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Date: 10-15-2018
Case Style:
Curtis K. Hall v. Commissioner of Social Security
Case Number: 17‐2628
Judge: Per Curiam
Court: United States Court of Appeals for the Seventh Circuit (Cook County)
Plaintiff's Attorney: Charles A. Cohn
Defendant's Attorney: Susan Willoughby Anderson
Description:
While loading chemicals onto a truck, Curtis
Hall felt a sharp pain in his back. This back pain formed the
basis of his application for disability insurance benefits. An
administrative law judge denied his application, and a district
court upheld that determination. On appeal, Hall contends
that the ALJ improperly discounted his treating physician’s
2 No. 17‐2628
opinion and discredited his own testimony. Because
substantial evidence supports the ALJ’s decision, we affirm.
I
Hall, a tanker loader at a chemical company, was hooking
a hose underneath a tanker truck in mid‐2006 when he felt
pain in his low back. His pain persisted so he saw Dr. George
Miz, an orthopedic surgeon, who ordered an MRI of Hall’s
lumbar spine. After reviewing the MRI, Dr. Miz found that
Hall had a large disc herniation at L‐5 that was pinching a
spinal nerve root. Dr. Miz recommended “conservative
treatment,” so Hall began physical therapy while continuing
to work, and he reported progress from the therapy. As of
November 2006, Hall was still experiencing “ups and downs”
in terms of pain, and by December, Dr. Miz thought that any
improvement Hall felt with his back had “essentially
plateaued.” Because the pain persisted, Hall and Dr. Miz
began planning a lumbar microdiscectomy to relieve the
pressure on his spinal nerve root.
In March 2007, Hall stopped working and underwent the
operation. The surgery was successful. Hall’s back improved,
and by June his range of motion during physical therapy had
increased. He reassured Dr. Miz the next month that he had
“slow but steady progress with physical therapy.” By
December, after an epidural steroid injection, Hall reported
that his pain was “down to 2 to 3/10.”
Meanwhile, since the day of his surgery, Hall has received
temporary total worker’s compensation benefits. The record
shows that Hall continues to receive these benefits to this day.
In 2008, Hall’s functionality continued to improve. In June
he said that he could sit, stand, and walk for about an hour.
No. 17‐2628 3
Dr. Miz referred him to a physical therapist later that summer
for a functional capacity evaluation, and a therapist administered
a battery of tests before finding that Hall could return to
work at the “light” level (meaning that he could lift 20 pounds
infrequently, 10 pounds frequently, and carry 10 pounds or
more). The tests also showed that Hall could sit for 15–20
minutes and stand for 30 minutes. The following month,
Dr. Miz said that Hall could work within the parameters of
the functional capacity evaluation, though Hall did not return
to work.
In September 2010, Dr. Hutchinson, an orthopedist at the
University of Illinois at Chicago Medical Center, reviewed
Hall’s records and examined him in connection with his
worker’s compensation case. Dr. Hutchinson agreed with
Dr. Miz that Hall could work at the “light” level, consistent
with the results of the 2008 functional capacity evaluation.
Dr. Hutchinson opined that Hall had a protruding disc, but
that Hall could continue to work.
One month later, in October 2010, a CT scan confirmed
Dr. Hutchinson’s opinion that Hall’s disc was still protruding.
Shortly thereafter, Dr. Miz performed a lumbar discography,
a diagnostic procedure to determine if one or more discs was
the cause of Hall’s back pain. Based on the results of the discography,
Dr. Miz concluded that the L5‐S1 area was causing
Hall’s pain. In February 2011, Dr. Miz recommended that Hall
undergo a “transforaminal interbody fusion” to stabilize his
spine.
Put off by the prospect of another surgery, Hall heeded the
recommendation of his internist and turned for a second
opinion to a neurosurgeon, Dr. Martin Luken. In June 2011,
Dr. Luken recommended that Hall undergo a foraminotomy,
4 No. 17‐2628
a minimally invasive surgery to remove whatever was compressing
his nerve root. Meanwhile, Dr. Luken proposed
(without elaboration) that Hall be “off work.”
A few months later a state‐agency physiatrist consultant,
Dr. Barbara Heller, examined Hall and opined that he had
persistent L5‐S1 discogenic disease with persistent right L5‐
S1 radiculopathy. But because Hall’s pain medications were
working well, she determined that he could return to light
work consistent with the functional capacity evaluation from
2008.
In 2012, Hall applied for disability insurance benefits
based on his continued back pain. He alleged an onset date of
March 7, 2007—the day of his surgery—and a date last insured
of December 31, 2012.
In September 2013, almost a year after Hall’s date last insured,
Dr. Luken performed the foraminotomy, and within
days Hall reported “substantial relief.” According to
Dr. Luken, Hall’s progress over the next few months was
“generally very encouraging.” In November, Hall told
Dr. Luken that his pain had “slowly but steadily improved,”
and that he was confident that it was less severe than before
the surgery. The next month, Hall reported being “steadily
more comfortable,” so Dr. Luken released him back to work
at the “strictly sedentary” level. In February 2014, Hall told
Dr. Luken that he was still getting “slowly better,” so
Dr. Luken released him to work at “light or medium duty.”
In 2014, Hall appeared at a hearing before an administrative
law judge. He testified that before his date last insured he
could not bend or lift anything, but that he could exercise for
an hour on the bike or treadmill, do laundry, mow grass, and
No. 17‐2628 5
take short walks. Hall also testified that to manage his pain,
he had recently started taking Norco, a narcotic that affected
his concentration.
Applying the familiar five‐step analysis, see 20 C.F.R.
§ 404.1520(a), the ALJ denied disability insurance benefits.
The ALJ determined that Hall had not been engaged in substantial
gainful activity since his alleged onset date (step one);
that his degenerative disc disease with radiculopathy was severe
(step two); and that his impairment did not meet or medically
equal a listing (step three).
The ALJ then considered Hall’s residual functional capacity
and decided that Hall could perform light work, with caveats
not relevant here except that Hall could alternate between
sitting and standing as needed. In evaluating Hall’s
RFC, the ALJ concluded that Hall’s statements concerning the
intensity, persistence, and limiting effects of his symptoms
were “not fully credible” because there was evidence that Hall
exaggerated his symptoms. The ALJ gave Dr. Luken’s opinions
“little weight” because they were generally inconsistent
with the other doctors’ opinions and appeared to rely too
heavily on Hall’s self‐reported symptoms. After finding that
Hall could not perform any past relevant work (step four), the
ALJ credited the vocational expert’s testimony that Hall could
work as an assembler, screener, or an information clerk (step
five). The Appeals Council denied Hall’s request for review.
Hall sought judicial review of the Commissioner’s decision,
and the district court granted the Commissioner’s motion
for summary judgment. The court agreed with the ALJ’s
decision not to give controlling weight to Dr. Luken’s opinion
primarily because his opinion was inconsistent with the
weight of other medical evidence in the record. The court
6 No. 17‐2628
found insufficient the ALJ’s consideration of some factors set
forth in 20 C.F.R. § 404.1527(c) (the “treating‐physician rule”),
but deemed any error harmless because of substantial evidence
that “heavily” undermined Dr. Luken’s opinion—in
particular, the absence of details in Dr. Luken’s treatment
notes, his unfamiliarity with Hall’s previous functional capacity
evaluation, and contradictory opinions expressed by other
doctors (Miz, Hutchinson, and Heller). The district court also
determined that the ALJ adequately substantiated his conclusion
that Hall was “not fully credible” by explaining that the
objective evidence did not support Hall’s reports about the
severity of his symptoms.
II
On appeal Hall challenges the ALJ’s application of the
treating‐physician rule to Dr. Luken’s opinion. Under the
rule, which (although now repealed) applies to Hall’s claim
based upon it being filed before March 27, 2017, a treating
doctor’s opinion generally is entitled to controlling weight if
it is consistent with the record. See 20 C.F.R. § 404.1527(c)(2).
Hall primarily contends that the ALJ wrongly discounted
Dr. Luken’s opinion based on his finding that the opinion was
inconsistent with the record.
We disagree. The record shows that Dr. Luken’s opinion
was at odds with the other doctors’ opinions. For example,
while Dr. Luken said that Hall should be “off work” in March
and June 2011, Drs. Miz, Heller, and Hutchinson had contemporaneous,
conflicting, and fully reasoned opinions that Hall
could continue to work. Indeed, once Hall’s back worsened in
2010, to the point at which Dr. Miz recommended a spinal fusion
surgery, Dr. Miz nonetheless reaffirmed that Hall could
still work within the parameters of the functional capacity
No. 17‐2628 7
evaluation done by the physical therapist in 2008. And after
thoroughly reviewing Hall’s medical records and conducting
physical examinations, Drs. Hutchinson and Heller agreed
with Dr. Miz that Hall could work at the “light” level. Those
doctors all based their opinions on relevant objective evidence
that Dr. Luken did not have access to—the 2008 functional capacity
evaluation—and the ALJ was entitled to credit their
opinions over Dr. Luken’s.
To be sure, Hall is right with two of his observations regarding
Dr. Luken. First, we agree with Hall that the ALJ inappropriately
commented that Dr. Luken’s opinions “seem to
contain a level of sympathy.” If the ALJ somehow found it
necessary to offer such a view, he needed to root the observation
in specific record evidence—for example, an express
statement in a physician’s treatment notes. See 20 C.F.R.
§ 404.1527(c)(2). That did not happen. Instead, the ALJ
broadly speculated—with no citation to any portion of the
record—that Dr. Luken’s opinions “seem[ed] to contain a
level of sympathy as they are not supported by the overall evidence.”
We discourage such stray, unsupported conjecture.
Second, we agree with Hall that the ALJ should not have
discounted Dr. Luken’s opinion because the doctor was referred
by Hall’s internist and was therefore “essentially one
of the claimant’s choosing.” Hall went to see his internist
about his back pain, and the internist reasonably referred Hall
to a neurosurgeon rather than attempt back surgery himself.
We see no reason for Hall, who was in pain, to avoid his doctor’s
recommendation to see a neurosurgeon who was qualified
to treat his back. We fail to understand why Dr. Luken’s
credibility was called into question because Hall decided to
follow‐through with the referral.
8 No. 17‐2628
These two deficiencies in the ALJ’s reasoning do not undermine
the ALJ’s broader conclusion that Dr. Luken’s opinions
were inconsistent with the opinions from other doctors.
Furthermore, the opinions lacked detail and did not show that
he knew of the functional capacity evaluation from 2008. Put
differently, we cannot say that the ALJ’s other misplaced reasons
for discounting Dr. Luken make the ALJ’s overarching
credibility determination “patently wrong.” Schaaf v. Astrue,
602 F.3d 869, 875 (7th Cir. 2010).
We turn now to Hall’s argument that the ALJ improperly
discounted his own testimony without giving adequate reasons,
thereby violating a regulation requiring ALJs to give
specific reasons for credibility determinations that are supported
by the evidence, see SSR 96‐7p. But the ALJ’s credibility
determination here was not “patently wrong” because the
ALJ found Hall “not fully credible” for many specific reasons
supported by the evidence. See Schaaf, 602 F.3d at 875.
Foremost, Hall’s presentation of symptoms was inconsistent.
Though multiple doctors (including Dr. Luken) found
that Hall had a normal gait and range of motion, his physical
therapist expressly stated that Hall “exaggerated” the severity
of his pain while moving and that he was “self‐limiting.”
In addition, Hall’s testimony about his limitations was inconsistent:
he said that he could exercise for an hour, mow grass,
drive, prepare meals, clean, shop, and do laundry, but he simultaneously
insisted that he could not bend or lift anything.
And finally, though Hall testified that pain medication (Suboxone)
would “wipe him out” physically, he seemed to use it
successfully at the time, as he reported no side effects to his
doctor.
No. 17‐2628 9
Hall’s final two arguments are underdeveloped. First, in a
cursory discussion, Hall asserts that the ALJ erred in assessing
his RFC by omitting his level of pain, his need to shift regularly
from sitting to standing, and his need for narcotic medication.
His argument is “perfunctory and undeveloped,” and
therefore waived. Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir.
2016). In any event, the ALJ’s RFC determination did include
Hall’s need to change position, as it allowed him to “alternate
[between sitting and standing] as needed.” The ALJ considered
Hall’s allegations of pain when he evaluated Hall’s testimony
before finding that Hall was “not fully credible.” And
Hall himself testified that he began taking narcotics after his
date last insured.
In another undeveloped argument, Hall contends that the
ALJ did not consider unspecified “medical and testimonial
facts of record” showing that he met Listing 1.04A regarding
spine diseases. That listing, however, requires that a claimant
also have a condition beyond degenerative disk disease:
Evidence of nerve root compression characterized
by neuro‐anatomic distribution of pain,
limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex
loss and, if there is involvement of the lower
back, positive straight‐leg raising test (sitting
and supine).
20 C.F.R. § Pt. 404, Subpt. P, App. 1. Though doctors opined
that Hall had nerve root compression, he has not pointed to
any finding by a medical professional that he had a
“limitation of motion of the spine,” and “motor loss”
“accompanied by sensory or reflex loss.” To the contrary,
10 No. 17‐2628
several doctors found that Hall had a normal gait and range
of motion. Hall had the burden of proof to show that he met
the listing, see Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345,
352 (7th Cir. 2005), and he failed to meet it.
Outcome: We AFFIRM the district court’s judgment upholding the
denial of benefits.
Plaintiff's Experts:
Defendant's Experts:
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