573 F.3d 503 (7th Cir. 2009), 07-3682, Simila v. Astrue

Docket Nº:07-3682.
Citation:573 F.3d 503
Opinion Judge:TINDER, Circuit Judge.
Party Name:Kevin G. SIMILA, Plaintiff-Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.
Attorney:Marcie E. Goldbloom, Attorney (argued), Daley, Debofsky & Bryant, Chicago, IL, for Plaintiff-Appellant. James B. Geren, Attorney (argued), Social Security Administration, Office of the Regional Chief Counsel, Region V, Chicago, IL, for Defendant-Appellee.
Judge Panel:Before CUDAHY, POSNER, and TINDER, Circuit Judges.
Case Date:July 22, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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573 F.3d 503 (7th Cir. 2009)

Kevin G. SIMILA, Plaintiff-Appellant,


Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

No. 07-3682.

United States Court of Appeals, Seventh Circuit.

July 22, 2009

Argued May 29, 2008.

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Marcie E. Goldbloom, Attorney (argued), Daley, Debofsky & Bryant, Chicago, IL, for Plaintiff-Appellant.

James B. Geren, Attorney (argued), Social Security Administration, Office of the Regional Chief Counsel, Region V, Chicago, IL, for Defendant-Appellee.

Before CUDAHY, POSNER, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Once a strapping construction laborer, Kevin Simila claims that a mysterious pain disorder has withered his physical prowess and left him unable to work. Simila applied for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). But after a hearing, the administrative law judge ("ALJ") was dubious of the severity of Simila's limitations. And for good reason. The record showed that Simila had gone hunting and fishing, attended his sons' peewee hockey games, and even helped a friend build a log home-all after the time Simila claimed to have become disabled. But no matter how fishy a claim for Social Security benefits might seem, an ALJ must follow the same rules for every case. She must refrain from " playing doctor," properly evaluate the medical evidence and the's credibility, and accurately incorporate the's limitations into any hypothetical question used to elicit the opinion of a vocational expert. Despite Simila's contentions to the contrary, we think that the ALJ adequately performed these duties in this case. The medical evidence lent little support to Simila's case and the ALJ had good reason to doubt Simila's testimony. And though imperfect, the ALJ's hypothetical questions adequately described Simila's condition. We therefore affirm.

I. Background

A. Kevin Simila's Symptoms and Treatment

Until Simila's symptoms began in 2002, he worked as a construction laborer and an occasional carpet installer and bartender. In mid-September of that year, Simila went to his primary care physician, Dr.

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Enders, complaining of flu-like symptoms, headaches, and joint pain. Dr. Enders, on staff at the Midelfort Clinic, examined Simila and performed several diagnostic tests. He did not observe any apparent joint swelling, and Simila's test results for Lyme Disease were negative. During this visit, Simila admitted to having abused cocaine intravenously in the past but stated that he never shared needles and had been drug-free for fifteen years.

Simila stopped working construction around October 2, 2002 and returned to the Midelfort Clinic several times throughout October complaining of similar symptoms. Dr. Enders noted that Simila had " arthralgias [joint pain] and myalgias [muscle pain] of undetermined etiology" and prescribed Vicodin to ease the pain. As for his headaches, a CT scan revealed that Simila had a sinus infection. Dr. Enders referred Simila to Dr. Bartynski, an otolaryngologist, who examined Simila and surgically drained his sinuses. The procedure did not alleviate the headaches, though.

Simila's symptoms continued throughout the rest of 2002. He continued to see a number of doctors and take pain medications such as Vicodin and Percocet during that time. He saw two neurologists, Dr. Chukwudelunzu and Dr. Dexter, who each examined Simila but could not determine the cause of his pain. Dr. Chukwudelunzu found that Simila " demonstrate[d] adequate fund of knowledge, attention, concentration and memory during history and neurologic examination," and that Simila had normal muscle strength, coordination, and reflexes. Dr. Chukwudelunzu diagnosed Simila with chronic headaches but noted that " I think this will turn out to be a chronic daily headache with possible superimposed narcotic-induced headache," referencing Simila's pain medication. Dr. Chukwudelunzu changed Simila's prescription to taper his Percocet use and control his pain with other medications (Simila still continued to use Percocet, though). Dr. Dexter concluded similarly. He diagnosed Simila with " diffuse myalgias and headache, etiology unclear," observing that his muscle strength was normal, except for some " giveaway weakness," a sign that Simila might have been exaggerating the effects of his pain, see MURIEL D. LEZAK ET AL., NEUROPSYCHOLOGICAL ASSESSMENT 326 (4th ed. 2004) ("Neurological examiners repeatedly noted give-away weakness (poor effort on strength testing) indicating that [the patient] was actively preserving a disability status." (emphasis is original)). In addition, like Dr. Chukwudelunzu, Dr. Dexter concluded that the longer Simila used narcotic pain medications, the more likely it was that the narcotics contributed to his headaches.

Dr. Dexter also noted that Simila had been " somewhat active" despite his pain. Simila had explained to Dr. Dexter that he " was able to go out deer hunting" and " has been able to go out and take his son to hockey and father/son hockey games," even though he experienced discomfort and soreness the next day.

Simila also saw a rheumatologist, Dr. Shelley, who, like other doctors, found little explanation for Simila's complaints. Dr. Shelley observed that Simila had no swelling in any of his joints, a normal grip strength, and a " full range of motion without pain" in his wrists, elbows, shoulders, hips, knees, ankles, and feet. Dr. Shelley diagnosed " arthralgias and myalgias of uncertain etiology" and " headaches," and noted that he did " not see evidence to suggest the significance of an arthritic condition."

Throughout this time, Simila did not work and drew disability compensation from his union. Dr. Enders and Dr. Bartynski each twice signed off on Simila's disability forms. On the second of Dr.

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Enders's forms, completed December 3, Dr. Enders noted that Simila had been continuously disabled from October 2, 2002 through " indefinite."

In 2003, Simila continued seeing Dr. Enders and also began treatment at the Mayo Clinic. At Mayo, he repeated his complaints of headaches and back, joint, and muscle pain, especially during physical activity. Doctors noted that Simila described how his joints hurt after he helped a friend replace a gas tank and how his fingers would become numb when he used a hammer or went bowhunting. Several tests gave some explanation for Simila's back problems. In Simila's lumbar spine, tests showed " degenerative disk disease with slight narrowing of the 3rd and 4th lumbar disks with broad-based disk bulges and small associated annular tears," and in his cervical spine, tests showed " mild degenerative changes." However, doctors noted that Simila's spine had a normal pain-free range of motion with " a slight increase in pain with aggressive palpation of the right sacroiliac joint." Doctors also found that Simila had full range of pain-free motion in all four extremities. In addition, like the doctors at Midelfort, multiple doctors at Mayo noted that Simila was overusing his pain medication; they did note, though, that Simila expressed interest in getting off of it. Simila continued to receive disability payments from his union, and Dr. Enders's colleague, Dr. Usher, signed off on Simila's union disability form.

Simila's doctors tried several different forms of treatment to reduce his pain, some of which were more successful than others. Physical therapy was one of the less effective. Noting that Simila " enjoys hunting, fishing, and four wheeling and playing hockey," the therapist developed a treatment plan for Simila with the goal of reducing Simila's symptoms by 50-75%. But Simila never returned after the first session and was subsequently discharged. Doctors also tried additional medications, which had some temporary success. Dr. Enders prescribed Depakote for headaches, and after a month, Simila reported that his headaches were " much less frequent." By March 2003, Simila reported he was " about 90% better."

Dr. Enders also prescribed Prednisone, a steroid, to improve Simila's muscle and joint pain. The Prednisone was so effective that after two weeks Simila reported a marked decrease in pain; Simila said " it is all gone." Dr. Enders noted that " he was feeling so good that he has been doing some fairly heavy work for the last week involving peeling logs and helping to build a log home." Simila reported only normal muscle soreness and stiffness after that work. Simila also instructed Dr. Enders not to complete another union disability form, and around April 2003, Simila returned to work as a construction laborer. But it didn't last. Due to Prednisone's side effects, Simila's doctors reduced the dosage, after which Simila complained that his pain symptoms had flared back up. Simila stopped work again sometime during the summer or fall of 2003. (Although the ALJ found Simila to only have worked during June and July, some medical records indicate that Simila was working as late as September.)

Doctors continued to try different medications to treat Simila's pain but saw limited success. They tapered Simila off Prednisone and started him on Enbrel, a medication for joint pain taken by injection, which worked relatively well at first (Simila reported " about 75 percent improvement of his symptoms"). But again Simila's complaints of pain returned, and in November 2003, Simila sought Dr. Kent, a rheumatologist, to approve his union disability form. Dr. Kent signed the

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form but wrote, " While his musculoskeletal pain makes hard physical labor extremely difficult, I see no reason he couldn't perform clerical work...

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