Mayes v. Commissioner of Social Security

Filing 22

ORDER and OPINION entered by Magistrate Judge Jonathan E. Hawley on 9/26/2017. For the foregoing reasons, the Plaintiff's Motion for Summary Judgment 14 is DENIED and the Commissioner's Motion for Summary Affirmance 18 is GRANTED. This matter is now terminated. See full written Order.(VH, ilcd)

E-FILED

Tuesday, 26 September, 2017 01:51:15 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
LEE MAYES,
Plaintiff,
Case No. 1:16-cv-01288-JEH

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Order and Opinion
Now before the Court is the Plaintiff Lee Mayes’s Motion for Summary
Judgment (Doc. 14), the Commissioner’s Motion for Summary Affirmance (Doc. 18),
and the Plaintiff’s Response to the Commissioner’s Motion for Summary Affirmance
(Doc. 21). 1 For the reasons stated herein, the Court DENIES the Plaintiff’s Motion for
Summary Judgment and GRANTS the Defendant’s Motion for Summary
Affirmance. 2
I
On August 31, 2012, Mayes filed an application for Supplemental Security
Income (SSI) alleging disability beginning on April 25, 2005. His claim was denied
initially on December 5, 2012 and was denied upon reconsideration on March 7, 2013.
On March 12, 2013, Mayes filed a request for hearing concerning his application for
SSI. A hearing was held before the Honorable Shreese M. Wilson (ALJ) on February
5, 2014. A second hearing, on June 23, 2014, was prompted by the postponement of
the February 5th hearing due to Mayes’s inability to continue with that first hearing

The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 9 & 10).
References to the pages within the Administrative Record will be identified by AR [page number]. The
Administrative Record appears as (Doc. 6) on the docket.
1
2

1

halfway through it. At both hearings Mayes was represented by counsel and at the
June 23rd hearing a Vocational Expert (VE) testified. Following the hearing, Mayes’s
claim was denied on July 18, 2014. His request for review by the Appeals Council
was denied on October 21, 2015, making the ALJ’s Decision the final decision of the
Commissioner. Mayes filed the instant civil action seeking review of the ALJ’s
Decision on August 1, 2016. 3
II
At the time he applied for benefits, Mayes was 44 years old living in Peoria,
Illinois with his girlfriend Barbara Polk and his friend Junior Smith. On his From
SSA-3368, Mayes listed all the physical conditions that limited his ability work as
follows:

Glaucoma, diabetes, high blood pressure, high cholesterol, and back

problems. AR 351.
At the first hearing on February 5, 2014, Mayes testified that he lived in a one
story home that required him to climb four steps into it. He drove about once every
two to three weeks. He had taken two trips to Mississippi since he filed his SSI
application in August 2012 – once to see his mother and the second to attend her
funeral – and he became sick on the bus down there and threw up and eventually was
taken to the hospital in Mississippi to stay overnight. His last job was as a grocery
store stock clerk in April 2005. He testified that he stopped working after he felt
something pop in his back while unloading a truck and learned that he had a “disc
out.” AR 109. Mayes also testified that he did not look for other work after that
because he was going back and forth to the doctor and because he could not get
around because of his back.
Mayes testified that he had a cane for a year and half and it was given to him
by Dr. Robinson at the “Mercy Room.” AR 110. He explained that, “[T]he therapy
people came down with a cane and a walker and they asked me which one I want to
On July 1, 2016, in response to a request by Mayes, the Appeals Council granted an extension of time to file an
appeal.
3

2

turn [sic]. I said I’ll try both of them see [sic] which one is the best for me to use and
he said, well, just use the cane so we used the cane.” AR 110. Mayes stated that the
reason he was given the cane was because his left leg was really weak and he was
falling a lot, and he had been using it ever since he received it. He testified that he
used it outside and inside the house. He explained that his left leg felt weak for about
three years and that he fell “every other six months” when the pain hit him really
hard so that his left leg buckled and he fell down. AR 111. He described his back
pain as stabbing in his lower back and that sitting down for “a good while” made it
worse, and he would then have to get up and move around because otherwise his
whole back became numb and pain started shooting up his left shoulder. Id. at 11112.
He testified that his feet felt like they were burning all the time and that was
why he had taken his shoes off during the hearing. Mayes also described how his feet
stayed cold a lot and that his doctor thought his high sugars were what caused the
sensations in his feet. He stated that his blurry vision was also caused by his high
blood sugar and his high blood pressure. He testified to headaches every three weeks
that lasted for about an hour. Mayes testified that during any given day he sat at
home in his recliner for about an hour to two hours and would have to get up to move
around with his cane due to his whole back and everything stiffening up on him. He
would have to be up and moving for at least half an hour. He said he otherwise only
went to the bathroom during the day and when his back pain began to hurt, he would
get up to take pain pills and if they did not work, his girlfriend would put a Fentanyl
patch on him. He mentioned that Fentanyl patches, Norco, and the other medications
he took made him sleepy and as a result, he was asleep at home a lot.
Mayes also testified that he could not bend over to tie his shoes and when asked
how he would get his shoes on, he demonstrated how he would have to sit on a chair
and put his feet up. At that point during the hearing, the ALJ went off record briefly
and when the hearing resumed, the ALJ explained that during his demonstration,
3

Mayes experienced a lot of pain and he was unable to get his pain under control.
Mayes and his attorney agreed they would like to postpone the hearing which was
done until June 23, 2014.
At the resumed June 23, 2014 hearing, Mayes testified the he was using his cane
to walk around as he started falling a lot and his leg gave out on him easily. Mayes
said the cane was prescribed in March of 2013, and he had it for three years. He
testified that his Fentanyl patches were increased to 100 milligrams since the last
hearing, and he was wearing one for left shoulder pain during that very hearing. He
also testified that he was using his medication, as he needed it for pain and was not
taking more than he was supposed to take. He stated that the doctors did not think
he was taking more pain medication than he should be taking. He did drink alcohol
on occasion for holidays “or stuff like that” and used marijuana every two to three
days if needed for pain. AR 63-64. He elaborated that he used marijuana that
frequently if needed for pain and if he did not have his Fentanyl patch; he would
smoke a joint, lay down and sleep or get his girlfriend or his uncle to rub his back
down with Icy Hot to release the muscle pain in his back. Mayes testified that his
treating physician, Dr. Greg Stoner, M.D., prescribed him something for muscle
spasms that he had all over his back and his shoulders, and Mayes also stated that he
could not raise his left shoulder over his head.
Mayes testified again to discs out in his back, pain on his whole left side, his
current use of a Fentanyl patch, and the drowsiness caused by his medication. When
questioned by his attorney about the best position for him to take at home, Mayes
explained that he put a pillow toward his back while in his recliner so he could sit
back. He said he could sit there for 10 minutes and then his muscles and “everything
starts jumping in my back and I have to get up and use my cane and walk around.”
AR 65. He also said that if moving around did not help, then he would get in the
shower and let it hit the spot where his back hurt. He was sometimes in the shower
for five hours daily. He said that when he was really hurting, his girlfriend would
4

call an ambulance to take Mayes to the emergency room. As for whether he could do
anything else to help relieve the pain, Mayes stated that he went to physical therapy,
but the exercises they told him to try made him hurt more. His girlfriend would rub
cream on his back daily without relief, and she would eventually become tired of his
crying and hurting so that she would call an ambulance. Mayes testified that he
would receive shots in the emergency room, and Dr. Stoner would give him shots as
well. He testified to his inability to go out of the house to do anything and that when
he squatted down, he needed help to get up because of the pain.
Mayes further stated that if he tried to walk down the street a block he would
have to stop and rest. He said he sometimes tried to walk to the store early in the
morning and then back to his house, though he would have to sit down for a minute
before he returned to the house. He stated that he could sit comfortably for 45 minutes
and then his back would start to become tight, and he would have to get up and move
and walk around. Mayes also stated he could stand for about an hour until he felt his
left leg getting weaker and then he would have to sit before he fell.
Mayes explained that he could not perform a job because of his pain and
inability to lift anything over 10 pounds. When questioned from where that limitation
came, Mayes explained that it was given while he was staying in Mississippi and
going to Memphis in anticipation of back surgery. It was at that time that he learned
he had diabetes and high blood pressure. He stated that the maximum he could lift
was a bag of chips.
Mayes’s girlfriend then testified. She testified that she tried to reduce Mayes’s
pain by massaging his back about three times per week and that Mayes basically spent
his days in the tub or just laying down. She stated that the only time Mayes had relief
was when he wore a Fentanyl patch and otherwise she took him to the emergency
room.

5

The ALJ then proceeded to question the VE, Ronald Malik. The ALJ first
questioned the VE based upon a 46 year old hypothetical individual with the same
high school education as Mayes and the same work history:
I would initially like for you to assume that this individual could lift up
to 20 pounds occasionally and 10 pounds frequently. This individual
would be able to sit, stand or walk up to six hours each in an eight hour
work day. This individual should never climb ladders, ropers or
scaffolds, no more than occasionally climb ramps or stairs, no more than
occasionally balance, stoop, kneel, crouch or crawl. This individual
should no more than occasionally reach overhead with the left nondominant upper extremity and this individual should avoid
concentrated exposure to extreme cold which I’m going to define as less
than 50 degrees Fahrenheit as well as unprotected heights and
hazardous machinery.
Given those limitations would such an
individual be able to return to any of the claimant’s past jobs?
AR 85-86. The VE responded in the negative. The VE identified three light unskilled
jobs the hypothetical individual could perform including fastener, electronics
assembler, and a labeler.

The available sedentary jobs included circuit board

assembler and finish assembler.

The ALJ added to the hypothetical that the

individual would be limited to lifting no more than 10 pounds and limited to no more
than two hours of standing and walking in an eight hour work day. The VE explained
that such additional limitations would eliminate the identified light unskilled jobs but
that the sedentary jobs would remain. The ALJ further limited the hypothetical to the
needed opportunity to alternate between sitting and standing, and if standing would
need to be able to sit and if sitting, would need to be able to stand. Further, the ALJ
explained that the individual would need to alternate at least one time every hour
throughout the course of an eight hour work day and may remain in the alternated
position up to five minutes though there may be tasks that the person could do so he
would not necessarily lose production time. The VE responded that such further
limitations would not affect the sedentary jobs he listed. The ALJ went a step further
and explained that the frequency of alternation needed to happen once every 30
6

minutes, and the person would have to remain in the alternated position up to five
minutes.
The VE responded that at that point the individual would have difficulty
meeting productivity because there would be something to do when standing, but the
identified jobs were typically sit down jobs so the individual would possibly be 10
minutes off task. If so, the individual would not be able to meet production. The ALJ
next asked the VE to again assume the individual alternated positions every 30
minutes. The VE was asked to assume further that when alternating positions that
frequently, the individual actually lost productivity and had to hang onto an assistive
device while standing. The VE explained that if the individual was hanging onto an
assistive device, then he would not be able to be productive and so would not be able
to maintain production such that he would be unable to maintain employment. The
ALJ summarized, “So if they’re losing five minutes of productivity every 30 minutes
they would be unable to maintain those jobs?” AR 88. The VE answered in the
affirmative. The VE then clarified that the frequency of reaching, handling, and
fingering requirements for the sedentary jobs was frequent. Finally, if the individual
called in more than one day per month, that level of absenteeism precluded the
identified jobs.
III
In her Decision, the ALJ determined that Mayes had the following severe
impairments: degenerative disc disease of the lumbar spine, mild arthritis of the left
shoulder, and diabetes. The ALJ made the following residual functional capacity
(RFC) finding:
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform
sedentary work as defined in 20 CFR § 416.967(a) except no more than
occasional climbing of ramps and stairs, balancing, stooping, kneeling,
crouching, and crawling, no climbing of ladders, ropes, or scaffolds, no
more than occasional overhead reaching with the left non-dominant
upper extremity, and no concentrated exposure to extreme cold (less
7

than 50 degrees Fahrenheit), unprotected heights, and hazardous
machinery.
AR 28.
The ALJ discussed Mayes’s hearing testimony at both hearings including his
statements about the frequency of his pain, his efforts to relieve his pain, his use of a
cane, his left leg weakness, his frequency of falling, his statements he could not raise
his left shoulder overhead, his statements about how long he could sit at one time, his
diabetic neuropathy, his typical day, his use of Fentanyl patches and Norco and their
drowsiness side effect, the length of time he had to walk around to relieve back pain,
the dose increase in his Fentanyl patch, his girlfriend’s attempts to reduce his pain
and her statements about the way he spent his days, and his pain doctor’s
communication that an MRI might not be picking up the pain of which he
complained.
The ALJ referenced the multitude of Mayes’s visits to the ER. The ALJ noted
references to Mayes’s possible drug-seeking behavior such as a November 9, 2011 ER
visit during which he was moaning, asking for pain medication, and displaying very
manipulative behavior. AR 746. During that visit he complained of left shoulder and
upper back pain. Tests revealed left side upper back pain but no gait problem and a
normal range of motion. The Initial Assessment/Plan notes from that day state:
There is some serious question whether this is drug-seeking behavior vs
any real pain. Patient’s response seems altogether out of keeping with
both his demeanor, ability to move, and physical findings. Here only
several days ago and apparently then thought to be having similar
issues.
AR 747. During his May 21, 2012 ER visit, a doctor noted an inconsistent examination
during which Mayes would be moaning or calling out in pain at times but in between
would be able to answer questions calmly and clearly. AR 918. During his August
29, 2012 ER visit, Mayes initially reported the worst headache of his life and upon
seeing the doctor he no longer complained of a headache and instead reported lower
8

back pain radiating to his legs. During that same visit he was heard yelling and
screaming and when a nurse asked him to try to keep his voice down, Mayes
screamed, “I’ll stop doing this if you give me Dilaudid.” 4 AR 1190. His headache
improved with Norco and his back pain with pain medication.
During a September 1, 2012 visit to the ER, Mayes complained of intermittent
left shoulder pain over the last three months. While he had been in the ER three days
prior and was given Norco, he had not yet taken any of it. Mayes also represented
that he fell from a chair in the triage area and had more pain in the shoulder, and
when the nurse found him lying face down on the floor and his girlfriend standing
next to him, she said Mayes just fell forward out of the wheelchair. Per a security
video, as written in Mayes’s ER notes from that date, Mayes actually lowered himself
to the ground and placed himself prone on the floor but did not actually fall. AR 1006.
The nurse further wrote in the notes, “Pt purposefully laid himself down for attention
seeking behavior.” AR 1006. A physical examination of Mayes revealed 5/5 strength
with shoulder range of motion intact and a negative shoulder x-ray.
There was a post-it note on the Facesheet of Mayes’s October 1, 2012 ER records
which provided that there had been 27 one-day visits to the OSF 5 ER between June 3,
2011 and October 1, 2012. During an October 25, 2012 ER visit, the doctor noted that
Mayes’s diffuse pain was out of proportion to the physical exam findings. Mayes
entered the ER complaining of abdominal pain on January 7, 2013. The doctor stated
the abdominal pain could be related to alcohol vs. diabetic gastropathy vs. opioid
withdrawal. When Mayes was back in the ER the next day, the doctor noted, “Pt
appeared very uncomfortable on entrance to the room. After introduced [sic] myself
as the doctor, pt laid quietly on stretcher supine for the exam. He did not exhibit any
Dilaudid is the trademark for preparations of hydromorphone hydrochloride which is, in turn, “the
hydrochloride salt of hydromorphone, having the same actions as the base; administered orally,
subcutaneously, intramuscularly, intravenously, or rectally for the relief of moderate to severe pain, as an
antitussive, and as an adjunct to anesthesia.” DORLAND’S MEDICAL DICTIONARY, available at
http://dorlands.com//def.jsp?id=100030052.
5 OSF St. Francis Medical Center in Peoria, Illinois.
4

9

abdominal tenderness on exam.” AR 1974. The doctor further wrote, “Avoiding
narcs as pt has a h/o opioid dependence.” Id. Again, Mayes returned to the ER the
next day, January 9, 2013.

At that visit, the nurse noted that Mayes was

hyperventilating, moaning, and rocking back and forth while his girlfriend was in the
room. When his girlfriend left the room and an IV was started, Mayes was somnolent,
lying quietly, and in no apparent distress. Upon his girlfriend’s return to the room,
Mayes began hyperventilating, moaning, and rocking back and forth again. When
seen by the doctor, there was no tenderness to palpation when Mayes was distracted
and talking.
Also during his January 9, 2013 ER visit, Mayes requested pain medication and
when offered Tylenol, he stated that it did not work and when the nurse returned to
the room, Mayes was dressed and stated he was ready to go if he was not going to
receive Dilaudid for his pain. The nurse noted that Mayes and his “wife” (likely his
girlfriend Barbara) were agitated and were told that narcotic medication was not best
for constipation (of which Mayes complained). The ALJ included discussion of notes
from Mayes’s January 10, 2013 ER visit during which he complained of shoulder and
back spasms that began two days prior; the notes highlighted that Mayes represented
his left shoulder pain was ongoing for three days even though he presented to the ER
four days in a row of which three were for GI issues. AR 2003.
The ER doctor noted that upon entering the room, Mayes was lying on his
stomach comfortably, and after the doctor’s arrival, Mayes sat up, leaned on both
arms, and began moaning and rocking on the bed. AR 2002. When his left shoulder
was examined, Mayes exhibited tenderness and pain but also exhibited normal range
of motion and normal strength. On his February 19, 2013 ER visit, Mayes voiced
vague complaints on first questioning and provided several different reasons for his
visit before “settling” on increased left leg weakness and a fall that morning. AR 2153.
He was still able to sit up and stand without difficulty at that visit. Following his May
3, 2013 visit, Mayes was observed to stand up from a wheelchair and walk in a stable
10

condition down the OSF parking lot to the bus stop, barely using his cane and grazing
it intermittently along the ground as he walked. On July 22, 2013, Mayes was
observed to jump off the stretcher and ambulate with a quick pace and steady gait to
the bathroom. He carried his cane with him but did not use it. Other records of
Mayes’s ER visits during which he acted incongruously were included in the ALJ’s
Decision. The ALJ also tracked the various references to Mayes’s constipation and the
notes stating that narcotic medication made constipation worse.
The ALJ identified test results in the record, including: a February 28, 2012
lumbar spine MRI that revealed central broad-based disc bulge at L4-5 contributing
to at least minimal bilateral lateral recess encroachment; a CT scan (prompted by a
visit to the ER where Mayes complained of the worst headache of his life) that did not
show any acute changes; x-rays on October 1, 2012 that indicated degenerative
changes of the lumbar spine; left shoulder x-rays on October 27, 2012 that revealed
mild narrowing of the left acromioclavicular joint; a lumbar spine MRI on January 14,
2013 that revealed degenerative disc at L4-5 which was unchanged from prior MRIs
in February 2012 and October 2010; and three abdominal pelvic CT scans in 2012 that
showed no acute abnormalities to explain his symptoms.
The ALJ also noted instances in the medical records where Mayes’s medication
compliance was unclear. During Mayes’s February 6, 2012 ER visit, the doctor wrote,
“I question whether he is actually complaint [sic] with his medications because
although he tells me he takes his medications he can’t really tell me what any of them
are.” AR 806. On August 6, 2012, an endocrinology note indicated Mayes’s diabetes
was uncontrolled due to lack of monitoring, following medication regimen, consistent
carbohydrate meal plan, and coming to follow-up visits. AR 1302. During a diabetes
education session on November 29, 2012, there was a question of how well he
followed through with his diet and exercise regimen for diabetes.
The ALJ noted that on March 1, 2012, Mayes was prescribed a cane. He also
attended twenty physical therapy sessions for his lumbar spinal stenosis between July
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9, 2012 and October 10, 2012. During a physical therapy evaluation on August 22,
2012, Mayes stated he could not sit long due to tightness and said that activity helped
relieve his pain. The ALJ otherwise noted the many instances in Mayes’s medical
records where he complained of back and left shoulder pain, where examinations
indicated limited range of motion and his difficulty in moving, and where he was able
to ambulate without difficulty and had full motor strength.
The ALJ also noted where the medical records indicated drug use, including:
Mayes tested positive for cannabis during his August 29, 2012 ER visit though he
denied drug use; he stated he drank alcohol three times a week during a January 7,
2013 ER visit; and he tested positive for cannabis during the January 7th visit.
Scattered throughout the ALJ’s Decision were detailed summaries of Mayes’s
visits to his treating doctor, Dr. Stoner, and other medical appointments pertaining to
his lower back pain and shoulder pain complaints. The ALJ also detailed Dr. Stoner’s
medical source statements from July 2012 and April 2013.

The ALJ thereafter

discussed the state agency consultants’ assessments dated November 2012 and March
2013.
IV
Mayes argues: 1) the ALJ erred in evaluating Mayes’s subjective allegations
under SSR 16-3p; 2) the ALJ erred because substantial evidence did not support the
ALJ’s finding that Mayes did not need a cane to walk or stand; and 3) the ALJ erred
in evaluating Mayes’s RFC when she rejected the medical opinions, creating an
evidentiary deficit that she then improperly filled with her own lay opinion.
The Court's function on review is not to try the case de novo or to supplant the
ALJ's findings with the Court's own assessment of the evidence. See Schmidt v. Apfel,
201 F.3d 970, 972 (7th Cir. 2000); Pugh v. Bowen, 870 F.2d 1271 (7th Cir. 1989). Indeed,
"[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Although great
deference is afforded to the determination made by the ALJ, the Court does not
12

"merely rubber stamp the ALJ's decision." Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir.
2002). The Court's function is to 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). Substantial evidence is defined as such
relevant evidence as a reasonable mind might accept as adequate to support the
decision. Richardson v. Perales, 402 U.S. 389, 390 (1971), Henderson v. Apfel, 179 F.3d 507,
512 (7th Cir. 1999).
Economic conditions, personal factors, financial considerations, and attitudes
of the employer are irrelevant in determining whether a plaintiff is eligible for
disability. See 20 C.F.R. § 416.966 (1986). 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. § 1382c(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. § 416.920. In
the following order, the ALJ must evaluate whether the claimant:
1)

currently performs or, during the relevant time period, did
perform any substantial gainful activity;

2)

suffers from an impairment that is severe or whether a
combination of her impairments is severe;

3)

suffers from an impairment which meets or equals any
impairment listed in the appendix and which meets the
duration requirement;

4)

is unable to perform her past relevant work which includes an
assessment of the claimant’s residual functional capacity; and
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5)

is unable to perform any other work existing in significant
numbers in the national economy.

Id. 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).
In the instant case, Mayes claims error on the ALJ’s part at Step Four.
A
Mayes argues that the ALJ failed to properly analyze the factors required under
SSR 16-3p and, therefore, the ALJ failed to make a determination about what
allegations were and were not credible and relied on meaningless boilerplate
language for her analysis of Mayes’s subjective complaints. The Commissioner
counters that the ALJ’s Decision made clear that in her view the overwhelming
consideration in evaluating the evidentiary value of Mayes’s statements and
testimony was his track record of misleading his doctors about the nature and severity
of his impairments.
Initially, the Court notes that the ALJ issued her Decision before the Social
Security Administration issued Social Security Ruling 16-3p which supersedes SSR
98-7p. The new SSR directs the ALJ to focus on the “intensity and persistence of the
applicant’s symptoms” rather than on “credibility.” Schuck v. Berryhill, No. 16 C 5936,
2017 WL 2798390, at *5 (N.D. Ill. June 28, 2017), quoting Cole v. Colvin, 831 F.3d 411,
412 (7th Cir. 2016). Because SSR 16-3p only clarifies the SSA’s interpretation of
existing law, that new ruling applies to Mayes’s arguments in this case. Schuck, 2017
14

WL 2798390, at *5. SSR 16-3p still requires the ALJ to consider factors in evaluating
the intensity, persistence, and limiting effects of a claimant’s symptoms including
testimony, objective medical treatment, medication and its side effects, nonmedication treatments, daily activities, and any measures other than treatment an
individual uses or has used to relieve pain or other symptoms (e.g. standing for 15 to
20 minutes every hour). Id., citing SSR 16-3p, 2016 WL 1119029, at *4-7. Ultimately,
“administrative law judges will continue to assess the credibility of pain assertions by
applicants, especially as such assertions often cannot be either credited or rejected on
the basis of medical evidence.” Cole, 831 F.3d at 412 (emphasis in original).
Here, the Commissioner argues that it is difficult to articulate a compelling case
that the ALJ’s view in this regard was unreasonable. The Commissioner is correct.
On the heels of her detailed discussion, among other things, of Mayes’s voluminous
medical records dated between November 2011 and May 2013, hearing testimony, his
treating doctor’s medical source statements, the various medications he was
prescribed, and the various examinations and tests he underwent and the results of
those examinations/tests, the ALJ summarized everything in the record before her in
one paragraph. Mayes’s own attorney (at the hearings) and the ALJ both explicitly
acknowledged the curious case of Plaintiff Mayes. The ALJ stated in her Decision:
As the claimant’s attorney stated in his opening statements at the
hearings, the claimant’s case is somewhat puzzling. The claimant
repeatedly and routinely goes to the emergency room with horrible pain
complaints and while there he often acts very histrionic. His subjective
allegations are often vastly disproportionate to the examination
findings. On many occasions, the claimant admits that he has not taken
any medication or tried anything to obtain relief from his pain
(especially when it is abdominal pain complaints) and he at times reports
engaging in behavior, such as alcohol consumption, and advised to
abstain from alcohol. There are repeated concerns about drug-seeking
behavior. However, radiographic imaging does confirm a degenerative
spinal condition and early signs of arthritis in the left shoulder that could
reasonably be causing the claimant pain. He also has poorly controlled
diabetes (due mainly to poor compliance with his treatment regimen)
15

and has some neuropathy symptoms in the lower extremities.
Moreover, at many of the ER visits, the claimant is noted to be
diaphoretic (sweating) and is reporting vomiting (and at times vomiting
during the visits). These constitutional signs would be somewhat
difficult to fake, especially consistently, and do suggest that the claimant
could be experiencing pain, especially when combined with elevated
blood pressure and blood sugar (which could be caused by significant
pain, but also by compliance issues). Yet, the sweating and vomiting
would also be consistent with narcotic withdrawal, which is certainly a
possibility considering the apparent inconsistent use of prescribed pain
medications. The abdominal pain, especially the constipation-related
discomfort, is likely related to the chronic use of narcotic medications.
Interestingly, the claimant’s histrionic behavior is more prevalent when
his girlfriend is around, with several documented instances at the ER
visits where the claimant was moaning, crying, rocking back and forth,
or otherwise displaying signs of being in great pain when his girlfriend
was present, but as soon as she left the room, he became calm and quiet
and cooperative.
AR 21-22. Mayes contends that the ALJ failed to make a determination about what
allegations were and were not credible. He avails himself of SSR 96-8p as further
support for his argument that the ALJ’s “credibility” analysis of his symptoms was
erroneous. SSR 96-8p provides in relevant part that in all cases in which symptoms,
such as pain, are alleged, the RFC assessment must contain a thorough discussion and
analysis of objective medical and other evidence, include a resolution of any
inconsistencies in the evidence as a whole, and set forth a logical explanation of the
effects of the symptoms on the individual’s ability to work. The ALJ made no
reversible error in this regard. The entirety of the paragraph supra makes clear that
the ALJ did consider which allegations were credible and which ones were not, and
she did so without even a phrase of boilerplate language (contrary to Mayes’s
arguments) and even with all the contradictions that Mayes’s medical records and his
own complaints presented.
While Mayes points to the ALJ’s alleged discrete failure to discuss the side
effects of his medications and his use of mostly unsuccessful alternative methods for
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pain relief, he loses sight of the fact that the ALJ was busy sifting through the
substantial evidence of drug-seeking behavior, histrionics, and evidence indicative of
exaggerated symptoms and outright lies to determine the extent to which Mayes even
needed all of the medication he took and treatments he tried. The Court can easily
trace the path of the ALJ’s reasoning in her analysis of the intensity, persistence, and
limiting effects of Mayes’s symptoms and the resulting extent to which they limited
his functioning. See Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir. 1993) (stating that an
ALJ must “sufficiently articulate [her] assessment of the evidence to assure us that the
ALJ considered the important evidence . . . and to enable us to trace the path of the
ALJ’s reasoning”).
B
Mayes next argues that the ALJ failed to discuss or adequately support with
substantial evidence her determination that Mayes did not require the use of a cane
to stand or walk. The Commissioner argues that the ALJ provided a cogent analysis
of why she discredited Mayes’s allegations that he needed a cane.
Mayes specifically argues that the ALJ applied the wrong legal standard in
evaluating his cane use where the ALJ said the medical evidence “fail[ed] to clearly
demonstrate that use of a cane is medically necessary” because the actual standard is
a “preponderance of the evidence.” The Commissioner argues Mayes is playing word
games because at no point did the ALJ say that she was applying a “clear and
convincing” standard.

Indeed, Mayes’s argument falls short when the ALJ’s

discussion regarding Mayes’s cane use is considered as a whole. See Rice v. Barnhart,
384 F.3d 363, 369 (7th Cir. 2004) (explaining that a court will give an ALJ’s opinion a
commonsensical reading rather than nitpicking at it). The ALJ identified instances in
the medical records where Mayes was noted to be using a cane, where he reported
falls, where medical personnel responded accordingly to information that Mayes was
a fall risk, and where Mayes stated he used a cane. The ALJ also articulated the
examination findings and test results both indicating Mayes’s spinal issues and
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supporting his assertions that his left leg often felt weak. It is certain from her
discussion of the evidence that the ALJ properly and sufficiently supported her
determination that Mayes’s use of a cane was not medically necessary. Nevertheless,
the ALJ should exercise caution in using language in her decisions that may expose
those decisions to the argument like the one Mayes makes here.
Mayes also continually emphasizes that his physical therapist prescribed him
a cane in March 2012 as further support for his argument that the ALJ failed to
adequately support her determination that Mayes required the use of a cane to stand
or walk. He makes much ado about little. In her Decision, the ALJ included the fact
that Mayes was prescribed a cane on March 1, 2012, and that was only one line of
many dedicated to record evidence pertaining to Mayes’s cane use. 6 While Mayes
argues that the ALJ failed to analyze his physical therapist’s opinions under the
factors listed in 20 C.F.R. § 416.927 and SSR 06-3p, he does not point to any particular
“opinions” in the record or otherwise articulate what those “opinions” were. Mayes
does not argue how the 20 pages of physical therapy notes to which he points are
“opinions” that his use of a cane is necessary for him to stand or walk; in fact, he does
not even name his physical therapist who allegedly provided opinions on his need
for a cane. Merely citing a span of medical records in support of a conclusory
assertion that an ALJ failed to apply the relevant factors to a medical source’s opinions
when analyzing those opinions is insufficient to warrant a remand.
Mayes further argues the ALJ’s determination regarding his cane was
erroneous because the ALJ did not properly analyze his treating doctor’s, Dr. Stoner’s,
opinion under § 416.927 specifically with regard to the cane. Where an ALJ does not
give controlling weight to a treating physician’s opinion, the ALJ still must decide

As an aside, the evidence to which Mayes points includes: a “Sales, Service, and Rental Agreement” form
indicating a cane was delivered to Mayes on March 1, 2012 signed by Mayes and a Technician; a Discharge
Summary dated March 2, 2012 that provided “Physical Therapy evaluated this patient during this admission
and recommended the use of a cane. A cane was ordered and will be delivered by Home Health;” and notes
from Mayes’s physical therapy sessions.
6

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what weight to give that opinion. Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010).
The applicable regulations identify several factors an ALJ must consider including the
length, nature, and extent of the treatment relationship; frequency of examination; the
physician’s specialty; the types of tests performed; and the consistency and
supportability of the physician’s opinion. Id.
Here, the ALJ included a detailed explanation for why she determined that Dr.
Stoner’s opinion that Mayes needed a cane was not sufficiently supported by the
record evidence. The ALJ explained:
Dr. Stoner opined that the claimant needed a cane for occasional
standing or walking, but the medical evidence, including Dr. Stoner’s
own treatment notes, fail to clearly demonstrate that use of a cane is
medically necessary. There have been multiple instances where he was
using the cane improperly. At an ER visit in May 2013, the claimant was
told that he was not going to receive narcotics. He was observed to stand
up from a wheelchair and walk in a stable condition down the parking
lot to the bus stop, barely using the cane, grazing it intermittently along
the ground as he walked. One of the main reasons reported for the
alleged need of a cane is frequent falls. However, there is no credible
evidence that the claimant’s legs actually give out on him and cause him
to fall or almost fall. The ER records indicate multiple instances where
the claimant appears to have pretended to fall.
AR 44. The above explanation together with other parts of the ALJ’s Decision
foreclose Mayes’s contention that the ALJ did not consider the relevant factors when
she decided to give Dr. Stoner’s opinion minimal weight. The ALJ clearly did
consider the nature and extent of Dr. Stoner’s treatment relationship with Mayes and
the supportability of his opinion. Throughout her Decision, the ALJ recited Mayes’s
visits with Dr. Stoner and the subjective complaints Mayes made to him and
examinations done of Mayes during those visits.
The ALJ pointed out that: during the December 18, 2012 visit with Dr. Stoner,
an examination “revealed restricted spinal range of motion, but normal neurologic
functioning;” during the March 5, 2013 visit with Dr. Stoner, Mayes had “no palpable
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tenderness in the lumbar spine, but there was moderately reduced range of motion;”
and during the April 11, 2013 visit, Mayes had “difficulty getting out of a chair and
he walked as though he had severe pain in the left leg.” AR 33, 35, 36. The February
4, 2014 visit with Dr. Stoner was “one of the rare occasions where [his] treatment notes
actually indicate a spinal examination took place.” AR 40. Given these and other
instances in the ALJ’s Decision, the Court is assured that the ALJ considered the
important evidence before reaching her conclusion that Dr. Stoner’s opinion was to
be given only minimal weight. See Carlson, 999 F.2d at 181; Schreiber v. Colvin, 519 F.
App’x 951, 959 (7th Cir. 2013) (explaining that the ALJ’s failure to explicitly weigh
each factor under 20 C.F.R. § 404.1527 was not a problem where his decision made
clear that he was aware of and considered many of the factors).7
Lastly, it is apparent from the ALJ’s explanation above that she reached her
conclusion about the weight to give Dr. Stoner’s opinion in light of the plentiful record
evidence that Mayes’s assertions about the intensity, persistence, and limiting effects
of his physical impairments fell far short of “credible.” As discussed previously, the
ALJ did not err in her analysis of the factors under SSR 16-3p. The Court cannot fault
the ALJ for finding as she did, particularly where she did so within the bounds of the
legal framework she was required to decide Mayes’s application for SSI. In fact, had
the ALJ completely disregarded evidence of Mayes’s observed contradictions in
behavior, use of his cane, and histrionics, the ALJ would have run afoul of her
obligation to discuss lines of evidence both favorable and unfavorable to her decision.
See Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001) (stating that it was worth
repeating that an ALJ may not ignore an entire line of evidence that is contrary to his
findings).
C

The factors listed under 20 C.F.R. § 404.1527(c) for DIB are the same factors as those listed under 20 C.F.R. §
416.927(c) for SSI.
7

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Mayes’s third argument is that the ALJ created an evidentiary deficit when she
afforded only “some” or “little” weight to all of the medical opinions of record, and
then assessed Mayes’s RFC based on her own lay opinion instead of basing the finding
on evidence. He asserts that it is not clear what evidence the ALJ relied upon to
determine his RFC and that the ALJ impermissibly adopted a “middle ground”
without support for it. The Commissioner argues, first, that the ALJ gave cogent
reasons for her decision to discount Dr. Stoner’s opinions, and second, Mayes
incorrectly asserts that an ALJ’s opinion must line up with one of the medical opinions
of record.
Pursuant to SSR 96-8p, an RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical facts.
Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005), citing SSR 96-8p at *7.
While Mayes focuses his arguments on the ALJ’s alleged failure to comply with SSR
96-8p, the Commissioner focuses her counter-argument on the ALJ’s alleged proper
weighing of Mayes’s treating doctor’s opinions. The Court already addressed the
weight given to Dr. Stoner’s opinion, specifically with regard to Mayes’s use of a cane,
and explained why the ALJ did not err on that particular issue. The Court further
finds that the ALJ’s consideration of Dr. Stoner’s opinions on the whole was also not
erroneous.
In her Decision, the ALJ detailed Dr. Stoner’s July 31, 2012 Physical Medical
Source Statement in which he stated Mayes’s prognosis was “good.” AR 41. The
Statement also provided that Mayes had a positive straight leg raise test on the left,
Mayes had fair pain control with his various medications, he could walk less than a
block before stopping to rest, he could sit for 15 minutes at one time and stand for 1015 minutes at one time, he could sit for two hours and stand or walk for less than two
hours in an eight-hour workday, he needed periods of walking around every 15
minutes during the workday, and his breaks were necessitated by pain and
numbness. Id. Dr. Stoner also stated that Mayes had no significant limitations in
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manipulative activities with the upper extremities. Id. Dr. Stoner opined that Mayes’s
symptoms would be severe enough to interfere with attention and concentration
needed to perform even simple work tasks 25% of the time or more. Id. The ALJ also
recited Dr. Stoner’s medical records from Mayes’s visit the day before that Statement
was written. In those records, Mayes reported his pain level as 4/10 and the physical
examination notes did not document any specific evaluation of the lumbar spine. Id.
The ALJ also detailed Dr. Stoner’s April 11, 2013 Medical Source Statement of
Ability to do Work-Related Activities (Physical). Dr. Stoner stated Mayes could both
occasionally and frequently lift and carry less than ten pounds due to chronic left
chest pain, could walk less than two hours in an eight-hour workday (and needed a
cane because his left leg became weaker after an hour and a half on his feet), could sit
for less than six hours in an eight hour workday, and could sit for three hours without
having to get up and move. AR 42. Dr. Stoner also stated that Mayes was unable to
reach overhead with the left upper extremity and that reaching in general should be
limited to occasionally, but that handling, fingering and feeling were unlimited. Id.
After detailing Dr. Stoner’s July 2012 and April 2013 Statements, the ALJ stated:
The medical records do not reflect a significant difference in the
claimant’s functioning between July 2012 and April 2013. Therefore,
even though the format of the medical source statements completed by
Dr. Stoner was different, the answers to the same or similar questions on
both forms ought to be fairly consistent . . . However, there are some
vastly different answers with no explanations on either the medical
source statements or in Dr. Stoner’s treatment notes to explain the
differences in opinion.
AR 42. The ALJ proceeded to discuss those “vastly different” answers and also
pointed to Mayes’s first hearing testimony where he said he could sit for an hour and
a half at a time and his second hearing testimony where he said he could sit for only
10 minutes before needing to get up and move around due to muscle spasms. Later
in that second hearing, Mayes testified that he could sit for about 45 minutes before
back tightness required him to get up and move around. The ALJ commented, “The
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claimant, himself, has not been consistent in his own statements, but his range of
estimated times shows less discrepancy than Dr. Stoner.”
The ALJ continued:
The more basic flaw in both assessments is that the opinions of Dr.
Stoner rely very heavily on the subjective allegations of the claimant,
who has a demonstrated pattern of histrionic behavior allegation
symptoms, especially pain, that are repeated noted to be out of
proportion to the examination findings. The July 2012 assessment
contains no rationale or explanation linking the specific alleged
limitations to the objective medical evidence (or even the claimant’s
allegations of his own limitations). The April 2013 assessment does
contain explanations/rationales for some of the specific limitations, but
these explanations still rely heavily on subjective allegations that are not
well-supported by the medical evidence of record, in particular Dr.
Stoner’s own treatment notes.
The claimant’s most significant
impairment is arguably the degenerative spinal condition with radiation
of pain and other symptoms of the legs. However, the records from Dr.
Stoner rarely ever document examination of the spine or lower
extremities, giving Dr. Stoner little insight into how the claimant’s
allegations correspond to objective clinical findings and giving Dr.
Stoner little direct knowledge of physical functioning. Dr. Stoner stated
that some of the specified limitations were due to weakness in the legs,
but examinations have consistently demonstrated normal motor
strength and tone in the lower extremities. There is no evidence of
muscle atrophy in the legs or other signs that might demonstrate
persistent weakness.
AR 43-44.
The ALJ laid out the state agency medical consultant’s November 30, 2012
physical residual functional capacity assessment which was affirmed by another state
agency medical consultant on March 6, 2013 in which the former consultant opined
that Mayes could lift and carry up to 20 pounds occasionally and 10 pounds
frequently, stand or walk for about six hours in an eight hour workday, sit for two
hours, occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl,
never climb ladders, ropes, or scaffolds, and needed to avoid concentrated exposure
to extreme cold and environmental hazards. AR 44.
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The ALJ found that while the state agency consultants’ non-exertional
limitations were reasonable, she found greater exertional restrictions warranted. She
noted that Mayes’s left shoulder complaints were somewhat intermittent and
examination findings somewhat inconsistent though there was evidence of mild
arthritis of the left shoulder; accordingly, she determined that the objective medical
evidence failed to substantiate complete inability to lift the left arm overhead but that
it would be reasonable to restrict overhead reaching with the left upper extremity to
only occasionally. The ALJ referred to the frequent discrepancies between Mayes’s
allegations and objective clinical findings, documented evidence of a fake “fall,”
repeated histrionic behavior, and inconsistent compliance with treatment regimen as
support for her finding that Mayes’s own allegations about extreme exertional
limitations were not credible while also finding the state agency consultants’
assessments overstated Mayes’s physical abilities.
As for her finding that there was “no compelling evidence that the claimant
could not sit for up to six hours in an eight hour workday,” the ALJ considered that
periods of standing and walking would be mixed in throughout the workday and
Mayes would have the standard work breaks during which he could alternate
positions as he chose. AR 46. Mayes argues that the ALJ effectively rejected the state
agency consultants’ opinions that he could stand/walk for six hours in an eight hour
workday and sit for two hours in that eight hour day (among other things), resulting
in the ALJ’s finding in this regard entirely unsupported and the gap filled in with her
own lay opinion. Perhaps the ALJ did not point to a piece of evidence in the record
which expressly provided that Mayes could sit for up to six hours in an eight hour
workday, but the ALJ did discuss, at length, the medical evidence which indicated an
actual impairment capable of causing limitation and the plentiful evidence which
detracted from the alleged extent of the limitation and which detracted from the
opinions in support of greater limitation than the ALJ found. See Pepper v. Colvin, 712
F.3d 351, 362 (7th Cir. 2013) (“an ALJ must build an accurate and logical bridge from
24

the evidence to his conclusion, but he need not provide a complete written evaluation
of every piece of testimony and evidence”). Of course, an ALJ has the ultimate
responsibility of assessing a claimant’s RFC. 20 C.F.R. § 416.945(a)(1).
In light of all the above excerpts and the ALJ’s Decision considered as a whole,
the Court can easily trace the path of the ALJ’s reasoning in reaching the RFC finding
that she did in a case that essentially presented a claimant who was a moving target.
Her narrative discussion of the record evidence sufficiently described how the
evidence supported her conclusions. She identified key parts of the records, both
medical and otherwise, which supported her conclusions and those that detracted
from it and how she reconciled the latter with her ultimate findings. The ALJ’s
“middle ground” RFC finding was therefore well-supported, and simply, the ALJ
presented substantial evidence to support her RFC assessment. Thus, the ALJ did not
run afoul of either SSR 96-8p or 416.927.
V
For the foregoing reasons, the Plaintiff’s Motion for Summary Judgment (Doc.
14) is DENIED and the Commissioner’s Motion for Summary Affirmance (Doc. 18) is
GRANTED. This matter is now terminated.
It is so ordered.
Entered on September 26, 2017.

s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE

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