Shaffer v. Commissioner of Social Security
Filing
16
ORDER & OPINION entered by Judge Joe Billy McDade on 11/29/2018. After careful review of the entire record, the Court concludes the ALJ's decisionis supported by substantial evidence. The Court therefore DENIES Plaintiff's Motion for Summary Judgment (Doc. 10) and GRANTS Defendant's Motion for SummaryAffirmance (Doc. 14). This case is TERMINATED. See full written Order.(VH, ilcd)
E-FILED
Thursday, 29 November, 2018 04:04:30 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CLINTON S.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No. 1:17-cv-1492
ORDER & OPINION
This matter is an appeal from the Administrative Law Judge’s decision to deny
the request of Plaintiff Clinton S. for disability benefits under the Social Security Act.
Before the Court is Plaintiff's Motion for Summary Judgment (Doc. 10) and the
Defendant Acting Commissioner Nancy Berryhill’s Motion for Summary Affirmance
(Doc. 14). For the following reasons, Plaintiff’s motion is DENIED, and Defendant’s
motion is GRANTED.
PROCEDURAL BACKGROUND
In December 2013, Plaintiff filed an application under Title II and Title XVIII
for a period of disability and disability insurance benefits and an application under
Title XVI for supplemental security income (SSI). (R. at 210-15).1 In both
applications, Plaintiff alleged his disability began on October 1, 2013. (R. at 210). The
Social Security Administration initially denied Plaintiff's application and did so again
Citation to “R. at ___” refers to the page in the certified transcript of the record of
proceedings provided by the Social Security Administration.
1
on reconsideration in March 2015. (R. at 18; Exs. 2A, 3A). In May 2015, Plaintiff
requested a hearing before an administrative law judge (ALJ). (R. at 18; Exs. 6A, 7A).
In November 2016, the ALJ held a hearing where Plaintiff, who was represented by
an attorney, and a Vocational Expert (VE) testified. (R. at 37-77).
On February 13, 2017, the ALJ issued a decision concluding Plaintiff was not
disabled and was therefore ineligible for disability benefits. (R. at 18-29). On August
31, 2017, the Social Security Administration Appeals Council denied Plaintiff's
request to review the ALJ’s decision. (R. at 1-3). In doing so, it rendered the ALJ’s
decision final. Plaintiff thereafter filed the instant Complaint (Doc. 1) on November
3, 2017.
FACTUAL AND MEDICAL HISTORY
The following is a detailed summary of Plaintiff’s medical and mental health
records submitted to the ALJ for consideration. In 2010, Plaintiff sought treatment
at Tazwood Mental Health Center but was ultimately discharged due to his failure
to keep appointments and follow the treatment plan. (R. Ex. 3F; R. at 20, 484).
In February 2011, Plaintiff underwent a medical examination, during which
he reported bipolar disorder, anxiety, post-traumatic stress disorder, headaches, and
shortness of breath with exertion. (R. at 485). Plaintiff also reported he smokes two
packs of cigarettes per day. (R. at 486). The examination revealed a respiratory rate
of 14 and normal lung functioning. (R. at 486-87). The physician noted Plaintiff had
no functional capacity limitations, specifically no walking or squatting limitations.
(R. at 487). In addition, Plaintiff was rated “appropriate” for appearance, personal
hygiene, concentration, ability to relate, behavior, and conversation, though he was
2
rated slightly inappropriate for “orientation to time” because he “doesn’t keep up to
date.” (R. at 490).
He also underwent a psychological evaluation in February 2011. Plaintiff
reported he began using cocaine at the age of fourteen and stated he was a social
drinker. (R. at 491-92). At the age of sixteen or seventeen, he was allegedly admitted
to a psychiatric hospital and has since had two additional psychiatric
hospitalizations.2 (R. at 492). Plaintiff reported a criminal history including burglary,
grand theft auto, and cashing stolen checks; Plaintiff stated he spent forty-three
months in prison, during which he was violent, resulting in time spent in solitary
confinement and psychiatric care following a threat of suicide. (R. at 491-92). Plaintiff
further stated he attempted suicide by swallowing chlorine but reported no resulting
damage to his throat. (R. at 492). During this evaluation, Plaintiff stated he was a
certified nursing assistant (CNA) for five years but lost his license due to his criminal
record; he then worked in sales and as a gas station attendant but lost those jobs
because he either did not get along with others or would show up late. (R. at 491).
Plaintiff reported he does his own cleaning and cooking despite living with his
parents. (R. at 492). With respect to his mental health, Plaintiff reported depression,
excess sleep, crying spells, and irritability. (R. at 492).
The psychologist believed Plaintiff would test in the “borderline range of
intellectual functioning.” (R. at 493). During the evaluation, Plaintiff was able to do
simple calculations and tasks; he was oriented to time, place, and person and his longterm memory was intact but his short-term memory was moderately impaired. (R. at
2
The record does not contain any records of psychiatric hospitalizations.
3
493). The psychologist specifically noted Plaintiff seemed to exaggerate a great deal.
(R. at 493).
In March 2011, physical and mental residual functioning capacity (RFC)
assessments were completed in conjunction with an application for disability
insurance benefits. (Exs. 8F, 9F, 10F). With respect to his physical RFC, Plaintiff
alleged in his application he could only walk 50 feet before experiencing shortness of
breath and he had difficulty lifting, bending, and climbing as well as a history of
headaches. (R. at 494, 499). The agency physician noted a history of coronary artery
disease (CAD) and mild lymphadenitis but also a normal pulse and cardio exam, clear
lungs, and normal range of movement and gait. (R. at 495). The physician opined
Plaintiff could perform medium work (frequently lift 25 pounds, occasionally lift 50
pounds, and stand, walk, or sit for approximately 6 hours in an 8-hour workday) (R.
at 495). See also C.F.R. § 404.1567(c). The physician did, however, recommend
Plaintiff avoid extreme cold and heat as well as “hazards.” (R. at 498). The physician
believed Plaintiff’s reported symptoms and limitations were only partially credible
based on the objective medical history. (R. at 499).
With respect to his mental RFC, the agency consultant concluded Plaintiff was
mildly limited in his daily living activities and moderately limited in his social
functioning abilities and his ability to maintain concentration, persistence, and pace.
(R. at 512). Notably, the consultant found no limitations with Plaintiff’s
understanding or memory or his ability to adapt. (R. at 516-17). The consultant noted
Plaintiff was organized, easy to understand, and focused and noted no difficulties
with the examination/claim process. (R. at 514). Specifically, the consultant opined
4
Plaintiff had the ability to “understand, carry out, and remember moderately complex
instructions.” (R. at 518). “He is capable of making work-related decisions and
judgments. He can relate appropriately to supervisors, coworkers, and work
situations, but would work best in a lowered stress environment, away from the
general public. He is able to cope with changes in a routine work setting.” (R. at 518).
In addition, the consultant concluded Plaintiff can perform daily life activities. (R. at
518). Plaintiff reported he cleans, cooks, and visits a friend, but both he and his
mother also reported he drives, is unmotivated, rarely cooks, shops excessively, and
is irresponsible with money. (R. at 514). Based on the evidence in the record, the
consultant found Plaintiff only partially credible. (R. at 514).
In March 2012, Plaintiff went to the emergency room, claiming he received a
false positive tuberculosis test result. (R. at 592). During intake, Plaintiff reported no
alcohol or drug use. (R. at 592) He was also asked whether he (1) felt depressed, (2)
had suicidal thoughts, or (3) had previously attempted suicide; Plaintiff answered no
to all. (R. at 592-93). In July 2012, Plaintiff went to the hospital because his ankle
was sore after he stepped out of his truck and landed on his heel incorrectly. (R. at
580). Plaintiff also reported chest pains and difficulty breathing, but examination
revealed normal cardiac and lung functioning. (R. at 581). During intake, Plaintiff
reported no alcohol or drug use and good social support. (R. at 581). He was again
asked whether he (1) felt depressed, (2) had suicidal thoughts, or (3) had previously
attempted suicide; Plaintiff again answered no to all. (R. at 584). Plaintiff was
diagnosed with tendonitis and instructed to ice and elevate his ankle; he was also
given pain medication. (R. at 582). In April 2013, Plaintiff was taken to the hospital
5
by ambulance complaining of chest pains and a possible heart attack; during intake,
Plaintiff also reported he fell down the stairs and hit his head earlier that day. (R. at
557, 571). Examinations revealed normal heart and lung functioning. (R. at 557, 560,
562, 571). During intake, Plaintiff was once more asked whether he (1) felt depressed,
(2) had suicidal thoughts, or (3) had previously attempted suicide, and he again
answered no to all. (R. at 571). The examining physician determined Plaintiff was
stable and discharged him the same day. (R. at 568).
In January 2014, Plaintiff returned to Tazwood for mental health treatment.
In his intake assessment, he reported anxiety, depressed mood, irritability,
impulsivity, and racing thoughts. (R. at 521-23). Plaintiff also reported past cocaine
abuse and social use of alcohol. (R. at 526). Plaintiff stated he was unemployed due
to his reported symptoms, specifically because he would get frustrated, bored, or go
on a drug binge and fail to show up for work. (R. at 529). Plaintiff reported he was in
good physical health excepting an irregular heartbeat. (R. at 532). Plaintiff was
discharged from Tazwood in February 2014 for failing to show up to appointments or
follow the treatment plan. (R. at 605).
In February 2014, Plaintiff sought mental health treatment at North Central
Behavioral Health Systems because he no longer wanted to drive to Tazwood for
treatment. (R. at 719). During his intake assessment, Plaintiff reported his ability to
perform daily living activities, such as cooking and grooming, had decreased over
time. (R. at 726). He also reported changes in appetite, distraction, paranoia, racing
thoughts, and decreased need for sleep, all of which the provider believed consistent
with his bipolar disorder diagnosis. (R. at 726). Plaintiff indicated past suicidal
6
thoughts but denied ever having the intent or a plan to commit suicide, excepting one
suicide attempt at the age of 17; Plaintiff was not considered a risk to his own safety.
(R. at 719, 732). The examiner noted appropriate expressions and dress and intact
recent and remote memory. (R. at 729). Largely similar observations were made in
subsequent, periodic assessments. (R. at 950-61, 968-73; 981-86; 992-1013; 1019-25).
Plaintiff also underwent a stress test in February 2014. During his visit with
the examining physician, Plaintiff described episodes in which he felt numb, sweaty,
and dizzy; he believed might have passed out during some of these episodes. (R. at
600). He stated his mother witnessed him passing out but did not take him to the
emergency room or otherwise seek emergency assistance. (R. at 600). The physician
noted normal cardiac and lung functioning and recommended Plaintiff quit smoking.
(R. at 599-600).
In March 2014, a Pulmonary Function Study revealed a moderately severe
restrictive pulmonary defect, and Plaintiff was thereafter referred to a pulmonologist.
(R. at 692). Plaintiff also underwent physical and mental health examinations. (R. at
Ex. 16F). During his physical exam, Plaintiff reported heart issues and shortness of
breath, chest pains, a “5mm spot on his left lung”, and an irregular heartbeat. (R. at
642). Plaintiff also reported a history of chronic obstructive pulmonary disease
(COPD) and five previous heart attacks.3 (R. at 642). Plaintiff indicated he underwent
a stress test and cardiac catherization, and the stress test came back negative. (R. at
642; see also 696 (noting the stress test results were negative)). The physician
indicated Plaintiff was able to bear weight and had a full range of motion. (R. at 644).
3
The record does not reveal any prior heart attacks.
7
In addition, the physician noted normal cardiac and lung functioning and questioned
Plaintiff’s reported history of COPD but also noted Plaintiff had been referred to a
pulmonologist for his allegations of shortness of breath. (R. at 644-45).
During his mental health exam, Plaintiff reported agitation, irritation,
paranoia, and suicidal thoughts and prior diagnoses of depression, bipolar disorder,
and split personality disorder. (R. at 647). Plaintiff stated he was meeting with a
counselor at Tazwood once a week. (R. at 647). Plaintiff reported he lived with his
parents and had no issues eating or grooming; he also stated he would make himself
a sandwich for his sole daily meal and would only shower once every three days
because he was unmotivated. (R. at 648). According to Plaintiff, he spent his days
sitting, watching TV, and playing computer games. (R. at 648). The consultant
observed Plaintiff was neat and clean in appearance and exhibited appropriate
expressions, behavior, and eye contact during the interview. (R. at 649). Plaintiff
exhibited no difficulties walking or sitting during the examination. (R. at 649). He
was able to perform simple calculations and could complete serial sevens, and his
immediate memory was intact but his short-term memory was impaired, likely due
to his difficulties with concentration. (R. at 649). The consultant rated Plaintiff within
the low average range for intellectual functioning and agreed with his reported
diagnosis of bipolar disorder based on the information reported by Plaintiff. (R. at
649-50).
In June 2014, North Central received records from Tazwood, which indicated
Plaintiff’s symptoms were well-controlled by his prescribed medications. (R. at 741).
In October 2014, North Central treatment notes indicated his symptoms had
8
improved and he was doing well. (R. at 761). The treatment notes also significantly
focused on Plaintiff’s ability and plans to cope with his reported lung cancer and
chemotherapy. (R. at 714-18, 944-45, 967, 977, 988-89, 1018). There is no evidence in
the record indicating Plaintiff has ever been diagnosed with cancer or undergone
chemotherapy, which was noted in the RFC report generated by the agency
consultants in conjunction with Plaintiff’s instant application for disability benefits.
(R. at 113). In July 2015, Plaintiff was discharged from North Central because he
failed to follow through with the treatment plan. (R. at 1028-32).
Plaintiff returned to North Central in November 2015. During his intake, he
reported manic episodes, mood swings, suicidal thoughts, irritability, crying, racing
thoughts, and low self-esteem. (R. at 1033). He reported two prior suicide attempts,
but he did not have any current suicidal ideations and was deemed not a risk of harm
to himself. (R. at 1033, 1048). He stated his first suicide attempt involved swallowing
chlorine, but also stated he was twice hospitalized for attempted drug overdoses. (R.
at 1033, 1046). Plaintiff continued to report a diagnosis of lung cancer and
chemotherapy. (R. at 1033). Plaintiff also reported he cared for his own nutritional
and hygiene needs, cooked, drove, cleaned, shopped, and handled his own finances.
(R. at 1038). The intake evaluator noted Plaintiff acted and dressed appropriately, he
was oriented to time and place and had an intact recent and remote memory. (R. at
1043). Plaintiff was again discharged from North Central in March 2016 due to
failure to comply with the treatment plan. (R. at 1060-63). Plaintiff returned for
services in July 2016; he reported similar symptoms and the intake evaluator made
similar findings to those noted in the November 2015 intake. (R. at 1064-87).
9
Since 2014, Dr. Jason G. Chamberlin, a medical doctor practicing with Graham
Medical Group, has served as Plaintiff’s primary care physician. (R. at Exs. 19F, 27F).
Throughout that time, Dr. Chamberlin observed Plaintiff to be well-developed and
well-nourished. (R. at 665, 668, 797, 1108, 1125). His heart and lungs were
functioning normally. (R. at 665, 668, 797). During 2015 and 2016, Plaintiff also saw
Nancy J. Crouse, a certified nurse practitioner at Graham Medical Group. Ms. Crouse
likewise consistently observed Plaintiff to be alert, oriented, and well-nourished and
hydrated and noted normal heart and lung functioning. (R. at 1104, 1111, 1117,
1122). Plaintiff’s oxygen levels consistently sat between 96% and 99% between 2014
and 2016, as observed by both Dr. Chamberlin and Ms. Crouse. (R. at 665, 668, 797,
1104, 1108, 1110, 1117, 1120).
The record also contains treatment notes from Plaintiff’s pulmonologist, Dr.
Jon C. Michel, dating back to May 2014. During the initial consultation, Plaintiff’s
chief concern was shortness of breath, though he also reported CAD and bipolar
disorder. (R. at 653). Plaintiff reported he could walk around a block before he became
short of breath. (R. at 653). Plaintiff reported he smokes two packs of cigarettes per
day, and Dr. Michel prescribed medication to help him quit smoking. (R. at 653). Dr.
Michel noted normal heart and lung functioning but also noted interstitial markings
on Plaintiff’s lungs. (R. at 654). Dr. Michel ordered echocardiogram, an HRCT (highresolution computed tomography) test, and a PSG (polysomnography) test. (R. at
655).
The echocardiogram was performed in June 2014 and came back within normal
limits. (R. at 911; 679-81). The HRCT revealed no lung nodules or abnormalities but
10
noted some air trapping. (R. at 908; 981-83). The report specifically stated: “No
abnormality is demonstrated to explain patient’s symptoms.” (R. at 908). The report
further stated: “No interstitial lung disease is evident.” (R. at 682; see also 688).
Further testing revealed an oxygen level of 99% when resting and 93% when walking,
and a pulse at 76 when resting and 103 when walking. (R. at 910).
Plaintiff saw Dr. Michel again in November 2015 and reported the same
symptoms, but stated he was then smoking one pack of cigarettes per day. (R. at 904).
Dr. Michel again noted normal cardiac and lung functioning and interstitial
markings. (R. at 905). Dr. Michel diagnosed interstitial lung disease (ILD) and
prescribed Symbicort. (R. at 905-06). Dr. Michel also ordered a CT scan to examine a
potential lung nodule noted in a September 2015 CT scan. (R. at 906, 1135). The
appointment concluded with a discussion about smoking cessation. (R. at 906). The
CT scan ordered by Dr. Michel indicated scattered areas of gas trapping but no
interstitial thickening and no nodules. (R. at 1134). The scan report suggested chronic
small airway disease, possibly due to smoking or chronic asthma. (R. at 1134).
Plaintiff saw Dr. Michel again in February 2016. At this appointment, Dr.
Michel prescribed Spirvia and a nebulizer to treat Plaintiff’s shortness of breath and
COPD. (R. at 893, 899). Plaintiff continued to report he could walk around a block
before experiencing shortness of breath and he continued to smoke one pack of
cigarettes per day. (R. at 896). Dr. Michel noted normal cardiac and lung functioning
but ordered another HRCT and echocardiogram. (R. at 899). The record does not
appear to contain the any subsequent treatment notes from Dr. Michel.
11
The record does contain April 2015 and June 2016 CT scans of Plaintiff’s chest,
which revealed no lung nodules or abnormalities. The June 2016 scan report
expressed doubt as to whether the abnormality noted in the September 2015 CT scan
was actually a lung nodule, suggesting it was instead a “summation artifact” as
suspected in the report for the September 2015 scan. (R. at 1129, 1135).
Finally, the record also contains a questionnaire completed by Dr. Michel in
November 2016 entitled “Pulmonary Disorder Report”. (R. at 1094). In this
questionnaire, Dr. Michel stated he began treating Plaintiff in 2014 and noted
diagnoses of COPD and ILD. (R. at 1094). The questionnaire noted multiple
symptoms including shortness of breath, chest tightness, wheezing, asthma, acute
bronchitis, episodic pneumonia, fatigue, palpitations, and coughing. (R. at 1094).
Dr. Michel opined Plaintiff’s asthma attacks, which are severe and occur
approximately twice a year, are precipitated by upper respiratory infection, allergens,
emotional stress, and irritants. (R. at 1094-95). Dr. Michel stated Plaintiff’s fatigue
and pain often impact his concentration and attention and his ability to handle stress
was moderately limited. (R. at 1095). Dr. Michel indicated Plaintiff may need to lie
down at unpredictable intervals if he returned to work and he would be absent from
work approximately three times per month because of his conditions. (R. at 1095). Dr.
Michel opined Plaintiff could walk less than a block before needing rest or
experiencing severe pain and Plaintiff could only sit or stand for thirty-minute
intervals before needing to change positions. (R. at 1095). During an average eighthour work day, Dr. Michel opined Plaintiff could sit for at least six hours but could
12
not stand or walk for any of the listed options.4 (R. at 1096). Dr. Michel opined
Plaintiff could perform work within the sedentary work category listed in 20 C.F.R. §
404.1567(a), in that Plaintiff could occasionally lift 10 pounds and could occasionally
twist and stoop, rarely crouch and climb ladders, but never climb stairs. (R. at 1096).
Dr. Michel suggested Plaintiff avoid exposure to a number of environmental irritants,
particularly cigarette smoke and high humidity. (R. at 1096). Finally, Dr. Michel
noted a “severe PFT5 finding in 2014.” (R. at 1096).
LEGAL STANDARDS
I.
Disability Standard
To qualify for disability benefits under the Social Security Act, a claimant must
prove he or she is 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),
1382c(a)(3)(A). The impairment must be of a sort that “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),
1382c(a)(3)(A). With respect to a claim for a period of disability and disability
insurance benefits, a claimant must also demonstrate his or her earnings record has
acquired sufficient quarters of coverage to accrue disability insurance benefits and
the alleged disability began on or before the date that insurance coverage ended. 42
U.S.C. §§ 416(i)(3), 423(c)(1)(B).
The listed options include less than two hours, about two hours, about four hours,
and at least six hours. (R. at 1096).
5 PFT stands for “pulmonary function test”; and the Court presumes Dr. Michel is
referring to the test results from the March 2014 pulmonary function study that
revealed a moderately severe restrictive pulmonary defect (R. at 692).
4
13
Upon receiving a claim for disability benefits under the Social Security Act, the
Commissioner assesses the claimant’s ability to engage in substantial gainful
activity. McNeil v. Califano, 614 F.2d 142, 145 (7th Cir. 1980). In making that
assessment, the Commissioner employs a five-step sequential analysis to determine
whether a claimant is disabled and therefore entitled to disability benefits. 20 C.F.R.
§§ 404.1520(a)(1), 416.920(a)(1); Maggard v. Apfel, 167 F.3d 376, 378 (7th Cir. 1999).
At the first step, the Commissioner makes a threshold determination as to
whether the claimant is presently involved in substantial gainful activity. 20 C.F.R.
§ 404.1520(a)(4)(i). If the claimant is not, the Commissioner proceeds to the next step.
Id. At the second step, the Commissioner evaluates the severity and duration of the
claimant’s impairment(s). 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant has an
impairment that significantly limits his or her physical or mental ability to do basic
work activities, the Commissioner will proceed to the third step. 20 C.F.R. §
404.1520(c). However, if the claimant’s impairments, considered in combination, are
not severe, he or she is not disabled and the inquiry ends. Id. At the third step, the
Commissioner compares the claimant's impairments to a list of impairments
considered severe enough to preclude any gainful work; if the elements of one of the
listings are met or equaled, the claimant is eligible for disability benefits and the
inquiry ends. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Part 404, Subpart P, Fed.
Appx. 1. If the claimant does not qualify under one of the listings, the Commissioner
proceeds to the fourth and fifth steps after determining the claimant’s RFC. 20 C.F.R.
§ 404.1520(e). At the fourth step, the claimant’s RFC is evaluated to determine
whether he or she can pursue any past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv).
14
If not, the Commissioner evaluates at step five the claimant’s ability to perform other
work available in the economy, again using the RFC. 20 C.F.R. § 404.1520(a)(4)(v).
The claimant bears the burdens of production and persuasion at the first four
steps of the Commissioner’s analysis. McNeil, 614 F.2d at 145. However, once the
claimant demonstrates an inability to perform any past relevant work, the burden
shifts to the Commissioner to show an ability to engage in another type of gainful
employment. Id. (citing Smith v. Sec'y of Health, Educ. & Welfare, 587 F.2d 857, 861
(7th Cir. 1978)).
II.
Standard of Review
When a claimant seeks judicial review of an ALJ’s decision denying disability
benefits, the Court must “determine whether it 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 Court’s review is governed by 42 U.S.C. § 405(g), which states: “The
findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive.” Substantial evidence is defined as “ ‘such
evidence as a reasonable mind might accept as adequate to support a conclusion.’ ”
Maggard, 167 F.3d at 379 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
In a substantial-evidence determination, the Court will review the entire
administrative record, but it 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). The ALJ must
“build an accurate and logical bridge from the evidence to [her] conclusion” but need
not address every piece of evidence. Clifford, 227 F.3d at 872. The Court will remand
15
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). Additionally, credibility determinations by the ALJ are not upset “so long as
they find some support in the record and are not patently wrong.” Herron v. Shalala,
19 F.3d 329, 335 (7th Cir. 1994).
DISCUSSION
Plaintiff raises several issues in his Memorandum in Support of his Motion for
Summary Judgement (Doc. 11). The Court will address each in turn.
I.
The ALJ Did Not Err at Step Three
Plaintiff’s first argument appears to allege the ALJ improperly analyzed his
bipolar disorder at step three, which resulted in an erroneous RFC determination.
(See Doc. 11 at 7-9). This argument is fundamentally flawed. As the Acting
Commissioner points out, the step-three determination is an entirely separate
analysis from that required for the RFC determination.
The adjudicator must remember that the limitations identified in the
“paragraph B” and “paragraph C” criteria are not an RFC assessment
but are used to rate the severity of mental impairment(s) at steps 2 and
3 of the sequential evaluation process. The mental RFC assessment used
at steps 4 and 5 of the sequential evaluation process requires a more
detailed assessment by itemizing various functions contained in the
broad categories found in paragraphs B and C of the adult mental
disorders listings in 12.00 of the Listing of Impairments, and
summarized on the PRTF. SSR 96-8P, 1996 WL 374184 (July 2, 1996).
See also 20 C.F.R. § 404.1520a(d); 20 C.F.R. § 416.945. Thus, the argument that the
RFC determination is flawed because of the step-three determination is not a valid
argument. Nevertheless, the Court finds the ALJ’s step-three determination is
supported by substantial evidence.
16
In challenging the ALJ’s step-thee determination, Plaintiff appears to argue
the analysis was not sufficiently detailed and the ALJ did not explicitly account for
certain facts in that portion of the written decision. (Doc. 11 at 7-6). However, the
ALJ “is not required to provide a complete written evaluation of every piece of
testimony and evidence[.]” Rice, 384 F.3d at 370 (internal quotation marks omitted).
Moreover, the Court reads the “ALJ’s decision as a whole, and because it would be a
needless formality to have the ALJ repeat substantially similar factual analyses at
both steps three and five,” the Court considers “the ALJ’s treatment of the record
evidence in support of both [her] conclusions at steps three and five.” Id. at 370 n.5.
Turning to the substance of Plaintiff’s argument, he fails to clearly identify
which of the four functional areas warranted a heightened limitation or what level of
severity was appropriate; he instead merely lists each functional area along with
evidence he believes relevant. Plaintiff appears to forget he bears the burden of
persuasion at step three of the analysis. See McNeil, 614 F.2d at 145. Even so, his
identification of evidence does not undermine the ALJ’s decision or require a different
result because the ALJ’s decision was supported by substantial evidence identified in
the written order.
Respecting the first functional area—the ability to understand, remember, or
apply information—the ALJ determined Plaintiff had a mild limitation. (R. at 24).
The facts Plaintiff points to in his memorandum do not bear on his ability to
17
understand, remember, or apply information, but rather bear on his ability to
concentrate, which is a different functional area.6
The Court cannot conclude the ALJ’s determination was erroneous. Relevant
to this finding, the ALJ noted testing has not revealed any marked memory deficits.
(R. at 27). However, the ALJ also noted Plaintiff was found to have impaired shortterm memory but an intact immediate memory in March 2014. (R. at 21). The Court
further notes: (1) Plaintiff’s intake evaluation at Tazwood from November 2010
indicated normal memory functioning (R. at 470); (2) Plaintiff’s February 2011
psychological evaluation revealed fair long-term memory and moderately impaired
short-term memory and the evaluator also indicated Plaintiff gave the impression of
exaggerating “a great deal” (R. at 493); and (3) the progress notes from North Central
consistently indicate Plaintiff’s recent and remote memory was intact between
February 2014 and July 2016 (R. at Exs. 20F, 24F). This evidence supports the ALJ’s
finding of a mild limitation on Plaintiff’s ability to remember.
Respecting the second functional area—the ability to interact with others—the
ALJ rated Plaintiff moderately limited. In challenging the ALJ’s decision, Plaintiff
mischaracterizes the ALJ’s analysis by stating the ALJ leapt to the conclusion
Plaintiff was only moderately limited because he was generally stable. (Doc. 11 at 8;
see also R. at 24). In reality, the ALJ reasoned Plaintiff’s ability to interact with others
was most impacted during times of symptom exacerbation, typically due to a lack of
Plaintiff also points to his Global Assessment of Functioning (GAF) scores in the low
40s but neglects to add that he was also assessed scores in the low- to mid-50s, as
noted by the ALJ. At any rate, while GAF scores may be helpful in some
circumstances, they are not dispositive and are not a requisite consideration in
disability determinations. Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010).
6
18
treatment; however, when treated, Plaintiff’s symptoms are not exacerbated and he
is stable and, therefore, able to interact appropriately with others. (R. at 24). This
analysis absolutely makes sense. (Contra Doc. 11 at 8). If Plaintiff’s symptoms are
managed by treatment and he is generally stable and consequently not symptomatic,
then his symptoms cannot be said to significantly interfere with his ability to interact
with others or, from a broader perspective, with his ability to work.
Plaintiff also mentions his “tendency toward social withdrawal and isolation”
and his criminal record for battery and history of anger management issues, but he
fails to explain how those issues warrant a heightened level of limitation. He also
fails to prove the ALJ did not consider these issues, to the extent they are supported
by the record.7 Again, the ALJ is not required to provide a written analysis of each
piece of evidence appearing in the record so long as the decision is supported by
substantial evidence. Here, the ALJ’s decision Plaintiff is moderately limited with
respect to his ability to interact with others is supported by Plaintiff’s mental health
providers’ treatment notes describing him as stable, particularly when treated with
medication (see R. at Exs. 3F, 9F, 11F, 14F, 16F, 20F, 24F). The decision is also
consistent with the agency psychological consultant’s evaluation (R. at 516-17). The
Court finds the decision is supported by substantial evidence.
Respecting the third functional area—the ability to concentrate, persist, or
maintain pace—the ALJ assessed a moderate limitation. (R. at 24). In reaching this
Despite reporting his criminal history at several points throughout treatment,
Plaintiff never mentioned a battery conviction. (See, e.g., R. at 491, 1064, 1070). In
addition, Plaintiff fails to direct the Court’s attention to any aspect of the record
demonstrating he has been treated for or diagnosed with anger management issues.
7
19
conclusion, the ALJ noted Plaintiff’s testimony he has difficulties concentrating as
well as the medical evidence indicating an impaired short-term memory but also the
evidence indicating an intact immediate memory and an ability to perform simple
calculations and serial sevens. (R. at 24; see also Ex. 16F). The Court further notes
the evidence of short-term memory issues is contradicted by consistent findings of
intact short-term memory (R. at 470, Exs. 20F, 24F), as discussed above.
Plaintiff claims the ALJ’s analysis is deficient because the ALJ failed to explain
“why these minimal capabilities diminish the effects of Plaintiff’s undisputed and
well-documented limitations with concentration, persistence, and pace.” (Doc. 11 at
9). However, the ALJ did explain her decision, as noted above. Perhaps Plaintiff’s
argument would be better taken if the ALJ had found no limitation at all, but that is
not what happened here. The ALJ’s job was to weigh the evidence, and that is what
the ALJ did by noting evidence it found relevant to this functional area, some
aggravating and some mitigating. In weighing this evidence, the ALJ clearly
concluded the mitigating evidence, i.e., the ability to perform simple calculations and
serial sevens as well as documentation of Plaintiff’s intact immediate memory, when
weighed against the documented limitations warranted a finding of moderate
limitation. That decision is supported by evidence in the record, as illustrated above
and in the ALJ’s written decision (R. at 24).
Finally, the ALJ found no evidence indicating Plaintiff was limited in his
ability to adapt or manage himself, the fourth functional area. (R. at 24). To counter
this finding, Plaintiff points to “his documented chronic suicide risk factors” and his
reports he goes days without showering unless told to shower by his mother, his
20
“mother helps him shave,” and he is a “single man in his forties who lives with his
parents and does no household chores.” (Doc. 11 at 9).
Though Plaintiff reported being hospitalized for attempted suicide, he reports
this inconsistently and provides no documentation of these hospitalizations. At one
point he stated he attempted suicide only once at the age of 17, but did not report any
hospitalization for that attempt (R. at 932); at another, he stated he was hospitalized
for attempted suicide twice, one of those times being “ten years ago”, which would
have been 2006 (R. at 1046, 1079); and at another time reported being hospitalized
for attempted suicide in 1995 (R. at 1004). Apart from these reports by Plaintiff, the
record does not contain any record or documentation of a suicide-related
hospitalization or any lasting damage from his reported attempted suicide by
ingesting chlorine. Additionally, though Plaintiff reported suicidal thoughts at times,
he also reported no suicidal thoughts or ideations or plans and was consistently
determined to be a minimal to no risk of harm to himself. (R. at 571, 584, 592-93, Ex.
24F). The Court therefore does not find the record supports Plaintiff’s argument with
respect to “his documented chronic suicide risk factors.” In addition, Plaintiff reported
to his mental health providers he largely cared for himself in that he would care for
his own nutritional and medical needs, cook, drive or use public transportation, shop,
etc. (R. at Ex. 24F). Plaintiff also reported he enjoys cleaning (R. at 469, 492), which
contradicts his testimony he does no household chores. (R. at 331). Finally, the ALJ
specifically rejected Plaintiff’s reported inability to shave due to shakiness, finding
no previous reports of shakiness or a side-effect of shakiness from any of Plaintiff’s
medications. (R. at 26). As such, the record does not support Plaintiff’s arguments,
21
and even if it did, Plaintiff bore the burden of proving these facts to the ALJ, which
he failed to do (see R. at 76-77).
In sum, Plaintiff has failed to persuade the Court the ALJ erred at step-three
of the sequential analysis. Critically, Plaintiff utterly failed to explain how the ALJ’s
severity determinations were error or what level of limitation was warranted by the
evidence. This was Plaintiff’s burden. See McNeil, 614 F.2d at 145. Simply pointing
to evidence allegedly not discussed in the ALJ’s written decision is not sufficient
because the ALJ was not required to analyze every piece of evidence in the record in
her written decision. Clifford, 227 F.3d at 872. The Court finds the ALJ built a logical
bridge between the evidence and her step-three conclusions and those conclusions
were supported by substantial evidence in the record. Because the Court concludes
the ALJ did not err at step three, Plaintiff’s argument the RFC determination was
flawed because of a flawed step-three analysis would fail even if it were a valid
argument. The Court must nevertheless address the ALJ’s RFC determination
because it is also implicated by Plaintiff’s next argument.
II.
The ALJ’s RFC Determination was Supported by Substantial
Evidence
Plaintiff argues the ALJ’s RFC determination failed to account for his mental
and physical limitations in combination. However, Plaintiff’s arguments the ALJ (1)
improperly dismissed his subjective reports of the severity of his symptoms and (2)
improperly failed to give controlling weight to the opinions of Dr. Michel, Plaintiff’s
treating pulmonologist, are relevant to the resolution of his RFC argument, 20 C.F.R.
§ 404.1545(a)(3) (directing the ALJ to assess the RFC “based on all of the relevant
22
medical and other evidence”). Therefore, the Court will depart from Plaintiff’s
organization of the issues and adjust this analysis accordingly.
A.
The ALJ improperly applied the Treating Physician Rule, but that error
was harmless
Though now repealed, the Treating Physician Rule applies to Plaintiff’s claim
because it was filed before March 27, 2017. See 20 C.F.R. § 404.1527. “Under the
Treating Physician Rule, a treating physician’s opinion ‘regarding the nature and
severity of a medical condition is entitled to controlling weight if it is well supported
by medical findings and not inconsistent with other substantial evidence in the
record.’ ” Brown v. Colvin, 845 F.3d 247, 252 (7th Cir. 2016) (quoting Clifford v. Apfel,
227 F.3d 863, 870 (7th Cir. 2000)); see also 20 C.F.R. § 404.1527(c)(2). If an ALJ does
not give controlling weight to a treating physician’s opinion, it must offer “good
reasons” to disregard the opinion after having considered factors such as:
“(1) whether the physician examined the claimant, (2) whether the
physician treated the claimant, and if so, the duration of overall
treatment and the thoroughness and frequency of examinations, (3)
whether other medical evidence supports the physician’s opinion, (4)
whether the physician’s opinion is consistent with the record, and (5)
whether the opinion relates to the physician’s specialty.” Brown, 845
F.3d at 252. (citing Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010)).
See also 20 C.F.R. § 404.1527(c)-(d).
Here, the ALJ declined to give controlling weight to the opinions set forth in
Dr. Michel’s November 2016 questionnaire because the ALJ found those opinions
inconsistent with Dr. Michel’s own treatment notes and other medical evidence of
record. (R. at 26). Specifically, Dr. Michel’s treatment notes consistently “revealed
normal respiratory findings with no wheezing, crackles and equal bilateral lung
23
expansion.” (R. at 26; see also R. at 654, 898, 905, 907-08). In addition, Plaintiff’s
oxygen level consistently sat between 96% and 99% during the relevant time periods.
(R. at 26, see also R. at 673, 910). The ALJ did note the March 2014 test revealing a
moderately severe restrictive pulmonary defect but also noted Plaintiff testified the
use of inhalers and nebulizer treatments helped his symptoms. (R. at 26; see also R.
at 692-695; R. at 54). The Court further notes Dr. Michel’s November 2016
questionnaire states Plaintiff could not walk around a block before experiencing
shortness of breath but his treatment notes indicate Plaintiff consistently reported
he could walk around a block before becoming short of breath. (Compare R. at 1095,
with R. at 653, 896, 903). Additionally, Dr. Chamberlin’s and Ms. Crouse’s treatment
notes consistently indicate normal respiratory functioning between 2014 and 2016.
(R. at 665, 668, 670, 674, 677, 688, 1104, 1111, 1117, 1122).
Despite the above analysis, Plaintiff argues the ALJ “cherry picked her way
through the medical records to identify the most benign findings.” (Doc. 11 at 12).
Plaintiff, however, fails to direct the Court’s attention to any picked-over cherries.
Instead, Plaintiff chose to argue: “The ALJ actually admitted to playing doctor, noting
that though she considered the opinions of State agency physicians, they did not have
the benefit of the entire record when they issued their opinions.” (Doc. 11 at 12). This
is a mischaracterization of the ALJ’s statement. The ALJ simply observed the agency
physicians did not have all the medical evidence appearing in the record when
making the initial disability determinations. Indeed, they did not. It appears the
agency physicians only had some medical records through March 2014 (see R. at 8182; 93-94) for the initial determination and some medical records through March 2015
24
(see R. at 108-12; 125-29) for the decision on reconsideration. Dr. Michel’s treatment
notes and documentation range from June 2014 through November 2016 (R. at 889912, 1095), so the agency physicians could have only considered Dr. Michel’s records
on reconsideration and, even then, only part of his records. Likewise, treatment notes
from Dr. Chamberlin and Ms. Crouse, as well as North Central for that matter, range
from 2014 through 2016. (See R. at Exs. 19F, 20F, 24F, 27F). The ALJ’s observation
of this fact is not an admission to “playing doctor” but was instead notice of a highly
relevant factor in the ALJ’s consideration of those opinions.
It is not this Court’s function to reevaluate the evidence in reviewing the ALJ’s
decision; rather, it this Court’s function is to consider whether the ALJ’s decision is
supported by substantial evidence. 42 U.S.C. § 405(g). As previously explained,
substantial evidence is defined as “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted).
The Court finds the evidence discussed above constitutes substantial evidence
supporting the ALJ’s decision to not give controlling weight to the opinions expressed
in Dr. Michel’s November 2016 questionnaire.
However, the Court finds the ALJ’s consideration of the requisite regulatory
factors set forth in 20 C.F.R. § 404.1527(c) inadequate.8 The ALJ failed to explicitly
identify any of the regulatory factors, so the Court must now consider whether the
ALJ’s analysis implicitly accounted for those factors. See Hall v. Berryhill, No. 16-C-
The ALJ also failed to explicitly state what weight she afforded Dr. Michel’s opinions
but did state they were “not afforded significant weight.” The Court takes this
statement to mean the ALJ afforded Dr. Michel’s opinions “little weight.”
8
25
938, 2017 WL 4564244, at *6 (N.D. Ill. June 21, 2017), aff'd, No. 17-2628, 2018 WL
4959710 (7th Cir. Oct. 15, 2018).
The ALJ did explicitly conclude Dr. Michel’s opinions were inconsistent with
the medical evidence of record, see 20 C.F.R. § 404.1527(c)(3)-(4), but the ALJ did not
appear to consider the length, nature, or extent of the treatment relationship between
Plaintiff and Dr. Michel; the frequency of Dr. Michel’s examinations; Dr. Michel’s
specialty; or the types of tests Dr. Michel performed or ordered, see id. §§
404.1527(c)(1)-(2), (5). Dr. Michel, a pulmonologist, has treated Plaintiff since 2014
for diagnoses of COPD and ILD, both disorders of the lung falling within Dr. Michel’s
specialty. (R. at 1094) The record contains treatment notes from appointments in May
2014, June 2014, November 2015, and February 2016. (R. at Exs. 17F, 22F). During
the initial consultation, Dr. Michel ordered, inter alia, an HRCT scan and an
echocardiogram, and Dr. Michel ordered subsequent CT scans of Plaintiff’s chest.
These factors weigh in favor of affording Dr. Michel’s medical opinions more than
“little weight,” as they establish a treatment relationship spanning over the course of
two years and extensive medical testing, though it does not appear that Dr. Michel
saw Plaintiff more than once or twice per year. See Hall, 2017 WL 4564244, at *6.
Notwithstanding, the Court finds substantial evidence in the record supports
the ALJ’s decision to significantly discount Dr. Michel’s opinion. In addition to the
inconsistencies previously discussed, the medical testing in the record revealed
results inconsistent with Dr. Michel’s opinion on Plaintiff’s limitations. A June 2014
echocardiogram showed normal lung functioning with no abnormalities and a CT
scan report stated: “No abnormality is demonstrated to explain patient’s symptoms.”
26
(See R. at 682-83, 908). The record also contains results from a February 2014 chest
x-ray, wherein the physician noted “multiple previous chest radiographs dating
[back] to 12/20/2011” and “[n]o significant changes from previous studies[,]”which
seemingly revealed normal lung functioning and no acute abnormalities. (R. at 688).
Furthermore, though Dr. Chamberlin’s treatment notes indicate a lung nodule,
nearly all scans revealed no lung nodules or abnormalities and the only scan report
indicating the presence of a possible lung nodule indicated it might be “summation
artifact,” an opinion repeated in subsequent testing. (R. at 1129, 1135). These results,
which largely indicate normal lung functioning, lend credence to the ALJ’s
determination Dr. Michel’s opinions overstate and overcompensate for Plaintiff’s true
condition and limitations.
For these reasons, the Court finds substantial evidence supports the ALJ’s
decision not to give controlling weight to Dr. Michel’s opinions, and the ALJ’s failure
to properly consider the requisite regulatory factors in rejecting those opinions was
therefore harmless error. See Hall, 2017 WL 4564244, at *6 (citing Schomas v. Colvin,
732 F.3d 702, 707–8 (7th Cir. 2013) (“But this kind of error is subject to harmlesserror review, and we will not remand a case to the ALJ for further explanation if we
can predict with great confidence that the result on remand would be the same.”)).
B.
The ALJ did not err in weighing Plaintiff’s testimony
Plaintiff next argues the ALJ engaged in a “gratuitous attack” on his credibility
in violation of SSR 16-3P, 2016 WL 1119029 (Mar. 16, 2016). (Doc. 11 at 13). Instead
of analyzing the ALJ’s decision under the framework set forth in SSR 16-3P, Plaintiff
merely states: “It is difficult to evaluate the reasons for the ALJ’s rejection of
27
Plaintiff’s allegations because, quite simply, she did not offer any. All she did,
essentially, was summarily dismiss his statements regarding his ‘need for restriction’
in a brief paragraph.” (Doc. 11 at 13).
As the Acting Commissioner notes in her memorandum (Doc. 15 at 11), SSR
16-3P and the relevant regulations direct ALJs to, rather than focus on the claimant’s
credibility, focus first on “whether there is an underlying medically determinable
physical or mental impairment that could reasonably be expected to produce an
individual's symptoms” and then evaluate “the intensity and persistence of those
symptoms to determine the extent to which the symptoms limit an individual’s ability
to perform work-related activities.” SSR 16-3P at *2-4; see also 20 C.F.R. §§ 404.1529,
416.929; Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016). “So long as an ALJ gives
specific reasons supported by the record,” the Court will not overturn an ALJ’s SSR
16-3P assessment unless it is “patently wrong.” Curvin v. Colvin, 778 F.3d 645, 651
(7th Cir. 2015) (citation omitted). The Seventh Circuit has noted this is an “extremely
deferential” standard. Bates v. Colvin, 736 F.3d 1093, 1098 (7th Cir. 2013).
Contrary to Plaintiff’s undeveloped and misguided argument, the ALJ
adequately articulated her basis for discounting his statements relating to the
persistence and intensity of his symptoms. Upon concluding Plaintiff’s impairments
could reasonably be expected to produce symptoms (R. at 26), the ALJ reasoned:
In assessing the claimant’s residual functional capacity, the
undersigned has considered the claimant’s complaints of pain and
functional limitations, but do[es] not find them consistent with the
medical evidence and other evidence of record. . . .
...
The claimant testified to somewhat limited activities, but the
record does not support the need for such restriction. He testified that
he spends his time watching television and goes to visit his sister who
28
lives next door. He lives with his mother, and said that she performs all
household chores. He is able to shower, but says his mother helps him
shave because he gets ‘shaky.’ The undersigned notes there is no
evidence of such complaints or findings of shakiness upon examination.
. . . The medical evidence reveals no evidence of any significant side
effects [from his current medications] were reported.
...
The claimant’s allegations at the hearing of disabling limitations
due to shortness of breath, chest pain, joint pain and extremity swelling
along with bipolar symptoms, are not supported by the evidence of
record, including the claimant’s failure to follow prescribed treatment at
times, failing to attend scheduled appointments at North Central and
Tazwood. . .
The Claimant alleges that he is unable to work because he cries
often and cannot remember things, but testing has not revealed marked
memory deficits. Furthermore, progress notes from all his providers
have revealed overall that his mental status has been mostly stable,
other than his own subjective reports or complaints. (R. 26-27).
This analysis tracks the two-step framework set forth in SSR 16-3P and the
regulations. With respect to the alleged memory issues and “crying spells”, the only
symptoms Plaintiff mentions in his argument (Doc. 11 at 13), the ALJ specifically
noted objective testing did not reveal marked memory deficits and the progress notes
described Plaintiff’s mental status as mostly stable. (R. at 24, 27; see also R. at 761).
In addition, the ALJ found significant the fact that Plaintiff continued smoking in
excess of one pack of cigarettes per day at least through February 2014 despite his
reports of disabling lung conditions. (R. at 27; see also R. at 664, 667, 672, 676, 896,
903, 906).
The ALJ’s analysis is sufficient to comply with SSR 16-3P because it
demonstrates how Plaintiff’s testimony is inconsistent with the objective evidence of
record; it is not a “gratuitous attack on Plaintiff’s credibility.” See, e.g., Hall, 2017 WL
4564244 at *7 (“ALJ's finding of minor inconsistencies in claimant’s testimony as well
as general inconsistency with the overall objective evidence was sufficient to establish
29
her SSR 16-3p determination was not patently wrong.” (citing Stehlin v. Berryhill.
No. 16-C-3455, 2017 WL 2408127, at *8–9 (N.D. Ill. June 2, 2017))). Because
Plaintiff’s subjective complaints and testimony at the hearing are inconsistent with
the objective evidence of record—a fact noted by several professionals in the record—
the ALJ was permitted to discount Plaintiff’s statements and rely instead on the
objective evidence in “determining the extent to which the symptoms limit [Plaintiff’s]
ability to perform work-related activities.” See SSR 16-3P at *8; 20 C.F.R. §§
404.1529(c)(4). The Court therefore rejects Plaintiff’s argument and finds the ALJ’s
SSR 16-3P analysis sufficient and not “patently wrong”.
Plaintiff apparently does not contest the ALJ’s assessment of his other
statements relating to the severity of his symptoms, as he provides no analysis
beyond cursorily challenging the ALJ’s analysis of his reported “crying spells” and
memory issues. He has therefore waived any such argument. Regardless, the Court
finds the ALJ’s SSR 16-3P analysis adequate for the reasons discussed above.
C.
The ALJ’s RFC determination was supported by substantial evidence
Having addressed the ALJ’s determinations of the weight to be afforded to Dr.
Michel’s opinions and Plaintiff’s testimony and subjective reports, the Court now
turns to the ALJ’s RFC determination.
A claimant’s RFC is the most the claimant can do in light of his or her mental
and/or physical limitations. 20 C.F.R. § 404.1545(a)(1). To determine a claimant’s
RFC, the ALJ must consider the record as a whole and will evaluate the claimant’s
reported symptoms “in relation to the objective medical evidence and other
evidence[.]” Id. § 404.1545(a)(3); see also § 404.1529(c). The ALJ also considers the
30
limiting effects of all the claimant’s impairments, even nonsevere impairments. §
404.1529(e). Critically, the Court’s function is to consider whether substantial
evidence supports the ALJ’s RFC determination; this standard of review “allows
reasonable minds to differ”, Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001),
and the Court will not disturb the ALJ’s determination so long as it is supported by
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion”, Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008).
Here, the ALJ concluded Plaintiff could perform medium work as defined in 20
C.F.R. § 404.1567(c), which “involves lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds.” (R. at 25). To further
compensate for Plaintiff’s pulmonary conditions, the ALJ restricted Plaintiff to work
that avoids “concentrated exposure to fumes, odors, dusts, gases, poor ventilation,
and temperature extremes.” (R. at 25). With respect to Plaintiff’s bipolar disorder and
other nonexertional limitations, the ALJ restricted Plaintiff to work involving
“simple, routine, repetitive tasks that can be easily resumed if [Plaintiff] is
momentarily distracted” and “occasional interaction with coworkers and supervisors
of a brief and superficial nature with no interaction with the public.” (R. at 25).
To reach this determination, the ALJ stated it considered Plaintiff’s testimony
and reported symptoms, including his daily activities and reported shakiness, which
allegedly necessitated help from his mother when shaving. (R. at 26). The ALJ also
considered Dr. Michel’s treatment notes and November 2016 questionnaire,
pulmonary functioning tests and x-ray results, Plaintiff’s medications, treatment
notes from Plaintiff’s mental health providers, and the opinions of the agency
31
physicians and consultants. (R. at 26-27). As explained in subsections II(A) and II(B)
supra, the ALJ explained why controlling weight was not given to Dr. Michel’s
opinions and why Plaintiff’s testimony and subjective reports of his symptoms were
inconsistent with the evidence of record; specifically, both were inconsistent with Dr.
Michel’s own treatment notes and other objective medical evidence of record. The
Court finds the ALJ’s discussion of the evidence demonstrates the ALJ considered
the record as a whole when assessing Plaintiff’s RFC.
In his memorandum, Plaintiff argues a February 2014 x-ray revealing a
possible lung nodule,9 a March 2014 test revealing a moderately restrictive
pulmonary defect, and his doctor’s recommendation that he not lift more than five to
ten pounds undermine the ALJ’s RFC determination. (Doc. 11 at 10-11). Plaintiff also
relies heavily on the opinions stated in Dr. Michel’s November 2016 questionnaire.
(Doc. 11 at 10-11). However, the ALJ expressly considered all this evidence and
analyzed it in the written decision. The ALJ noted a possible lung nodule was
revealed in an x-ray and it was being monitored (R. at 26). Moreover, the ALJ noted
Plaintiff testified the use of inhalers and nebulizers helped his moderately restrictive
pulmonary defect and the treatment notes consistently revealed normal lung
functioning. (R. at 26). With respect to the lifting limitations, Plaintiff merely points
to his own testimony and does not indicate what doctor suggested this limitation or
when this limitation was suggested; the Court has found no such recommendation in
Notably, the February 2014 chest scan revealed no abnormalities or lung nodules.
(R. at 688). A possible lung nodule was noted in September 2015 but was thought to
actually be a “summation artifact”; scans before and after September 2015 revealed
no lung nodules. (R. at 1129, 1135).
9
32
any treatment notes in the record. In light of the fact Plaintiff’s reports are largely
inconsistent with the evidence of record, the Court is not persuaded by this argument.
Finally, the ALJ did consider the opinions expressed in Dr. Michel’s November 2016
questionnaire, but the ALJ also explained why Dr. Michel’s opinion was not given
significant weight (R. at 26), as discussed in subsection II(A), supra. So, it is no
surprise the ALJ’s RFC determination does not defer to the opinions expressed in the
questionnaire, and Plaintiff’s argument the RFC determination is therefore incorrect
is unavailing.
Plaintiff also complains the ALJ only accommodated environmental irritants
in the RFC determination. (Doc. 11 at 11). This is untrue. As stated, the ALJ also
restricted Plaintiff to “simple, routine, repetitive tasks that can be easily resumed if
[Plaintiff] is momentarily distracted” and to “occasional interaction with coworkers
and supervisors of a brief and superficial nature with no interaction with the public.”
(R. at 25). These further restrictions were meant to account for Plaintiff’s bipolar
disorder and other nonexertional limitations, i.e., his limited ability to concentrate,
persist, or maintain pace and his limited ability to interact well with others due to
that disorder, which, notably, are the only two functional areas within which the ALJ
determined Plaintiff was moderately limited. Plaintiff seemingly believes his RFC
should contain more nonexertional restrictions to compensate for the limitations
arising from his bipolar disorder, but much like his failure to explain how the ALJ’s
step-three determination was error, Plaintiff fails to explain how these specific
restrictions are insufficient or what further restrictions were warranted. (Doc. 11 at
9). Again, this was Plaintiff’s burden. McNeil, 614 F.2d at 145.
33
In effect, Plaintiff’s arguments boil down to a request that this Court reweigh
the evidence already considered by the ALJ and reach different conclusions. However,
that is not the Court’s function, particularly when the ALJ explained why the
disputed evidence was inconsistent with or undermined by other objective evidence
of record (R. at 25-27). As explained in this subsection and in subsections II(A) and
II(B) supra, the ALJ supported its RFC analysis with evidence in the record, and the
written decision indicates the ALJ considered the record as a whole. Moreover, the
ALJ’s RFC determination is consistent with the recommendations from the agency
physicians and psychological consultants. (R. at 86-88; 98-100; 116-20; 133-37; 51617). The Court finds the ALJ’s RFC determination is supported by substantial
evidence and cannot conclude the RFC determination is so unreasonable that no
reasonable mind could reach the same conclusion. See Craft, 539 F.3d at 673.
III.
The ALJ Did Not Err by Relying on the Vocational Expert’s Testimony
Finally, Plaintiff argues the ALJ committed error by relying on the VE’s
testimony. (Doc. 11 at 13-14). As the Acting Commissioner observes, Plaintiff’s
arguments are vague. It would appear Plaintiff asserts the VE did not tailor its
estimation of available jobs to the region in which Plaintiff resides. (Doc. 11 at 14).
Plaintiff also seems to argue the VE’s testimony is unreliable because it relies, at
least in part, on the Dictionary of Occupational Titles (DOT), which Plaintiff
maintains is obsolete. (Doc. 11 at 13-14). The Court rejects these arguments.
To the extent Plaintiff’s first argument is solely the estimates were based on
the number of jobs available in the “entire United States” as opposed to the
parameters set forth in 20 C.F.R. § 404.1566, the argument is forfeited due to
34
Plaintiff’s failure to raise that issue at the hearing. See Brown v. Colvin, 845 F.3d
247, 254 (7th Cir. 2016) (concluding the plaintiff forfeited challenges to the VE’s
testimony because the plaintiff failed to object to the testimony at the hearing).
Even so, the argument is unsupported by the record. Plaintiff states the “ALJ
failed to seek or provide numbers regarding the availability of jobs in the ‘national
economy’ which is defined as the region where the individual resides or in several
regions of the country.” (Doc. 11 at 14). The VE specifically testified his estimates
were of jobs available in the “national economy” and “similar numbers of jobs exist in
various regions of the country.” (R. at 73). Plaintiff’s unfounded speculation that the
estimates provided were based on the number of jobs available in the “entire United
States” as opposed to the parameters set forth in 20 C.F.R. § 404.1566 are
unpersuasive in light of the VE’s express testimony to the contrary.
In addition, counsel for Plaintiff asked the VE to explain on cross-examination
the basis for his estimations. (R. at 75). The VE explained he arrived at his
estimations by cross-checking the quarterly reports from the Bureau of Labor
Statistics with a program called “Job Browser Pro.” (R. at 75). He then compared
those statistics against the labor markets he’s observed over the years, checking local
areas to ensure the statistics are comparable. (R. at 75). Counsel for Plaintiff,
apparently satisfied with these answers, did not ask any further questions or inquire
whether the estimates were based on the number of jobs available in the “entire
United States.” (R. at 75). Based on the record and Plaintiff’s undeveloped argument,
the Court cannot conclude the VE failed to provide—or the ALJ failed to consider—
35
whether Plaintiff is able to perform jobs existing in significant numbers in the
national economy as required by 20 C.F.R. § 404.1566.
Plaintiff’s remaining argument is likewise forfeited because he did not
challenge the VE’s reference to the DOT at the hearing. (See R. at 71-75). The ALJ
was required by regulation to take notice of the DOT, regardless of whether Plaintiff
believes it is unreliable. 20 C.F.R. § 404.1566. It was Plaintiff’s duty to object to the
VE’s testimony on direct examination and/or probe any perceived deficiencies in the
testimony on cross-examination. See SSR 00-4P, 2000 WL 1898704 (Dec. 4, 2000)
(noting an objection to the basis for the VE’s testimony triggers the ALJ’s duty to
inquire into that basis). Plaintiff did not. He therefore forfeited any argument with
respect to the VE’s reference to or reliance on the DOT. See Brown, F.3d at 254.
That being said, the Court is cognizant of the Seventh Circuit’s criticisms of
the DOT in recent years, which are noted in Plaintiff’s memorandum (Doc. 11). See
Voight v. Colvin, 781 F.3d 871 (7th Cir. 2015); Browning v. Colvin, 766 F.3d 702, 709
(7th Cir. 2014). The Northern District’s comment on this quandary is enlightening:
The Court shares [the plaintiff’s] concerns on this topic. However,
neither Voight nor Browning was specifically decided on the issue that
Plaintiff raises here. See Fitzgerald v. Colvin, 2016 WL 447507, at *11
(W.D. Wis. Feb. 4, 2016) (calling the Seventh Circuit's language dicta
and noting that the court did not find “that the [ALJ] erred in relying on
the [vocational expert’s] unexplained vocational testimony and did not
overrule well-established precedent allowing [ALJs] to do so”). Lower
courts have reached mixed results on the topic. See Khuzaie v. Comm. of
Soc. Sec., 2016 WL 1253537, at *11 (N.D. Ind. March 30, 2016); Kordeck
v. Colvin, 2016 WL 675814, at *9 (N.D. Ind. Feb. 19, 2016)
(recommending that the ALJ obtain updated job data but remanding on
other grounds); Brown v. Colvin, 2015 WL 7294547, at *7 (W.D. Wis.
Nov. 17, 2015) (stating that the Seventh Circuit “has not yet overturned
an administrative law judge’s denial of an appeal on that basis alone”).
But see Rinderer v. Colvin, 2015 WL 3636389, at *8 (S.D. Ill. June 11,
2015) (remanding on this issue because the claimant was
36
unrepresented). Goo v. Colvin, No. 15-C-5858, 2016 WL 3520191, at *10
(N.D. Ill. June 28, 2016).
See also Kohlhaas v. Berryhill, No. 17-CV-413, 2018 WL 1090311, at *4 (S.D. Ill. Feb.
28, 2018) (concluding the Seventh Circuit’s criticism of the DOT in Browning and
Voight was dicta). The Court agrees with the Northern and Southern Districts of
Illinois and concludes neither Browning nor Voight require remand for the sole
reason the DOT is outdated and contains potentially obsolete information. Indeed,
the Seventh Circuit’s criticism of the DOT does not equate a mandatory finding of
reversible error whenever an ALJ relies on VE testimony referencing the DOT,
particularly when the ALJ is required by regulation to take notice of the information
contained in the DOT.
Notwithstanding, as in Goo, the Court is troubled by the fact the Acting
Commissioner failed to address either Browning or Voight, both of which were cited
by Plaintiff. “The Seventh Circuit has repeatedly expressed its serious concerns over
this issue. The government must begin addressing Browning, Voight, and other
Seventh Circuit rulings head on. It could start (unlike here) by citing them and
explaining why they do not require remand.” Goo, No. 15-C-5858, 2016 WL 3520191,
at *10 (N.D. Ill. June 28, 2016).
CONCLUSION
After careful review of the entire record, the Court concludes the ALJ’s decision
is supported by substantial evidence. The Court therefore DENIES Plaintiff's Motion
for Summary Judgment (Doc. 10) and GRANTS Defendant's Motion for Summary
Affirmance (Doc. 14). This case is TERMINATED.
37
SO ORDERED.
Entered this 29th day of November 2018.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
38
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?