Burnam v. Colvin

525 F. App'x 461
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 10, 2013
DocketNo. 12-2073
StatusPublished
Cited by23 cases

This text of 525 F. App'x 461 (Burnam v. Colvin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burnam v. Colvin, 525 F. App'x 461 (7th Cir. 2013).

Opinion

ORDER

Latonya Burnam challenges the district court’s decision upholding the Social Security Administration’s denial of her application for disability benefits. 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 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 [462]*462and 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 Bur-nam’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.

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 So-wade, who continued treating her until her [463]*463hearing 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.

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.

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Bluebook (online)
525 F. App'x 461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnam-v-colvin-ca7-2013.