NONPRECEDENTIAL DISPOSITION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 March 6, 2013
Decided May 10, 2013
Before
DANIEL A. MANION, Circuit Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐2073
LATONYA D. BURNAM, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 CV 5543
CAROLYN W. COLVIN,
Acting Commissioner of Social Sheila M. Finnegan,
Security, Magistrate Judge.
Defendant‐Appellee.1
O R D E R
Latonya Burnam challenges the district court’s decision upholding the Social
Security Administration’s denial of her application for disability benefits.1 An
administrative law judge had concluded that Burnam’s herniated disc, chronic
headaches, anemia, and allergies are severe but not disabling. Burnam argues that the
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we have substituted
Carolyn W. Colvin for Michael J. Astrue as the appellee.
No. 12‐2073 Page 2
ALJ erred in summarizing her medical history and wrongly discredited her testimony
that pain inhibits her from working full time. A magistrate judge, presiding by consent,
thoroughly analyzed these arguments and determined that the ALJ’s disability
determination was supported by substantial evidence. We agree and thus affirm the
district court’s judgment.
Burnam was 36 when she applied for benefits in December 2006. In her
application, she alleged that a herniated disc and severe headaches had become
disabling during an eight‐year span from 2000 to 2008 when she was not working.
Before that jobless stretch, from 1995 until 2000, Burnam had worked part‐time as a
home healthcare aide. After applying for Social Security benefits, in 2008 and 2009 she
worked a series of part‐time jobs as a hotel housekeeper, telemarketer, and sales
associate. This sporadic work history appears to have made Burnam ineligible for
Disability Insurance Benefits, so she applied only for Supplemental Security Income,
which is available to disabled, low‐income citizens regardless of their work history or
insured status. See 42 U.S.C. § 1382(a). The state agency denied Burnam’s claim initially
and on reconsideration, and she received a hearing before an ALJ in July 2009. The
following discussion of Burnam’s medical history comes from the record before the
ALJ.
Burnam’s lower‐back pain started in 2002, after she fell down a flight of stairs.
The pain still persisted in July 2006 when an MRI revealed a “very large central disk
herniation.” The next month Burnam went to South Suburban Hospital complaining of
pain radiating from her lower back to her left knee. Further testing showed evidence of
a distressed nerve (a “lumbosacral radiculopathy”) in her back or leg. She was
prescribed physical therapy, and during the initial evaluation in September 2006, the
therapist noted that Burnam previously had attended physical therapy “with good
relief.” The therapist also noted that Burnam said her pain had returned in June 2006.
When she visited the pain clinic, she declined an epidural steroid injection, saying that
she would give it thought and decide later. In the meantime, she was advised to take
nonprescription painkillers.
In October 2006, about eight weeks before she applied for benefits, Burnam
visited a neurosurgeon to address the pain in her back and leg. He noted that Burnam
could walk normally but suffered from pain that was aggravated “by prolonged sitting
and standing and walking.” The doctor recommended surgery for her disc herniation,
but Burnam did not follow this recommendation.
No. 12‐2073 Page 3
Burnam returned to South Suburban Hospital in December 2006 after falling
down stairs again. According to a doctor’s note from that visit, this fall aggravated her
existing herniated disc, though she was “fully ambulatory” and had a full range of
motion. The attending doctor prescribed pain medication.
In early 2007 two state‐agency physicians weighed in on Burnam’s back pain.
One of these doctors examined Burnam and, noting that she described her back pain as
between 7 and 8 on a scale of 10, concluded that “she has mild difficulty and pain
walking more than half an hour, standing for more than 10‐15 minutes or lifting more
than 10 lbs.” This doctor also explained that Burnam was diagnosed with heart
palpitations in the late 1990s and that a stress test performed at South Suburban
Hospital in 2003 “indicated she had suffered a mild heart attack.” The second doctor
reviewed her medical records and imposed less‐stringent limitations; in his view,
Burnham could lift up to 20 pounds and stand or walk for about 6 hours in an 8‐hour
workday. Both doctors noted that she could walk normally without assistance and, at
least occasionally, squat or crouch. After Burnam’s application was denied initially in
March 2007, a third state‐agency doctor reconsidered the medical evidence but agreed
with the non‐examining doctor’s assessment.
In October 2007 Burnam again visited the hospital with complaints of back pain
and was examined by Dr. Olalekan Sowade, who continued treating her until her
hearing nearly two years later. During this time, she was prescribed medications to treat
nausea and pain in her head and neck. In April 2008, a doctor at the hospital’s pain
clinic advised Burnam about managing her pain with something other than short‐acting
medication and again recommended epidural injections. But once again Burnam
refused the recommended treatment in favor of her preferred medication of Tylenol 3.
In October 2008 Burnam went to an emergency room complaining of chest pain
and dizziness. She exhibited a normal gait and a full range of motion in her neck and
extremities. She was diagnosed with chest pain, anemia, and vertigo, and released
around 2:00 a.m. with permission to “return to work/school today.” But later that day
she checked in to a different hospital’s emergency room, where she received the same
diagnosis and was treated with antacid and antihistamine. Two months later,
Dr. Sowade, Burnam’s treating physician, wrote a short note stating that Burnam had
been “referred to the neurologist for evaluation of dizziness which has prevented her
from working.” There is no record of Burnam visiting a neurologist at that time.
No. 12‐2073 Page 4
The month before Burnam’s disability hearing, in June 2009, Dr. Sowade
completed a full assessment of her residual functional capacity in light of her anemia,
dizziness, headaches, and back pain. He concluded that she could sit for about 4 hours,
could stand for only 15 minutes, and could lift up to 10 pounds only occasionally (and
rarely any more than that). He also noted that she would need 10‐minute breaks every
hour if working. He did not discuss to what degree each of Burnam’s ailments
contributed to her limitations.
At the hearing Burnam testified that, for the past two or three months, she had
been working up to 20 hours per week as a sales associate at Sears but frequently was
compelled to sit down in the back room for “an hour or so” and rest because of her
pain. If her boss was to discover the frequency and length of these breaks, she said, she
would be fired. She said that working more hours would be “too painful.” As for her
daily activities, she testified that her pain prevents her from doing laundry or washing
her own hair but not from going to the store with her daughter or vacuuming (though
she said vacuuming was painful). Burnam also stated that she was worried that taking
pain medications stronger than regular strength Tylenol may cause her to have heart
palpitations.
A vocational expert then testified about Burnam’s employment prospects. He
concluded that, with her history of working only part‐time, she had not engaged in
substantial gainful activity for 15 years. The ALJ asked the VE if any jobs are available
for a person with Burnam’s characteristics, assuming that the person can perform only
sedentary work and lift up to 10 pounds occasionally and the job allows sitting or
standing at will without taking the person “off task more than 10 percent of the work
period.” The VE identified three jobs: “call out operator,” information clerk, and order
clerk. But he acknowledged that Burnam is unemployable if her pain requires her to
exceed customary limits on break periods, which generally are limited to 10 or 15
minutes every 2 hours.
The ALJ denied Burnam’s disability claim, concluding that she could work at the
three jobs listed by the VE. Applying the five‐step analysis, see 20 C.F.R. § 404.1520(a)(4),
the ALJ concluded that (1) Burnam had not engaged in substantial gainful activity since
her alleged onset in 2006; (2) she suffers from degenerative disc disease, anemia, chronic
headaches, and allergies constituting severe impairments; (3) these impairments do not
meet or equal listed impairments; (4) Burnam cannot perform her past relevant work as
No. 12‐2073 Page 5
a telemarketer or sales associate; and (5) there exist sedentary jobs in the economy that
she can perform.
In reaching his conclusion, the ALJ explained why he was rejecting Burnam’s
and Dr. Sowade’s assessment of her capabilities. Dr. Sowade’s assertion that dizziness
was preventing Burnam from working was entitled to “little weight,” the ALJ
concluded, because the opinion was “conclusory” and “vague.” The ALJ also rejected
Dr. Sowade’s assessment of Burnam’s limitations as belied by the record, which showed
that Burnam had managed her disc pain with conservative treatment, including
physical therapy and Tylenol, and had refused even the relatively noninvasive
treatment of epidural injections. Dr. Sowade’s assessment, the ALJ noted, also conflicted
with other medical findings, including the opinion of the examining state‐agency doctor
from two years earlier and the emergency‐room note releasing Burnam to return to
work. Further, the ALJ disbelieved Burnam’s testimony that working more than 20
hours would be too painful, noting again her conservative pain treatment and refusal to
undergo epidural injections.
In upholding the ALJ’s determination, the district court decided that the ALJ was
justified in giving little weight to Dr. Sowade’s assessments. As the ALJ noted, those
assessments were undermined by numerous other clinical findings in the record. Also,
Burnam repeatedly refused to undergo anything but conservative treatment. Burnam
still argued that the ALJ should have considered other factors regarding her treatment
relationship with Dr. Sowade, but the court noted that the ALJ found that her argument
was hampered by her “own failure to introduce any evidence pertaining to those
factors.” Citing specific portions of the ALJ’s decision, the court also rejected Burnam’s
argument that the ALJ failed to base his assessment of her residual functional capacity
on evidence in the record. Finally, the court concluded that the ALJ’s decision to
discredit Burnam’s own assessment of her capabilities was adequately supported by the
ALJ’s discussion of Burnam’s ability to care for herself at home and her unwillingness
to undergo more aggressive treatment.
On appeal Burnam takes a kitchen‐sink approach, listing nearly a dozen
perceived errors in the ALJ’s medical summary without focusing on what she views as
the most egregious mistakes. For example, she notes that the ALJ mentioned her “good
relief with physical therapy” while omitting the therapist’s remark that her pain had
recurred. She also criticizes the ALJ for not contacting her treating physician,
Dr. Sowade, to clarify ambiguities in his assessment. But these purported mistakes
No. 12‐2073 Page 6
represent the type of “nitpicking” of the ALJ’s decision that we refuse to engage in.
See Castile v. Astrue, 617 F.3d 923, 929 (7th Cir. 2010); Shramek v. Apfel, 226 F.3d 809, 811
(7th Cir. 2000). Moreover, the district court addressed these arguments in detail, and
Burnam presents no persuasive challenge to that court’s analysis. Although we review
the district court’s judgment de novo, Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008),
and confine our review to the rationales offered by the ALJ, see SEC v. Chenery Corp., 318
U.S. 80, 93–95 (1943); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011), we need not repeat
the district court’s thorough rejection of Burnam’s many arguments.
We will further address one of Burnam’s primary arguments—that the ALJ erred
in discrediting her complaints of back pain. As she points out, an ALJ must articulate
specific reasons for discrediting testimony about pain even if the degree of pain is not
corroborated by medical evidence in the record. Myles v. Astrue, 582 F.3d 672, 677 (7th
Cir. 2009); Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). But as the district court
noted, the ALJ pointed to specific evidence undermining Burnam’s assertions of
disabling pain, including her repeated failure to undergo even the conservative
treatment option of epidural injections to alleviate her back pain. As the government
emphasizes, 20 C.F.R. § 416.930(a) notifies claimants that, “to get benefits, you must
follow treatment prescribed by your physician if this treatment can restore your ability
to work.” The ALJ also discussed how all of the doctors to examine Burnam except
Dr. Sowade assessed her limitations as consistent with an ability to work.
Because we agree with the district court that the ALJ here supported his findings
by discussing specific, substantial evidence in the record, the judgment is
AFFIRMED.