NONPRECEDENTIAL DISPOSITION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 April 13, 2010
Decided August 4, 2010
Before
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐3019
Appeal from the
PATRICK J. TURNER, United States District Court
Plaintiff‐Appellant, for the Northern District
of Illinois, Eastern Division.
v.
No. 07‐C‐1520
MICHAEL J. ASTRUE,
Commissioner of Social Security, Michael T. Mason,
Defendant‐Appellee. Magistrate Judge.
O R D E R
Patrick Turner appeals a district court decision affirming the denial of his claim for
disability insurance benefits under the Social Security Act. We conclude that substantial
evidence supports the administrative law judge’s determination that Turner was not
entitled to disability insurance benefits and therefore affirm.
I. Background
No. 09‐3019 Page 2
Turner is 51 years old and lives in Streator, Illinois. He is married and has five
children. He left high school at the start of his senior year, but earned his GED shortly
thereafter. For the bulk of his professional life, he worked as a unionized painter—mostly at
nuclear power plants. In 1998 while working at the LaSalle nuclear plant, Turner injured
his lower back transporting two 100‐pound buckets of paint. As a result of this accident,
Turner’s back popped and pain radiated down his left leg. Turner was able to perform
light‐duty work for the following year until his neurologist advised him to stop working
because he was on his feet too long. Turner ultimately received a workers’ compensation
settlement in the amount of $175,000.
Turner filed his application for disability insurance benefits on December 5, 2002.
His claim was denied initially and again upon reconsideration. Turner then requested an
administrative hearing, which was held on December 1, 2005, before an Administrative Law
(“ALJ”). The ALJ denied Turner’s claim.
A. The ALJ’s Ruling
The Social Security Act defines a disabled individual as one who is unable “to
engage in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which . . . has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Under the regulations
promulgated by the Commissioner of Social Security for evaluating disability claims, an
individual is not considered disabled if his residual functioning capacity—along with the
individual’s age, education, and work experience—allows him to perform a significant
number of jobs. 20 C.F.R. § 404.1520(a)(4)(v). Based on these statutory and regulatory
standards, the ALJ denied Turner’s claim for disability benefits.
The ALJ was confronted with conflicting medical evidence concerning the precise
nature of Turner’s physical condition. The ALJ received medical reports from several
doctors—some based on personal examinations of Turner, others based solely on a review
of Turner’s medical files—including three who prepared reports at the request of Disability
Determination Services (“DDS”). The ALJ also received a residual functional‐capacity
report (“RFC”) from a nurse‐practitioner and heard testimony from Turner himself. Some
of the medical evidence indicated that Turner could not perform even sedentary work due
to persistent pain in his back, but the prevailing view was that Turner’s physical limitations
were less severe than he claimed.
After reviewing and weighing the available evidence, the ALJ ultimately found that
Turner “has the residual functional capacity to perform the physical exertional and
nonexertional requirements of work except that he is limited to lifting no more than ten
No. 09‐3019 Page 3
pounds at a time. He requires the option to alternate between sitting and standing.” While
acknowledging that Turner could no longer perform his past work as a painter, the ALJ
concluded that Turner’s capacity for sedentary work, in addition to his age, education, and
work experience, directed a finding of “not disabled” given the applicable regulations and
the number of jobs available to a person in Turner’s condition.
B. Subsequent Procedural History
Turner administratively appealed the ALJ’s decision to the Appeals Council. As part
of this appeal, Turner submitted additional evidence for review. The Appeals Council
incorporated these additional documents into the administrative record but agreed with the
ALJ’s decision. Turner then sought judicial review. The parties agreed to conduct the
proceedings before a magistrate judge who granted the Commissioner’s motion for
summary judgment. Turner now appeals.
II. Discussion
The Social Security Act provides that “[t]he findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C.
§ 405(g). “Evidence is substantial if it is sufficient for a reasonable person to accept as
adequate to support the decision.” Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002)
(quotation marks omitted). “In addition to relying on substantial evidence, the ALJ must
also explain his analysis of the evidence with enough detail and clarity to permit
meaningful appellate review.” Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).
Ultimately however, the issue before us is not whether Turner is disabled, but whether the
findings of the ALJ were supported by substantial evidence. Jens v. Barnhart, 347 F.3d 209,
212 (7th Cir. 2003).
Furthermore, we can only consider evidence that was actually before the ALJ.
42 U.S.C. § 405(g); Rice v. Barnhart, 384 F.3d 363, 366 n.2 (7th Cir. 2004) (“Although
technically a part of the administrative record, the additional evidence submitted to the
Appeals Council . . . cannot now be used as a basis for a finding of reversible error.”). This
is important because Turner’s brief improperly includes multiple references to evidence that
was never presented to the ALJ.1 With this framework in place, we now turn to the merits
1
Section 405(g) does provide a mechanism for courts to compel the Commissioner to
(continued...)
No. 09‐3019 Page 4
of Turner’s appeal. Turner attacks the validity of the ALJ’s findings on four separate
grounds.
A. “Playing Doctor”
Turner’s first argument is that the ALJ impermissibly “played doctor” by
substituting his personal observations for the considered judgments of medical
professionals. See Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb
to the temptation to play doctor and make their own independent medical findings.”). In
particular, Turner takes issue with the ALJ’s interpretation of an MRI taken on June 30,
1999. Turner claims that the MRI (which itself is not in the administrative record) indicates
more extensive physical damage than the ALJ credited. We are satisfied that the ALJ
considered the MRI through the perspective of the various doctors who reviewed the MRI
report.
In particular, the ALJ specifically recounted Dr. Matthew Ross’s review of the results
of Turner’s MRI. Dr. Ross personally examined Turner on two separate occasions as part of
Turner’s then‐pending workers’ compensation claim. In 2000 Dr. Ross reviewed the MRI in
question and concluded that it showed degenerative disk changes and only a minimal
left‐sided L5‐S1 disk herniation. Dr. James Graham, who conducted the first review of
Turner’s medical files for the DDS, reached the same conclusion regarding the MRI, and he
further determined that Turner was capable of frequently lifting items weighing up to
10 pounds (a limitation mirrored in the ALJ’s ultimate findings). The ALJ was critical of
Dr. Aftab Khan, a doctor who conducted a personal examination of Turner at the direction
of the DDS and who prepared the medical report that is most supportive of Turner’s claim
for disability benefits. The ALJ noted that Dr. Kahn apparently did not consider the MRI at
all and instead relied on his observations about Turner’s physical limitations. After
reviewing this medical evidence, the ALJ ultimately decided that the results of the MRI
were not consistent with Turner’s claim that he was incapable of performing even sedentary
work. This finding is well supported by the medical evidence; the ALJ did not substitute
his own judgment for that of the medical experts.
1
(...continued)
consider new evidence, “but only upon a showing that there is new evidence which is material and
that there is good cause for the failure to incorporate such evidence into the record in a prior
proceeding.” Turner asked the magistrate judge to grant a remand on this basis, but this request
was denied on the grounds that the additional evidence could not be considered “material” to
Turner’s disability claim. Turner did not challenge this holding on appeal, so we have no need to
consider this issue any further.
No. 09‐3019 Page 5
B. Dr. Khan
Turner’s second argument is that the ALJ improperly discounted Dr. Khan’s
conclusion—following a personal examination of Turner in 2003 at the behest of the
DDS—that Turner could lift but not carry five pounds. Turner argues that this opinion is
entitled to great weight because Khan was the only DDS doctor who examined him
personally. To support this claim, Turner relies on Whitney v. Schweiker, 695 F.2d 784, 789
(7th Cir. 1982), but that case concerned the weight to be given the opinions of a treating
physician, and Dr. Khan was not Turner’s treating physician. He examined Turner only
once, and thus was not as intimately familiar with his medical history or course of treatment
as a treating physician.
Importantly, the ALJ was quite clear in explaining why he was not persuaded by
Dr. Khan’s report. The ALJ determined that Dr. Khan’s medical conclusions were based on
Turner’s own reporting and responses in the examination room rather than on objective
medical evidence. “An ALJ may properly reject a doctor’s opinion if it appears to be based
on a claimant’s exaggerated subjective allegations.” Dixon v. Massanari, 270 F.3d 1171, 1178
(7th Cir. 2001). Indeed, Turner does not dispute that Dr. Khan’s findings were heavily
influenced by Turner’s self‐reporting of his physical limitations.
The ALJ also specifically explained the reasons why he suspected Turner of
exaggerating his physical limitations to Dr. Khan. First, Turner was obviously aware that
this DDS‐directed examination would factor prominently in any subsequent disability
hearing, so there was a clear motive for Turner to understate his physical capacity and
overstate his limitations. Second, Turner “demonstrated significantly less functional
ability” during his 2003 evaluation with Dr. Khan than he did in 2001 when he met for the
second time with Dr. Ross. Following that 2001 visit, Dr. Ross had concluded that it was
“realistic” that Turner could lift at the 25‐pound level. The three other DDS physicians who
reviewed Turner’s medical files also found that Turner was capable of much greater
physical movement than he seemed to acknowledge during his visit with Dr. Khan.
Turner notes that his examination by Dr. Khan occurred two years after his last
examination by Dr. Ross, and so his condition could have deteriorated by then. But there is
no objective medical evidence that Turner’s physical condition actually worsened after 2001,
and he does not identify any subsequent developments that could have plausibly
exacerbated his condition. “An ALJ must only ‘minimally articulate his or her justification
for rejecting or accepting specific evidence of a disability.’” Berger v. Astrue, 516 F.3d 539,
545 (7th Cir. 2008) (quoting Rice, 384 F.3d at 371). Here, the ALJ exceeded this standard, and
Turner has identified nothing in the record that undermines the ALJ’s explanation for
discounting Dr. Kahn’s opinions.
No. 09‐3019 Page 6
C. Nurse‐Practitioner Duffield
Turner next argues that the ALJ erred by refusing to credit a 2005 RFC prepared by
Patricia Duffield, a nurse‐practitioner. Starting in 2002, Duffield performed annual
examinations of Turner. Her primary purpose was to help Turner manage his pain, and to
that end she regularly secured refills for his prescriptions for Vicodin and Ultram. In 2005
Duffield completed an RFC on Turner’s behalf. Duffield described Turner’s prognosis as
“poor.” She also stated that Turner was not a malingerer, and that on a 1‐10 scale, Turner
self‐rated his pain at 7‐10 daily. Duffield noted that Turner could not fully flex his back and
had an abnormal gait, sensory loss, reflex changes, muscle spasm, muscle atrophy, muscle
weakness, and reported impaired sleep. Based on these findings, Duffield concluded that
Turner would need to shift positions at will from sitting, standing or walking, and would be
unable to do any of these three activities for more than two hours out of an eight‐hour
workday. Duffield also concluded that Turner could not stay seated for more than five
minutes at a time and would require unscheduled breaks of between five and ten minutes
every half hour in order to manage his pain.
Duffield’s assessment of Turner’s physical limitations is sharply at odds with the
ALJ’s holding, and Turner contends that the ALJ erred in not giving Duffield’s account
“controlling weight.” This argument falls short on multiple fronts. The Social Security
Administration’s regulations provide that the opinion of a “treating source” will be given
controlling weight only if “well‐supported by medically acceptable clinical and laboratory
diagnostic techniques and . . . not inconsistent with the other substantial evidence in your
case record.” 20 C.F.R. § 404.1527(d)(2). A nurse‐practitioner, moreover, is not a “treating
source.” See 20 C.F.R. § 416.902 (“Treating source means [a claimant’s] physician,
psychologist, or other acceptable medical source . . . .”); id. § 416.913(d)(1) (listing
nurse‐practitioner among occupations that are not “acceptable medical sources”).
Turner attempts to get around this problem by claiming that Duffield completed the
2005 RFC in collaboration with a supervising doctor, a Dr. Podzamsky. But there is no
evidence that Podzamsky ever examined Turner—let alone treated him. Contrary to
Turner’s assertions, Podzamsky never “signed” the 2005 RFC. The last page of the RFC
contains only a stamp bearing Podzamsky’s name; the report was completed and signed by
Duffield. Turner insists that Duffield might have transcribed Podzamsky’s own
observations. This is pure speculation; Duffield’s notes do not indicate that Podzamsky
personally examined Turner. In sum, the ALJ had very solid reasons for concluding that
Duffield alone was responsible for the 2005 RFC.
Furthermore, the ALJ concluded that “the limitations set forth in the report are
dramatically inconsistent with the x‐ray and MRI evidence as well as the clinical findings,
No. 09‐3019 Page 7
and findings of Dr. Ross, the treating neurosurgeon, and would still be entitled to little
weight.” In order to be entitled to controlling weight, a treating source’s opinion cannot be
“inconsistent with the other substantial evidence [in the record],” § 404.1527(d)(2), and here,
the ALJ carefully identified the ways in which the 2005 RFC was not in line with the bulk of
the medical evidence in the record.
Turner correctly notes that the ALJ erroneously described Ross as a “treating
neurosurgeon.” Ross examined Turner but was not in fact a treating physician. This error
was harmless, however. There is absolutely no indication that the ALJ gave Ross’s opinion
the “controlling weight” of a treating physician’s—on this matter or any other. Indeed, the
point of the ALJ’s “dramatically inconsistent” statement is that the 2005 RFC is inconsistent
with a host of other indicators regarding Turner’s physical condition. Every doctor who
reviewed the MRI found only “minimal” herniation. Also, although Duffield recorded that
Turner experienced muscle atrophy, no other doctor observed this phenomenon. Similarly,
Duffield noted greater sensory loss and reflex changes in Turner than did any of the
doctors. Finally, the ALJ noted that Duffield’s treatment notes were inconsistent with the
significant and constant pain she attributed to Turner in her RFC. The ALJ’s decision to
give Duffield’s opinion “little weight” was amply justified.
D. Turner’s Daily Activities
Turner’s final argument is that the ALJ erred in concluding that Turner’s daily
activities revealed that he was less physically impaired than he claimed to be.2 The ALJ
observed that Turner was capable of vacuuming, sweeping, dish‐washing, cooking, grocery
shopping, yard work, and fishing. Turner claims that the ALJ failed to acknowledge that he
performs these activities slowly and with great pain and discomfort. This is essentially a
challenge to the ALJ’s credibility determination, which is entitled to “special deference” on
appeal. Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000). We will only reverse an ALJ’s
credibility determination if the claimant can show that it is “patently wrong,” id., and
Turner has not satisfied this high burden. Turner’s daily activities—even if accompanied by
pain—can fairly be construed as inconsistent with his claim that he is physically unable to
perform even sedentary work.
2
Turner claims in passing that the ALJ should have asked the vocational expert how a
sit/stand/lie restriction would have altered Turner’s job prospects. This unsupported argument does
not appear to have been raised below, so it is forfeited. Skarbek v. Barnhart, 390 F.3d 500, 505 (7th Cir.
2004).
No. 09‐3019 Page 8
In short, substantial evidence supports the ALJ’s determination that Turner can
perform sedentary work and thus is not disabled.
AFFIRMED.