Alvaredo v. Commissioner of Social Security
Filing
22
ORDER ADOPTING REPORT AND RECOMMENDATIONS entered by Chief Judge James E. Shadid on 7/7/15. The Objection of the Claimant 20 is OVERRULED, and the Report and Recommendation 19 of the Magistrate Judge is ADOPTED. Claimant's Motion for Summary Judgment 12 is DENIED, and the Commissioner's Motion for Summary Affirmance 16 is GRANTED. This matter is now TERMINATED. SEE FULL WRITTEN ORDER. (FDT, ilcd)
E-FILED
Tuesday, 07 July, 2015 11:38:28 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
ERIC ALVARADO,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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Case No. 1:14-cv-1090-JES-JEH
ORDER
On April 29, 2015, a Report and Recommendation was filed by Magistrate Judge
Jonathan Hawley recommending that the Commissioner’s Motion for Summary Affirmance be
granted and that Plaintiff’s Motion for Summary Judgement be denied. Plaintiff, Eric Alvarado
(“Alvarado”), has filed a timely objection to the Report and Recommendation. This Order
follows.
Discussion
The relevant procedural history is sufficiently set forth in the Report and
Recommendation of the Magistrate Judge. Suffice it to say that Alvarado has brought this
litigation appealing the Commissioner’s denial of his application for disability insurance
benefits.
In order to be entitled to SSI and/or DIB, a plaintiff must show that his or her inability to
work is medical in nature and that he or she is totally disabled. Economic conditions, personal
factors, financial considerations, and attitudes of employers are irrelevant in determining
whether a plaintiff is eligible for disability benefits. See 20 C.F.R. §§ 404.1566, 416.966 (1986).
1
The establishment of disability under the Act is a two-step process. First, the plaintiff
must be suffering from a medically determinable physical or mental impairment, or combination
of impairments, which can be expected to result in death, or which has lasted or can be expected
to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382(c)(a)(3)(A). Second,
there must be a factual determination that the impairment renders the plaintiff unable to engage
in any substantial gainful employment. McNeil v. Califano, 614 F.2d 142, 143 (7th Cir. 1980).
The factual determination is made by using a five-step test. See 20 C.F.R. §§ 404. 1520,
416.920.
The five-step is examined by the ALJ, in order, as follows: (1) is the plaintiff presently
unemployed; (2) is the plaintiff’s impairment “severe” (20 C.F.R. §§ 404.1521, 416.921); (3)
does the impairment meet or exceed one of the list of specified impairments (20 C.F.R. Part 404,
Subpart P, Appendix 1); (4) is the plaintiff unable to perform his or her former occupation; and
(5) is the plaintiff unable to perform any other work within the national economy?
An affirmative answer at any step leads either to the next step of the test, or at steps 3 and
5, to a finding that the plaintiff is disabled. A negative answer at any point, other than at step 3,
stops the inquiry and leads to a determination that the plaintiff is not disabled. Garfield v.
Schweiker, 732 F.2d 605 (7th Cir. 1984).
The plaintiff has the burdens of production and persuasion on steps 1 through 4.
However, once the plaintiff shows an inability to perform past work, the burden shifts to the
Commissioner to show ability to engage in some other type of substantial gainful employment.
Tom v. Heckler, 779 F.2d 1250 (7th Cir. 1985); Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir
1984).
2
The Court’s function on review is not to try the case de novo or to supplant the ALJ’s
finding with the Court’s own assessment of the evidence. Pugh v. Bowen, 870 F.2d 1271 (7th
Cir. 1989). The Court must only determine whether the ALJ’s findings were supported by
substantial evidence and whether the proper legal standards were applied. Delgado v. Bowen,
782 F.2d 79, 82 (7th Cir. 1986). In determining whether the ALJ’s findings are supported by the
substantial evidence, the Court must consider whether the record, as a whole, contains “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420 (1971). Credibility determinations made
by the ALJ will not be disturbed unless the finding is clearly erroneous. Anderson v. Bessemer
City, 470 U.S. 564, 573, 105 S.C. 1504 (1985); Imani v. Heckler, 797 F.2d 508 (7th Cir.), cert.
denied, 479 I.S. 988. 107 S.Ct. 580 (1986).
Alvarado raises the following objections: (1) the ALJ erred by reviewing the records
prior to the Comparison Point Decision (“CPD”) date and finding those conclusions
unwarranted; (2) the ALJ failed to review critical evidence supporting his limitations in his
mental residual functional capacity (“RFC”); (3) the ALJ erred in relying on the 2004 report of
Dr. Hilger and gave improper weight to the findings of Dr. Dalfiume; (4) the Magistrate Judge
and ALJ erred in establishing that the Claimant had medical improvement; (5) the ALJ and
Magistrate Judge made false credibility assessments; and (6) the hypothetical to the vocational
expert (“VE”) was improper. Each objection will be addressed in turn.
First, Alvarado argues that the ALJ erred in reviewing the parts of the disability record
beginning in 1984 and that the ALJ made false and unwarranted assumptions about the original
1999 decision that put Alvarado on disability. The Plaintiff also argues that the ALJ considered
facts surrounding his education and incorrectly deduced that the Plaintiff’s activities of daily
3
living were inconsistent with his disability. For instance, Alvarado contends that during this time
period, he attended a school for the disabled, and his living situation was monitored.
The CPD date is the date of reference to the last favorable Social Security determination
of disability. See §§ 20 C.F.R. 404.1594(b)(7); 416.994(b)(1)(vii); and 416.994(a)(c)(1). The
ALJ was instructed to consider pre-CPD and post-CPD evidence, as required by 20 C.F.R.
404.1594(c)(1). The Stipulation to Remand on April 25, 2011 provided:
On remand, the Administrative Law judge will further evaluate whether the Plaintiff’s
disability continues. The ALJ will compare the pre-comparison point date (CPD)
evidence1 with the post-CPD evidence, as required by 20 C.F.R. 404.1594(c)(1). In
addition, as instructed by 20 C.F.R. 404.1594(d)(4)(iv), the ALJ will not apply any of the
exceptions to the medical improvement standard found in 20 C.F.R. 404.1594(d)(1)-(4)
unless the conditions for reopening, set forth in 20 C.F.R. 404.988, are met. (AR 682).
The Report and Recommendation properly provides that the ALJ did not err in
considering the pre-CPD evidence on record. The ALJ discussed Alvarado’s 1990 Scotopic
Sensitivity Syndrome and explained why it was not found to be an established medically
determinable severe impairment by the state agency medical consultants. The ALJ found that
there was no independent diagnosis of Scotopic Sensitivity Syndrome after 1990. In fact, the
ALJ considered the 1992 findings of Dr. Caldwell, a medical consultant, which stated that
Alvarado’s vision was correctable and that there were no restrictions in activities due to his
vision.
The Plaintiff also argues that the discussion of the pre-CPD evidence is a violation of the
remand instructions because it belies an accusation of fraud, one of the exceptions to the medical
improvement standard for discontinuing assistance. However, the ALJ is very clear that the preCPD discussion is “provided simply to be thorough in discussing all the evidence in record; and
to support the finding that the statements of the claimant, his mother, his brother and Ms. Justus
1
September 24, 1999.
4
are not reliable . . . ” (R. at 645). The ALJ does suggest that the prior disability decision was in
error, but emphasizes that Alvarado’s case is not being decided based on an exception to medical
improvement. Instead, the ALJ emphasized that the original finding of disability was appropriate
and that the medical evidence supports a finding that there was medical improvement (R. at 648)
and there was improvement in the claimant’s residual functional capacity (“RFC”) (R. at 669).
Next, Alvarado argues that the ALJ failed to review critical evidence of his limitations in
his RFC analysis. Alvarado contends that the ALJ wrongfully afforded the 1999 consultative
reports little weight, including the findings of Dr. Cashen, the consulting psychologist. Dr.
Cashen had concluded that the plaintiff needs an above average amount of structure and selected
entry-level jobs with supervision, but the ALJ failed to discuss these conclusions. The plaintiff
further argues that the discounting of Dr. Cashen’s opinion disregards medical evidence because
it is at odds with the ALJ’s unqualified opinion.
All medically determinable impairments are to be considered when the judge conducts a
RFC assessment. See 20 C.F.R. § 404.1545(a)(2). The ALJ considers medical records along
with the other relevant evidence on record. 20 C.F.R. § 404.1527(b). The ALJ is not bound by
findings made by nontreating or nonexamining sources made by State agency medical or
psychological consultants, or other program physicians or psychologists. 20 C.F.R. §
404.1527(e)(2)(i). However, the ALJ must consider their findings and opinions apart from any
determinations of disability, which are reserved for the commissioner. 20 C.F.R. §§
404.1527(c)(2)(i) and (d)(2). When a treating source’s opinion is not given controlling weight,
the ALJ must explain what weight was given to the medical opinions. 20 C.F.R. §§
404.1527(e)(2)(ii). Medical opinions are statements from physicians and psychologists, and
may include a claimant’s symptoms, diagnosis and prognosis. 20 C.F.R. § 404.1527(a)(2).
5
The Court does not “reweigh the evidence, resolve conflicts, decide questions of
credibility, or substitute our own judgment for that of the Commissioner.” Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000). The Court will reverse the Commissioner’s findings only if they
are not supported by substantial evidence, or “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 28 L.Ed.2d 842 (1971).
It is clear from the record that the ALJ properly considered the pre-CPD evidence and the
post-CPD evidence, including the report of Dr. Cashen. (R. at 636). Further, the ALJ found that
there had been no formal RFC assessment in 1999, the CPD. (R. at 669). Instead, the ALJ found
that the evidence in the record that after July 31, 2004, the claimant’s RFC is less restrictive than
it was at the time of the CPD.
This Court cannot re-weigh the evidence or afford a different weight to Dr. Cashen’s
findings. The ALJ relied upon substantial evidence in the record, and the fact that the ALJ’s
opinion did not adopt non-treating physician’s report from the evidence does not warrant a
remand, as the ALJ was not required to afford Dr. Cashen’s report any particular weight. See 20
C.F.R. § 404.1502
Alvarado next argues that the ALJ erred in relying on the 2004 report of Dr. Hilger and
afforded the findings of Dr. Dalfiume the improper weight. As stated above, the ALJ considers
medical records along with the other relevant evidence on record. See 20 C.F.R. § 404.1527(b).
The ALJ evaluates a medical opinion after considering factors such as the treatment relationship,
whether the opinions were supported with sufficient explanations, and whether the physician
specializes in the claimant’s disability or medical condition. See 20 C.F.R. §§ 404.1527(d)(2)(I)(ii), (d)(3), & (d)(5). The Court must give deferential treatment to the ALJ long as the ALJ
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“minimally articulated his reasons.” Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008). The 7th
Circuit considers this deferential treatment “lax,” and allows the Court to uphold the ALJ’s
opinion even if reasonable minds could differ. Id. at 713.
Dr. Hilger conducted an interview with the claimant and issued a consultative report in
2004. Alvarado argues that Dr. Hilger improperly diagnosed him with “malingering,” and this
diagnosis was the basis for the ALJ’s rejection of the plaintiff’s testimony, as well as the
testimony of his mother, brother, and friend. Additionally, he argues that Dr. Hilger’s diagnosis
was erroneous because Dr. Hilger did not perform any objective medical tests for malingering,
and that this finding was contradictory to the past medical evidence on record. For example,
Alvarado points out that all of the State Agency examiners before Dr. Hilger found that the he
had a learning disability, Dr. Hilger was only given Dr. Cashen’s 1999 report, and Dr. Hilger’s
report was not enough to prove that Alvarado had medical improvement pursuant to 20 C.F.R. §
404.1594.
Dr. Hilger, who performed a consultative exam, reported that the Plaintiff never received
psychiatric treatment and appeared in good health, and even drove himself to the appointment.
(R. at 443). Dr. Hilger performed a basic mental status test and determined that Alvarado was
malingering with suboptimal and disingenuous effort, and had average intellectual functioning.
(R. at 443). Although Alvarado has an objection that Dr. Hilger only had Dr. Cashen’s report,
Dr. Cashen’s report was favorable to the claimant.
The Report and Recommendation properly found that the ALJ sufficiently articulated her
reasons for affording Dr. Hilger greater weight. The ALJ made a “well-reasoned determination”
based upon the doctor’s observations and expertise. See Elder, 529 F.3d at 413. The ALJ found
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that because Dr. Hilger’s report was most consistent with the reliable evidence as a whole, his
opinion was to be given greater weight.
Next Alvarado argues that the ALJ did not give Dr. Dalfiume’s findings the weight they
deserved because the ALJ refused to consider any contradictions to her assumptions. Dr.
Dalfiume is an examining psychologist who examined the Plaintiff in 2008 and 2012. Based
upon a 1990 assessment, Dr. Dalfiume reported that the Plaintiff’s Scotopic Sensitivity
Syndrome was a basis of the plaintiff’s disability.
Again, here the ALJ supported her findings with ample evidence from the record. The
ALJ’s opinion emphasized that no treating or examining source since that assessment has
independently diagnosed the plaintiff with Scotopic Sensitivity Syndrome or indicated that he
had work related limitations as a result of his eye problems. Further, the ALJ found that there
was no explanation for the drop in IQ scores between the 2008 and 2012 evaluations, and that
the latter evaluation included far more diagnoses. (R. at 661-662). The ALJ also stated that
between 1999 and 2008, the claimant demonstrated a drastic drop in his WAIS-II scores: verbal
IQ dropped 9 points, performance IQ dropped 11 points, and full scale IQ dropped 12 points.
The ALJ noted this decrease and also noted the lack of evidence of any medical explanation,
even by Dr. Dalfiume, who hypothesized the drop in scores was due to the claimant’s tiredness
after a recent vacation. Dr. Dalfiume found a possible avoidant personality disorder and
generalized anxiety disorder, among other disorders. The doctor also stated that some of the
decrease in the Plaintiff’s reading and oral language scores were due to the decrease in structure
and social stimulation in his life.
The ALJ is not required to afford any particular weight to Dr. Hilger or Dr. Dalfiume
because there was no treatment relationship. See 20 C.F.R. § 404.1502. Here, the ALJ explained
8
that the 2012 assessment is suspect because it relied upon the statements from Alvarado’s family
and friend, who have financial incentives. The ALJ also indicated that the Plaintiff’s attorney
sought this 2012 evaluation to reinstate Social Security benefits, and Dr. Dalfiume was only
provided with certain documents to obtain a favorable outcome. The record does show that in
2012, Dr. Dalfiume had access to the pre-CPD documents, as well as the information he received
for the 2008 assessment (R. at 492), which includes Dr. Hilger’s report, as he discusses it in both
the 2008 and 2012 assessments. (R. at 495; 790-91). Although the ALJ’s statement about the
information available to the doctor is mistaken, there is sufficient evidence to support her
credibility findings with respect to Dr. Dalfiume.
While it is true that an ALJ may not simply dismiss a medical opinion because it was
solicited by an attorney (see Warren v. Colvin, 565 F. App'x 540, 545 (7th Cir. 2014)), the ALJ
offered numerous reasons why Dr. Dalfiume’s medical opinion was inconsistent with the record
as a whole, and that the report was based upon subjective and self-serving statements of
Alvarado, Alvarado’s mother, and Melody Justus. (R. at 661-666). For instance, the claimant
assisted with his mother’s business by picking up and delivering flowers, and lived
independently while attending college. The Report and Recommendation properly found that the
ALJ articulated many reasons for affording Dr. Dalfiume’s opinions little weight.
Similarly, Alvarado argues that the ALJ erred in relying upon Dr. Hilger’s 2004 report to
remove the plaintiff from disability, and that ALJ erred in determining that there was medical
improvement. The plaintiff argues that Dr. Hilger did not use any testing but simply relied upon
his impressions he received from the plaintiff in the one hour interview. Dr. Hilger diagnosed
Alvarado with malingering, but Alvarado argues that the symptoms reported by Dr. Hilger are
symptoms of his disability.
9
Alvarado further argues that neither the ALJ nor Dr. Hilger established that the plaintiff
had medical improvement in accordance with 20 C.F.R. § 404.1594, and that the review did not
meet cessation requirements. The claimant argues that the ALJ erred in finding medical
improvement due to his employment at his mother’s flower shop and baby-sitting his friend’s
children. Instead, he argues that all psychological reports from the state agency examiners up
until Dr. Hilger found that the plaintiff had a learning disability, whereas the ALJ said that his
learning disability had improved. The plaintiff maintains that his associates degree was
“completed in a comprehensive Learning Disability Program where tests are read, class notes are
taken by other skilled student note takers, carried a lighter than average course load and had
tutors.” (R. at 425).
The claimant has the burden of producing medical evidence that supports his claim of
disability. Einchstadt v. Astrue, 534 F.3 663, 668 (7th Cir. 2008). According to 20 C.F.R. §
404.1594, medical improvement is:
any decrease in the medical severity of impairment(s) present at the time of the most
recent favorable medical decision that you were disabled or continued to be disabled and
is determined by a comparison of prior and current medical evidence which must show
that there have been changes (improvement) in the symptoms, signs or laboratory
findings associated with that impairment(s).
It must be shown whether the medical improvement is related to the claimant’s ability to work.
Id. The claimant must be able to engage in substantial gainful activity before a finding of no
longer disabled. See Johnson v. Apfel, 191 F.3d 770, 773 (7th Cir. 1999), 20 C.F.R. § 404.1594.
At the time of the CPD, the claimant’s medically determinable impairment was a
learning disability, but the claimant’s Scotopic Sensitivity Syndrome was not considered to be an
established medically determinable severe impairment by state agency medical consultants. (R.
at 635). The ALJ found that the evidence failed to “establish that any other listing would have
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been met or medically equaled as of 1999.” (R. at 637). The ALJ found that the claimant no
longer met the listing so there was medical improvement (R. at 645) and as of July 31, 2004,
there had been a decrease in the medical severity of the claimant’s impairments. (R. at 648).
The ALJ stated that the claimant is “limited to jobs that do not require complex or
detailed job processes, jobs with little in the way of change in the job process from day to day,
jobs that do not require interaction with the public, and which can be learned by demonstration,
without a requirement of reading, writing, or math calculations to learn or perform the job tasks
(although the claimant is capable of reading and writing).” (R. at 649). The ALJ further stated
the specific limits that the claimant has, and listed jobs that would be appropriate for the
claimant. (R. at 668). Also, the ALJ discussed the fact that the claimant had no past relevant
work, and that the claimant’s improvement is related to the ability to work because it has
increased the claimant’s RFC. (R. at 669). The jobs the ALJ found the claimant could perform
include housecleaner, auto washer, or kitchen helper.
The record supports findings of mental impairments that would limit the claimant to jobs
that are not complex or detailed. The ALJ’s findings adequately took the claimant’s mental
impairments and symptoms together into account by limiting Alvarado to only little interaction
with the public, jobs that can be learned by demonstration, and do not require reading, writing,
or math calculations to perform. (R. at 649).
The Court again addresses the point that it may only overturn the judgment of the ALJ if
it is not supported by substantial evidence or does not follow the proper legal standard.
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 401. The Report and Recommendation
11
properly found that the ALJ articulated her reasons for her findings, discussing the claimant’s
limitations and ability to perform certain jobs in a 39-page opinion. Reasonable minds might
accept as adequate the ALJ’s assertion that the evidence on record supports “a significant
number of jobs in the national economy.” (R. at 670). For instance, Alvarado can buy and sell
items on eBay, send and receive e-mail, drive, deliver items for his mother’s flower shop, use a
computer and camera, and assist with baby-sitting. Although Alvarado, his family, and his friend
deny he can do these things without assistance, he even stated that he sometimes performs
household tasks like taking out the garbage and putting away dishes. Accordingly, given the
detailed analysis of the ALJ, when viewing his opinion and the record as a whole, the Court
cannot find that his credibility determination or consideration of Alvarado’s limitations was
patently wrong. The ALJ’s finding that there was medical improvement from July 31, 2004, is
supported by substantial evidence and does not warrant a remand.
Alvarado’s next argument is that the ALJ and Magistrate Judge made false credibility
assessments of his family and friends. Plaintiff concedes that his friend, Melody Justus, admitted
to having a financial incentive to help the plaintiff obtain Social Security benefits.
The Court is able to overturn an ALJ’s credibility determinations only if the
determinations were patently wrong. Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013). A
determination is patently wrong “when the ALJ’s determination lacks any explanation or
support.” Elder, 529 F.3d at 413-14. The Court does not “undertake a de novo review of the
medical evidence that was presented to the ALJ. Instead, we merely examine whether the ALJ's
determination was reasoned and supported.” Id. at 413 (7th Cir. 2008). The ALJ must provide
specific reasons for the credibility findings. Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002).
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It is the province of the ALJ to resolve evidentiary conflicts, which requires
consideration of : (1) activities of daily living; (2) location, duration, frequency, and intensity of
pain and other symptoms; (3) precipitating and aggravating factors; (4) type, dosage,
effectiveness, and side effects of any medication; (5) treatment for relief of symptoms; (6)
measures other than treatment used to relieve pain; and (7) any other factors concerning
functional limitations and restrictions. Erhart v. Secretary of Health and Human Services, 969
F.2d 534, 542 (7th Cir. 1992); Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the [Commissioner] (or the [Commissioner’s] designate,
the ALJ).” Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). The existence of an evidentiary
dispute is not grounds for reversing the ALJ’s decision to credit one version of facts over
another. Herr, 912 F.2d at 181 n.4 (7th Cir. 1990). Additionally, it is well-settled that “[a]n ALJ
may discount subjective complaints of pain [or limitation] that are inconsistent with the evidence
as a whole.” Knight v. Chater, 55 F.3d 309, 314 (7th Cir. 1995).
The Court is required to give deference to the ALJ. The ALJ articulated her reasons for
affording the testimony of Alvarado’s brother, mother, and friend little credibility. The ALJ
stated that their testimony was inconsistent with the record and that these individuals gave selfserving statements. As stated above, the claimant lived independently during his time achieving
his college degree, often drove and even made deliveries for his mother’s business, and overall
the evidence on record established at most a mild restriction of activities of daily living. (R. at
641, 649). Additionally, Alvarado’s brother and Ms. Justus discussed how the claimant was a
financial burden to them, and the ALJ concluded that this constituted a reason to question the
validity of their statements regarding the claimant’s activities of daily living. (R. at 665). The
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ALJ discounted the opinion of Mr. Farr because he lacked the background to make
determinations about Alvarado’s ability to be employed, and Mr. Farr’s statements were given
less weight than the inconsistent evidence of Alvarado’s actual daily activities. The ALJ did not
attack Mr. Farr’s credibility beyond his lack of expertise.
Moreover, there was evidence and testimony supporting a fraud between the claimant’s
mother, Melody Justus, and Ms. Justus’ boyfriend, which the ALJ discussed at length. (R. at
652-53). Ms. Justus had falsified a childcare agreement for tax reasons, and the claimant’s
mother signed Alavarado’s name as the caretaker. Ms. Justus claimed that she never paid the
claimant to watch her children, instead paying her boyfriend, as she claims she did not trust the
claimant to watch the children on his own. The ALJ also stated that the brother’s statements
were given less weight than Alvarado’s actual abilities, stating that “[w]hile the claimant’s
brother seems to be well meaning, he has not provided any reliable vocational information
regarding what the claimant could or could not do in a work setting; more weight is given to the
less subjective/self-serving evidence in the file and vocational testimony from a vocational
expert.” (R. at 657).
The credibility determinations are not “patently wrong” as the ALJ supports each
determination with detailed explanations and evidence from the record. Overall the ALJ found
the testimony of these individuals inconsistent with evidence in the record as a whole. The Court
finds the conclusions of the ALJ and Magistrate Judge are well-reasoned and supported (Elder,
529 F.3d at 413) and no remand is warranted on the basis of the credibility assessments.
Finally, Alvarado argues that the hypothetical posed to the vocational expert (“VE”) was
improper because it “did not include the conclusion he would need a structured and selected
entry level occupation.” (Doc. 20, p. 12). Instead, Alvarado insists that when his attorney
14
included more limitations from the medical evidence in her hypothetical, the VE responded that
there were no jobs that met his needs.
The Seventh Circuit maintains that “the ALJ must question the vocational expert
regarding every impairment set forth in the claimant’s record to the extent that the impairment is
supported by the medical evidence.” Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003), citing
Herron v. Shalala, 19 F.3d 329, 333 (7th Cir.1994). The ALJ, however, is “required only to
incorporate into [her] hypotheticals those impairments and limitations that [s]he accept[ed] as
credible.” Similia v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009).
The transcript reveals the following discussion between the ALJ and the VE:
EXAMINATION OF VOCATIONAL EXPERT BY ADMINISTRATIVE LAW JUDGE
Q: Mr. Regains, I would like you to assume and individual who is, let’s see, currently 44
. . . .he graduated high school in special education, has an associate’s degree, I guess he
also has that with special education, but no exertional limitations. Let’s assume no past
relevant work for this. An individual who would be limited to jobs that do not require
complex or detailed job processes, little in the way of change in the job process from
day-to-day, jobs that do not require interaction with the public, and jobs that can be
learned by demonstration rather than requiring reading, writing, or math calculations to
learn the job or perform the job.
A What was the latter part of that hypothetical or that component, Your Honor?
Q Jobs that can be learned by demonstration and that do not require reading, writing, or
math calculations to perform the job tasks. The individual can read and write but slowly,
so jobs that basically you just do without having to perform those tasks.
A Okay.
15
Q Can you give me some examples of jobs that would fit that hypothetical?
CLMT Wait, I certainly can’t write, I don’t know, I mean, I certainly can’t write. There’s
no –
ALJ: I’ve asked him to give me jobs that don’t require writing.
CLMT: Oh, okay, I see.
VE: Okay. At the heavy exertional level, Your Honor, I think one example I could list
would be that of a housecleaner. That’s the DOT title, which is 323.687-018. That’s an
SVP: 2 as far as skill level is concerned. It’s, as I said, heavy. . . . At a medium exertional
level I think one example of what would be an SVP: 1 would be automobile washer,
which is 919.687-014. . . . I think also at the medium exertional level the person that you
cited or described in the hypothetical could be a kitchen helper, that’s 318.697-010. . .
BY ADMINISTRATIVE LAW JUDGE
Q Do you have a light example?
A At a light exertional level the person that you described I believe could do an
assembler of small products, which is 706.684-022. . .
Q Any other light?
A Those are some examples. At the light there would be packaging inspector and hand
packager for example, 920.687-074.
(Supplemental Transcript at 829 – 831.)
The medical evidence and limitations reasonably supported by the record were
considered by the ALJ in formulating the hypothetical question. It was proper for the ALJ to
omit from the hypothetical any limitations based on statements by Alvarado or other witnesses
which the ALJ fund to be not fully credible, limitations entitled to little weight in light of a lack
16
of medical support in the record as a whole, or the unsupported arguments of her attorney.
Erhart, 969 F.2d at 540 (7th Cir. 1992). The law states that “[a]ll that is required is that the
hypothetical question be supported by the medical evidence in the record” and that it “build[s] an
accurate and logical bridge between the evidence and his conclusion.” Meredith v. Bowen, 833
F.2d 650, 654 (7th Cir. 1987); Cass v. Shalala, 8 F.3d 552, 555-56 (7th Cir. 1993); Zurawski v.
Halter, 245 F.3d 881, 887 (7th Cir. 2001). The ALJ’s opinion meets this standard because the
ALJ is required only to incorporate into his hypotheticals those impairments and limitations that
he accepts as credible. Similia v. Astrue, 573 F.3d 521. The hypotheticals posed to the VE
reflected those limitations the ALJ found credible and supported by the medical evidence on
record. To reflect the degree of limitation supported by the record, the ALJ included a limited
range of light work, including unskilled work at all exertional levels caused by his limitations,
such as jobs that do not require complex or detailed job processes, jobs that can be learned by
demonstration rather than requiring reading, writing, or math calculations to learn the job or
perform the job, and no interaction with the public. This limitation resulted in a significant
number of jobs in the national economy that Alvarado could perform. The Court cannot find that
the ALJ’s credibility determinations, weight afforded to medical evidence, or hypothetical was
patently wrong, and therefore these determinations are entitled to deference under Diaz v.
Chater, 55 F.3d 300, 308 (7th Cir 1995).
Conclusion
When viewing the ALJ’s opinion and the record as a whole, the Court cannot find that
her credibility determination or consideration of Alvarado’s learning disability was patently
wrong. Furthermore, the ALJ opinion contains “such relevant evidence as a reasonable mind
17
might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91
S.Ct. 1420 (1971).
With this additional explanation and detailed findings, the Objection of the Claimant [20]
is OVERRULED, and the Report and Recommendation [19] of the Magistrate Judge is
ADOPTED. Claimant’s Motion for Summary Judgment [12] is DENIED, and the
Commissioner’s Motion for Summary Affirmance [16] is GRANTED. This matter is now
TERMINATED.
ENTERED this 7th day of July, 2015.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge
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