Clint Smith v. Kenneth Apfel, Commissioner of Social Security

RIPPLE, Circuit Judge,

dissenting.

In this appeal, we must consider whether the ALJ reasonably found Mr. Smith capable of performing a significant number of jobs in the national economy at the medium exertional level and therefore not disabled within the meaning of the Social Security Act. Mr. Smith contends that the ALJ made flawed credibility determinations and improperly credited the opinion of a consulting physician over that of his treating physician. The majority agrees with Mr. Smith and therefore reverses the decision to deny him benefits. Because I believe that the ALJ’s decision is supported by substantial evidence, I respectfully dissent.

I

In my view, the majority opinion fails to give sufficient deference to the findings of the ALJ.1 It is axiomatic that we will affirm the ALJ’s decision as long as it is supported by substantial evidence. See Herron v. Shalala, 19 F.3d 329, 333 (7th Cir.1994); Jones v. Shalala, 10 F.3d 522, *439523 (7th Cir.1993); see also 42 U.S.C. § 405(g) (requiring that “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”). Therefore, the question before this court is whether the ALJ’s findings were supported by substantial evidence. See Books v. Chafer, 91 F.3d 972, 977 (7th Cir.1996); Diaz v. Chafer, 55 F.3d 300, 306 (7th Cir.1996). Substantial evidence is defined as no more than “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Books, 91 F.3d at 977-78 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Given the deferential standard of review, Mr. Smith faces an uphill battle in his attempt to overturn an ALJ’s finding that he is not disabled. See DeFrancesco v. Bowen, 867 F.2d 1040 (7th Cir.1989). “Although we review the entire record, we may not decide the facts anew, reweigh the evidence, or substitute our own judgment for that of the [ALJ].” Herron, 19 F.3d at 333.

II

Substantial evidence supports the ALJ’s finding that Mr. Smith was not credible in his pain complaints. At the beginning of the discussion, we must recall that the ALJ’s credibility determination is entitled to special deference because the ALJ is in the “best position to see and hear the witnesses and assess their forthrightness.” Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.2000). Accordingly, an ALJ’s credibility determination will not be disturbed unless the claimant can show that it was patently wrong. See Diaz v. Chafer, 55 F.3d 300, 308 (7th Cir.1996). In this case, the ALJ based his credibility determination on a number of facts and observations. First, the ALJ concluded that the level of pain and functional limitations that Mr. Smith complained of were not supported by the clinical signs and findings. See A.R.27. Although Dr. Baraglia noted Mr. Smith’s subjective complaints of pain since 1985, his treatment notes did not contain objective medical data or record any functional limitations. Moreover, Dr. Bharti observed that Mr. Smith had no limitation of strength or motion anywhere except his right ankle. Although Dr. Bharti noted that Mr. Smith’s ankle was “slightly evert-ed and there was a restriction in flexion and extension at that joint,” he also found that Mr. Smith was still able to squat, touch his toes, walk normally and to perform his daily activities. See A.R.199.

It is true that, under the regulatory scheme, an ALJ may not reject a claimant’s statements concerning the intensity or persistence of his symptoms solely because they are not fully supported by medical evidence. See 20 C.F.R. § 404.1529(c)(2); see also Knight v. Chafer, 55 F.3d 309, 314 (7th Cir.1996). However, it is also true that an ALJ may consider the lack of medical evidence as probative of the claimant’s credibility. See Powers, 207 F.3d at 435 (“The discrepancy between the degree of pain attested to by the witness and that suggested by the medical evidence is probative that the witness may be exaggerating her condition.”). Clinical signs and laboratory findings are useful indicators of disability and can assist the ALJ in making reasonable conclusions about the intensity and persistence of the claimant’s symptoms and the effect those symptoms may have on the claimant’s ability to work. See 20 C.F.R. § 404.1529(c)(2).

More importantly, the ALJ in this case did not base its decision on the absence of objective medical evidence alone. The ALJ also found numerous inconsistencies within Mr. Smith’s testimony and inconsistencies between his testimony and the statements he made to Dr. Bharti. For example, the ALJ noted that “while the claimant first said that he can lift only 30 pounds, he then admitted that he told the consulting physician that his symptoms only worsen when he lifts up to 50 pounds.” See A.R.27. Similarly, the ALJ was troubled by Mr. Smith’s inconsistent *440testimony regarding his ability to stand and walk. See id. The ALJ was also disturbed by Mr. Smith’s conflicting explanations for leaving his job. The ALJ noted that Mr. Smith testified that he was laid off, but that he told the consulting physician he quit working because of problems associated with his arthritis. See id. In addition to these inconsistencies, the ALJ also observed that Mr. Smith’s pain complaints were inconsistent with his minimal, non-prescription treatment (6 non-aspirin a day), his ability to perform his daily activities without much difficulty, and his appearance and demeanor at the hearing. See A.R.27, 30. Based on the evidence of record, the ALJ’s determination that Mr. Smith’s subjective complaints were less than credible was not patently wrong. See Knight, 55 F.3d at 314 (“An ALJ may discount subjective complaints of pain that are inconsistent with the evidence as a whole.”).

Ill

Likewise, the ALJ’s decision to credit the opinion of Dr. Bharti over that of Dr. Baraglia was supported by substantial evidence. Title 20 of the Code of Federal Regulations, § 404.1527(d), sets forth how an ALJ should weigh various medical opinions. Under the regulation, opinions from treating sources are generally given great weight. See 20 C.F.R. § 404.1527(d)(2). This policy is based upon the agency’s belief that treating physicians “are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s).” See id. Accordingly, if the ALJ finds that the opinion of a treating physician is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record,” it will be given controlling weight. See id. But when the opinion of a treating physician is not supported by medical evidence and is inconsistent with the substantial evidence in the claimant’s record, the ALJ will not give the opinion controlling weight. See id. Instead, the ALJ will determine independently the weight to give the opinion on the basis of the following factors: the length, frequency, nature and extent of the treatment relationship; the degree to which the medical signs and laboratory findings support the opinion; the consistency of the opinion with the record as a whole; and the specialization of the physician. See 20 C.F.R. § 404.1527(d)(2), (3), (4) & (5).

In this case, the ALJ was not persuaded by Mr. Smith’s description of his symptoms and limitations and found that Dr. Baraglia’s opinion, which was largely based upon Mr. Smith’s subjective complaints, was entitled to little weight. Upon review of all the evidence in the record, the ALJ decided to credit the opinion of Dr. Bharti, the consulting physician, over that of Dr. Baraglia. The ALJ was entitled to make this determination. See Reynolds v. Bowen, 844 F.2d 451, 455 (7th Cir.1988) (“[Wjhile the treating physician’s opinion is important, it is not the final word on a claimant’s disability.”); accord Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir.1995) (“[A] treating physician’s opinion is not conclusive in determining disability status and must be supported by medically acceptable clinical or diagnostic data.”) (quotations and citations omitted). Nothing in the regulatory scheme or the precedent of this court “mandates that the opinion of a treating physician always be accepted over that of a consulting physician, only that the relative merits of both be duly considered.” Books, 91 F.3d at 979. In this case, the ALJ took into account the relevant criteria in determining the weight to give Dr. Bar-aglia’s opinion and provided sufficient explanation for his decision. See 20 C.F.R. § 404.1527(d)(2) (requiring the ALJ to provide good reasons for the weight given to the claimant’s treating physician).

The ALJ recognized that Dr. Baraglia was able to observe the claimant over a prolonged period, see Stephens v. Heckler, *441766 F.2d 284, 288 (7th Cir.1994), and noted that the opinion of a treating physician is normally given great weight. See A.R.28. Nevertheless, the ALJ concluded that there was substantial reason to believe that Dr. Baraglia’s opinion was not credible. Id. Specifically, the ALJ rejected Dr. Baraglia’s assessment of Mr. Smith’s capacity to work because (1) it was not supported by clinical signs and findings, (2) it was internally inconsistent, and (3) it was inconsistent with the other substantial evidence in Mr. Smith’s record. See id.

First, the ALJ found that Dr. Baraglia’s opinion was not based on objective medical evidence. See A.R.26 (stating that Dr. Baraglia’s assessment of Mr. Smith’s residual functional capacity “shows no objective medical basis in clinical signs, findings or abnormalities by which to substantiate the indicated restrictions”). A thorough review of Mr. Smith’s case record reveals that this finding is essentially correct. Although Dr. Baraglia diagnosed severe arthritis, his treatment notes contain little more than Mr. Smith’s subjective complaints of pain. The only X-rays contained in Dr. Baraglia’s reports were from 1987 and 1989, and they revealed only minimal or non-existent degenerative changes (with the exception of Mr. Smith’s right ankle), and Dr. Baraglia’s treatment notes did not indicate any restrictions on Mr. Smith’s functional capacity due to his condition. At minimum, the absence of laboratory findings from Dr. Baraglia’s reports is a factor that the ALJ could consider in determining the weight to give Dr. Baraglia’s opinion. See 20 C.F.R. § 404.1527(d)(3) (“The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight [the ALJ] will give that opinion.”); see also Henderson v. Apfel, 179 F.3d 507, 514 (7th Cir.1999) (“An ALJ need not give controlling weight to a treating physician’s opinion if it is not supported by objective clinical findings.”); Nelson v. Apfel, 131 F.3d 1228, 1237 (7th Cir.1997) (“The ALJ should consider and discuss all medical evidence that is credible, supported by clinical findings, and relevant to the question at hand.”); Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir.1982) (“The weight given a physician’s statement depends upon the extent to which it is supported by medically acceptable clinical and laboratory diagnostic techniques.”) (quotations and citations omitted); accord Cutlip v. Secretary of Health & Human Servs., 25 F.3d 284, 287 (6th Cir.1994) (per curiam) (“[The treating physician’s] opinions are only accorded great weight when they are supported by sufficient clinical findings.”).

Second, the ALJ found Dr. Baraglia’s opinion to be internally inconsistent. Within a two month period, Dr. Baraglia completed two written assessments of Mr. Smith’s functional capacity. Curiously, the latter assessment suggested that Mr. Smith’s condition had worsened dramatically in some ways, but improved (almost miraculously) in others. For example, in the December 1996 assessment, Dr. Bar-aglia indicated that there was no limitation in the claimant’s ability to sit for prolonged periods, see A.R.228, but in the February 1997 assessment, Dr. Baraglia indicated that Mr. Smith could only sit for about four hours, see A.R.242. Additionally, Dr. Baraglia’s February assessment noted that Mr. Smith could occasionally lift and carry no more than 10 pounds, see id., an assessment 50% less than the 20 pound-estimate he made only two months earlier, see id. at 227. At the same time, Dr. Baraglia' opined in the first assessment that Mr. Smith could not stand or walk any hours out of an eight-hour work day, see A.R.228, but in the latter assessment, he indicated that Mr. Smith could stand or walk four hours out of an eight-hour work day with normal breaks, see A.R.242.

Significantly, these discernible discrepancies were not resolved by Dr. Baraglia’s treatment notes. He'provided no explanation for his changed impression of Mr. Smith’s functional capacity; indeed, Dr. Baraglia’s treatment notes from January *4421997, one month before he completed the second assessment, indicated that Mr. Smith was “doing well” and that his blood pressure was stable. See A.R.26.

Finally, the ALJ also found Dr. Barag-lia’s assessment to be inconsistent with the other substantial evidence in Mr. Smith’s record. Dr. Bharti, who examined Mr. Smith in August 1996, noted that the claimant complained of arthritis in his knees, ankles, and shoulders, but indicated that his examination revealed that the claimant had no limitation of motion, except in his right ankle. See A.R.199. Although Dr. Bharti found his ankle to be slightly everted, the rest of Mr. Smith’s joint movements were normal. See id. Dr. Bharti further indicated that Mr. Smith had normal strength in all of his limbs, no sensory deficit to pinprick or touch, and positive straight leg raising at 70 degrees. See A.R.198. As to the limitations presented by Mr. Smith’s right ankle, Dr. Bharti noted that the claimant walked on only half of his right foot, but that he had normal gait and could walk on his heels and toes. See id. Based on his findings, an X-ray was taken of Mr. Smith’s ankle, which revealed only mild to moderate degenerative changes. See A.R. 201. Not only were Dr. Baraglia’s restrictive assessments of Mr. Smith’s functional capacity inconsistent with Dr. Bharti’s overall findings, but they also failed to mention the one objective impairment Mr. Smith apparently has. In the December 1996 assessment, Dr. Baraglia was asked to explain the medical findings that, in his opinion, prevent Mr. Smith from standing or walking. In response to this question, Dr. Baraglia listed only “bilateral knee arthritis.” See A.R.228. Similarly, in the February 1997 assessment, he was asked to characterize the location and nature of Mr. Smith’s pain. Again, Dr. Baraglia failed to mention Mr. Smith’s right ankle; he stated only “severe knee and shoulder pain.” SeeA.R.240.

Furthermore, Dr. Baraglia’s restrictive assessments appear to contradict the claimant’s own testimony. Dr. Baraglia noted dramatic changes in Mr. Smith’s condition between December 1996 and February 1997. Mr. Smith testified at the hearing, however, that his condition had not changed between December 1996 and the date of the hearing in April 1997. Nor do Dr. Baraglia’s treatment notes reveal the reason for the decline; his most recent examination of Mr. Smith appears to have been in November 1996, and no complaints of arthritic pain or limitation of movement were recorded. See A.R.224. Similarly, Dr. Baraglia indicated (in the February 1997 assessment) that Mr. Smith could never carry more than ten pounds. Mr. Smith, however, testified that he could carry up to thirty pounds, and that he regularly carried groceries weighing fifteen to twenty pounds. See A.R.27. And although Mr. Smith testified in April 1997 that he regularly walks four blocks (and that walking sometimes makes his symptoms better), Dr. Baraglia indicated in December 1996 that he could not stand or walk at all in an eight hour day, and in February 1997 indicated that Mr. Smith was incapable of walking one block without rest. See A.R. 241.

In light of these inconsistencies and the “paucity of objective medical evidence,” the ALJ reasonably could have determined that the evidence as a whole did not lend credibility to Dr. Baraglia’s restrictive assessment of Mr. Smith’s functional capacity. See A.R.28. As this court has noted, and the ALJ was obviously mindful, a claimant’s treating physician may be biased in favor of the claimant. See A.R.28-29; see also Butera v. Apfel, 173 F.3d 1049, 1056 (7th Cir.1999); Books, 91 F.3d at 979; Micus v. Bowen, 979 F.2d 602, 608 (7th Cir.1992); Stephens, 766 F.2d at 289 (“The patient’s regular physician may want to do a favor for a friend and client, and so the treating physician may too quickly find disability.”). Or just as plausibly, the treating physician “may lack an appreciation of how one case compares with other related cases.” Stephens, 766 F.2d at 289. *443In the end, when there are conflicting medical opinions, “it is up to the ALJ to decide which doctor to believe — the treating physician who has experience and knowledge of the case, but may be biased, or ... the consulting physician, who may bring expertise and knowledge of similar cases — subject only to the requirement that the ALJ’s decision be supported by substantial evidence.” Books, 91 F.3d at 979 (quoting Micus, 979 F.2d at 608).

IV

The majority also concludes that the ALJ’s decision is not supported by substantial evidence because he had a duty to supplement the record with more recent X-rays of Mr. Smith’s knees and shoulders (in addition to his right ankle). Based on the facts of this case, I cannot accept this conclusion because it is contrary to the Secretary’s regulations and the weight of authority in this circuit. Although “[i]t is a basic obligation of the ALJ to develop a full and fair record,” Smith v. Secretary of Health, Education and Welfare, 587 F.2d 857, 860 (7th Cir.1978), how much evidence to gather is a subject on which this court “generally respect[s] the [ALJ’s] reasoned judgment.” Luna v. Shalala, 22 F.3d 687, 692 (7th Cir.1994). If the ALJ is able to weigh the record evidence and determine whether the claimant is disabled based on that evidence, then he is not required to obtain additional evidence. See Henderson, 179 F.3d at 513.

I respectfully submit that majority opinion takes this “basic obligation” too far. “[I]t was [Mr. Smith’s] duty, under 20 C.F.R. § 404.1512(a), to bring to the ALJ’s attention everything that shows that he is disabled.” Luna, 22 F.3d at 693. Accordingly, Mr. Smith was obligated to “furnish medical and other evidence that the ALJ [could] use to reach conclusions about his medical impairment and its effect on his ability to work on a sustained basis.” Id. In this case, the ALJ probed into all of the relevant areas and examined all of the evidence before him. X-rays revealed minimal degenerative changes- in Mr. Smith’s knee in 1987 and no arthritic changes in his shoulder in 1989. See A.R. 158, 159. Also, Dr. Bharti observed in 1996 that Mr. Smith had no limitation of motion anywhere but his right ankle. See A.R.199. Furthermore, Mr. Smith had told Dr. Bharti that his knee did not pose much of a problem, and that his symptoms generally arose only if he bent over or tried to lift more than 50 pounds. See A.R.196. Dr. Bharti likewise observed that Mr. Smith could squat, touch his toes, and walk on his toes and heels. See A.R.198. On the basis of Dr. Bharti’s examination, X-rays were taken of Mr. Smith’s right ankle, but no other X-rays were ordered. See A.R. 201. The ALJ was not obligated to order any other X-rays because the evidence before the ALJ was sufficient for him to assess Mr. Smith’s alleged disability without them. See 20 C.F.R. § 404.1527(c). The ALJ reasonably could have concluded that, if Mr. Smith’s condition had been serious enough to warrant additional X-rays (in addition to his right ankle), then his treating physician would have ordered these X-rays.

Notwithstanding this evidence and the reasonable conclusions that could be drawn from it, the majority believes that the ALJ failed to satisfy his obligation. The majority relies primarily upon Thompson v. Sullivan, 933 F.2d 581 (7th Cir.1991) for this proposition. Thompson, however, is not altogether relevant to this case because it applies the heightened duty that an ALJ owes to unrepresented claimants. See Thompson, 933 F.2d at 585 (“[W]here the disability benefits claimant is unassisted by counsel, the ALJ has a duty scrupulously and conscientiously [to] probe into, inquire of, and explore for all the relevant facts.”) (quotations and citations omitted). In Thompson, this court recognized that the ALJ’s obligation is greater when the claimant is unrepresented and unfamiliar with the hearing process. See id. at 586 (“The special duty assigned to the ALJ ‘requires, essentially, a record which shows *444that the claimant was not prejudiced by lack of counsel.’ ”) (citing Smith v. Schweiker, 677 F.2d 826, 829 (11th Cir. 1982)). But in the present case, Mr. Smith was represented by counsel throughout the hearing process; therefore, the heightened obligation does not apply.

Moreover, the facts in Thompson are very different from the facts in this case. First, the claimant in Thompson was never examined by a consultative physician. Rather, a state agency physician reviewed the claimant’s medical records and assessed his residual functional capacity on this basis alone. Next, the ALJ failed to pose a single question regarding Thompson’s consumption of alcohol or how drinking affected his activities, even though the medical records indicated possible alcohol abuse. Furthermore, the ALJ found Thompson’s complaints to be “generally credible,” yet found that Thompson was not disabled based on the medical evidence. Thompson, 933 F.2d at 587. Given these facts, this court correctly concluded that “[t]he ALJ should have taken additional steps to develop the record fully and fairly.” Id. Specifically, we noted that “[a]t the very least, more thorough questioning of Thompson would have been appropriate.” Id. On the facts presented by Thompson, we also noted that additional examinations “would have contributed to better development of the record,” but we did not hold that the ALJ was required to order additional Xrays. Id. In light of these differences, I believe that the majority’s reliance on Thompson is misplaced. Accordingly, the ALJ was not obligated to order additional X-rays and he fulfilled his duty to fully and fairly develop the record.

V

I cannot accept the majority’s conclusion that the ALJ failed to take into account the effect of Mr. Smith’s complaints of dizziness due to hypertension on his ability to work. Although the ALJ did not address in his written opinion the effect of his hypertension, we have repeatedly noted that the ALJ is not required to evaluate in writing every piece of evidence submitted. See Books, 91 F.3d at 980. “All we require is that the ALJ sufficiently articulate his assessment of the evidence to assure us that the ALJ considered the important evidence ... [and to enable] us to trace the path of the ALJ’s reasoning.” Id. (quotations and citations omitted). “[T]he weight to be given to this evidence remained within the discretion of the ALJ.” Diaz, 55 F.3d at 309.

Here, there was substantial evidence from which the ALJ could conclude that Mr. Smith’s subjective complaints of dizziness exaggerated his condition. Initially, I note that there is nothing in the ALJ’s findings that would limit the ALJ’s credibility assessment of Mr. Smith to his complaints of arthritic pain. The ALJ found that “[t]he claimant’s subjective physical complaints [were] not credible based on the clinical signs and findings, which do not reasonably establish the presence of underlying impairments, either alone or in combination, that could reasonably produce pain and functional limitation of the nature and location alleged.” A.R.30.

Additionally, Dr. Bharti noted in August 1996 that there was no evidence of complications arising from Mr. Smith’s history of hypertension; in fact, Mr. Smith told the doctor that “it had settled down.” A.R. 196-97. Likewise, Dr. Baraglia’s treatment notes did not indicate any complaints of dizziness since 1989; nor did the doctor’s December 1996 and February 1997 assessments mention dizziness as a basis for Mr. Smith’s limitations. Furthermore, Mr. Smith testified at the hearing that the medication he was taking controlled his blood pressure most of the time. See A.R.69. When asked how his high blood pressure prevented him from working, Mr. Smith responded that on average, he would become dizzy two or three times a week when he bent over. See id. Evaluating the evidence as a whole, the ALJ reasonably could have concluded that Mr. *445Smith’s hypertension did not significantly impair his ability to work.

VI

Finally, the ALJ’s finding that any pain or limitation of motion in Mr. Smith’s ankle would not prevent him from performing medium work was supported by substantial evidence. There is no indication that the ALJ failed to consider Mr. Smith’s most recent X-ray indicating mild to moderate degeneration; indeed, the ALJ expressly found that Mr. Smith’s right foot was severely inverted and that he suffered from “slight sclerosis.” See A.R.27. Nevertheless, the ALJ was entitled to give credence to Dr. Bharti’s report, which indicated that Mr. Smith’s ambulation was normal despite his impairment. Furthermore, the ALJ properly noted that the claimant had admitted that “this long-standing eversion of the right foot did not prevent him from doing his past work which required prolonged periods of standing and walking.” A.R.27. Given this evidence, I cannot conclude that the ALJ’s conclusion was patently wrong, even if we would have reached a different conclusion.

Conclusion

Because I believe that the ALJ’s conclusion is supported by substantial evidence, and that reasonable minds could differ concerning whether Smith is disabled, I would affirm the ALJ’s decision to deny him benefits.

. Because the Appeals Council found no basis for further review, the ALJ’s findings constitute the final decision of the Commissioner of the SSA. See Herron v. Shalala, 19 F.3d 329, 332 (7th Cir.1994).