UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

MELANIE D. DALY, )

)

Plaintiff, )

)

v. ) CAUSE NO.: 3:13-CV-41-TLS

)

CAROLYN COLVIN, )

Acting Commissioner of Social Security, )

)

Defendant. )

OPINION AND ORDER

The Plaintiff, Melanie D. Daly, seeks review of the final decision of the Commissioner of

the Social Security Administration denying her application for Supplemental Security Income

under Title XVI of the Social Security Act, 42 U.S.C. § 1382c.

PROCEDURAL HISTORY

The Plaintiff applied for benefits effective June 3, 2010, alleging an onset date of January

2006. The Plaintiff was 36 years old when she filed for benefits. She was denied on initial

consideration and reconsideration. The Plaintiff made a timely request for a hearing before an

Administrative Law Judge (ALJ). On October 4, 2011, the Plaintiff appeared before ALJ David

Skidmore, who heard testimony from the Plaintiff, a vocational expert, and the Plaintiff’s

mother.

On October 14, 2011, the ALJ issued a decision finding that the Plaintiff was not

disabled under § 1614(a)(3)(A) of the Social Security Act. On November 21, 2012, the Appeals

Council denied review, making the ALJ’s decision the final decision of the Commissioner. 

On February 22, 2013, the Plaintiff filed a Complaint in this Court seeking review of the
Commissioner’s decision.

EVIDENCE OF RECORD

The Plaintiff claims to be disabled due to back pain that she treats with Norco and

morphine. The back pain is the result of degenerative disc disease.

In April 2008, the Plaintiff underwent a discectomy of her L4-L5 for treatment of

degenerative disc disease. She initially improved, but then started having pain again. Her

symptoms waxed and waned. In February 2010, the Plaintiff returned to her

neurosurgeon, Dr. David W. Cockerill, with complaints of pain across her back into both hips

and down her left leg into the foot. After Dr. Cockerill evaluated the Plaintiff and reviewed an

MRI, he recommended that the Plaintiff have an L4-5 decompression and fusion surgery to

correct a fairly large disc herniation and degenerative changes, as the treatment she had been

receiving for pain had not alleviated her symptoms. On February 24, 2010, Dr. Cockerill placed

the Plaintiff on a four week no work restriction leading up to the scheduled surgery. The Plaintiff

saw Dr. Cockerill for follow-up exams before the surgery in March. However, the Plaintiff never

underwent the fusion surgery because the long recovery time would interfere with her ability to

care for her six-year-old daughter. The Plaintiff last visited Dr. Cockerill in April 2010. She

requested a discectomy instead of a fusion, which Dr. Cockerill believed would be an

unsatisfactory procedure with a high likelihood of failure and continued pain. The Plaintiff took

Dr. Cockerill’s recommendation under advisement.

The Plaintiff saw Dr. Joseph Glazier for pain management treatment from 2007 to

December 2010. She was first referred to him for epidural steroid therapy when her pain and

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discomfort were not improving with conservative treatment. The Plaintiff’s medical records

reveal pain levels ranging from 5 out of 10 to 8 out of 10 from September to November 2010. (R.

at 273–76, Ex. 17F, ECF No. 7 at 276–78.) In December 2010, Dr. Glazier wrote a letter

summarizing his treatment of the Plaintiff. He wrote that the Plaintiff continued to have “very

significant lower lumbar tenderness despite current medications” and had “very significant

bilateral positive straight leg raising.” (R. at 272, Ex. 17F, ECF No. 7 at 275.) Dr. Glazier stated

that “[i]n general,” the Plaintiff was “able to walk only with systems [sic] of a cane and very

cautiously because of left leg weakness and severe pain despite analgesics. I regard her at the

present time as totally disabled.” (Id.) 

Five months earlier, in July 2010, Dr. Peter Sices had examined the Plaintiff at the

request of the Disability Determination Services. The Plaintiff appeared at the examination alone

and did not use an assistive device. Dr. Sices reported that the Plaintiff had a normal gait with a

stable and sustainable appearance and could carry light objects with either hand. She was able to

get onto and off of the examination table without complaint of pain and without assistance.

Muscle strength was 5/5 except for 3/5 in her hips, which was associated with exacerbation of

low back pain. Dr. Sices reported that the Plaintiff had chronic low back pain with a poor

prognosis for improvement. 

Dr. M. Brill reviewed the Plaintiff’s records and completed a physical residual functional

capacity assessment in August 2010. He reported that the Plaintiff could occasionally lift or

carry 20 pounds, frequently lift 10 pounds, and stand, sit, or walk with normal breaks for about 6

hours in an 8-hour day. The Plaintiff did not have any manipulative limitations. Dr. Brill did not

find that the Plaintiff would require a hand held assistive device for ambulation. He stated that

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there were no medical source opinions in the Plaintiff’s filed that included limitations or

restrictions that were significantly different from his findings. In December, Dr. J. Sands

reviewed the evidence in the file and affirmed Dr. Brill’s assessment.

The Plaintiff testified before the ALJ that she does some household chores, use her

computer, and plays board games, but spent a lot of time in a reclining position. She estimated

she could sit for 10 to 15 minutes at a time before experiencing pain and stiffness. Leaning

forward on her elbows helped alleviate the pain when she was sitting. She could also stand for 10

to 15 minutes at a time. The Plaintiff testified that she could lift 10 pounds.

ANALYSIS

An ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits as

required by 20 C.F.R. § 404.1520. The Plaintiff was unemployed and satisfied the step one

inquiry. At step two, the ALJ determined that the Plaintiff’s lumbar disc disease had an

impairment that caused more than minimal limitations in her ability to perform basic work

activities. As such, it was a severe impairment. Step three requires the ALJ to “consider the

medical severity of [the] impairment” to determine whether the impairment “meets or equals one

of [the] listings in” appendix 1.20 C.F.R. § 404.1520(a)(4)(iii). If a claimant’s impairment rises

to this level, she earns a presumption of disability “without considering [her] age, education, and

work experience.” Id. at § 404.1520(d). But if the impairment falls short, an ALJ must examine

the claimant’s “residual functional capacity”—the types of things she can still do physically

despite her limitations—to determine whether she can perform this “past relevant work,” id. at §

404.1520(a)(4)(iv), or, failing that, whether the claimant can “make an adjustment to other

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work” given her “age, education, and work experience,” id. at § 404.1520(a)(4)(v). The ALJ

determined that the Plaintiff’s impairment did not meet or equal any of the listings in appendix 1.

And because she could still perform sedentary work, she could “make an adjustment to other

work” in occupations such as addresser, touch up screener, account clerk, and hand mounter,

thus thwarting her disability claim at step five. Essentially, the Plaintiff argues that the ALJ erred

in his interpretation of the medical evidence, which caused him to reach the wrong conclusion

regarding the Plaintiff’s RFC. Specifically, the Plaintiff claims that the ALJ should have given

controlling weight to the opinions of Dr. Cockerill and Dr. Glazier.

In an appeal from the denial of social security benefits, the court is not free to replace the

ALJ’s estimate of the medical evidence with its own. Terry v. Astrue, 580 F.3d 471, 475 (7th Cir.

2009) (stating that the court may not reweigh the evidence or substitute its judgment for that of

the ALJ). Instead, the court reviews the ALJ’s decision for substantial evidence, 42 U.S.C. §

405(g), meaning that the court ensures that the decision rests on “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion,” Richardson v. Perales, 402

U.S. 389, 401 (1971). When an ALJ recommends that the agency deny benefits, it must first

“build an accurate and logical bridge from the evidence to the conclusion.” Clifford v. Apfel, 227

F.3d 863, 872 (7th Cir. 2000). “In other words, as with any well-reasoned decision, the ALJ must

rest its denial of benefits on adequate evidence contained in the record and must explain why

contrary evidence does not persuade.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).

Where conflicting evidence would allow reasonable minds to differ as to whether the claimant is

disabled, it is the ALJ’s responsibility to resolve those conflicts. Elder v. Astrue, 529 F.3d 408,

(7th Cir. 2008). Conclusions of law are not entitled to such deference, however, so where the

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ALJ commits an error of law, the court must reverse the decision regardless of the volume of

evidence supporting the factual findings. Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007).

The ALJ’s job was to assess the Plaintiff’s RFC by evaluating the “objective medical

evidence and other evidence” to determine whether it was consistent with the Plaintiff’s

subjective statements regarding her impairment. 20 C.F.R. § 404.1529(a), (d)(3). In general, the

claimant is responsible for providing the evidence that the ALJ uses to determine the RFC. 20

C.F.R. § 404.1545(a)(3). Evidence offered must be “complete and detailed enough to allow” the

ALJ to make a determination of disability, including the RFC to do work-related physical

activities. 20 C.F.R. §404.1513(e). Although the ALJ need not address every piece of evidence,

the ALJ cannot limit his discussion to only that evidence that supports his ultimate conclusion.

Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). But an ALJ must only “minimally articulate

his or her justification for rejecting or accepting specific evidence of a disability.” Rice v.

Barnhart, 384 F.3d 363, 371 (7th Cir. 2004). 

The ALJ’s conclusion that the Plaintiff was functionally able to do sedentary work was

entirely consistent with the opinion offered by Dr. Sices, the doctor for Disability Determination

Services who examined the Plaintiff in July 2010. The ALJ noted that Dr. Sices was a medical

expert, he thoroughly examined the Plaintiff, and he determined that she had no impairments

related to “gait, coordination, vision, hearing, speech, memory, concentration, attention span,

social interactions, of fine and gross manual dexterity,” but that she had “chronic low back pain”

with a poor prognosis for improvement. The examination revealed that the Plaintiff did not have

limitations in her range of motion, but had reduced strength in her hips. The ALJ credited the

report’s findings as being “consistent with the medical records, which indicate the claimant

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experiences significant back pain, but not to such extent it would preclude sedentary work.” (R.

at 17, ECF No. 7 at 20.)

The ALJ did not give as much weight to the opinions of state agency medical consultants,

Dr. Brill and Dr. Sands. The ALJ noted that they were medical experts who had an opportunity

to review the entirety of the Plaintiff’s medical record and were familiar with Social Security

Records, but that they did not actually meet and examine the Plaintiff. Although he thought their

opinion that the Plaintiff could perform work at the light exertional level with additional postural

limitations was “generally consistent with the medical record,” he only afforded their opinions

“some weight” because he thought the evidence merited that the Plaintiff be further limited to

the sedentary level of exertion. (R. at 17.)

The ALJ discussed and dismissed the medical evidence that the Plaintiff contends

supports her claim of disability. In particular, the ALJ afforded “very little weight” to the

opinion of Dr. Cockerill that the Plaintiff should be excused from work for four weeks in

February 2010, as the opinion did not address any time beyond four weeks and did not address

the Plaintiff’s “long term physical limitations.” (R. at 18.) The ALJ concluded that the opinion

had “no probative value for purposes of determining the claimant’s functional limitations.” (Id.)

In providing this reasoning, the ALJ adequately explained why he assigned little weight to the

four week work restriction. 

There is nothing inaccurate in the ALJ’s statements about the limited value of a four

week restriction leading up to a scheduled surgery. The restriction was not accompanied by any

assessment of the Plaintiff’s actual limitations. There is no indication in the record as to what

kind of work Dr. Cockerill believed was at issue, or that the Plaintiff was even working at the

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time. In fact, the ALJ noted elsewhere in his decision that the Plaintiff had not worked for more

than ten years. Even if the restriction supported the finding that the Plaintiff’s limitations

prevented her from doing any work, including sedentary work, the restriction was put in place

for only four weeks. Because the Plaintiff stopped seeing Dr. Cockerill when she decided not to

have the fusion surgery, there is nothing in the record to suggest that he would have continued to

restrict her work activity. The Plaintiff bears the burden of proving that she is disabled, and the

note was insufficient evidence that her degenerative disc disease rendered her incapable of

working in sedentary positions, particularly in light of the opinion of the consulting physician,

Dr. Sices. See Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001) (“When treating and

consulting physicians present conflicting evidence, the ALJ may decide whom to believe, so

long as substantial evidence supports that decision.”); Books v. Chater, 91 F.3d 972, 979 (7th

Cir. 1996) (“[I]n the end, it is up to the ALJ to decide which doctor to believe—the treating

physician who has experience and knowledge of the case, but may be biased, or . . . the

consulting physician, who may bring expertise and knowledge of similar cases—subject only to

the requirement that the ALJ’s decision be supported by substantial evidence.”).

The ALJ also gave “little weight” to the opinion of Dr. Glazier, the Plaintiff’s treating

pain management specialist. The Plaintiff argues that the ALJ should have given more weight to

Dr. Glazier’s opinion that the Plaintiff was “totally disabled” from work. According to the ALJ,

Dr. Glazier did not offer findings to support this conclusion. The only functional limitation Dr.

Glazier mentioned was that the Plaintiff was unable to walk without the aid of a cane, but the

ALJ found this statement “extremely difficult to credit” because the Plaintiff had appeared at her

consultative exam five months’ earlier without any assistive device. Additionally, the medical

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records indicated that the Plaintiff’s symptoms waxed and waned, but they did not reveal that the

symptoms “waxed so dramatically so as to reduce her from the ability to ambulate without

difficulty to being only able to ambulate with the assistance of a cane.” (R. at 17–18.) In any

event, the sedentary positions that the vocational expert identified were capable of being

performed even by a person who ambulated with the assistance of a cane. (R. at 20.) Thus,

contrary to the Plaintiff’s argument, Dr. Glazier did not assign functional limitations on the

Plaintiff that established she was unable to sustain full time employment.

The ALJ provided an adequate explanation for giving more weight to the evaluation of

Dr. Sices and built a logical bridge between the evidence of the Plaintiff’s impairment and his

conclusion that the Plaintiff was “limited to less than the sedentary exertional level due to her

degenerative disk [sic] disease” and required a “sit/stand option that permit[ted] altering

positions once an hour for five minutes.” (R. at 18.) As this Court cannot alter this RFC without

reconsidering facts, reweighing evidence, or resolving conflicts in evidence, it finds no basis to

remand the ALJ’s decision.

CONCLUSION

For the reasons stated above, the Court AFFIRMS the Commissioner’s decision. The

Clerk will enter judgment in favor of the Defendant and against the Plaintiff.

SO ORDERED on January 27, 2014.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

FORT WAYNE DIVISION

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