NONPRECEDENTIAL DISPOSITION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 July 9, 2014
Decided August 4, 2014
Before
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13‐3531
JEAN ARTHA THOMPSON, Appeal from the United States District
Plaintiff–Appellant, Court for the Central District of Illinois.
v. No. 12‐1435
CAROLYN W. COLVIN, James E. Shadid,
Acting Commissioner of Social Security, Judge.
Defendant–Appellee.
O R D E R
Jean Thompson filed two applications for Disability Insurance Benefits (“DBI”),
alleging different impairments in overlapping periods. The Appeals Council consolidated
her applications, amended the onset date of her disability to August 2007, and remanded.
Thompson narrowed her claim to allege that she became disabled from fibromyalgia and
chronic fatigue syndrome. An administrative law judge rejected this claim, and the Appeals
Council denied review. The district court concluded that sufficient evidence supports the
ALJ’s decision. Thompson appeals raising six issues, but we conclude that she waived three
of those by failing to raise them in the district court. The remaining three issues,
challenging the ALJ’s handling of the testimony of her primary‐care physician, its RFC
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determination, and its description of her fibromyalgia diagnosis, lack merit. We therefore
affirm the judgment.
I. BACKGROUND
Thompson was 55 years old when she first applied for DIB. She had stopped
working a year earlier, in January 2005, after taking a disability leave from her job as a
business analyst for State Farm Insurance.
1) Medical History
Thompson has received treatment for a host of mental and physical conditions since
at least 2003. She began seeing Dr. Stephen Belgrave, a family physician, in 1983, and as
early as December 2003 complained to him that fatigue, restless legs, and problems
sleeping were keeping her from full‐time work. A psychiatrist, Dr. Charles Hawley,
prescribed Thompson medication for her fatigue, which she reported “helped a lot,”
allowing her to return to full‐time work in October 2004. In November 2004, she began
complaining of back pain, and Dr. Belgrave referred her to pain specialist and osteopath
Dr. Christopher Rink. Dr. Rink noted that Thompson exhibited features often associated
with fibromyalgia, except that her pain was limited to her head and did not diffuse into her
extremities, as is typical with fibromyalgia. Thompson’s sleep improved, and in January
2005 she vacationed in Hawaii.
When Thompson returned from her trip, however, Dr. Belgrave advised her not to
return to work and to allow further evaluation based on her “constellation of symptoms
and long‐standing problems.” Thompson gradually improved in the subsequent weeks,
but Dr. Belgrave advised her to remain home because “she is on the verge of needing
disability” and returning to work “might cause her to be terminated.” In February 2005,
Thompson contacted a physician working with State Farm, Dr. Zehr about pursuing
disability benefits.
Dr. Hawley met with Thompson again in March andwrote in his progress notes that
he had spoken with Dr. Zehr, who told him that Thompson had been on temporary
disability intermittently for several years and feared that Thompson would be fired if she
returned to work before fully recovering. Dr. Hawley opined that “probably she is not
going to improve” and “she probably does have an early dementia,” yet he diagnosed her
only with a somatoform disorder—a mental illness that can cause bodily symptoms, such
as pain, without any physical cause. See Somatoform Disorders, WEBMD.COM,
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http://www.webmd.com/mental‐health/ somatoform‐disorders‐symptoms‐types‐treatment
(last reviewed on May 29, 2014).
Drs. Belgrave and Hawley in April 2005 referred Thompson to a neuropsychologist,
Dr. Joseph Alper, to evaluate her memory problems. He concluded that Thompson’s
behavior was “strongly suggestive of a fronto‐temporal dementia,” also known as Pick’s
disease, see NINDS Frontotemporal Dementia Information Page, NIH,
http://www.ninds.nih.gov/disorders/ picks/picks.htm (last updated July 18, 2014).
However, it was not until a follow‐up in June 2005 that he gave that as his diagnosis. Also
in April 2005, neurologist Dr. William Landau evaluated Thompson for back pain. He
found no cause for the pain but reported that Thompson had said she felt unable to sit still
for two hours at a time, had a tingling sensation in her toes, and “really doesn’t want to go
back to work,” preferring to stay home with her new boyfriend.
In July 2005, Thompson told Dr. Hawley that she disagreed with Dr. Alper’s
diagnosis of Pick’s disease. While Dr. Hawley agreed with Dr. Belgrave that her illness was
not work‐related, he sent a letter to State Farm recommending that she go on permanent
disability based on her Pick’s disease. In August 2005 Thompson saw another neurologist,
Dr. Kristopher Bujarski. He reported Thompson’s chief complaint as back pain. He also
spoke with Thompson’s daughter and boyfriend; the boyfriend related little evidence of
a serious condition, but the daughter stated that Thompson’s personality had “dramatically
change[d]” and that her lifestyle had changed. Dr. Bujarski agreed that “the most likely
diagnosis is frontotemporal dementia.”
In September 2005, Thompson was asked by State Farm to take a permanent
disability leave. The next month, on a referral from Dr. Hawley, she saw yet another
neurologist, Dr. Karyn Catt, who noted that Thompson seemed to have several memory
issues and “probably is an unreliable historian.” Dr. Catt agreed with the diagnosis of
Pick’s disease. Although Thompson initially said that “she does not mind having this
diagnosis so that she can receive disability,” she later became agitated when Dr. Catt
mentioned the diagnosis of probable dementia.
In February 2006, Dr. Belgrave stated in a progress note that Thompson should
qualify for permanent disability because she had shown symptoms of back pain for more
than six months. He completed a form stating as much. It was then that Thompson first
applied for disability insurance benefits based on her diagnoses of Pick’s disease and
restless leg syndrome, though she had not complained about the latter since 2004. She did
No. 13‐3531 Page 4
not assert any difficulties working based on back pain, chronic fatigue, or fibromyalgia.
Thompson alleged an onset date in January 2005.
The next month, in March 2006, Thompson met with psychologist Dr. William
Hilger on a referral; Dr. Hilger reviewed Thompson’s psychological problems in
connection with her disability application. Dr. Hilger opined that Thompson did not have
dementia, “certainly not of the Pick’s type if she does have dementia,” and was mentally
capable of managing benefit payments, if she received them. In April 2006,
Dr. Hima Alturi, a consulting physician, examined Thompson and reported no limitations
on limb movements, walking, squatting, or any other functions attributable to her back
pain.
In May 2006, Dr. Belgrave completed a “Physical Capacities Evaluation” in support
of Thompson’s application for disability benefits. He concluded that in an 8‐hour workday,
Thompson could occasionally climb, balance, stoop, kneel, crawl, reach above her head,
and carry up to 50 pounds. He believed a sit–stand option would benefit Thompson based
on her back pain and that Pick’s disease was her “main disabling factor.”
Also in support of her application, psychologist Dr. Cheri Miller, who had been
treating Thompson since May 2005, submitted a letter stating that Thompson seemed
unable to “handle the riggers [sic] of full time employment.” By the end of 2006,
Dr. Belgrave opined in his notes that Thompson soon could return to part‐time work that
“does not cause a lot of psychological stress.” In May 2007, he wrote in a letter addressed
“To Whom It May Concern” that Thompson “would be unable to perform her required
duties” if placed in a stressful work environment. In July 2007, Dr. Shanna Kurth, yet
another neuropsychologist, conducted an independent assessment of Thompson from an
unspecified referral. Dr. Kurth disagreed with Dr. Belgrave and found “[n]o evidence of
a formal thought disorder,” questioned the diagnosis of dementia, and instead concluded
that Thompson had a personality disorder or somatoform disorder and simply did not
want to return to work.
In August 2007, State Farm ended Thompson’s disability coverage because,
Thompson was told, there was nothing medically wrong with her, and it was “all in [her]
head.” Soon thereafter, psychiatrist Dr. Carmen Chase examined Thompson, concluding
that she did not have dementia but did have Major Depressive Disorder and, in agreement
with Dr. Kurth, also might have a somatoform disorder. Dr. Chase added that it was
possible Thompson was malingering. In a follow‐up visit with Dr. Chase in May 2008,
Thompson reported that her disability benefits had been restored by State Farm, and
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Dr. Chase reported seeing no sign of cognitive decline, which is “inconsistent with Pick’s
d i s e a s e . ” S e e P i c k d i s e a s e , M E D L I N E P L U S ,
http://www.nlm.nih.gov/medlineplus/ency/article/000744.htm (last updated July 9, 2014).
Dr. Hilger reevaluated Thompson in March 2009 and agreed that she showed no signs of
Pick’s disease, but he did agree with Dr. Kurth that she showed signs of a somatoform
disorder.
Although Dr. Rink had first raised the possibility of fibromyalgia in November 2004,
Thompson was not diagnosed with that condition until September 2008 after an exam by
a physician specializing in pain management. A rheumatologist agreed with that diagnosis
after evaluating Thompson in November 2009, and the next month, Dr. Belgrave referred
Thompson to Dr. Ellen King, an anesthesiologist, for “a second opinion for her diagnosis
of Fibromyalgia for insurance purposes.” According to Dr. King, Thompson told her that
the purpose of her visit was “to find a physician who will either agree with the diagnosis
of Pick’s disease so that she may obtain social security disability or confirm that she will
be disabled due to her diagnosis of fibromyalgia.” Dr. King found no neurological distress
and advised Thompson that fibromyalgia “is not necessarily a debilitating disease if the
recommended therapy is adhered to.” But in February 2010, in support of her second
application for disability benefits, Dr. Belgrave reported that Thompson’s fibromyalgia
“contributes wiyh [sic] physical limitations to her return to work,” though he
acknowledged that the diagnosis of Pick’s disease “is now questioned.”
Yet another physician, family specialist Dr. James D. Ausfahl, concluded in April
2010 that Thompson had no functional capacity limitations despite her history of
fibromyalgia, though he did note that her visual acuity was somewhat limited. And in May
2010, a state‐agency reviewing physician and general practitioner, Dr. Sandra Bilinsky,
assessed Thompson’s functional limitations, concluding that in an 8‐hour workday,
Thompson could lift, carry, push, or pull up to 20 pounds, stand or walk for 6 hours, and
sit for 6 hours. She found no postural, manipulative, or environmental limitations, and
concluded that Thompson’s description of her limitations was not supported by the
medical evidence. Dr. Bilinsky also concluded that Thompson’s far visual acuity was
limited. A state‐agency psychologist, Dr. Phyllis Brister, concluded also in May 2010 that
Thompson’s “Somatoform Disorder and Alcohol Dependence in reported remission” did
not satisfy any disability under the Listing of Impairments.
By August 2010, Dr. Belgrave had expressed concern that Thompson was not
properly addressing her fibromyalgia. He told her to “become more aggressive” in
managing her condition, including with aqua therapy and Tai Chi or another stretching
No. 13‐3531 Page 6
regimen. Thompson followed up with Dr. Rink, who noted that Thompson had not yet
started her therapy as of January 2011 because “she is just too tired to get out for therapy.”
In March 2011, Dr. Rink again saw Thompson, who was concerned about her pending
claim for DIB and whether the diagnosis of fibromyalgia would entitle her to benefits. In
May 2011, Dr. Belgrave wrote in another letter addressed “To Whom It May Concern,” that
Thompson was “unable to perform any work related activities” and “minimally
functional” at daily activities. He again acknowledged that the diagnosis of Pick’s disease
may not have been accurate and described her fibromyalgia as “variable in a waxing and
waning fashion.”
2) Procedural History
Thompson’s first application for disability benefits, based on Pick’s disease and
restless leg syndrome, was denied on September 16, 2009 after a hearing, and she sought
review of the ALJ’s decision. In January 2010, while her appeal was pending before the
Appeals Council, Thompson filed a second application for DIB, this time identifying
“chronic fibromyalgia/small strokes/unable to focus” as the cause of her disability. In
May 2010, on the basis of the second application, the state agency found Thompson
disabled as of August 2007. The Social Security Administration challenged that
determination before the Appeals Council, and the Appeals Council consolidated the
agency’s appeal with Thompson’s appeal, which still was pending. Almost one year later,
in March 2011, the Appeals Council reviewed the ALJ’s denial of Thompson’s first
application, reopened the second application, and remanded Thompson’s now‐
consolidated applications for reevaluation as of August 2007 (a date Thompson does not
challenge) of her alleged impairments: restless leg syndrome, fibromyalgia, degenerative
disc disease (from which apparently Thompson had alleged at her first hearing that she
also suffered), and chronic fatigue syndrome and somatoform disorder (from which the
state agency had determined Thompson suffered, even though she had not included either
in her application).
On remand, the ALJ conducted a second hearing in September 2011.
Dr. Richard Gross, a neuropsychologist who also has a Ph.D. in clinical psychology and
who had not met with or examined Thompson, opined that her medical records suggest
that she suffered only from a somatoform disorder, a “situational occurrence” that did not
significantly affect her functional capacity. Thompson’s daughter testified that she would
run errands for her mother, who told her that “she was in a lot of pain.” Thompson also
testified and explained that State Farm had asked her to go on disability in 2005, but the
payments had run out on August 1, 2007. She testified that getting dressed had become too
No. 13‐3531 Page 7
painful and that she had hired out her household chores—grocery shopping, household
cleaning, and dog care—because she lacked the energy to do them herself. She also said
that in November 2010 she had graduated from a year‐long interior‐decorating class and
now was a certified interior decorator, though she said she had taken the class “for fun”
and “mainly because to occupy time.” She also testified that as of January 2009 she had
been helping a friend manage the books of his landscaping business by making phone calls
and sending invoices.
A vocational expert also testified. According to the VE, Thompson’s previous work
with State Farm was project‐oriented and flexible, allowing the employee to rest as needed
so long as the project was completed by day’s end. He added that limitations on climbing
ladders or ropes, bending, stooping, reaching, and exposure to humidity and
environmental hazards would not affect a person’s ability to do light work in this field.
The ALJ, in a 51‐page opinion, concluded that Thompson was not disabled between
August 2007 and her last date insured, December 31, 2010. The ALJ reviewed Thompson’s
claims under the five steps in 20 C.F.R. § 404.1520(a), first finding that during the relevant
time period she had not engaged in substantial gainful employment and was suffering
from severe impairments: restless leg syndrome, fibromyalgia, degenerative disc disease,
and limited visual acuity. The ALJ concluded, however, that the evidence did not support
Thompson’s assertions that she also suffered from Pick’s disease or a somatoform disorder.
The ALJ noted that Thompson appeared to be a manipulative, demanding patient aimed
only at obtaining a diagnosis that would win her disability payments. Regarding her
physical limitations, the ALJ accepted the diagnosis of fibromyalgia but rejected the
testimony of Thompson and her daughter, which contradicted forms that Thompson and
her daughter had submitted in April 2010 stating that the daughter did not assist in a
significant or regular manner. The ALJ determined that, at most, Thompson had a “mild”
mental impairment. See 20 C.F.R. § 404.1520a(d)(1).
The ALJ found that Thompson’s impairments did not meet or equal those listed in
Appendix 1 to 20 C.F.R. Part 404, Subpart P, and that she had the residual functional
capacity to perform sedentary work. See 20 C.F.R. § 404.1567(a). The ALJ noted that
Thompson described her ability to pull, bend, stoop, and perform various household
activities throughout the day. That did not mean, the ALJ explained, that she could perform
the same types of activities during a workday, but her testimony contradicts documents
that Thompson had submitted (and her testimony) asserting that she had to hire out all of
her household activities. Moreover, the ALJ noted, Dr. Belgrave had opined that Thompson
needed to follow her prescribed rehabilitation routine and stay active. As the ALJ summed
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up, “[n]ot being motivated to work is not equivalent to not being able to work.” Were she
motivated, the ALJ concluded, Thompson could perform a limited range of sedentary
work, including her past work as a business analyst.
Thompson sought review in the district court, arguing that the ALJ improperly had
discounted her diagnoses of Pick’s disease and a somatoform disorder as insignificant,
failed to consider her fibromyalgia in connection with her other physical impairments in
determining if she met a Listing in section 404 or if she could perform past work, and gave
insufficient weight to Dr. Belgrave, who was her primary‐care physician. The court
determined that substantial evidence supports the ALJ’s decision.
II. ANALYSIS
Because the Appeals Council denied review, we evaluate the ALJ’s decision as the
final word of the Commissioner. See Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013);
Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013). We will uphold an ALJ’s decision so long
as it is supported by substantial evidence. Pepper v. Colvin, 712 F.3d 351, 361–62 (7th Cir.
2013); Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012). On appeal Thompson does not
challenge the ALJ’s findings regarding her diagnosis of Pick’s disease, so we will not
further discuss that issue. Additionally, as the Commissioner argues, Thompson did not
raise three of her six appellate challenges in the district court, namely that the ALJ: (1) did
not credit Dr. Hilger’s conclusions that she may have a somatoform disorder and difficulty
working full time; (2) failed to evaluate her chronic fatigue syndrome; and (3) found her
not credible regarding her physical limitations in colder weather. Thompson is silent about
waiver in her reply brief. We agree with the Commissioner that these issues were waived
and address only those issues properly before this court. See Schomas, 732 F.3d at 707;
Skarbek v. Barnhart, 390 F.3d 500, 505 (7th Cir. 2004).
1) Dr. Belgrave
Thompson first argues that the ALJ failed to give “controlling weight” to letters
written by Dr. Belgrave in August 2006, May 2007, January 2009, and May 2011.
Dr. Belgrave was Thompson’s primary care physician since 1983, and between
February 2003 and May 2011, he examined her at least 34 times and granted and reviewed
referrals, Thompson explains, so his opinion deserves controlling weight in the ALJ’s
analysis. Thompson says the ALJ did not give any reason for rejecting Dr. Belgrave’s
opinion. However, the ALJ properly recognized the August 2006 letter was written before
No. 13‐3531 Page 9
the amended onset date of August 2007, and because the May 2011 letter was written five
months after her last date insured, the ALJ gave this final letter “essentially no value.”
An ALJ must accord controlling weight to a treating source’s opinion if it is
supported by “medically acceptable clinical and laboratory diagnostic techniques” and is
consistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); see Schaaf
v. Astrue, 602 F.3d 869, 875 (7th Cir. 2010). But a medical expert’s report that is based solely
on a complainant’s subjective accounts of pain is not given controlling weight. Filus v.
Astrue, 694 F.3d 863, 868 (7th Cir. 2012). As the ALJ noted, Dr. Belgrave never diagnosed
Thompson as having fibromyalgia; rather, he simply repeated the diagnosis given by other
doctors. And although Dr. Belgrave opined that Thompson would have difficulty
performing various physical activities based on common fibromyalgia symptoms and that
her condition “contributes” to her physical limitations, he did not describe the level or
severity of Thompson’s symptoms. The ALJ described Dr. Belgrave as having “no reliable
objective evidence” regarding Thompson’s condition and relying largely on Thompson’s
self‐reports, which are prone to bias. See Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir.
2006). The ALJ recounted Thompson’s testimony that she could pull, bend, and stoop
during household activities, which the ALJ carefully distinguished from workplace duties,
and an RFC assessment from 2010 that concluded Thompson could perform light work.
From this evidence the ALJ concluded that Thompson could perform at least sedentary
work, consistent with Dr. Belgrave’s opinion from 2006.
Dr. Belgrave’s conclusion in May 2011 that Thompson could not work also is
inconsistent with other reports. Thompson told Dr. King that her goal of the evaluation was
to receive a diagnosis of fibromyalgia and obtain disability benefits. Dr. King told
Thompson that therapy could alleviate her symptoms and that her condition need not be
debilitating. Dr. Rink referred Thompson to a physical therapist, and Dr. Belgrave in
August 2010 agreed that therapy was appropriate, but opined that Thompson needed to
be “aggressive” about treatment. Yet Dr. Belgrave does not mention this poor compliance
in his May 2011 letter in which he says Thompson is unable to work. As the ALJ said, the
evidence suggests not that Thompson could not improve her pain but rather than she
lacked the motivation to work towards resolving it. Substantial evidence supports the ALJ’s
determination that Dr. Belgrave’s opinion was of limited value.
2) RFC Determination
Thompson next argues that the ALJ gave “an inadequate RFC” to the VE that omits
several details of her condition, and thus the VE’s conclusion that she could perform her
No. 13‐3531 Page 10
past work is unreliable. She says that the VE’s assessment is based only on her best days,
but her fibromyalgia intermittently gets worse, so she does not know how she will feel on
a given day. Thompson also says the ALJ did not include in his hypothetical questions to
the VE whether she would be able to sit and stand to accommodate her pain.
We see no issue with the ALJ’s hypothetical questions. The ALJ proposed to the VE
a hypothetical worker limited to light work, with only occasional overhead reaching and
manipulative functions. The VE testified that such a claimant would be able to perform the
work of a business analyst. As the VE explained, this job allows for breaks as needed, as
long as the employee completes her designated projects in a timely manner. So, although
Thompson is correct that the ALJ did not specifically reference the need for a sit/stand
option, the VE included in his assessment the need for flexibility with breaks. Based on that
assessment, the ALJ concluded that Thompson could perform her past work as a business
analyst, which, as sedentary work, is considered less demanding than light work. SSR
83‐10, 1983 WL 31251, at *5–6. Moreover, the hypothetical questions that the ALJ posed
appropriately were based on the limitations that he accepted as credible. See Simila v.
Astrue, 573 F.3d 503, 521 (7th Cir. 2009); Schmidt v. Astrue, 496 F.3d 833, 846 (7th Cir. 2007).
Those limitations did not include Dr. Belgrave’s recommendation for a sit/stand option
because the ALJ concluded that this purported limitation was based entirely on
Thompson’s subjective statements, rather than medical evidence.
3) Misconstruing Fibromyalgia Diagnosis
Last, Thompson argues that the ALJ misunderstood fibromyalgia and improperly
discredited the medical evidence she presented regarding her diagnosis. She points to SSR
12‐2p, which was issued after the ALJ’s decision in this case and provides guidance for
determining if a claimant’s fibromyalgia is “medically determinable.” Thompson
encourages us to remand the case so that her claim can be considered further with the aid
of SSR 12‐2p. But a remand is unnecessary because the ALJ accepted Thompson’s diagnosis
of fibromyalgia as a severe physical impairment that limits her functional capacity. That
diagnosis, however, does not entitle Thompson to benefits. Denton v. Astrue, 596 F.3d 419,
426 (7th Cir. 2010); Skinner v. Astrue, 478 F.3d 836, 845 (7th Cir. 2007). The ALJ instead
concluded that Thompson’s condition was not debilitating and would not preclude her
from performing her past sedentary work. The ALJ reviewed her test revealing 17 positive
tender points but no other issues of pain and assessed her functional capacity based on her
limited physical capabilities; yet the ALJ concluded that her fibromyalgia was not
incapacitating. Those findings are supported by substantial evidence.
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III. CONCLUSION
The judgment of the district court and the ALJ’s denial of benefits are AFFIRMED.