Pepper v. Colvin

• Decision Date: 04 April 2013
• Docket Number: No. 12–2261.,12–2261.
• Citation: 712 F.3d 351
• Parties: Rebecca E. PEPPER, Plaintiff–Appellant, v. Carolyn W. COLVIN,Acting Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

712 F.3d 351

Rebecca E. PEPPER, Plaintiff–Appellant,

v.Carolyn W. COLVIN,^*Acting Commissioner of Social Security, Defendant–Appellee.

No. 12–2261.

United States Court of Appeals,Seventh Circuit.

Argued Jan. 16, 2013.

Decided April 4, 2013.

Ashley S. Rose (argued), Attorney, Glen Ellyn, IL, for Plaintiff–Appellant.

Anne M. Kenny–Kleinman (argued), Attorney, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant–Appellee.

Before BAUER and HAMILTON, Circuit Judges, and MILLER, District Judge.^**

BAUER, Circuit Judge.

Rebecca E. Pepper suffers from numerous physical and mental impairments that affect her ability to function. In 2008, she applied for disability benefits, but the Administrative Law Judge (ALJ) denied her claim. Now, after unsuccessfully seeking relief from the district court, Pepper turns to us contending that the ALJ's ruling is both substantively and procedurally flawed. Specifically, Pepper argues: first, that the ALJ made numerous errors when addressing Pepper's residual function capacity (RFC), and second, that the ALJ's credibility determination was inadequately supported and patently wrong. We believe that substantial evidence supports the ALJ's denial of benefits and affirm.

I. BACKGROUND

In September 2008, Pepper, then 54 years old, applied for Supplemental Security Disability Insurance Benefits with the Social Security Administration (SSA), alleging that she became unable to work in November 1998 as a result of numerous physical and mental impairments. (The alleged onset date was later amended to October 18, 2002, the date Pepper last worked.) The critical inquiry is whether Pepper became disabled at any time prior to December 31, 2007, the date Pepper was last insured. See Eichstadt v. Astrue, 534 F.3d 663, 666 (7th Cir.2008). The SSA denied Pepper's claim but granted her a hearing with an ALJ, which was held on October 26, 2009.

A. Medical Records

The extensive medical records in this case demonstrate that Pepper sought treatment for numerous health concerns over the years. At various times, Pepper has been assessed as having the following ongoing ailments: neck pain and limited range of motion in her neck, degenerative disc disease in her spine, left knee problems, migraine headaches, problems with her vision, diabetes, asthma, mitral valve prolapse, sciatica, dyslipidemia, hyperglycemia, hypertension, allergic rhinitis, obesity, plantar fasciitis in her left heel, caregiver stress, and depression. We confine our discussion of Pepper's medical records to the information most relevant to the ALJ's ultimate determination and this appeal.

1. Physical Impairments

a. Knee, Back, and Neck Problems

Pepper said that her left knee pain began in 1998 when she was going up and down a ladder. She took anti-inflammatory medicine but claimed it did not relieve the discomfort. A 2000 magnetic resonance imaging scan (MRI) was negative except for small effusion at the knee. In January 2003, Dr. Christopher Kafka, Pepper's cousin, noted that Pepper had a chronic problem with her left knee and decreased range of motion, which he estimated to be 10–25 degrees and opined that Pepper walked with a limp and had back pain as a result. An examination in December 2003 revealed the knee could only flex 20 degrees and made a creaking sound with movement, but there was no local edema (excess fluid).

Pepper began seeing Dr. Xiaolu Li, a family practitioner, in January 2004. She noted that Pepper could not bend her left knee very well and had back pain on her left side that radiated to her left knee. Pepper complained of a new knee pain in July 2005. An x-ray that month was negative. In August 2005, Pepper saw Dr. Susan Goodner, a VA staff physician, who noted that Pepper “would not let her move [Pepper's] left knee” and she “could not force it into flexion.”

Pepper had an appointment with Dr. Janelle Regier, a VA rheumatology fellow, in October 2005. Pepper said the knee pain had gone away but that she could not flex her knee past 15 degrees. Dr. Regier noted that Pepper “walks with a limp and walks on the lateral side of the right foot.” Pepper could stand with both feet flat on the floor without pain, “walk heel-toe,” and stand on her heels. She had difficulty standing on her tiptoes. Dr. Rebecca Tuetken, a VA staff physician, agreed with Dr. Regier's assessment. Also in October 2005, Dr. Shaun Christenson, a VA resident, noted that Pepper favored her left leg when walking “due to [an] old knee injury.” Dr. James Putman, a VA staff physician, noted in April 2006 that Pepper had arthritis in her knees and back.

In October 2007, Pepper was able to perform a “Get-up and Go Test.” ¹ That month, Dr. Mike Hackmann, a VA staff physician, noted that Pepper's exercise tolerance was “okay.” A progress note from December 2007 states, “[Pepper] was instructed to exercise aerobically for 20–30 minutes three times weekly as directed by [her] physician” and “to increase physical activity.”

Pepper told her doctors that she began experiencing left neck pain in 1994 when she was answering phones while working as a secretary. In January 2003, Dr. Kafka noted that Pepper could only rotate her neck 5 degrees to the left and 75 degrees to the right. He said Pepper's flexion was within normal limits. Examinations in February 2004 and January 2005 did not reveal any abnormalities.

Pepper said in July 2005 that she “has to sit a certain wa[y] and turn her head to see properly.” Neck x-rays that month revealed degenerative disc disease at C5–6—disc space narrowing and anterior osteophyte formation. In August 2005, Pepper saw Dr. Goodner who wrote, “Testing ROM of neck was nearly impossible. Either the patient could not understand my directions or she simply could not make her neck move as I instructed her to do.” Dr. Goodner further stated, “[T]his almost strikes me as deliberate, but cannot rule out early movement disorder or rheumatologic disorder[.]”

In October 2005, Dr. Regier noted that Pepper could not rotate her neck past 35 degrees even though she no longer had pain. Pepper did not know why she could not move her neck despite the absence of pain. Dr. Regier could not explain Pepper's lack of range of motion and said that the degenerative disc disease did not explain Pepper's symptoms. That month, Pepper told Dr. Deema Fattal, a VA staff physician, that she “hears cracking/ noises” in her neck and that, in 1998, her neck issues were exasperated when carrying a heavy box with a coworker. Further examinations by Dr. Christenson revealed 5/5 strength in Pepper's upper and lower extremities, normal reflexes, and normal sensation despite findings that (1) Pepper had “some” cervical osteoarthritis; (2) her right sternocleidomastoid muscle (large muscle on the side of her neck) was “hypertrophied”; (3) she had dystonic posturing (her right shoulder was higher than her left); and (4) she had a hint of left laterocollis (tilting of her head). Pepper could only move her neck in a “jerky/nonstraight” path. In October 2005, Dr. Fattal and Dr. Christenson recommended Pepper get Botoxinjections for her neck problems.

An MRI of Pepper's spine in November 2005 revealed mild degenerative disease throughout Pepper's cervical spine with foraminal narrowing at C5–6. Pepper saw Dr. Ergun Uc, a VA staff neurologist, the day after her MRI. Pepper had a limited range of motion in her neck that she claimed impeded her driving and led to other compensatory measures. Pepper denied any significant pain. Dr. Uc repeated Dr. Christenson's findings regarding Pepper's head tilt, ability to rotate her head, and elevated right shoulder, and noted the July 2005 x-ray findings. Dr. Uc also stated that an electromyogram (EMG) and nerve study of Pepper's cervical paraspinal muscles was normal, but that it was not clear how much of Pepper's posture abnormalities were due to the degenerative joint disease. Dr. Uc thought Botox injections might improve Pepper's neck range of motion.

In December 2005, Dr. Uc contacted Pepper with her MRI results and suggested that she try Botox. Pepper said she was not interested in the Botox injections. In November 2006, Dr. Putman wrote that Pepper could do activities of daily living “okay.” In December 2007, Dr. Hackmann noted that Pepper had an “episode” in November 2007 of sharp pains along the left side of her neck and back but that Pepper was “feeling much better.” Dr. Hackmann said this episode was most likely the result of a muscle strain and recommended Pepper apply heat and perform range of motion exercises to relieve discomfort.

b. Vision Problems

Pepper saw Dr. Jill Brody, an ophthalmologist, approximately every six months from 1997 to November 2007. Dr. Brody diagnosed Pepper with numerous, longstanding vision issues, including congenital esotropia (crossed eyes), nystagmus (rapid eye movements), double vision, vertigo, suspected glaucoma, the effects of migraine headaches, and “mild” cataracts. Aside from cataracts, which Dr. Brody discovered in 2004, Pepper had most of these problems at birth or several years before she stopped working in 2002.

During appointments in 1999, 2003, and 2005, Pepper told Dr. Brody that she periodically sees yellow spots. In September 1999 and May 2006, Pepper complained to Dr. Brody of difficulty reading at times due to blurriness. Pepper said “small print was more difficult to see” in November 2007.

At various appointments from 1998 to 2008, Pepper had visual acuity of 20/20 to 20/30 in each eye with glasses. (20/20 is normal vision). In 2008, Dr. Brody opined that Pepper could read fine print occasionally, ambulate safely, avoid common hazards in the workplace, drive safely, and perform activities that require good distant, detailed vision. She described the prognosis for Pepper's right and left eye as “fair.” Dr. Brody also concluded that Pepper has no depth perception, has poor hand/eye coordination, and gets headaches from her...