ALJ]” does not
overcome it. Chavez v. Berryhill, 895 F.3d 962, 968 (7th Cir. 2018).
We do not read this record as the ALJ misunderstanding the nature of
narcolepsy, or her failing to apprehend Matthews’s condition. She did not conclude, for
example, that Matthews was “inventing” his circumstances. The conclusion we draw is
not that Matthews’s condition is not real and significant, but that his case is one of
degree, and on this record a failure of proof against the backdrop of our deferential
review.
For these reasons, we AFFIRM the judgment.