King v. Astrue

Filing 35

MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 9/19/2012: Mailed notice. (is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KELVIN P. KING,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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No. 10 C 7458
Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER
Plaintiff Kelvin P. King seeks to overturn the final decision of the
Commissioner of Social Security (“Commissioner” or “Defendant”) denying his
application for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”) under Titles II and XVI of the Social Security Act. 42 U.S.C. §§
416, 423(d), 1381a.

The parties consented to the jurisdiction of the United

States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff filed a
motion for summary judgment. After careful review of the record, the Court now
denies Plaintiff’s motion and affirms the decision to deny him benefits.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI on January 7, 2008, alleging that he
became disabled on April 18, 2007 due to a herniated disc and respiratory
problems. (R. 156-59, 162-64, 196). The SSA denied the applications initially on
April 16, 2008, and again upon reconsideration on July 11, 2008. (R. 87-95, 10613).

Plaintiff filed a timely request for hearing and appeared before

Administrative Law Judge Curt Marceille (the “ALJ”) on October 6, 2009. (R. 14).
The ALJ heard testimony from Plaintiff, who was represented by counsel, as well
as from Plaintiff’s friend, Umeka Herrod, Medical Expert James McKenna, M.D.
(the “ME”) and vocational expert Pamela Tucker (the “VE”). Shortly thereafter,
on November 5, 2009, the ALJ found that Plaintiff is not disabled because he can
perform a significant number of light jobs available in the national economy. (R.
15-25). The Appeals Council denied Plaintiff’s request for review on August 25,
2010, (R. 3-5), and Plaintiff now seeks judicial review of the ALJ’s decision,
which stands as the final decision of the Commissioner.
In support of his request for remand, Plaintiff argues that the ALJ: (1)
made a flawed credibility assessment; (2) ignored important medical evidence in
determining Plaintiff’s residual functional capacity (“RFC”); and (3) relied on
improper testimony from the VE. As discussed below, the Court finds no merit to
these challenges, and affirms the ALJ’s decision.
FACTUAL BACKGROUND
Plaintiff was born on January 27, 1956, and was 53 years old at the time
of the ALJ’s decision. (R. 156, 162). He is a high school graduate with past
relevant work as a forklift/truck driver for lumber companies. (R. 197, 200).
A.

Medical History
1.

Back Injury and Treatment (September 2006 through January
2007)

On September 8, 2006, Plaintiff injured his back at work while lifting an 80pound bag of cement.

(R. 307).

Three days later, he reported to Alexian

2

Brothers Corporate Health Services (“Alexian Health”) complaining of left leg and
hip pain that was “progressively . . . getting worse.” (Id.). X-rays of Plaintiff’s
lumbar spine and left hip showed mild scoliosis and minimal degenerative
changes.

(R. 350-51).

The doctor diagnosed “left-sided low back/hip strain

(sciatica)” and allowed Plaintiff to return to work with some lifting and bending
restrictions. (R. 308, 355).
Throughout the following week, Plaintiff continued to receive treatment at
Alexian Health, including prescriptions for Flexeril, Ibuprofen/Motrin and
Naproxen. (R. 355, 358, 361, 363). On September 22, 2006, he had an MRI of
the lumbar spine which showed a large “central/left paracentral disc protrusion at
L5-S1” causing “significant compression of the thecal sac.” (R. 368). Based on
this result, Alexian Health referred Plaintiff to Babak Lami, M.D., of the Illinois
Spine Institute, S.C., for a consultation. (R. 372-73).
Dr. Lami examined Plaintiff on September 29, 2006 and diagnosed him
with “[l]eft leg radiculopathy with herniated nucleus pulposus.” He recommended
a lumbar epidural injection and physical therapy at that time, but also indicated
that “microdiscectomy might be an option” if this conservative treatment failed.
(R. 263-65, 279, 374). Two days later, on October 1, 2006, Plaintiff went to the
Alexian Brothers Medical Center emergency room complaining of low back pain.
(R. 376). He received a prescription for Vicodin and was discharged in stable
condition with a reported pain level of 5 out of 10. (R. 377).
The next day, Plaintiff called Dr. Lami and said that the epidural injection
had not helped, he was unable to walk, and he wanted to have surgery. (R.
3

260). Dr. Lami performed the microdiscectomy on October 4, 2006, (R. 271-72),
and by October 12, 2006, Plaintiff was “doing extremely well” with no more
radiculopathy or focal or neurological deficit. Plaintiff said that he was “extremely
happy” with the surgical results, and Dr. Lami scheduled him for three weeks of
physical therapy.

(R. 259, 278).

When Plaintiff saw Dr. Lami again on

November 9, 2006, he was “doing great” with “very minimal symptoms.” (R.
258). Dr. Lami instructed him to remain off work for two more weeks, after which
he could return to light duty with “no lifting more than 10 pounds [or] repetitive
bending.” (R. 258, 275).
Plaintiff started light work on December 11, 2006, (R. 274), and on
January 11, 2007, Dr. Lami discharged him from his care. (R. 257). Plaintiff
showed “no deficit” at that time, and Dr. Lami stated that he could return to work
without restrictions on January 17, 2007. (R. 257, 273). Dr. Lami noted that
Plaintiff would come to see him “on an as needed basis” and “underst[ood] that if
[he] has any questions or problems, he certainly can contact me anytime.” (R.
257). Plaintiff never contacted Dr. Lami or sought additional medical treatment
for his back after January 2007.
2.

Disability Application and Related Exams (January through
June 2008)

On January 7, 2008, approximately one year after he was released to full
duty work, Plaintiff applied for disability benefits. 1 The following month, on

1

As discussed later in more detail, in the interim, Plaintiff was fired from his job in
April 2007 and collected unemployment insurance through November 2007.

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February 23, 2008, ChukwuEmeka F. Ezike, M.D., conducted an Internal
Medicine Consultative Examination of Plaintiff for the Bureau of Disability
Determination Services (“DDS”). (R. 282-85). Plaintiff told Dr. Ezike that he has
“nerve damage in his left leg,” as well as back pain that is “intermittent, dull,
occasionally sharp, about 7/10 in severity, worse in the morning, and associated
with stiffness upon waking up.” (R. 282). Plaintiff also complained of shortness
of breath (dyspnea) on exertion, including walking and climbing stairs, though he
“ha[d] not been diagnosed for his symptoms.” (Id.). Plaintiff said that he can
walk one block, stand for 10 minutes, sit for 30 minutes, and lift up to 15 pounds
at a time. He was able to drive to his appointment, but he needs help cleaning
his home and does not shop. (R. 283).
Dr. Ezike observed that Plaintiff was able to get on and off the exam table
with no difficulty, and could walk more than 50 feet without support. His gait was
“slightly antalgic” with the use of a cane, but he was able to walk without any
assistive device. (R. 284). Dr. Ezike found Plaintiff to have normal grip strength
in both hands, and normal range of motion in the shoulders, elbows, wrists, hips,
knees, ankles and cervical spine. He exhibited lumbar flexion to 60 degrees
(normal) and extension to 20 degrees (25 is normal), both with mild pain, and a
straight leg raise test was negative. 2

2

(Id.).

Plaintiff did have decreased

Plaintiff cites to page 3454 of the Merck Manual of Diagnosis and Therapy for the
proposition that normal lumbar flexion is 125 degrees, and normal lumbar extension is
115 degrees. (Doc. 29, at 5). Those figures, however, are for range of motion in the hip.
The cited page does not address range of motion in the lumbar spine.

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sensation in his left leg, but his deep tendon reflexes were equal and symmetric.
(Id.).
Dr. Ezike diagnosed Plaintiff with “[c]hronic low back pain, status post
surgery,” “[l]umbar radiculopathy,” and “[p]ossible COPD” (chronic obstructive
pulmonary disease). (R. 285). Though Plaintiff’s lungs were clear “without rales,
rhonchi or wheezes,” he did exhibit prolonged expiration and Dr. Ezike
recommended that he undergo pulmonary function testing.

(Id.).

Plaintiff’s

March 28, 2008 pulmonary test showed that he had a very severe obstruction
before taking medication, but he experienced significant improvement with
medication. His best FEV1 value was 1.75. (R. 298).
On April 11, 2008, Richard Bilinsky, M.D., completed a Physical Residual
Functional Capacity Assessment of Plaintiff for DDS. (R. 287-94). Dr. Bilinsky
found that Plaintiff can occasionally lift 20 pounds, frequently lift 10 pounds,
stand, walk and/or sit for 6 hours in an 8-hour workday, and push/pull without
limitation. (R. 288). Plaintiff must avoid concentrated exposure to fumes, odors,
dusts, gases and poor ventilation due to his possible COPD, and he can only
occasionally climb ladders, ropes or scaffolds.

(R. 289, 291).

Dr. Bilinsky

identified no other limitations, however, citing Dr. Ezike’s objective findings
regarding Plaintiff’s ability to walk, range of motion, and mild pain with flexion and
extension.

(R. 289-91, 294).

Francis Vincent, M.D., affirmed Dr. Bilinsky’s

assessment on June 28, 2008. (R. 302-04).

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B.

Plaintiff’s Testimony
In a June 17, 2008 Function Report completed in connection with his

application for disability benefits, Plaintiff stated that he is able to do laundry,
drive, go to the store, and lift about 20 pounds. (R. 216-19). He can only walk
50 to 80 feet before needing to stop and rest for 15 to 20 minutes, however, and
his back pain and breathing problems make it difficult for him to lift, squat, bend,
walk, kneel and climb stairs. (R. 219). In that regard, he uses a cane, though no
doctor prescribed it. (R. 220). Plaintiff stated that his “severe sciatica” renders
him unable to work, and claimed that he was “going to continue further medical
testing.”

(R. 214, 221).

In an undated Disability Report – Appeal, Plaintiff

reported that his condition worsened as of April 20, 2008, and that he
experiences “[s]evere pain in lower back from surgery.” (R. 207).
At the October 6, 2009 hearing before the ALJ, Plaintiff testified that he
was fired on April 18, 2007 after he “ran into something at a job site.” (R. 34).
He collected unemployment from May to November 2007, certifying that he was
ready, willing and able to work, and then obtained food stamps and a “link card”
through the state. (R. 35, 37). He looked for work until December 2007, when
he noticed that he was having “medical problems” and was unable to sit, stand or
walk more than 25 or 30 feet without stopping to rest. (R. 36-37, 41).
Plaintiff stated that he suffers from “sciatica” with pain radiating down his
left leg. He described the pain as an “excruciating” 7 out of 10 that goes “from
bad to worse,” but he was not taking any medications at the time of the hearing,
and he used only over-the-counter medications “in the past.” (R. 38-39). The
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last time Plaintiff sought treatment for this pain was in July 2008, when he went
to the Cook County Hospital because a family court judge ordered him to obtain
medical documentation to support his claim that he was unable to look for work.
(R. 39). These treatment notes do not appear in the record.
In addition to the back pain, Plaintiff also complained of breathing
problems lasting a period of 18 months to two years. (R. 41). He said that if he
walks more than 3 or 4 steps, he has to “stop and rest to catch my breath,” but
he denied taking any medication. Indeed, the only treatment he ever sought or
obtained for this condition was from Dr. Ezike in connection with his application
for disability benefits. (R. 41-42). Plaintiff’s explanation for this lack of treatment
was that “it’s hard to explain . . . what I have.” (Id.). He also admitted that he
smokes 10 to 15 cigarettes a day. (R. 42).
Though Plaintiff is not under a doctor’s care for his back or breathing
problems, he testified that these impairments still limit his ability to walk more
than 25 or 30 feet at a time. In addition, he can only stand and sit for 10 to 15
minutes before experiencing “extreme[] pain[],” he cannot lift a gallon of milk, and
he has trouble bending his fingers, bending at the waist and reaching overhead.
(R. 41, 43, 53). Plaintiff testified that he renewed his driver’s license in January
2009 “for an absolute emergency,” but he is not able to drive due to back pain.
(R. 44, 54). He spends his days walking up and down the hall in the hotel where
he lives, doing “a little stretching,” and reading, and he occasionally walks a block
to the nearest Walgreens. (R. 45, 47-48, 52). He can do his laundry if someone

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helps him, but there is no kitchen or refrigerator in the hotel where he lives and
he has a maid service to do the cleaning. (R. 46, 50, 52).
In response to questions about his financial situation, Plaintiff said that he
is not taking any medications because he does not have access to medical or
financial assistance. (R. 55). He had medical insurance through May 2007, but
he never sought treatment after Dr. Lami discharged him in January 2007
because “[t]he problem wasn’t consistent” but would “come and go.” (R. 41, 82).
In addition, Plaintiff claimed that he “had no way of getting to see [Dr. Lami] . . . in
Rolling Meadows” even though he had a car. (R. 83). Plaintiff applied for a
medical card after his insurance expired, but the request was denied. (R. 39-40).
As a result, he just “put[s] up with the pain.” (R. 55).
C.

Testimony of Umeka Herrod
Plaintiff’s friend Umeka Herrod testified on his behalf at the hearing. She

said that she met him in June or July 2007, and that she has been paying his rent
for a “little bit over a year now,” most recently in the amount of more than $900
per month. (R. 58-60). She also pays for his cigarettes ($5.19 per pack per day)
and helps him with “basic necessities.” (R. 61). Ms. Herrod stated that Plaintiff
has trouble walking up stairs, and complains “[a]ll the time” of “real sharp pains in
the back.” (R. 64). When the ALJ asked her whether she thought she should
take Plaintiff somewhere for treatment, she responded, “Yes, but I can only do so
much. If he don’t want me to take him or, you know, sometimes I can’t do it, I
have four other children. So sometimes it’s hard to try to balance everybody at
the same time.” (R. 66).
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D.

Medical Expert’s Testimony
Dr. McKenna testified at the hearing as an ME. He stated that based on

his review of the medical records, the microdiscectomy was “a surgical success”
that produced “an optimal outcome” for Plaintiff. (R. 69, 71). By January 11,
2007, Plaintiff was doing “extremely well” and received no further treatment or
medical testing until he saw Dr. Ezike in February 2008. (R. 69-70). At that time,
he reported significant limitations that reduced him to what the ME described as
“an extremely sedentary lifestyle.” (R. 70). According to the ME, however, there
is “nothing really to support” Plaintiff’s subjective complaints of pain. (R. 78).
Though Dr. Ezike documented reduced lumbar flexion and extension, a straight
leg raise test was negative, and Plaintiff had normal range of motion in all of his
joints. (R. 70-71). In addition, Plaintiff is not taking any analgesic for pain and
has no “ongoing treatment relationship” for his back condition. (Id.).
With respect to Plaintiff’s respiratory problems, the ME testified that he
presumably has “chronic bronchitis from smoking,” but there is no evidence that
he has COPD or asthma. (R. 74-75). In discussing Plaintiff’s FEV1 value of
1.75, the ME questioned whether this test result was really reliable.
Nevertheless, he opined that it does not meet or equal a listing, and that even
viewing the evidence conservatively, Plaintiff is capable of performing light work
as long as he avoids: concentrated exposure to respiratory irritants, extreme
cold, heat, and humidity; and climbing ropes, ladders and scaffolds. (R. 75).

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E.

Vocational Expert’s Testimony
Pamela Tucker testified at the hearing as a VE. The ALJ asked her to

consider a hypothetical person of Plaintiff’s age, education and past work
experience who can: occasionally lift 20 pounds; frequently lift 10 pounds; stand
and walk for up to 6 hours in an 8-hour workday; sit for 2 hours in an 8-hour
workday; and occasionally climb ramps and stairs; but cannot climb ladders,
ropes or scaffolds; and must avoid concentrated exposure to fumes, odors, dust,
gas, pulmonary irritants, chemicals, poor ventilation, extreme heat and cold, and
excessive wetness or humidity. (R. 84). The VE testified that such a person
would not be able to perform Plaintiff’s past work, which she characterized as
semiskilled and heavy as performed, but could do other light, unskilled work as
an assembler (approximately 3,800 jobs available), inspector or tester
(approximately 1,100 jobs available), or light packer (approximately 12,000 jobs
available). (R. 84-85).
F.

Administrative Law Judge’s Decision
The ALJ found that Plaintiff’s “status post microdiscectomy and smoker’s

bronchitis” are severe impairments, but that they do not meet or equal any of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18-19).
After discussing the medical and testimonial evidence in detail, the ALJ adopted
the ME’s opinion that Plaintiff has the capacity to perform light work with the
following restrictions: he can lift a maximum of 20 pounds; he can stand/walk for
6 hours and sit for 2 hours in an 8-hour workday; he cannot climb ladders, ropes
or scaffolds; he can only occasionally climb stairs and ramps; and he must “avoid
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concentrated exposure to extreme cold, heat, humidity and pulmonary irritants,
such as dust, fumes, odors, gases, poorly ventilated areas and chemicals.” (R.
19, 22-23). The ALJ also accepted the VE’s assessment that Plaintiff is not
capable of doing any of his past work, but that there are a significant number of
jobs in the national economy that he can still perform. (R. 23).
In reaching this conclusion, the ALJ noted that Plaintiff was doing
“extremely well” when Dr. Lami released him from his care in January 2007, and
that “with the exception of the consultative examination [in February 2008], the
medical record is completely void of any treatment notes as it relates to his back
impairment after January 2007.”

(R. 20).

The February 2008 consultative

examination, moreover, was “generally normal,” showing that Plaintiff: had no
difficulty getting on and off the exam table; could walk more than 50 feet without
support, though his gait was “slightly” antalgic; had no difficulty with heel/toe
walking; had normal grip strength in both hands; had normal range of motion in
his cervical spine; and had a negative straight leg raise test. (R. 18). Plaintiff did
complain of shortness of breath, but his lungs were clear without rales, rhonchi or
wheezing, and he has never taken any related medication aside from the
nebulizer treatment he received from Dr. Ezike. (R. 21).
With respect to Plaintiff’s testimony, the ALJ concluded that his statements
regarding pain and limitations were inconsistent and “not fully credible.” (R. 22).
For example, Plaintiff testified at the October 2009 hearing that he can only walk
25 to 30 feet and cannot lift more than 3 pounds. (R. 20, 43). In his June 17,
2008 Function Report, however, Plaintiff indicated that he can walk 50 to 80 feet
12

and lift about 20 pounds. (R. 20, 219). In addition, Plaintiff claimed that he
needs to use a cane or hang onto furniture to move around, but Dr. Ezike
reported that Plaintiff can walk more than 50 feet without any support. (R. 20, 21,
50, 56).
The ALJ found that other evidence similarly “implies [Plaintiff] exaggerated
his symptoms at the hearing.” (R. 21). Plaintiff complained of arthritis in his
hands and an inability to reach overhead, but the objective medical evidence
revealed normal grip strength in both hands and no evidence whatsoever of
problems with reaching or using his arms. (R. 20-21). As for Plaintiff’s assertion
that he does not cook, do dishes or clean, the ALJ found that this is “likely”
because Plaintiff’s hotel room has no kitchen and he relies on a maid service for
cleaning. In the ALJ’s view, “[t]his suggests the limitations in his activities of daily
living are not due to his conditions, but rather due to a lack of access to complete
such activities.” (R. 20).
Also troubling to the ALJ was Plaintiff’s failure to seek treatment or
prescription medications after January 2007 despite his allegedly disabling pain.
Plaintiff offered several explanations, including that he has no health insurance,
cannot afford medical care, and did not know who to see for his pain. (Id.). In
finding these explanations not entirely credible, the ALJ noted that (1) Dr. Lami
made it clear that Plaintiff could contact him if he had any problems, (2) if Plaintiff
were really in excruciating pain, “I would expect to see follow-up medical
treatment or, at least, evidence of prescribed medication to reduce the alleged
pain with or without insurance. Instead, [Plaintiff] takes only over-the-counter
13

medications for pain,” (3) Plaintiff looked for work through December 2007 and
held himself out as ready, willing and able to work during that time in order to
collect unemployment insurance, (4) Plaintiff did not use his unemployment
insurance to seek medical help and instead bought “other things, such as
cigarettes,” and (5) Plaintiff’s friend paid a lot of money for his rent and
cigarettes, and “[g]iven the extreme problems alleged by [Plaintiff], it seems
incredible that a friend as generous as Ms. Herrod would rather purchase
cigarettes for [Plaintiff] than assisting him in obtaining some type of treatment, at
the very least prescription medication, for his pain.” (R. 21-22).
Based on these findings, the ALJ determined that Plaintiff is not disabled
within the meaning of the Social Security Act, and is therefore not entitled to
benefits.
DISCUSSION
A.

Standard of Review
Judicial review of the Commissioner’s final decision is authorized by §

405(g) of the Social Security Act. See 42 U.S.C. § 405(g). In reviewing this
decision, the Court may not engage in its own analysis of whether Plaintiff is
severely impaired as defined by the Social Security Regulations.
Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) (citation omitted).

Young v.
Nor may it

“displace the ALJ’s judgment by reconsidering facts or evidence or making
credibility determinations.” Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010)
(quoting Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007)). The court’s task
is to determine whether the ALJ’s decision is supported by substantial evidence,
14

which is “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” McKinzey v. Astrue, 641 F.3d 884, 889 (7th
Cir. 2011) (quoting Skinner, 478 F.3d at 841).
In making this determination, the court must “look to whether the ALJ built
an ‘accurate and logical bridge’ from the evidence to [his] conclusion that the
claimant is not disabled.” Simila v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009)
(quoting Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008)).

Where the

Commissioner’s decision “‘lacks evidentiary support or is so poorly articulated as
to prevent meaningful review,’ a remand is required.” Hopgood ex rel. L.G. v.
Astrue, 578 F.3d 696, 698 (7th Cir. 2009) (quoting Steele v. Barnhart, 290 F.3d
936, 940 (7th Cir. 2002)).
B.

Five-Step Inquiry
To recover DIB or SSI under Titles II and XVI of the Social Security Act, a

claimant must establish that he is disabled within the meaning of the Act. 3
Keener v. Astrue, No. 06-CV-0928-MJR, 2008 WL 687132, at *1 (S.D. Ill. Mar.
10, 2008). A person is disabled if he is unable to perform “any substantial gainful
activity by reason of a medically determinable physical or mental impairment
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. §

423(d)(1)(A); Crawford v. Astrue, 633 F. Supp. 2d 618, 630 (N.D. Ill. 2009). In

3

The regulations governing the determination of disability for DIB are found at 20
C.F.R. § 404.1501 et seq. The SSI regulations are virtually identical to the DIB
regulations and are set forth at 20 C.F.R. § 416.901 et seq.

15

determining whether a claimant suffers from a disability, the ALJ conducts a
standard five-step inquiry: (1) Is the claimant presently unemployed? (2) Is the
claimant’s impairment severe? (3) Does the impairment meet or equal one of a
list of specific impairments enumerated in the regulations? (4) Is the claimant
unable to perform his former occupation? and (5) Is the claimant unable to
perform any other work? See 20 C.F.R. §§ 404.1520, 416.920; Clifford v. Apfel,
227 F.3d 863, 868 (7th Cir. 2000).
C.

Analysis
Plaintiff argues that the ALJ’s decision should be reversed because he: (1)

made a flawed credibility assessment; (2) ignored important medical evidence in
determining Plaintiff’s RFC; and (3) relied on improper VE testimony at Step Five
of the analysis. The Court addresses each argument in turn.
1.

Credibility Determination

Plaintiff first objects that the ALJ did not provide valid reasons for finding
his testimony less than fully credible. In assessing a claimant’s credibility, an
ALJ must first determine whether the symptoms are supported by medical
evidence. See SSR 96-7p, at 2; Arnold v. Barnhart, 473 F.3d 816, 822 (7th Cir.
2007). If not, SSR 96-7p requires the ALJ to consider “the entire case record,
including the objective medical evidence, the individual’s own statements about
symptoms, statements and other information provided by treating or examining
physicians or psychologists and other persons about the symptoms and how they
affect the individual, and other relevant evidence in the case record.” Id. See
also 20 C.F.R. § 404.1529; Carradine v. Barnhart, 360 F.3d 751, 775 (7th Cir.
16

2004). Because hearing officers are in the best position to evaluate a witness’s
credibility, their assessment should be reversed only if “patently wrong.” Castile,
617 F.3d at 929; Elder v. Astrue, 529 F.3d 408, 413-14 (7th Cir. 2008).
As a preliminary matter, the Court notes that the ALJ included the
following language in his credibility analysis:

“I find the claimant’s medically

determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent
they are inconsistent with the [stated] residual functional capacity assessment.”
(R. 22). The Seventh Circuit has repeatedly criticized this template as “unhelpful”
and “meaningless boilerplate,” but ALJs continue to use it in their decisions.
Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012). Each time they do so,
plaintiffs and their counsel seize on the language as evidence that the credibility
finding is backwards and defective. See Bjornson v. Astrue, 671 F.3d 640, 645
(7th Cir. 2012) (the template “implies that ability to work is determined first and is
then used to determine the claimant’s credibility. That gets things backwards.”).
The Court agrees that the “hackneyed language seen universally in ALJ
decisions adds nothing” to a credibility analysis.

Shauger, 675 F.3d at 696.

Where, as here, however, the ALJ provides a detailed discussion of the plaintiff’s
symptoms and testimony, and the reasons he did not find the plaintiff’s
statements fully credible, the use of the boilerplate template does not alone
provide a basis for remand. Plaintiff’s argument to that effect is rejected.

17

Turning to the ALJ’s substantive analysis, he first noted that Plaintiff’s
reports of pain were not supported by any medical evidence.

Dr. Lami

discharged Plaintiff to work without restrictions in January 2007, stating that he
was “doing great” with “very minimal symptoms,” and showed “no deficit.” (R.
257-58). Plaintiff did not seek or receive any further treatment until he had a
consultative examination arranged by DDS in February 2008. At that time, Dr.
Ezike reported that Plaintiff had some decreased sensation in the left leg, but
otherwise he: was able to get on and off the exam table with no difficulty; could
walk more than 50 feet without support; had normal grip strength in both hands;
had normal range of motion in the shoulders, elbows, wrists, hips, knees, ankles
and cervical spine; had a “slightly” antalgic gait; exhibited lumbar flexion to 60
degrees and extension to 20 degrees with only mild pain; had a negative straight
leg raise test; had equal and symmetric deep tendon reflexes; and had clear
lungs without rales, rhonchi or wheezing. (R. 284).
The ALJ also discussed Plaintiff’s testimony, including his claims that he
can barely move and lives in constant, excruciating pain.

In finding this

testimony unpersuasive, the ALJ noted that Plaintiff provided inconsistent
statements regarding his physical abilities.

(R. 20).

In the June 17, 2008

Function Report, Plaintiff indicated that he has no problem with his personal care,
he can walk 50 to 80 feet, lift about 20 pounds, go outside “daily if [the] weather
is good,” prepare his own meals on a weekly basis consisting of “basic
sandwich[es]” and “frozen microwave” food, and do laundry, though it takes him
1 1/2 hours. (R. 215-17, 219). At the hearing, however, Plaintiff testified that he
18

cannot walk more than 25 or 30 feet, he needs a cane, he can only do laundry
with help, he cannot lift more than 3 pounds, and he does not cook, do dishes or
clean at all. (R. 41, 43, 45-46).
Plaintiff responds that the change in his testimony reflects the fact that he
suffered a “steady progression of limitation” after his surgery. (Doc. 29, at 7). He
notes that he filled out the June 2008 Function Report more than a year before
the hearing took place in October 2009, and speculates that “[c]ommonsense
would indicate that an individual suffering from pain status-post microdiskectomy
may have deterioration over time in functional ability due to his medical
condition.” (Id. at 7, 9).
The problem for Plaintiff is that his claim of deterioration finds no support
whatsoever in the record. Plaintiff alleges that he became disabled in April 2007,
but in February 2008, Dr. Ezike identified relatively mild physical and respiratory
limitations. By the time of the October 2009 hearing, moreover, Plaintiff was not
taking even over-the-counter medications despite claiming to suffer from
“excruciating” pain and significant breathing problems. (R. 38). The ME testified
that given Plaintiff’s optimal surgical outcome, he saw no objective evidence to
explain Plaintiff’s complaints of pain, and agreed that he is capable of performing
light work. (R. 75, 79). As the ALJ noted, this assessment is consistent with the
available medical evidence and “there is no contrary opinion in the record.” (R.
22-23).

Viewing the case as a whole, Plaintiff’s self-serving theory that his

condition “may have” worsened is “so contradicted by the medical record that it is
wholly unbelievable.” Eskew v. Astrue, 462 Fed. Appx. 613, 616 (7th Cir. 2011).
19

Plaintiff argues that the ALJ still committed reversible error by discounting
his testimony that he does not cook or clean. (Doc. 29, at 7). The ALJ observed
that Plaintiff “likely” does not perform these activities because he lives in a hotel
with no kitchen and maid service, which “suggests that the limitations in [these]
activities of daily living are not due to his conditions, but rather due to a lack of
access to complete such activities.” (R. 20, 46, 50). Plaintiff stresses that he told
Dr. Ezike in February 2008 that he needs assistance cleaning “his home,” and
that the record does not indicate whether he was living in the hotel at that time.
(R. 283; Doc. 29, at 7 (emphasis in original)). As a result, Plaintiff argues, “the
ALJ’s attempt to create an inconsistency at this juncture fails.” (Doc. 29, at 7).
Since Plaintiff does not claim that he was in fact living in a home or apartment as
opposed to a hotel, this argument does nothing to advance his position.
In an attempt to get around the complete lack of medical evidence,
Plaintiff focuses on his testimony that he cannot afford treatment. Under SSR
96-7p, “[w]here the record contains evidence that a claimant could not afford
treatment, the ALJ must explore the claimant’s ability to pay before relying on the
lack of treatment to support an adverse credibility finding.” Alesia v. Astrue, 789
F. Supp. 2d 921, 934 (N.D. Ill. 2011) (citing Craft, 539 F.3d at 678-79). Plaintiff
claims that since he is unable to pay for medical care, the ALJ was not permitted
to discount his testimony based on the absence of treatment records. (Doc. 29,
at 7-9).
As required by Craft, the ALJ did address Plaintiff’s ability to pay for care
both at the hearing and in his decision. In finding that testimony unpersuasive,
20

the ALJ observed that Plaintiff: (1) still had health insurance through May 2007,
after his alleged disability onset date, but he never sought any treatment or
medication after Dr. Lami discharged him in January of that year; (2) collected
unemployment insurance from May to November 2007 and held himself out as
being ready, willing and able to work during that time; (3) reported that he
actively tried to find work through December 2007; and (4) had a “generous”
friend who helped pay his rent (more than $900 per month) and buy him
cigarettes (approximately $150 per month), making it “seem[] incredible that [she]
would rather purchase cigarettes for [Plaintiff] than assisting him in obtaining
some type of treatment, at the very least prescription medication, for his pain.”
(R. 21-22).
The Court agrees that certain of the factors relied on by the ALJ are
insufficient to undermine Plaintiff’s credibility. With respect to the unemployment
insurance, for example, the Seventh Circuit has noted that “[a] desperate person
might . . . certify that []he is able to work [and] that does not necessarily mean
[]he is not disabled.” Richards v. Astrue, 370 Fed. Appx. 727, 732 (7th Cir.
2010). Here, it is clear that Plaintiff has financial difficulties, as evidenced by his
reliance upon food stamps and friends to purchase food and pay rent. (R. 35).
Thus, his collection of unemployment insurance is not necessarily indicative of
his ability to work. In addition, the fact that Plaintiff did not pursue treatment for
approximately a month and a half before his health insurance expired back in
May 2007 does not necessarily undermine his claim that he was subsequently
unable to obtain medical care or prescriptions for financial reasons.
21

Nevertheless, to the extent that the ALJ made any error in discussing
Plaintiff’s lack of treatment, the error was harmless in this case. See McKinzey,
641 F.3d at 892 (“[A]dministrative error may be harmless; we will not remand a
case to the ALJ for further specification where we are convinced that the ALJ will
reach the same result.”). “[A]n ALJ’s credibility assessment will stand ‘as long as
[there is] some support in the record.’” Berger v. Astrue, 516 F.3d 539, 546 (7th
Cir. 2008) (quoting Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007)). Here,
the uncontroverted consultative and functional capacity evaluations performed by
Dr. Ezike and Dr. Bilinsky indicate that Plaintiff is capable of light work, and the
ME agreed with these assessments.

Plaintiff’s testimony that he is totally

disabled is directly contrary to these medical sources, and he cites to no
competing evaluation.
In addition, the fact that Plaintiff was not taking even non-prescription
medications to try and combat his “excruciating” pain “could justify a more
skeptical view of his testimony.” Berger, 516 F.3d at 546. On this record, the
ALJ was not patently wrong in finding that Plaintiff was exaggerating his
symptoms at the hearing. See Johnson v. Barnhart, 449 F.3d 804, 805 (7th Cir.
2006) (“Applicants for disability benefits have an incentive to exaggerate their
symptoms, and an [ALJ] is free to discount the applicant’s testimony on the basis
of other evidence in the case.”); Powers v. Apfel, 207 F.3d 431, 435-36 (7th Cir.
2000) (“The discrepancy between the degree of pain attested to by the witness
and that suggested by the medical evidence is probative that the witness may be
exaggerating her condition.”).
22

Plaintiff’s remaining objections to the ALJ’s credibility finding are easily
overruled. The ALJ noted that although Plaintiff complained of arthritis in his
hands, Dr. Ezike found that he had normal grip strength. (R. 20-21). Plaintiff
stresses that Dr. Ezike’s report does not mention arthritis, (Doc. 29, at 9), but the
record reveals that Plaintiff complained about this condition at the hearing. (R.
43-44). The ALJ also stated that the Social Security Administration Field Officer
who interviewed Plaintiff regarding his application for benefits “did not observe
[Plaintiff] having any difficulty with sitting, standing, walking or using his hands.”
(R. 21, 193). Plaintiff insists that this was improper, but SSR 96-7p instructs that
in assessing the consistency of a claimant’s statements, an ALJ should consider
“observations recorded by SSA employees in interviews.” Id. at *6. Plaintiff cites
to no contrary authority.
It is well-established that a court should not “nitpick the ALJ’s opinion for
inconsistencies or contradictions,” but should instead “give it a commonsensical
reading.” Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). In this case,
Plaintiff’s complaints of excruciating pain and disabling breathing problems are
wholly contradicted by the medical findings and other record evidence, and the
ALJ was not patently wrong in discounting that testimony.
2.

RFC Determination

Plaintiff next argues that the case must be remanded because the ALJ
failed to consider all of his medical conditions in making an RFC assessment. A
claimant’s RFC is the maximum work that he can perform despite any limitations.
20 C.F.R. § 404.1545(a)(1); SSR 96-8p.
23

The RFC determination is a legal

decision rather than a medical one.

20 C.F.R. § 404.1527(d)(2).

“When

determining the RFC, the ALJ must consider all medically determinable
impairments, . . . even those that are not considered ‘severe.’” Craft, 539 F.3d at
676.
Plaintiff begins by objecting generally that the ALJ “performed no
functional analysis either at Step Two or Four; nor did he provide a narrative
discussion as required by the Ruling.”

(Doc. 19, at 12).

In fact, the ALJ

discussed all of Plaintiff’s impairments, the objective medical evidence, his daily
activities, his course of treatment, his statements regarding his limitations, his
use of medications, and the testimony of his friend.

(R. 18-23).

Plaintiff

reiterates his complaint that the ALJ failed to accept all of the limitations he
described at the hearing, claiming that these also should have been incorporated
into the RFC.

(Doc. 19, at 12).

As explained earlier, however, the ALJ

reasonably discounted Plaintiff’s complaints of debilitating pain and breathing
problems because they were contradicted by other record evidence. The ALJ’s
RFC analysis more than satisfies the requirements of SSR 96-8p and will not be
reversed here.
Plaintiff seeks to avoid this result by contending that the ALJ “‘cherry
picked’ elements from the medical record without evaluating evidence contrary to
his position.” (Doc. 29, at 12). Plaintiff directs the Court to his pre-surgical
lumbar spine MRI dated September 2006, which showed “disc desiccation” at L2L3, L3-L4, and L4-L5. (R. 262). In Plaintiff’s view, the microdiscectomy “did
nothing about” the desiccation (i.e., dryness), and this condition “may have been
24

medically and symptomatically significant.”

(Doc. 29, at 12).

Once again,

Plaintiff’s speculation finds no support in the record. He does not identify any
physician who discussed the significance of the desiccation, much less opined
that it has impacted his physical abilities in any way. Rather, the record evidence
shows that Dr. Bilinsky, Dr. Ezike and the ME all believe Plaintiff is capable of
performing light work with only some restrictions on climbing and exposure to
respiratory irritants.

Plaintiff “does not draw [the Court’s] attention to any

evidence that conflicts with [this] conclusion.” Knox v. Astrue, 327 Fed. Appx.
652, 657 (7th Cir. 2009).
Also unavailing is Plaintiff’s argument that the ALJ ignored his respiratory
problems. The ALJ expressly considered Plaintiff’s “smoker’s bronchitis” and
determined that he needs to “avoid concentrated exposure to extreme cold, heat,
humidity and pulmonary irritants, such as dust, fumes, odors, gases, poorly
ventilated areas and chemicals.” (R. 19). This is entirely consistent with Dr.
Bilinsky’s April 2008 RFC assessment and the ME’s testimony.

Plaintiff

disagrees, but cites to no contrary medical source or other record evidence
suggesting that he has any greater limitations. See Compean v. Astrue, No. 09
C 5835, 2011 WL 1158191, at *8 (N.D. Ill. Mar. 28, 2011) (citing Rice v. Barnhart,
384 F.3d 363, 370 (7th Cir. 2004)) (the ALJ “was entitled to rely upon the opinion
of the state agency physician, particularly where no physician imposed any
greater functional limitations than those found by the ALJ in her RFC
determination.”).

Plaintiff’s request for a remand based on the ALJ’s RFC

determination is denied.
25

3.

Hypothetical Question

Plaintiff finally claims that the ALJ’s decision must be reversed because he
improperly relied on the VE’s testimony in finding Plaintiff capable of performing a
significant number of light jobs. Plaintiff first objects that “[t]here is no evidence
that the VE reviewed any of the medical or other evidence in the case record.”
(Doc. 29, at 13). This argument is a non-starter given that the ALJ included all of
Plaintiff’s medically determinable impairments and limitations in the hypothetical
question.

Compare Ragsdale v. Shalala, 53 F.3d 816, 820 (7th Cir. 1995)

(where hypothetical question omits certain impairments, the error “may be cured
by a showing that prior to testifying the [VE] reviewed the claimant’s record
containing the omitted information.”).
Plaintiff disagrees, but does not identify any additional limitations that the
ALJ omitted and that are supported by the record evidence. See Simila, 573
F.3d at 521 (an ALJ’s hypothetical question to a VE need only include limitations
supported by medical evidence in the record). Plaintiff’s request for a remand
based on the VE’s testimony is therefore denied.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Summary Judgment
(Doc. 28) is denied.

The Clerk is ordered to enter judgment in favor of

Defendant.

26

ENTER:

Dated: September 19, 2012

_____________________________
SHEILA FINNEGAN
United States Magistrate Judge

27