Murphy v. Colvin

Filing 16

ORDER & OPINION entered by Judge Joe Billy McDade on 9/28/15. For the foregoing reasons, the Commissioners decision denying disability benefits is affirmed. IT IS THEREFORE ORDERED that Plaintiffs Motion for Summary Judgment 11 is DENIED, and Defendants Motion for Summary Affirmance 14 is GRANTED. CASE TERMINATED. (See Full Written Order and Opinion).(VP, ilcd)

E-FILED

Monday, 28 September, 2015 10:44:46 AM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JON RICHARD MURPHY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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Case No. 14-cv-1248

ORDER & OPINION
Pending before the Court in this social security disability benefits matter are
Plaintiff’s Motion for Summary Judgment (Doc. 11) and Defendant’s Motion for
Summary Affirmance (Doc. 14). The motions have been fully briefed and are ready
for ruling. For the reasons stated below, Plaintiff’s Motion for Summary Judgment
is DENIED and Defendant’s Motion for Summary Affirmance is GRANTED.
BACKGROUND1
I.

Procedural History
On September 19, 2011, Plaintiff applied for disability insurance benefits

under Title II of the Social Security Act, claiming that he became disabled as of
January 17, 2008, due to a right torn labrum, left torn labrum, right shoulder injury
While this Court reviews the entire administrative record, it focuses its analysis
and discussion on the issues and evidence raised by the parties. Plaintiff must “cite
to the record by page number the factual evidence which supports the plaintiff’s
position.” CDIL-LR 8.1(D). Thus, the Court will not scour the record for additional
evidence that might support Plaintiff’s claims. Furthermore, since Plaintiff is
represented by counsel, the failure to cite particular pieces of evidence in the record
will be deemed a waiver of his reliance on that evidence.
1

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cartilage damage, left shoulder injury, bone spurs neck and depression. (R. at 159).2
His claim was initially denied on December 6, 2011. (R. at 75). Plaintiff filed for
reconsideration on December 12, 2011 (R. at 81) and was again denied on March 1,
2012. (R. at 82). On March 6, 2012, Plaintiff filed a written request for a hearing,
which was held on January 2, 2013. (R. at 35). On January 25, 2013, the
Administrative Law Judge (“ALJ”) issued an opinion finding that Plaintiff was not
disabled and thus not eligible for disability insurance benefits. (R. at 24). On
February 12, 2013, Plaintiff filed a request for review of the ALJ’s decision (R. at 2),
which was ultimately denied on May 12, 2014. (R. at 1). This final denial made the
ALJ’s decision the final decision of the Commissioner of Social Security. (R. at 1).
Plaintiff then filed his Complaint (Doc. 1) with this Court on June 20, 2014.
II.

Relevant Medical History
In his application for disability benefits, Plaintiff explained that his need for

disability benefits arose from a right torn labrum, left torn labrum, right shoulder
injury cartilage damage, left shoulder injury, bone spurs neck and depression. (R. at
159). In February of 2007, Plaintiff injured his right shoulder in an automobile
collision. (R. at 357). He presented himself to Dr. Joseph Newcomer, M.D. in
October of 2007 where the Plaintiff informed him that he was experiencing a lot of
difficulty and pain in the anterior aspect of his shoulder; that his shoulder hurt
pretty much with any activity that he did, not necessarily chest level or higher; that
he had to give up coaching basketball; and that while he continued his work as an
Citation to R. at ___ refers to the page in the certified transcript of the entire
record of proceedings provided by the Social Security Administration.
2

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electrician, he did so while fighting through the pain. (R. at 357). Earlier in 2007 he
had a Cortisone shot which helped for about two days and he had three months of
physical therapy which provided him some relief. (R. at 357). He was not on any
medications at the time of his initial visit to Dr. Newcomer and he stated he was not
experiencing any numbness or tingling into the fingertips. (R. at 357).
A month later, Dr. Newcomer went over the results of an MRI with Plaintiff
that revealed his right shoulder had a tear of the anterior inferior labrum,
associated with a paralabral cyst and a possible tear of the posterior labrum, along
with other nonspecific inflammation of the acromioclavicular joint. (R. at 356-57).
Osteonecrosis and bone bruising were mentioned as possibilities. (R. at 377). In
January of 2008, Plaintiff underwent an arthroscopic debridement of labral tear
and micro fracture chondroplasty of the chondral defect and bursectomy. (R. at 389).
He left the hospital with an ice pack to right shoulder and Percocet five mg for pain.
Plaintiff stopped working. (R. at 159, 389-90).
Plaintiff suffered through significant symptoms of adhesive capsulitis (frozen
shoulder), discomfort and lack of flexibility after the surgery, and underwent a
second procedure on his right shoulder on April 17, 2008. (R. at 388). This procedure
consisted of an interscalene block injection and manipulation of the shoulder while
Plaintiff was under anesthesia. (R. at 388). He also engaged in extensive physical
therapy and Dr. Newcomer noted that after the procedure, Plaintiff achieved full
forward flexion, full abduction, and internal external rotation at 90 degrees. (R. at

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388). Plaintiff tolerated the procedure well and was discharged in stable condition.
(R. at 388).
Plaintiff showed improvement with each right-shoulder examination, and by
November 24, 2008, he had excellent forward flexion abduction that constituted a
functional arc of motion, making him functional in his right shoulder. (R. at 353).
However, Dr. Newcomer observed an intraarticular derangement in his left
shoulder, and recommended arthroscopy. (R. at 353). In September of 2008, Plaintiff
had undergone an MRI of the left shoulder that revealed a suspected chronic
Bankart lesion anterior-inferior labrum with associated paralabral cyst. (R. at 376).
In February of 2009, Plaintiff complained of steady pain to Dr. Newcomer,
who attributed such to the portals and possible myositis from the right shoulder
surgery. (R. at 352). In April of 2009, Plaintiff continued to complain of constant
pain and Dr. Newcomer put him on a work restriction that limited his use of either
arm to chest level or higher, which the Court interprets as not using the arms
higher than the chest given his past complaints of pain resulting from using his
arms in an overhead fashion. (R. at 352). By June of 2009, Plaintiff was able to lift
twenty pounds overhead and his range of motion was progressing nicely although
he still complained of his left shoulder bothering him. (R. at 352). Dr. Newcomer
notes that Plaintiff was “not quite ready for taking the step of having arthroscopic
surgery for the left surgery” (R. at 352). In August of 2009, Plaintiff reports to Dr.
Newcomer that he had been pushing the envelope and still suffering pain in his left

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shoulder. (R. at 351). In October of the same year, Dr. Newcomer documents a visit
from Plaintiff and notes that surgery on the left shoulder is elective. (R. at 351).
On October 23, 2009, Plaintiff finally underwent left arthroscopic surgery to
repair a partial rotator cuff tear, along with labral repair and subacromial
decompression. (R. at 386). He tolerated the procedure well, and was released in a
sling. Afterwards, Plaintiff underwent intensive physical therapy for the next
several months. (R. at 386). By December 28, 2009, Dr. Newcomer noted that
Plaintiff exhibited a lot of guarding of his shoulder and called for a functional
capacity evaluation ("FCE"). (R. at 351). Thereafter, Plaintiff underwent the FCE.
Dr. Newcomer later reviewed the FCE and noted that the Plaintiff’s failure in 9 out
of 13 functional very concerning for symptom magnification. (R. at 351).
In April of 2010, Plaintiff underwent another FCE to test his strength and
range of motion. The evaluators noted that the majority of his functional activities
were limited by subjective reports of pain and his Plaintiff’s grip strength
inconsistencies casted doubt on his effort. (R. at 421). At the end of the day, they
concluded the Plaintiff had demonstrated the ability to perform at the LightMedium level functioning (lifting thirty-five pounds infrequently, twenty pounds
frequently and walking at three mph while carrying no load or slower while
carrying twenty pounds) to Medium level of functioning (lifting fifty pounds
maximum and lifting/carrying up to twenty-five pounds frequently), which was
definitely less than the Very Heavy level of functioning required of his last job as an
electrician. (R. at 421).

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On May 10, 2010, Dr. Newcomer released Plaintiff to work with permanent
restrictions to light-medium to medium level of function, with no lifting over fifty
pounds maximum, no lifting over ten pounds chest level or higher, and infrequent
carrying of up to thirty-five pounds. (R. at 350).
On November 7, 2011, Plaintiff underwent a consultative physical
examination with Sarat Yalamanchili, M.D., and complained of bilateral shoulder
pain and limitation, as well as neck pain. (R. at 290). Dr. Yalamanchili noted that
Plaintiff had some, but not much, loss of flexion, extension and abduction in both
shoulders, with slightly more on the right than left. (R. at 293-94). Dr. Yalamanchili
further observed Plaintiff to have normal strength (5/5) in his upper extremities; no
muscular atrophy; normal ability to perform fine and gross manipulation; no
difficulties in getting on/off the examination table, tandem walking, toe walking,
heel walking, squatting or one-leg hopping; and no need for an assistive device. (R.
at 293-94). Dr. Yalamanchili observed Plaintiff to have right shoulder pain more
than left shoulder and an inability to lift heavy weights, and he diagnosed bilateral
shoulder pain. (R. at 295).
On November 29, 2011, state agency physician Henry Rohs, M.D., completed
a physical residual functional capacity (RFC) assessment form. (R. at 304). Dr. Rohs
found that Plaintiff could occasionally lift/carry fifty pounds and frequently
lift/carry twenty-five pounds; could stand/walk and sit about six hours in an eight
hour workday; could push/pull to an unlimited degree; could occasionally climb

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ladders, ropes and scaffolds; had limited reaching in all directions; and had no other
restrictions. (R. at 305-08).
On February 27, 2012, state agency physician Young-Ja Kim modified Dr.
Rohs’ findings by finding that Plaintiff could not lift over fifty pounds, could
infrequently carry up to thirty-five pounds, and could not lift more than ten pounds
chest level or higher. (R. at 349).
In May of 2012, Plaintiff went to the emergency room with complaints of
head pain after another car accident. (R. at 397-98). One month later, Plaintiff
reported headaches and neck pain to his family doctor, Patel Mukesh, M.D. (R. at
449). Upon examination, Plaintiff had paraspinal muscle tenderness at C5, C6 and
C7 but no cervical spine tenderness. (R. at 450). Dr. Mukesh suspected whiplash,
and recommended ibuprofen and hot packs or biofreeze. (R. at 451).
On December 14, 2012, Plaintiff’s licensed physical therapist, Jeff Schade,
wrote a summary of Plaintiff’s medical history. (R. at 473). Mr. Schade reported
that Plaintiff’s body type seemed to have an increased incidence of capsular and
muscular adhesions, causing significant increases in pain and decreases in mobility.
(R. at 473). Mr. Schade further indicated that Plaintiff would have continuing
deficits going forward, requiring increased physical therapy, a permanent decrease
in range of motion, and a potential future need for shoulder replacements. (R. at
473).
In terms of his mental history, On August 30, 2010, Plaintiff sought help for
depression from his family doctor, John Purnell, M.D. Plaintiff informed Dr. Purnell

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that he had been prescribed Buspar but wanted to go back on Prozac. (R. at 289).
On November 30, 2010, after weaning him off Buspar, Dr. Purnell prescribed
Prozac. (R. at 289). On November 9, 2011, Plaintiff appeared at a consultative
psychological examination with psychologist Dr. Alvin House. (R. at 299). Plaintiff
was noted as well-oriented, displaying normal general knowledge, normal written
and calculation ability, and normal spontaneous verbal fluency and oral
comprehension. (R. at 299). He did not exhibit any confusion or looseness of
associations, but his mood was anxious. (R. at 299). Plaintiff told Dr. House that his
2007 shoulder injuries were work-related. (R. at 300), and he later received a
$180,000 worker’s compensation award for them, although he had told Dr.
Newcomer that his shoulder injuries resulted from a February 2007 car accident.
(R. at 357).
Plaintiff completed a Beck Depression Inventory (BDI) and obtained a raw
score of twenty-four, suggesting moderate clinical depression. (R. at 300). When
asked about his mood, Plaintiff stated that he was generally irritable and
pessimistic. (R. at 300). Plaintiff told Dr. House that he felt depressed every day for
the past two weeks and had negative self-thoughts, that he was not sure if his
Prozac prescription was helping. He also stated he did not sleep well because of his
physical impairments. (R. at 300). Plaintiff reported dyslexia and struggles in
school, and struggles with wiring diagrams in his past work. (R. at 300-01) Dr.
House diagnosed Plaintiff with major depressive disorder/single episode/moderate

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and learning disorder, and assessed a Global Assessment of Functioning (GAF)
score of 48. (R. at 301).
On December 5, 2011, state agency physician Larry Kravitz, Psy. D,
completed a Psychiatric Review Technique Assessment (PRT). (R. at 312). Dr.
Kravitz found that Plaintiff was only mildly limited in conducting activities of daily
living and maintaining social functioning, but he had moderate restrictions in
maintaining concentration, persistence and pace, with no episodes of extended
decompensation. (R. at 322). Dr. Kravitz then found that Plaintiff was able to
understand, remember and carry out simple and some detailed instructions, but
would have difficulty sustaining performance on any more than simple, repetitive
tasks secondary to limited sustainability, and that he would be capable of managing
customary workplace interactions and ordinary levels of work stress with limited
changes in the day-to-day work routine. (R. at 328).
On February 22, 2012, Dr. Patel noted in his treatment notes that Plaintiff’s
“depression and anxiety [was] stable” on his current medication. (R. at 340). On
February 23, 2012, state agency psychologist Michael Schneider, Ph.D., reviewed
and affirmed Dr. Kravitz’s findings. (R. at 349).
III.

The Evidentiary Hearing
On January 2, 2013, Plaintiff appeared with representation before the ALJ.

(R. at 35). He testified that he lived with his wife and two sons, and was able to
drive his sons to and from school despite that vibrations caused his symptoms to
flare. (R. at 39-40). Plaintiff graduated high school but did not complete college. (R.

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at 40-41). Plaintiff last worked as an electrician in 2008, and obtained an
approximately $180,000 worker’s compensation settlement afterward. (R. at 41-42).
Plaintiff reported suffering a work accident, which later required surgery in both
shoulders. (R. at 42-43). Plaintiff was taking oxycodone and meloxicam for pain and
arthritis, and Lisinopril for hypertension, as well as an antidepressant. (R. at 44-45,
48). Plaintiff reported overcompensating with his left arm, and that vibrations—
including vibrations from driving—aggravated his right shoulder. (R. at 45).
Plaintiff indicated he might need a shoulder replacement in the future, and had
recurring neck pain. (R. at 47). Plaintiff said he did not have any problems with
depression before his injuries, and his pain interfered with his sleep. (R. at 49).
Plaintiff also reported problems with concentration, in part because of his
pain. (R. at 50). Plaintiff reported some problems with standing and walking, and
disagreed with the functional capacity evaluation that stated he could lift up to 50
pounds and frequently carry thirty-five pounds. (R. at 51-52). Plaintiff stated that
vacuuming was painful for him, and he needed help shopping. (R. at 53). Plaintiff
said he recently needed treatment for a groin injury after packing boxes while
moving. (R. at 55). Plaintiff said he napped during the day, and reported problems
with bathing and using computers. (R. at 53-54, 56). Plaintiff also reported five
headaches a week. (R. at 60). Plaintiff said he could walk a mile and stand for an
hour without needing a rest, but was unsure how much he could lift because he had
not “tried to lift anything”. (R. at 61-62). Plaintiff was continuing with weekly
physical therapy. (R. at 62).

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Vocational expert Randall Harding testified that Plaintiff previously worked
as an electrician, which was skilled medium-exertion work. (R. at 64). The ALJ
asked a hypothetical about an individual with Plaintiff’s age, education and work
experience, who was limited to medium work and occasional climbing of ladders,
ropes or scaffolds; limited to occasional overhead reaching and frequent reaching in
all other directions; moderately limited in his ability to carry out detailed
instructions, maintain attention and concentration for extended period, and
complete a normal workday without interruptions from psychologically-based
symptoms; and further limited to performing simple, repetitive tasks with no more
than ordinary and routine changes in a work setting or duties. (R. at 65). The
vocational expert testified that such an individual could not perform Plaintiff’s past
electrician work, but could perform unskilled medium work positions in the
economy. (R. at 65-66).
The ALJ then modified the hypothetical to further limit the individual to
lifting no more than 35 pounds occasionally and 10 pounds frequently, and no more
than 10 pounds chest level or higher, infrequent carrying of up to 35 pounds, and no
concentrated exposure to vibration or temperature extremes. (R. at 66). The
vocational expert testified that such an individual could perform laundry worker,
electrical assembly and usher/lobby attendant jobs. (R. at 66-67).
IV.

The ALJ’s Opinion
The ALJ issued his decision to deny Plaintiff’s disability claims on January

25, 2013. (R. at 24). He concluded that Plaintiff met the insured status

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requirements through June 30, 2013; that he had not engaged in substantial gainful
activity since January 17, 2008; and that he suffered from multiple severe
impairments, namely bilateral degenerative joint disease of the shoulders, statuspost surgeries, degenerative disc disease of the cervical spine, affective mood
disorder, and learning disorder. (R. at 14). However, Plaintiff’s impairments did not
meet any of the listed impairments in the Code of Federal Regulations and thus he
was not legally disabled because he possessed the RFC necessary to perform
medium work as defined in 20 C.F.R. § 404.1567(c), except that he can lift no more
than ten pounds chest level or higher, he can carry no more than thirty five pounds
occasionally, and he can carry no more than ten pounds frequently. He can climb
ladders, ropes or scaffolds no more than occasionally, he can reach overhead no
more than occasionally, and he call reach in any other direction no more than
frequently. He must avoid concentrated exposure to vibration and temperature
extremes. He is limited to performing simple, repetitive tasks on a sustained basis,
and any work should involve no more than ordinary and routine changes in work
setting or duties. (R. at 16-23). The ALJ found Plaintiff is unable to perform any
relevant past work.
The ALJ discussed the requirements of Listings 1.02 and 1.04 in regard to
Plaintiff’s should impairments and spinal impairments. (R. at 15). He also discussed
Listings 12.02 and 12.04 in regard to Plaintiff’s mental impairments. (R. at 15). The
ALJ discussed much of the evidence in the record but he did not mention the finding
of Dr. Rohs. Also, the ALJ only gave partial credence to the subjective statements of

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the Plaintiff concerning his pain and symptomology in light of the objective medical
evidence and the findings and conclusions of several of the medical sources. (R. at
17, 22).
LEGAL STANDARDS
I.

Standard of Review
The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).

“The standard of review that governs decisions in disability-benefit cases is
deferential.” Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). When a
claimant seeks judicial review of an ALJ’s decision to deny benefits, this Court must
only “determine whether [the ALJ’s decision] was supported by substantial evidence
or is the result of an error of law.” Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir.
2004). “The findings of the [Commissioner] as to any fact, if supported by
substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). “Substantial evidence,
‘although more than a mere scintilla of proof, is no more than such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Kepple v. Massanari, 268 F.3d 513, 516 (7th Cir. 2001) (citations omitted).
To determine whether the ALJ’s decision is supported by substantial
evidence, this Court will review the entire administrative record, but will not
“reweigh the evidence, resolve conflicts, decide questions of credibility, or substitute
[its] own judgment for that of the Commissioner.” Clifford v. Apfel, 227 F.3d 863,
869 (7th Cir. 2000). While this Court must ensure that the ALJ “build[s] an
accurate and logical bridge from the evidence to [her] conclusion,” she need not

13

address every piece of evidence. Clifford, 227 F.3d at 872. The Court will remand
the case only where the decision “lacks evidentiary support or is so poorly
articulated as to prevent meaningful review.” Steele v. Barnhart, 290 F.3d 936, 940
(7th Cir. 2002).
II.

Disability Standard
To qualify for disability insurance benefits under the Social Security Act,

claimants must prove that they are unable to “engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment.”
42 U.S.C. § 416(i)(1). Additionally, the impairment must be of a sort “which has
lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 416(i)(1). With respect to a claim for a period of disability and
disability insurance benefits, claimants must also show that their earnings record
has acquired sufficient quarters of coverage to accrue disability insurance benefits
and that their disability began on or before the date that insurance coverage ended.
42 U.S.C. §§ 416(i)(3), 423(c)(1)(B).
The Commissioner engages in a factual determination to assess claimants’
abilities to engage in substantial gainful activity. McNeil v. Califano, 614 F.2d 142,
145 (7th Cir. 1980). To do this, the Commissioner uses a five-step sequential
analysis to determine whether claimants are entitled to benefits by virtue of being
disabled. 20 C.F.R. § 404.1520(a)(1); Maggard v. Apfel, 167 F.3d 376, 378 (7th Cir.
1999).

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In the first step, a threshold determination is made as to whether the
claimant is presently involved in any substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i). If the claimant is not engaged in such activity, the Commissioner
then considers the medical severity of the claimant’s impairments. Id. §
404.1520(a)(4)(ii). If the impairments meet the twelve-month duration requirement,
the Commissioner next compares the claimant’s impairments to a list of
impairments contained in Appendix 1 of Subpart P of Part 404 of the Code of
Federal Regulations and deems the claimant disabled if the impairment matches
the list. Id. § 404.1520(a)(4)(iii). If the claimant’s impairments do not match the list,
then the Commissioner considers the claimant’s Residual Functional Capacity
(“RFC”)3 and past relevant work. Id. § 404.1520(a)(4)(iv). If claimants are still able
to perform their past relevant work, then they are not disabled and the inquiry
ends. Id. If they are unable to perform their past relevant work, then the
Commissioner considers the claimants’ RFC, age, education, and work experience to
see if they can transition to other work. Id. § 404.1520(a)(4)(v). If a transition is not
possible, then the claimant is deemed disabled. Id.
The plaintiff has the burden of production and persuasion on the first four
steps of the Commissioner’s analysis. McNeil, 614 F.2d at 145. However, once the
plaintiff shows an inability to perform any past relevant work, the burden shifts to
the Commissioner to show an ability to engage in some other type of substantial

Residual Functional Capacity is defined as “the most [claimants] can still do
despite [their] limitations.” 20 C.F.R. § 404.1545(a)(1).
3

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gainful employment. Id. (citing Smith v. Sec’y of Health, Educ. & Welfare, 587 F.2d
857, 861 (7th Cir. 1978)).
DISCUSSION
In his memorandum in support of his motion for summary judgment,
Plaintiff complains that the ALJ committed several errors in reaching his
conclusion that Plaintiff was not disabled within the meaning of the applicable
social security regulations. Plaintiff underlined his points of error in the brief. So
the Court will address each underlined point.
I.

“The ALJ erred in determining Mr. Murphy’s joint impairments were
not severe.”
As an initial matter, the ALJ did not find that Murphy’s joint impairments

were not severe; the ALJ clearly found that Murphy’s bilateral degenerative joint
disease of the shoulders was a severe impairment. (R. at 14). Yet, the ALJ
concluded this impairment did not equal one of the listed impairments in 20 C.F.R.
§ Part 404, Subpart P, Appendix 1.
As the Plaintiff is aware, to meet or equal a listed impairment, all the criteria
identified in the listing must be met. 20 C.F.R. § 404.1525(d). The ALJ considered
Listing 1.02, which requires a showing that the claimant has a major dysfunction of
a joint characterized by gross anatomical deformity and chronic joint pain and
stiffness with signs of limitation of motion or other abnormal motion of the affected
joint, and findings on appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis of the affected joint with the involvement
of one major peripheral weight-bearing joint resulting in inability to ambulate

16

effectively or involvement of one major peripheral joint in each upper extremity
resulting in inability to perform fine and gross movements effectively. (R. at 14).
The Plaintiff contends the ALJ erred in his review of whether Plaintiff was
able to perform fine and gross movements effectively because he did not consider
whether Plaintiff could sustain such motions. (Doc. 12 at 4). The record shows that
the ALJ clearly considered the observations of Dr. Yalamanchili, who performed a
consultative physical examination of Plaintiff, and who personally observed
Plaintiff to have normal ability to perform fine and gross manipulation of his
extremities, and further noted he did not require an assistive device to ambulate (R.
at 19, 292-94). Plaintiff points to no evidence in the record that he could not
otherwise sustain such movements in light of Dr. Yalamanchili’s findings, despite
that the burden of proof at this stage of the analysis is on him. Briscoe ex rel. Taylor
v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005) (“The claimant bears the burden of
proof at steps one through four, after which at step five the burden shifts to the
Commissioner.”).
The listing instructs that “[t]o use their upper extremities effectively,
individuals must be capable of sustaining such functions as reaching, pushing,
pulling, grasping, and fingering to be able to carry out activities of daily living.
Therefore, examples of inability to perform fine and gross movements effectively
include, but are not limited to, the inability to prepare a simple meal and feed
oneself, the inability to take care of personal hygiene, the inability to sort and

17

handle papers or files, and the inability to place files in a file cabinet at or above
waist level.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
There is no evidence in the record that Plaintiff was unable to carry out the
activities of daily living mentioned above, or other similar activities. In Plaintiff’s
mental functional capacity assessment, it was reported that the Plaintiff was
managing some daily chores within his physical tolerances, including simple meal
preparation, laundry and dusting, driving for short distances, and shopping for
clothing and his children. (R. at 15, 328). This evidence supports the ALJ’s finding
that the Listing 1.02 criteria were not met.
Plaintiff also contends that the ALJ failed to consider Plaintiff’s pain. (Doc.
12 at 5). He cites the observations of Dr. Henry Rohs, the agency medical consultant
who performed the Physical Residual Functional Capacity Assessment, that
Plaintiff claims to suffer from chronic pain in his shoulders and his day-to-day
activities as evidence the ALJ missed. (R. at 328). Although the ALJ did not
specifically mention Dr. Rohs or his observations/findings, he did state in the
opinion
The claimant had his consultative physical examination (Physical CE)
on November 7,2011 and complained of bilateral shoulder pain and
limitation and neck pain. (Ex. 3 F). The doctor noted that there was
some, but not a lot of loss of flexion, extension and abduction in both
shoulders, with slightly more on the right than left. (Ex. 3F, p. 4). It
was also reported that the claimant had normal strength (5/5) in the
upper extremities, that muscular atrophy absent, and that he had
normal ability to perform tine and gross manipulation. The doctor
concluded that the claimant's symptomatology consisted of right
shoulder pain more than left shoulder, inability to lift heavy weights,
and diagnosed bilateral shoulder pain. The foregoing examination
results were consistent with the objective medical and other evidence

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in the record, the undersigned finds that it is persuasive, and the
Physical CE is given significant weight.
(R. at 19). An ALJ need not address every piece of evidence in the record; all the
reviewing court must do is ensure that the ALJ “build[s] an accurate and logical
bridge from the evidence to [her] conclusion.” Clifford, 227 F.3d at 872. The
foregoing passage demonstrates that the ALJ considered relevant information on
the effect of Plaintiff’s impairments on his ability to function.
Moreover, Dr. Rohs’ assessment does not undermine Dr. Yalamanchili’s. It
should be noted that Dr. Rohs observed that the Plaintiff was able to care for
himself, do routine household chores and that his “ADLS are partially credible
based on the objective medical in file”. (R. at 309). Dr. Rohs further found that
Plaintiff could perform a restricted range of medium work, finding that he could
occasionally lift/carry fifty pounds and frequently lift/carry twenty-five pounds;
stand/walk and sit about six hours in an eight hour workday; push/pull to an
unlimited degree; occasionally climb ladders, ropes and scaffolds; had limited
reaching in all directions (including overhead); and had no other restrictions. (R. at
19, 305-08).
In light of the information considered in the opinion as well as the fact that
the information provided by Dr. Rohs does not undermine the other evidence
specifically mentioned in the ALJ’s decision, this Court finds that the ALJ did not
commit reversible error in failing to specifically mention Dr. Rohs’ observations in
his opinion.

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II.

“The ALJ found that the claimant was capable of returning to work
as of the November 24, 2008 examination (Ex. 11F, p. 4)”
Plaintiff contends the ALJ's finding that he could return to work following his

examination by Dr. Newcomer in November 24, 2008 was erroneous. In making that
finding, the ALJ explained he was relying upon Dr. Newcomer’s own notes that
Plaintiff had excellent forward flexion abduction, a functional arc of motion, and
functional right shoulder. (R. at 19). Plaintiff points out that Dr. Newcomer also
noted that Plaintiff probably was not going to get all of his rotation in his right arm
back; still had a component of adhesive capsulitis (frozen shoulder); and that his left
shoulder has an intra-articular derangement that would be benefitted by
arthroscopic management.
None of what the Plaintiff points to speaks to his functionality though. Not
getting rotation all the way back; still suffering some frozen shoulder; experiencing
some pain from an intra-articular derangement—none of these statements shed
light on to what extent Plaintiff could or could not make use of his shoulders and
work at that time. In contradistinction, stating the observation that the Plaintiff
had “excellent forward flexion abduction, a functional arc of motion, and functional
right shoulder” supports the conclusion that Plaintiff was able to move his shoulder
and use it in his daily activities, such as work.
Plaintiff hints that the need for the surgery in and of itself establishes he
could not work. That cannot be right because people undergo surgery for any
number of reasons, not solely to restore their body to a condition sufficient to work.
Moreover, a review of the office treatment notes (Exhibit 11F) does not provide a

20

basis to conclude Dr. Newcomer was contemplating Plaintiff could not perform any
work, but rather that he could not return to his then recent work as an electrician
prior to November 2008. (See R. at 354, September 8, 2008 treatment note (“He is
not ready at this point to return to the type of labor that he was doing before and
the heavy lifting.”)).
In short, the ALJ’s decision that Plaintiff could return to some work was
supported by substantial evidence and not clearly erroneous.
III.

“ALJ errs in reviewing the ‘B’ Criteria to find him not disabled.”
Next, Plaintiff complains that the ALJ’s findings that he was not disabled

under “B” criteria were clearly erroneous. The Court is confused as to what point
Plaintiff is trying to make under this header. The Commissioner seems to think
Plaintiff is complaining about the ALJ’s assessment of his mental disability here.
Indeed, in his brief, Plaintiff cites to page fifteen of the ALJ’s decision as improperly
considering “’B’ criteria”. (Doc. 12 at 4). Indeed, the only “B criteria” discussed on
page fifteen of the decision is “paragraph B criteria” (R. at 15) and such discussion
was clearly in relation to Plaintiff’s claimed mental disability. Plaintiff does not
explain how his physical limitations affect the extent to which his daily activities
are affected by his mental limitations.
The ALJ discussed Listings 12.02 and 12.04. (R. at 15) Both listings require
the level of severity for these mental disorders to be met only when the
requirements in both paragraphs A and B are satisfied, or when the requirements
in C are satisfied. 20 C.F.R. § Pt. 404, Subpt. P, App. 1. Paragraphs B of these

21

listings require that the claimant’s mental disorder result in at least two of the
following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or
pace; or
4. Repeated episodes of decompensation, each of extended duration;
20 C.F.R. § Pt. 404, Subpt. P, App. 1. Listing 12.00C provides that the term
“marked” means “more than moderate but less than extreme.”
Plaintiff claims the “ALJ’s B Criteria findings are not supported by
substantial evidence.” (Doc. 12 at 6). “Substantial evidence, ‘although more than a
mere scintilla of proof, is no more than such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Kepple, 268 F.3d at 516. Here,
the ALJ considered the psychological assessment performed by Dr. Alvin House, in
which he observed Plaintiff was appropriately dressed in casual clothing,
adequately groomed and was cooperative and compliant. (R. at 299). Plaintiff was
alert and fully oriented, gave no indication of confusion, looseness of associations, or
psychotic thought content. The ALJ also considered the Plaintiff managed some
daily chores within his physical tolerances, including simple meal preparation,
laundry and dusting, driving for short distances, shopping for clothing and his
children, and managing finances. The ALJ discussed the observations that Plaintiff
maintained contact with his family and others, ate out with friends or family,
attended church and his children's sport activities. The ALJ noted that the Plaintiff
had not experienced any episodes of decompensation of extended duration. The

22

Court is satisfied that the ALJ’s decision that Plaintiff was not suffering from
extreme or marked difficulties associated with his mental disorders was supported
by substantial evidence.
Plaintiff takes issue with the ALJ’s failure to discuss the following difficulties
while assessing whether the “B criteria” were satisfied: hand numbness, naps on
bad days, difficulty attending his children’s events where his arm hangs, dropping
and retrieving kids from school, dropping items, walking a mile and needing a ten
minute break, and his shoulder pain and immobility. Yet, Plaintiff provides no
explanation of how these things affected his mental functioning. He does not even
make a perfunctory claim that these physical limitations caused his ongoing
depression. (See Doc. 12 at 6-7). It should also be noted that the ALJ’s treatment of
the “B” criteria is supported by Dr. Larry Kravitz’s own assessment, in which he
declined to find any marked functional limitations on Plaintiff. (See R. at 322).
In short, Plaintiff has not provided any reason to conclude the ALJ’s finding
that Plaintiff did not meet the criteria of Listing 12.02 and 12.04 was not supported
by substantial evidence.
IV.

“Mr. Murphy had two functional capacity evaluations that are
consistent with disability.”
Plaintiff underwent a functional capacity evaluation on January 19, 2010 for

the purpose of determining his then-present abilities and limitations. (R. at 431).
He later underwent another functional capacity evaluation in April, 2010 to assess
his then-current level of function compared to his pre-injury position. (R. at 414).
Plaintiff does not seems to be arguing that the ALJ ignored these pieces of evidence,

23

but rather that the ALJ was wrong to not take these pieces of evidence as
supporting the conclusion that Plaintiff could not perform any work. The latter
evaluation clearly concluded that Plaintiff was found to be functioning at the lightmedium to medium level of physical capacity. (R. at 414). The first evaluation
concluded that it was the opinion of the evaluator, within a reasonable degree of
medical certainty, that Plaintiff could function on a full-time basis:
1. Material Handling: No more than Floor to Waist 30# Occasional, 45#
Frequent and 22.5# Constant. Waist to [Shoulders], 15# Occasional,
15# Frequent and 7.5# Constant. [Shoulders] to Overhead 13#
Occasional, 10# Frequent, 5# Constant. Pushing 53# Occasional, 26.5#
Frequent. Pulling 66.8# Occasional, 33.4# Frequent.
2. Non-Material Handling: No more than Occasional reaching, grip/fine
motor, kneel/crawling, frequent climbing.
(R. at 432).
These evaluations are not consistent with total disability or the inability to
perform no work, as the Plaintiff suggests. Instead, they show that while the
Plaintiff was very limited in the work he was able to perform, there is no indication
he could not perform any limited work, and the ALJ concluded as much. The ALJ
specifically found:
[T]he claimant has the residual functional capacity to perform medium
work as defined in 20 CFR 404.1567(c), except that he can lift no more
than ten pounds chest level or higher, he can carry no more than 35
pounds occasionally, and he can carry no more than ten pounds
frequently. He can climb ladders, ropes or scaffolds no more than
occasionally, he can reach overhead no more than occasionally, and he
call reach ill any other direction no more than frequently. He must
avoid concentrated exposure to vibration and temperature extremes.
He is limited to performing simple, repetitive tasks on a sustained
basis, and any work should involve no more than ordinary and routine
changes in work setting or duties.

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(R. at 16). There is nothing inconsistent with the ALJ’s findings and the conclusions
of the functional capacity evaluations. Thus, the Plaintiff’s contention that the
ALJ’s findings were not supported by the evidence is unfounded.
V.

“ALJ improperly disregarded the information from the treating
physicians.”
Dr. John Purnell was Plaintiff’s regular doctor. Plaintiff saw him in August

and November of 2010. Dr. Purnell noted that Plaintiff could not do any work. (R. at
43). In the first place, it is not clear that this was Dr. Purnell’s opinion, rather than
a mere recordation of what the Plaintiff was communicating to him. Second, an ALJ
is not required to give controlling weight to the ultimate conclusion of whether a
claimant can work anyway because that is a finding specifically reserved for the
Commissioner. 20 C.F.R. § 404.1527(e)(1); Denton v. Astrue, 596 F.3d 419, 424 (7th
Cir. 2010). Third, assuming Dr. Purnell’s statement is an opinion, an ALJ may
reasonably reject a treating physician’s opinion when it is unsupported by the
objective medical evidence. See Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir.
2004). It has already been discussed how the evidence before the ALJ supported his
finding that Plaintiff could perform light to medium work.
Next, Plaintiff complains that the ALJ disregarded that Plaintiff was given a
score of forty-eight on a Global Assessment of Functioning (“GAF”) test by Dr. Alvin
House and that Dr. House noted that Plaintiff had a Major Depressive Disorder,
Single Episode, Moderate with antidepressant medication. (Doc. 12 at 9).
The ALJ clearly considered this information on page ten of his decision. (R. at
21). He wrote:
25

Based upon the foregoing, the examiner assigned him a GAF of 48
(serious symptoms in functioning – almost non-functioning), which
could indicate that the individual might be unable to work. (Ex. 4F, p.
3). This conclusion is inconsistent with the claimant's performance on
the mental functioning examination, which was normal in almost
every facet. The examiner based the very low GAF score on the
claimant's subjective responses to the BDI, and on his subjective report
of symptoms. Then, after intimating that the claimant could not
function, the examiner contradicted that impression by stating that
the claimant was competent to manage any benefit assigned him.
The objective medical evidence shows that the claimant had no history
of psychiatric or other professional mental health treatment of any
kind; the claimant treated with his primary care physician for his
depression. Even though the undersigned has given the claimant the
benefit of the doubt and has found that his depression and learning
disorder are severe impairments, the foregoing mental examination is
not enough to support a GAF of 48, nor is it enough to support a
finding of disability. Thus, the undersigned gives no weight to the
foregoing GAF.
(R. at 21).
Again, an ALJ may reasonably reject a treating physician’s opinion when it is
unsupported by the objective medical evidence. See Skarbek, 390 F.3d at 503.
Putting aside the fact that Dr. House was not an actual treating physician in that
Plaintiff was not his patient, the ALJ provided a plausible basis, supported by his
discussion of the objective evidence before him, as to why he rejected the low GAF
assessment. He focused on the fact that Plaintiff had no history of psychiatric or
other professional mental health treatment of any kind. He also noted that the GAF
conclusion was inconsistent with the Plaintiff’s performance on the mental
functioning examination, which was normal in almost every facet. He also
mentioned that Plaintiff completed a Beck Depression Inventory (“BDI) and scored
a twenty-four, which places him in the moderate range for depression.

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Moreover, the GAF score of forty-eight is at odds with the daily activities
Plaintiff himself said he undertakes. According to the GAF, a score of forty-eight
correlates to such serious symptoms such as suicidal ideation, severe obsessional
rituals, frequent shoplifting or any serious impairment in social, occupational, or
school functioning such as not having any friends, and being unable to keep a job.
Diagnostic and Statistical Manual of Mental Disorders, (DSM–IV–TR) (4th ed., Text
Revision), p. 34. Plaintiff was able to maintain social relationships, attend church,
eat out with friends and attend his children’s activities. He has not presented any
evidence he experienced anything like suicidal ideations, obsessional rituals or
similar behavior. So the ALJ was totally justified in rejecting Plaintiff’s low GAF
score as proof of disability. It should be noted that the GAF table has been dropped
from the most recent Diagnostic and Statistical Manual of Mental Disorders and as
explained in Pontarelli v. Colvin, No. 13 C 1015, 2014 WL 3056616 (N.D. Ill. Jul. 7,
2014), were inherently unreliable as an indicator of functionality anyway.
Next, Plaintiff contends the ALJ omitted findings of Dr. Larry Kravitz that
Plaintiff had a learning disability, was moderately limited in the ability to carry out
detailed instructions and the ability to maintain attention and concentration for
extended periods, and would be moderately limited in the ability to complete a
normal workday and workweek without interruptions from psychologically based
symptoms and to perform at a consistent pace without an unreasonable number and
length of rest periods. The ALJ did not omit Dr. Kravitz’s findings. He
acknowledged that the Plaintiff was rated moderately limited in his ability to carry

27

out detailed instructions, maintain attention and concentration for extended
periods, and complete a normal workweek and respond appropriately to changes in
the work setting, but he also considered that the Plaintiff was found able to
understand, remember and carry out simple and some detailed instructions, capable
of managing customary workplace interactions and ordinary levels of work stress
with limited changes in the day-to-day work routine, and therefore capable of
routine and repetitive work. (R. at 82). Plaintiff does not explain how the ALJ was
wrong to conclude as he did in the decision that, “because of his mental
impairments, he is limited to performing simple, repetitive tasks on a sustained
basis, which work should involve no more than ordinary and routine changes in
work setting or duties.” (R. at 23). That statement includes Dr. Kravitz’s conclusion
almost verbatim. (See R. at 328).
Next, Plaintiff simply lists the observations of Dr. Patel V. Mukesh that
Plaintiff had acid reflux; a lump on the back of his left shoulder where he had a scar
and a lesion removed; tingling in his hand in the wrist part and in his foot;
hypertension, hyperlipemia(sic) and depression. There is absolutely no discussion of
how these observations relate to the ALJ’s decision, or render it incorrect or bereft
of evidentiary support. Thus, the Court deems argument concerning Dr. Mukesh’s
observations waived because perfunctory and undeveloped arguments are waived
on appeal. United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.1991), applied to
social security disability appeal by Moss v. Astrue, No. 09-1196, 2010 WL 2572040,
at *5 (C.D. Ill. June 22, 2010).

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Plaintiff continues throughout this “section” of his brief listing observations
of Dr. Newcomer, additional notations and observations from Dr. Mukesh, and
observations from Plaintiff’s physical therapist, Jeff Schade4 to support the
following contentions:
All we want from an ALJ is to agree with the physician and physical
therapist that he still has shoulder pain that is affecting his
functioning. It makes no sense for an ALJ to dismiss all medical
opinion and give it no weight. That is why we have a Treating
Physician’s rule. It was an error of law not to consider it properly.
(Doc. 12 at 12-13). Nowhere in the ALJ’s thirteen page opinion did he write that
Plaintiff did not experience shoulder pain that affected his functioning. This
audacious and unsupported claim undermines Plaintiff’s arguments and does
nothing to advance the merit of his case.
VI.

“ALJ Erred in reviewing SSR 96-7p credibility of his inability to
work due to pain.”
In this section the Plaintiff repeats several of his arguments under a general

theme that the ALJ erred in assessing Plaintiff’s credibility in relation to the
severity of the pain he was experiencing and his inability to work. Plaintiff begins
with the assertion that he was laboring under a medically determinable
impairment. (Doc. 12 at 13). The ALJ never found that he was not. Plaintiff
misstates the record by contending the ALJ did not review the listing on joints
because, as has already been discussed, the ALJ specifically discussed Listings 1.02
and 1.04 on page four of his decision. (R. at 15).
The Court is unsure why the Plaintiff discusses the opinion of a physical therapist
in the section of his brief dedicated to the opinions of treating physicians. Physical
therapists are not physicians and are not “acceptable medical sources” as that term
is defined under the regulations. 20 C.F.R. §§ 404.1502 and 404.1513(a).
4

29

Next, he contends that Plaintiff’s daily activities do not necessarily translate
to a finding that someone can work full time. Social Security Ruling 96-7p calls for
an ALJ to consider the following criteria when assessing the credibility of a
claimant’s statements in addition to the objective medical evidence: 1) The
individual's daily activities; 2) The location, duration, frequency, and intensity of
the individual's pain or other symptoms; 3) Factors that precipitate and aggravate
the symptoms; 4) The type, dosage, effectiveness, and side effects of any medication
the individual takes or has taken to alleviate pain or other symptoms; 5) Treatment,
other than medication, the individual receives or has received for relief of pain or
other symptoms; 6) Any measures other than treatment the individual uses or has
used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing
for 15 to 20 minutes every hour, or sleeping on a board); and 7) Any other factors
concerning the individual's functional limitations and restrictions due to pain or
other symptoms.
Thus, consideration of daily activities is certainly something the ALJ should
have considered. And he did. For example, he wrote:
The claimant has bilateral degenerative joint disease of the shoulders
status post surgeries, and degenerative disc disease of the cervical
spine, however, the degree of symptoms and limitations alleged by the
claimant due to pain are not consistent with the objective medical
evidence regarding his alleged impairments, or his functional ability,
including his testimony about his daily activities....
the claimant managed some daily chores within his physical
tolerances, including simple meal preparation, laundry and dusting,
driving for short distances, shopping for clothing and his children,…

30

The claimant is a 46-year-old man who alleged he has been disabled
since January 2008 because of his shoulder impairments with multiple
surgeries, bone spurs in the neck, and depression. The claimant lives
with his wife and two sons, ages 12 and 10. He drives several times a
week. The claimant testified that his right shoulder bothers him the
most, and it is aggravated by cold, vibration, and lifting things away
from his body. He described difficulty sleeping due to pain. The
claimant has Oxycodone for breakthrough pain and he estimated that
he takes that medication about twice a month. He currently takes
meloxicam daily. He described intermittent neck pain if he looks up or
down too long. He thought his left shoulder was doing relatively well.
The claimant takes Bupropion for depression and he testified that he is
not as angry or irritable on that medication. The claimant testified
that movement aggravates his shoulder pain, he reported that he has
limited mobility to reach overhead, and he claims that his hand
sometimes goes numb. He had previously reported decreased strength
when attempting to hold something heavy. (Exhibit 9E) The claimant
described some problems with concentration and focus that he
attributes to a combination of pain and depression. The claimant
attends his children's sporting events but reported that sitting can be
hard if he cannot support his right arm. The claimant reported that he
has good days and bad days; he uses ice and heat more on a bad day
and he may nap due to poor sleep at night. The claimant also described
headaches. . . .
(R. at 15, 17, and 22). The excerpts above confirm that the ALJ considered
Plaintiff’s daily activities, causes of pain, medicines, and more in his RFC
assessment. Thus, this alleged point of error has no merit.
Plaintiff cites two cases5—Hughes v. Astrue, 705 F.3d 276 (7th Cir. 2013) and
Roddy v. Astrue, 705 F.3d 631 (7th Cir. 2013)—for the general proposition that an
ALJ should not necessarily consider a claimant’s ability to perform daily activities
as evidence that the claimant can work, but neither of the cases support that
proposition. Both cases instruct an ALJ to proceed with caution when considering
Incidentally, the Court finds Plaintiff’s consistent failure to pin cite to the actual
pages of the opinions upon which he relies to be unprofessional and detrimental to
the expeditious disposition of the motions sub judice.
5

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how a claimant’s daily activities impact a determination of whether the claimant
can perform work, but it is ludicrous to suggest that an ALJ errs in treating a
claimant’s ability to perform daily activities as evidentiary support for a conclusion
the claimant can work. The lessons from Hughes and Roddy are merely that the
ALJ should try to understand the context surrounding the claimant’s ability to
perform daily activities when there is objective medical evidence of impairments.
Thus, in Hughes for example, the court explained that the claimant testified
she was doing laundry because she could not afford to hire a laundress, so she had
to do the laundry herself despite the pain. 705 F.3d at 279. She testified she had to
buy groceries herself because she had no one else to do it for her and she did not
wish to starve. Id. She took public transportation because it did not involve lifting
heavy objects. Id. Plaintiff has not asserted that he took his children to and from
school because there were no other options available. Plaintiff has not asserted that
he does shopping because no one else could do it. Plaintiff has not asserted that he
attends his children’s events because he is forced to do so. There is no basis in the
record to find that Plaintiff engaged in the activities of daily living he himself
testified about for any other reason than he elected to undertake those activities.
Even the January 1, 2013 letter from his wife supports that Plaintiff’s engagement
in activities is of his own choice, not necessity, like the claimant in Hughes. Thus,
this Court cannot conclude the ALJ was incorrect in his analysis of Plaintiff’s daily
activities.

32

Next, Plaintiff simply lists several factors that precipitate and aggravate his
symptoms: vibrations, cold weather, heavy lifting, jogging, walking, and standing
up for too long. (Doc. 12 at 14). Since the Plaintiff does not state the significance of
his listing these factors, the Court assumes the Plaintiff is arguing that the ALJ did
not consider them. The ALJ did consider these factors in his opinion though. “[The
Plaintiff] must avoid concentrated exposure to vibration and temperature
extremes.” (R. at 16). “The doctor concluded that the claimant’s symptomatology
consisted of right shoulder pain more than left shoulder, inability to lift heavy
weights, and diagnosed bilateral shoulder pain. The foregoing examination results
were consistent with the objective medical and other evidence in the record, the
undersigned finds that it is persuasive, and the Physical CE is given significant
weight.” (R. at 19).
The Plaintiff lists evidence under the remaining criteria and concludes that
the ALJ failed to consider the evidence of pain under “Lopez, 539”. Earlier in the
brief, Plaintiff cited to Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) in
support of his general argument that an ALJ must conduct a critical review. Lopez
explains that under SSR 96-7p, where there is medical evidence that supports the
claimant’s allegations, an ALJ may not simply ignore the claimant’s allegations and
must articulate specific reasons for his finding. 336 F.3d at 539-540.
The ALJ gave specific reasons for finding the Plaintiff not totally credible in
articulating the severity and persistence of his symptoms. He mentioned that the
Plaintiff told Dr. House he got injured at work in 2007. (R. at 22, 300). Yet, he told

33

Dr. Newcomer he injured himself in a car accident. (R. at 22, 357). Although the two
explanations are not mutually exclusive, they do not seem to be consistent either
and support a finding that Plaintiff is prone to give misinformation. Also, the ALJ
took note that Plaintiff's own treating physician, Dr. Newcomer expressed his
concern that Plaintiff was engaging in symptom magnification by performing more
poorly on tests than his objectively determined limitations would suggest he should.
(R. at 22, 351). These are not the words of the ALJ but the words of Dr. Newcomer.
Moreover, Plaintiff’s functional capacity assessment evaluators also expressed
concerned about inconsistencies in his performance in the area of grip strength. (R.
at 22, 421). The observations of Plaintiff's treating physician and evaluators that
Plaintiff was engaging in symptom magnification and less than full effort support
the ALJ’s determination of that his subjective allegations were not fully credible.
VII.

“ALJ omitted important considerations from his Residual Functional
Capacity consideration.”
Plaintiff leads off the last section of his brief by overstating the holding of

Herrman v. Colvin, 772 F.3d 1110 (7th Cir. 2014). Plaintiff would have the Court
believe the case holds that people with below normal grip strength with shoulder
impairments cannot perform work that requires fingering and handling. While that
may very well be true, that case makes no such sweeping pronouncements. In
Herrman, the ALJ blatantly ignored the opinions of the claimant’s treating
physicians and the SSA’s consultative physicians that she suffered from
“fibromyalgia, spinal disk disease, ‘photo-phobia’ (abnormal sensitivity to light), . . .
and that as a result she walks haltingly, has difficulty gripping objects, experiences

34

difficulty in rising from a sitting position, has trouble concentrating in a bright
room or when looking at a computer screen, and as a result of this assemblage of
impairments cannot do even light work on a full-time basis.” 772 F.3d at 1111.
Nowhere in the opinion did the court discuss the claimant’s shoulders. Similarly,
nowhere in the opinion did the court state that below normal grip strength
forecloses all jobs that involve fingering and handling.
Plaintiff nevertheless alleges the ALJ did not consider his ability to handle
objects and manipulate his fingers. It is somewhat ironic that Plaintiff places so
much emphasis on Herrman given that the heart of the court’s ruling there was
that the ALJ erred in ignoring the opinions of the professionals. Id. Here, Plaintiff
cannot escape the fact that his treating physician, Dr. Newcomer, the consultative
physicians, and the functional evaluators, all concluded at one point or another that
Plaintiff could perform light-to-medium work. (R. at 350 (Dr. Newcomer), at 414,
421 (functional capacity evaluators), at 349 (consultative physicians)). As to grip
strength, in November of 2011, Dr. Sarat Yalamanchili examined Plaintiff and
specifically found that his “[g]rip strength is strong (5/5) and equal bilaterally.
Muscle strength is normal (5/5). Muscular atrophy absent. Ability to perform fine
and gross manipulation is normal.” (R. at 293). Given this evidence in the record,
the Court is at a loss as to how Plaintiff can compare himself to the claimant in
Herrman, where the opinions of the professionals were that she had below average
grip strength and lacked the ability to grip objects. 772 F.3d at 1111.

35

Moreover, it is not as if the ALJ failed to consider Plaintiff’s subjective
statements as to the severity and cause of his symptoms and their effects on his
functioning. The ALJ expressly included aversion to vibrations and extreme
temperatures in his RFC assessment and that information came from the Plaintiff’s
subjective complaints of the triggers of his symptoms.
In conclusion, the ALJ’s assessment of Plaintiff’s RFC was adequate and is
supported by substantial evidence in the record.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision denying disability
benefits is affirmed. IT IS THEREFORE ORDERED that Plaintiff’s Motion for
Summary Judgment (Doc. 11) is DENIED, and Defendant’s Motion for Summary
Affirmance (Doc. 14) is GRANTED.
CASE TERMINATED.
Entered this 28th day of September, 2015.

s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

36