Webb v. Astrue

Filing 39

MEMORANDUM Opinion and Order Signed by the Honorable Arlander Keys on 1/10/2013:(ac, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PAMELA WEBB

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of
Social Security
Defendant.

No. 11 cv 2276
Magistrate Judge Arlander Keys

MEMORANDUM OPINION AND ORDER
I. PROCEDURAL HISTORY
Ms. Webb applied for Supplemental Security Benefits on March
24, 2006. Administrative Record at 221.

In her application, she

alleged that she became disabled on March 13, 1993.

Id.

On June

20, 2006, the Social Security Administration initially denied Ms.
Webb’s application. Id. at 15.

Ms. Webb’s application was again

denied upon reconsideration on December 10, 2007.

Id.

7, 2008, Ms. Webb made a written request for a hearing.

On March
Id.

Administrative Law Judge (“ALJ”) Michael G. Logan held the
hearing and rendered the opinion.
held over two days.

Id. at 36. The hearing was

The first day of the hearing was January 23,

2009. Id. at 75. The hearing was continued until additional
medical records could be obtained.

Id. at 123.

reconvened on July 28, 2009.

Id. at 36.

opinion on January 25, 2010.

Id. at 29.

The hearing

The ALJ issued his

On February 16, 2010, Ms. Webb requested that the Appeals
Council review the ALJ’s decision.

Id. at 8.

On February 15,

2011, the Appeals Council denied Ms. Webb’s request for review
and is thus the final decision of the administrative agency.
at 5.

Id.

On April 4, 2011, Ms. Webb appealed the decision to the

District Court.

The parties consented to vest jurisdiction in a

Magistrate Judge, and it was assigned to this Court on May 11,
2011.

The case is currently before the Court on cross motions

for summary judgment.
II. FACTUAL BACKGROUND
When Ms. Webb applied for social security benefits, she was 32
years old.

R. at 221.

Ms. Webb was born on February 22, 1974,

and has four children.

Id. at 241, 258.

As of the first day of

the hearing, Ms. Webb’s children were aged 19, 17, 15, and 11.
Id. at 105. Her alleged disabilities are severe depression,
morbid obesity, HIV, hypertension, and back pain.

Id. at 310.

According to Ms. Webb’s brief, the main symptom of her HIV is her
depression.

Id.

A. Medical Evidence
1. Psychiatric Medical Records
Ms. Webb has a diagnosis of depression. On her application
for disability, she stated that she sometimes has problems
concentrating or thinking.
voices.

Id.

Id. at 259.

She denied hearing

Furthermore, Ms. Webb has had some trouble sleeping

2

due to her pain, but is not diagnosed with insomnia.

Id. at 51,

260.
In 1991, Ms. Webb reportedly attempted suicide by overdose
and was hospitalized at St. Bernard Hospital.

Id. at 533.

The

notes from that hospitalization are not in the record.
In 2008, Ms. Webb went to Englewood Mental Health Center for
psychotherapy.
therapist.

Id. at

493. Mr. John Carlsen was the attending

Id. The record only contains notes from three therapy

sessions, including the intake, between the dates of September
26, 2008 and October 17, 2008.

The notes indicate that Ms. Webb

complained of insomnia and that the medication she was on was
ineffective.

Id.

She also stated that her depression causes her

to lack the desire to get up and do anything.

Id. at 497.

There were some other stressors in Ms. Webb’s life such as her
son being incarcerated for selling drugs and the death of two of
her brothers.

Id. at 493.

Throughout her treatment at

Englewood, her Global Assessment of Functioning (“GAF”) was a 50.
Id. at 495, 507.

The GAF is a subjective scale that measures a

person’s social, occupational, and psychological functioning.
Diagnostic and Statistical Manual of Mental Disorders, 32 (4th
ed. Am. Psychiatric Ass'n 1994).

The scale ranges from zero to

one hundred, and a lower score indicates more difficulty with
social, occupational, or psychological functioning. Id.

A GAF

of 50 indicates either: “serious symptoms” or “any serious
impairment in social, occupational, or school functioning.”

3

Id.

Dr. Ruth Rosenthal was Ms. Webb’s attending psychiatrist at
Mount Sinai.

Id. at 540.

on January 27, 2009.

Ms. Webb started seeing Dr. Rosenthal

Id. at 541.

After the initial intake, Dr.

Rosenthal saw Ms. Webb once a month from March of 2009 through
June of 2009.

Id. at 542, 544, 546, and 548. The notes indicate

that Ms. Webb did not have a formal thought disorder, delusions,
or suicidal ideation.

Id. at 534.

At every appointment with Dr.

Rosenthal, Ms. Webb’s hygiene and grooming was noted to be good.
Id at 542, 544, 546.

However, Ms. Webb’s mood was noted to be

dysphoric, and her affect was constricted.

Id. at 534.

On May

18, 2009, Ms. Webb stated that “she is sleeping better.” Id. at
546.

However, Ms. Webb’s “mood was still down”. Id.

In May

2009, Dr. Rosenthal notified Ms. Webb that she was leaving Mount
Sinai in June and that Ms. Webb would be transferred to Dr.
Warikoo.

Id. at 547.

On July 17, 2009, Dr. Warikoo saw Ms. Webb for medication
management.

Id. at 550.

The notes from that contact indicate

that Ms. Webb’s mood was slightly improving and that she was
sleeping better.

Id.

The mental status exam concluded that Ms.

Webb’s thoughts were coherent and there was no evidence of a
formal thought disorder.

Id.

have any abnormal perceptions.

Additionally, Ms. Webb did not
Id.

At the appointment, Ms. Webb

was able to ask appropriate questions and understand directions
regarding her medication.

Id. at 551.

4

On July 17, 2009, Dr. Warikoo filled out a mental impairment
questionnaire.

R. at 529.

According to Ms. Webb’s attorney’s

statements during the hearing, she saw Dr. Warikoo two or three
times in 2008.

Id. at 42.

On July 17, 2009, Dr. Warikoo found

that Ms. Webb’s GAF score was a 55 and that she had, amongst
other symptoms, difficulty thinking or concentrating, poor
memory, and decreased energy.

Id. at 529.

According to Dr.

Warikoo, Ms. Webb has extreme difficulty maintaining social
functioning.

Id. at 532.

Dr. Warikoo also found that, on average, Ms. Webb’s
impairments would cause her to be absent from work more than
three times per month.

Id. at 530.

Regarding Ms. Webb’s mental

abilities required for unskilled labor, Dr. Warikoo found that
Ms. Webb would be unable to remember work-like procedures;
maintain attention and concentration; and perform work at a
normal pace.

Id. at 531.

In addition, Ms. Webb’s ability to

carry out very short and simple instructions was seriously
limited.

Id.

Again, on August 14, 2009, Dr. Warikoo found that Ms. Webb’s
thoughts were coherent.

Id. at 553. The notes state that Ms.

Webb was beginning to feel better.

Id. at 553.

Ms. Webb was

able to ask appropriate questions and appeared to understand
directions.

Id. at 554.

Ms. Webb’s GAF score was a 55. Id. at

554.
2. Medical Evidence Related to Ms. Webb’s Back

5

On Ms. Webb’s application, she stated that she sometimes
needs assistance with standing and that she sometimes holds on to
furniture or a counter and she uses a walker.

Id. at 264.

Ms.

Webb reported that she can get out of a chair, but she cannot
climb stairs very well.

Id. However, when asked in the

application how many stairs she could climb, Ms. Webb reported
that she could climb “4 or 5 maybe.”

Id.

On May 23, 2006, Dr. Romi Sethi examined Ms. Webb for the
Bureau of Disability Determination Services (“DDS”).

Id. at 340.

Dr. Sethi’s notes indicate that Ms. Webb does not use an
assisting device.

Id.

Further, Dr. Sethi found that Ms. Webb

had full range of motion in all of her joints and had no
difficulty getting on and off the examination table.

Id. at 342.

In 2006, therapy had been prescribed for Ms. Webb’s back
pain. Upon intake, Ms. Webb complained that she is unable to sit
longer than 30 minutes and described her pain as a “punching
pain.”

Id. at 315.

At the time, Ms. Webb stated that she was

taking Aleve and using a heating pad to help relieve her pain.
Id.
According to the last treatment notes from 2006, Ms. Webb
rated her pain as 6 out of 10.

Id. at 471.

The records also

indicate that Ms. Webb was not compliant with her exercise
routine and failed to attend any of her aquatherapy appointments.
Id.

The discharge notes state that Ms. Webb reported that she

did not feel well enough to continue with her therapy.

6

Id. at

479.
In 2008, Ms. Webb again attempted physical therapy.
485.

Id. at

The discharge notes indicate that she attended seven

sessions and was then discharged, because she missed three
appointments and never called to set up a new appointment.

Id.

However, prior to discharge, Ms. Webb did have some progress with
reducing her pain and strengthening her core.

Id.

Ms. Webb

noted that her pain was constant and aggravated by standing more
than 30 minutes.

Id. at 488.

On July 16, 2009, after the first hearing, Ms. Webb had an
MRI at Saint Anthony Hospital.

Id. at 528.

The MRI revealed

that Ms. Webb had “mild degenerative changes at L4-L5” and a
“probable hemangiona.”

Id.

3. Other Impairments
On December 26, 2005, Ms. Webb went to the ER for flu like
symptoms.

Id. at 324.

Despite taking Procardia, potassium

chloride, and a water pill, Ms. Webb’s blood pressure was
148/105.

Id.

Ms. Webb had her ears drained during a procedure at Mount
Sinai on July 30, 2008.

Id. at 417.

Ms. Webb does have some

hearing loss, but the Audiology Evaluation Report shows that Ms.
Webb has 100% word recognition bilaterally at 70db.

Id. at 409.

Throughout Ms. Webb’s treatment at Mount Sinai, her HIV was
diagnosed to be asymptomatic.

Id. at 459, 462, 465.

7

The notes

from February 28, 2008 indicated that Ms. Webb did not want to
know her CD4 levels.
was a 383.1

Id. According to the notes, her CD4 level

Id. at 461.

On September 14, 2008, Ms. Webb had a routine follow up for
HIV.

She complained of feeling tired all the time and having

some insomnia.

Id. at 458.

The notes state that Ms. Webb did

not have any muscle weakness or joint pain.

Id.

On October 16, 2008, Ms. Webb went to Dr. Glick at Mount
Sinai for a follow up after some blood tests. Id. at 455-457. The
notes from that visit state that she complained of having
insomnia.

Id. at 456.

Ms. Webb’s HIV was stable at this time.

Id.
4. Medical Evaluations for Disability Benefits
On September 24, 2007, Dr. Radomska conducted a psychiatric
evaluation for the Bureau of Disability Determination Services.
Id. at 366.

At the time of the evaluation, Ms. Webb was oriented

to person, place, and time.

Id.

The notes indicate that Ms.

Webb’s “attitude and degree of cooperation was fine.”

Id.

Dr.

Radomska noted that Ms. Webb was walking with a cane. Id.
However, Ms. Webb’s posture and gait was “not abnormal.”

Id.

1

According to the U.S. Department of Health and Human
Services, a CD4 count between 500-1000 is considered normal. A
CD4 count below 350 is when a person should start considering
treatment. A CD4 count below 200 is one criterion for AIDS.
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, CD4 Count,
http://aids.gov/hiv-aids-basics/just-diagnosed-with-hivaids/understand-your-test-results/cd4-count/ (last updated Oct.
11, 2010).
8

Regarding Ms. Webb’s psychiatric history, Ms. Webb reported
that she was admitted to St. Bernard’s Hospital in 2002 after a
suicide attempt.

Id. at 367.

Additionally, Ms. Webb stated that

she had been seeing a psychiatrist for the 5 years since her
hospitalization.

Id.

At the time of the exam, Ms. Webb

complained of feeling depressed and unable to concentrate.

Id.

Furthermore, Ms. Webb reported having difficulties with
attention, memory, and daydreaming.

Id.

Dr. Radomska conducted an exam of Ms. Webb’s mental
capacity.

Dr. Radomska determined that at the time of the exam,

Ms. Webb’s GAF was 45. Id. at 369.

Ms. Webb was unable to: tell

how many weeks were in a year, multiply two numbers, or determine
how many nickels are in $1.15.

Id. at 368. Additionally, Dr.

Radomska found that Ms. Webb would not be capable of handling her
own funds if benefits were granted to her.

Id. at 369. At the

time of the exam, Ms. Webb’s thought process was linear and goal
directed.

Id. at 368.

concentration was poor.

Dr. Radomska noted that Ms. Webb’s
Id. at 369.

On October 10, 2007, Dr. John Tomassetti, Ph.D. wrote a
residual functional capacity (“RFC”) for Ms. Webb’s mental
status.

Dr. Tomassetti found that Ms. Webb does have some

problems with her concentration and memory.

Id. at 385.

However, Ms. Webb’s thought process was normal and her memory was
intact.

Id.

Dr. Tomassetti found that Ms. Webb was moderately

limited in her ability to: accept instructions and appropriately

9

respond to criticism; maintain attention and concentration for
extended periods; complete a normal workday or workweek without
interruptions from psychologically based symptoms; and to
understand, carry-out, and remember detailed instructions.

Id.

at 383-384.
On November 17, 2007, Dr. Villanueva performed a
consultative examination of Ms. Webb.

Ms. Webb had some slight

tenderness on her lower back and her range of motion was 35
degrees.

At the time of the exam, Ms. Webb was taking physical

therapy.

Id. at 373.

Dr. Villanueva noted that Ms. Webb uses a cane and that she
can walk ten feet without a cane.

Id. at 372. While walking ten

feet without the cane, Ms. Webb walked slowly and needed to hold
onto the walls.

Id. However, Ms. Webb, with difficulty, was able

to get on and off the examination table.

Id.

On November 27, 2007, Dr. Rose examined Ms. Webb.
382.

Id. at

He found that Ms. Webb’s “vertebral elements and disc

spaces are well aligned and without significant abnormality.”
Id.

Dr. Rose’s impressions were that Ms. Webb had a “normal

lumbar spine examination.”

Id.

Dr. Charles Kenney completed a physical RFC form on December
6, 2007.

Id. at 394.

Dr. Kenney’s RFC reflects that Ms. Webb

can occasionally lift twenty pounds and can frequently lift ten
pounds.

Id. at 388.

Additionally, Dr. Kenney put an

environmental limitation that Ms. Webb should avoid even moderate

10

exposure to fumes, odors, dust, gases, and poor ventilation.

Id.

at 391.
During Dr. Kenney’s examination, Ms. Webb was able to get on
and off the exam table with no difficulty.

Id. at 394.

Dr.

Kenney stated that, even though Ms. Webb was using a cane, the
medical information did not support her need of the cane.
Ms. Webb had normal gait and posture.

Id.

Id.

Regarding Ms. Webb’s depression, Dr. Kenney listed Ms.
Webb’s symptoms as sleep disturbances and difficulty
concentrating or thinking.
and Paroxetine.

Id. at 398.

Id. at 407.

She was taking Zoloft

Ms. Webb had moderate difficulties

in maintaining social functioning.

Id. at 405.

At the time, Ms.

Webb was not responding appropriately to her anti-depressants.
Id. at 407.
On October 2, 2008, Dr. Hernando Torres, Ms. Webb’s treating
physician, wrote an arthritis RFC.

Id. at 410.

Dr. Torres is a

neurosurgeon and had two contacts with Ms. Webb prior to writing
his RFC. Id. at 100-101, 410.

According to Dr. Torres’ RFC, Ms.

Webb can walk one city block before being in severe pain or
requiring rest and must occasionally use a cane.

Id. at 411-412.

The RFC also indicates that Ms. Webb could sit, stand, and walk
less than two hours in an eight hour work-day.

Id. at 411.

However, Ms. Webb’s impairments were noted to have good days and
bad days.

Id. at 412.

Dr. Torres estimated that Ms. Webb would

be absent from work more than four days per month due to her

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impairments.

Id.

B. Hearing Testimony
1. Ms. Webb’s Testimony
Ms. Webb testified that she was expelled from school for
fighting in the eighth grade.

Id. at 83.

Ms. Webb never

returned to school. Despite the numerous fights she got into, Ms.
Webb was never diagnosed with a behavior disorder, nor was she in
a class for people with behavior disorders.

Id.

Ms. Webb did

not receive any special education services.

Id. at 85.

She

testified that she has taken a few classes towards a GED, but was
unable to finish them. Id. at 52.
In response to questioning, Ms. Webb testified that her back
and hip prevent her from working. Id. at 96. On the first day of
the hearing, Ms. Webb testified that, at that moment, her pain
was a ten out of ten.

Id. at 97.

At the first hearing, Ms. Webb did not have a cane because
she forgot to bring it.

Id. at 44.

Ms. Webb was using a walker.

Id.

During the second hearing,
During the second hearing, Ms.

Webb testified that she had been using the walker for about three
months, because her impairments had gotten worse.

Id. Ms. Webb

testified that she mostly uses the cane inside the house.
111.

Id. at

For example, she uses the cane to get “off the toilet” or

when she needs to stand while the “bath is getting ready.”

Id.

She also testified that she uses the cane when she goes on
doctor’s visits.

Id.

She did not use a cane during her most

12

recent employment at a chocolate factory, because she was not
allowed to bring a cane into work.

Id. at 111.

Next, Ms. Webb testified to her obesity.

Ms. Webb testified

that she is 5'5” tall and weighed approximately 275 pounds during
the first day of the hearing.

Id. at 81.

During the first day

of the hearing, she testified that her highest weight was 300
pounds.

Id.

On the second day of the hearing, approximately six

months later, Ms. Webb testified that she weighed 300 pounds.
Id. at 44.

Ms. Webb testified that, despite taking Lasik and

Procardia, her blood pressure was “still running very high.”
at 102, 104.

Id.

On the second day of the hearing, Ms. Webb again

testified that despite the medications she takes, her blood
pressure is still high.

Id. at 47.

Ms. Webb testified that, on an average day, she just lies in
bed, because her back hurts when she gets up.

Id. at 105.

Ms.

Webb testified that she does not do any chores around the house,
because of her back pain. Id. at 49, 108.

She does not do the

shopping, and her older son and daughter do the cooking.
108.

Id. at

Further, Ms. Webb testified that her daughter assists her

with grooming and bathing. Id. at 49-50, 108.

Ms. Webb’s two

older children help the younger children get ready for school.
Id. at 105.
Ms. Webb testified that her depression also prevents her
from working.

Id. at 97-98.

When asked how her depression

affects her, Ms. Webb testified that she “[does] not want to get

13

up” and she does not want to do anything.

Id. at 98.

In

addition to being prescribed medication for her depression, Ms.
Webb has been seeing a psychotherapist.

Id. at 102-103.

Ms.

Webb testified that she was currently seeing a new therapist at
Mount Sinai because she was having difficulties getting the
records from Englewood Mental Health Clinic.

Id. at 103.

As of

the first day of the hearing, Ms. Webb had seen the new therapist
twice.

Id.

Ms. Webb testified that she does not belong to any clubs,
groups, or organizations.

Id. at 108.

Ms. Webb receives phone

calls from people, but she does not like talking to anyone.

Id.

For recreation, Ms. Webb testified that she watches television.
Id. In addition, Ms. Webb reported only leaving the house about
five times a month to visit her doctors.

Id. at 98.

Regarding her treatment for her back pain, Ms. Webb
testified that none of the medication Dr. Glick or Dr. Torres
prescribed helped to alleviate any pain. Id. at 100.

Further,

Ms. Webb testified that the physical therapy at Schwab
Rehabilitation Center was not working for her.

Id.

For her

pain, Ms. Webb takes 500 mg of Naproxen and Acetaminophen with
codeine. Id. at 104.

It is not clear from the testimony or the

record how often she takes medication for her pain.

Ms. Webb

testified that she has no side effects from any of the
medications.

Id.

14

At the second hearing, Ms. Webb was apparently holding her
leg.

Id. at 51.

When questioned about it, Ms. Webb stated that

she had a pain in her leg.

Id. She added that “it’s difficult to

sit for a long period of time.”

Id.

Ms. Webb was asked by her attorney if she would be able to
work at a simple job that involved sitting and standing.

Id. Ms.

Webb testified that it would be very difficult because when she
stands up her back “feels like it’s breaking” and if she sits
“for a long period of time, it’s like a knot.”

Id.

Regarding Ms. Webb’s sleeping problems, she testified that
the pain keeps her awake at night.

Id.

Ms. Webb testified that

she “[stays] up for three or four days at a time ... without any
sleep.”

Id. at

106.

When she finally does sleep, Ms. Webb

testified that she sleeps for “two or three” hours.

Id. at 107.

Additionally, Ms. Webb had tried several different sleeping
pills, but none had worked.

Id.

However, at the time of the

second hearing, Ms. Webb was taking a sleeping pill, which helped
her a little bit.

Id. at 48.

Next, Ms. Webb testified regarding her HIV.

Ms. Webb was

diagnosed with HIV in March of 1993 at the age of 18.

Id. at 82.

However, other than some sores on her body, Ms. Webb did not
report having any direct physical symptoms of HIV. Id. at 112.
Her most recent visit to a doctor for HIV was with Dr. Glick on
July 9, 2011.

Id. at 63.

According to Ms. Webb, Dr. Glick

recommended that she take medication for her HIV.

15

However, Ms.

Webb testified that she refuses to take any medication for it
because she is “scared [she will] pass sooner than [she is]
supposed to.”

Id. at 63. Additionally, Ms. Webb does not know,

nor does she want to know, anything about her CD4 levels.

Id. at

63-64.
Ms. Webb next testified about her employment history.

Ms.

Webb’s most recent employment was at a chocolate factory in 2006.
Id. at 90.

While at the chocolate factory, Ms. Webb worked a

total of six shifts that each lasted twelve hours before she
quit.

Id. at 110.

She testified that she was never absent from

work those days, never had any problems with her coworkers, and
never made any mistakes.

Id. When asked why she quit working,

Ms. Webb testified that she was unable to tolerate working,
because of her back pain.

Id. at 111.

Prior to her job at the chocolate factory, Ms. Webb worked
for the Department of Rehabilitation as a home care attendant.
Id. at 95.

When she worked home care, it was “off and on”

employment for a couple of years and she worked for a few
different clients.

Id. In 2004, Ms. Webb earned $4,000.

Id. The

Vocational Expert opined during Ms. Webb’s testimony, that the
exertion level of a home care attendant ranges depending on what
tasks the attendant needs to do, but it is generally in the
medium range.

Id.

However, if the attendant needs to lift the

patient, then the work can be in the heavy range.

16

Id. at 96.

Ms. Webb reported that she has also worked in childcare.

Id. at

89.
When asked whether she has taken any job specific vocational
training other than classes for a GED, Ms. Webb testified that
she had not.

Id. at 87.

According to Ms. Webb, she was unable

to get her GED because she “couldn’t do the work” and “didn’t
feel like getting up half the time to go.”

Id.

Ms. Webb was questioned about her 2005 and 2006 tax return
because the tax returns showed she had $6,000 in self-employment
income in 2006 and $9,000 in 2005.

Id. at 88-89.

At the time of

the hearing, the IRS was investigating the claimed selfemployment income.

Id. at 89.

Ms. Webb denied having any self-

employment income and attributed the error to a case of identity
theft.

Id. at 109.

Ms. Webb testified that there is another

Pamela Webb who is showing up on her credit report and she is
trying to clear her name.

Id. at 109-110.

The ALJ noted that

the issue of incorrectly reported self-employment income goes to
“making false statements to the government”, and it affects Ms.
Webb’s credibility.

Id. at 40-41.

2. Testimony of Dr. Rosenfeld
Dr. Ellen Rosenfeld, Psy.D. testified at the first day of
the hearing as a medical expert.

Id. at 112.

She first noted

that there was no record of Ms. Webb’s contacts with the
psychotherapist from Mount Sinai.

Id. at 112-113.

Thus, her

testimony did not include any of the information from the

17

counselor at Mount Sinai.

Id. at 113.

The ALJ noted that it was

extremely important to get the treatment notes because the notes
would “tell the longitudinal story” of Ms. Webb’s illness, and
would provide context for the conclusions noted in the RFC.

Id.

at 114.
Dr. Rosenfeld was unable to testify, because of the gaps in
the record provided to her, whether Ms. Webb was limited to
simple and routine tasks, and whether she would have moderate
difficulty with regularly attending work.

Id. at 115.

Dr.

Rosenfeld did note that Ms. Webb was unable to maintain her job
at the chocolate factory because of her physical issues, not her
mental health issues.

Id.

Dr. Rosenfeld noted that there is no evidence that Ms. Webb
was seeing a psychiatrist for five years.

Id. at 113.

Further,

there was no evidence of weekly therapy at Mount Sinai, nor was
there any evidence of how the anti-depressant’s ineffectiveness
has been treated.

Id.

Regarding Ms. Webb’s purported insomnia, Dr. Rosenfeld
testified that there was no “longitudinal record of problematic
sleeping patterns.”

Id.

3. Testimony of Dr. Slodki
Dr. Sheldon Slodki testified as a medical expert at the
first hearing.

Dr. Slodki noted that Dr. Torres diagnosed Ms.

Webb with spondylosis without having an MRI for Ms. Webb’s back.
Id. at 118. Without an MRI, Dr. Slodki did not know how Dr.

18

Torres could have diagnosed spondylosis.

Id. at 119.

Ms. Webb

interjected that she had not had an MRI because she was afraid to
undergo an MRI and she would not fit in the machine.

Id. at 118.

Dr. Slodki also pointed out that the three most recent blood
pressure readings were: 129/80, 129/80, and 140/90.

Id. at 119.

Given the blood pressure readings, Dr. Slodki does not consider
Ms. Webb’s hypertension to be out of control.

Id.

Regarding Ms. Webb’s cane use, Dr. Slodki agreed with the
statement that based on the records he reviewed and Ms. Webb’s
testimony, it would be reasonable that Ms. Webb would
occasionally use a cane. Id. at 120.

Dr. Slodki accepted Dr.

Torres’ RFC and testified that he “has great respect for [Dr.
Torres] ... and will not criticize his RFC.” Id.
After Dr. Slodki’s testimony, the ALJ continued the hearing
until an MRI and the records from her treatment at Mount Sinai
and St. Bernard’s could be obtained.

Id. at 123.

4. Testimony of Dr. Mark Oberlander
After Ms. Webb testified at the second hearing, Dr.
Oberlander, a clinical psychologist, testified as a medical
expert.

Id. at 52-53.

Based on the medical record provided to

him, Dr. Oberlander testified to Ms. Webb’s mental impairments.
Id. at 54.
Dr. Oberlander noted that there was no underlying data for
Dr. Warikoo’s assessment.

Id. at 53.

There was also no evidence

that Dr. Warikoo treated Ms. Webb beyond two contacts in

19

September and October of 2008.

Id.

Additionally, Dr. Oberlander

found that Ms. Webb’s contacts with treating sources were
“sporadic.”

Id.

Despite Ms. Webb’s reports to Dr. Sethi that

she had been seeing a psychiatrist for five years, there were no
treatment notes or evidence to corroborate those claims.

Id. at

55.
First, Dr. Oberlander opined that there is evidence that Ms.
Webb has an affective disorder.

The affective disorder has been

diagnosed by several different doctors as major depressive
disorder.

Id. at 54.

Ms. Webb reported that her depression

manifests itself in a tendency to isolate, and

a reduction in

the ability to concentrate. In addition, Ms. Webb has a blunted
affect, and a dysphoric mood.

Id. at 55.

Dr. Oberlander

believed that there is an affective disorder under Social
Security listing 12.04.

Id.

However, Dr. Oberlander believed

that the affective disorder was secondary to the other non-mental
impairments.

Id.

Second, Dr. Oberlander agreed with Dr. Tomassetti’s
conclusion that Ms. Webb had mild limitations in her capacity to
engage in activities of daily living.

Id.

Dr. Oberlander

testified that Ms. Webb’s ability to concentrate is moderately
impaired and that Ms. Webb retains the cognitive psychological
capacity to engage in simple routine work activities.
Additionally, there is no evidence of decompensation or
deterioration.

Id.

20

Id. at 56.

Last, Dr. Oberlander was questioned about Ms. Webb’s ability
to regularly attend work.

Dr. Oberlander stated that Ms. Webb

would not be absent from work on the psychiatric grounds alone.
Id.

Ms. Webb’s attorney asked Dr. Oberlander whether he agreed

with the assessment conducted by DDS, which stated: “Ms. Webb
would have a moderate limitation in the ability to perform
activities within a schedule, maintain regular attendance, and be
punctual with customary tolerances.”

Id. at 56-57.

Dr.

Oberlander testified that he did not disagree with the DDS
assessment, but noted that the term moderate limitation had a
legal definition that might not preclude her from working.

Id.

at 57.
5. Testimony of Dr. Bernard Stevens
Dr. Bernard Stevens, an internist, testified on the second
day of the hearing.

Dr. Stevens found that Ms. Webb has morbid

obesity, some degenerative disc disease, HIV, and some mild
deafness.

Id. at 58.

Dr. Stevens saw no evidence of why Ms.

Webb needed an assistive device.

Id. at 59.

Additionally, Dr.

Stevens testified that the MRI did not support the need for an
assistive device. Id.

According to Dr. Stevens, Ms. Webb’s back

pain was purely mechanical and there was no impingement on the
spinal canal or any of the neural foramine in the spine.

Id.

Ms. Webb’s attorney questioned Dr. Stevens about other
examinations which stated that Ms. Webb uses a cane and clutches
onto walls to walk ten feet.

Id. at 61.

21

Dr. Stevens stated that

there was nothing to support her need for a cane or the level of
pain she was claiming.

Id.

When questioned about whether Ms. Webb’s other mild HIVrelated constitutional symptoms would impact her RFC, Dr. Stevens
testified that they would not have any additional impact.
62.

Id. at

In the hearing, the ALJ noted that, through his review of

the record, he believed that Ms. Webb was still at a point where
she does not need any treatment for her HIV.

Id. at 65.

When asked what Ms. Webb’s exertion level would be limited
to, Dr. Stevens testified that Ms. Webb could do light work.
at 60.

Id.

In reaching this conclusion, Dr. Stevens considered Ms.

Webb’s lower back pain, morbid obesity, and mild deafness.

Id.

In addition, Ms. Webb’s hearing loss precludes her from working
in noisy industrial environments, and limits her to working in an
office type setting.

Id.

According to Dr. Stevens, if Ms. Webb

did not have the obesity, she could do medium work at full range.
Id. at 60-61.
6. Testimony of the Vocational Expert
On the second day of the hearing, Vocational Expert Sherrill
Hoiseth testified (“VE”).

Id. at 68.

Ms. Hoiseth testified

that her descriptions were consistent with the Dictionary of
Occupational Titles (“DOT”).

Id. at 72. The relevant area for

jobs and employment was the “fourteen county area around Chicago,
including Cook and the collar [counties].”

22

Id. at 70.

The ALJ asked the VE four hypothetical questions. The first
hypothetical was about a person aged 30 to 34, with a 7th grade
education, who can read some parts of a newspaper, but needs some
assistance with filling out job applications.

Id. at 68-69.

Additionally, the hypothetical person has some mild limitations
in activities of daily living, but can engage in simple routine
tasks; is able to stand and walk frequently; and is able to
engage in postural positioning frequently.

Id. at 69. The

hypothetical person is alert and able to deal with the usual
workplace, but with minimal contact with co-workers and
supervisors and no contact with the public.

Id.

Additionally,

the hypothetical person can lift and carry ten pounds frequently
and twenty pounds occasionally.

Id.

The concentration is

moderately limited at 90% percent ability to maintain
concentration, persistence, and pace.

Id.

Ms. Hoiseth testified

that this hypothetical person could perform the job of a
housekeeping cleaner, hand packager, or electronic worker.
at 70.

Id.

Ms. Hoiseth testified that the general standard for these

jobs is a 90% concentration level, and one absence per month
would still be acceptable.

Id. at 73.

The second hypothetical used the same facts, but the
hypothetical person’s ability to stand and walk was decreased to
occasional.

Id. at 70.

Ms. Hoiseth testified that this would

change the RFC to sedentary.

Id.

The jobs available in the

national economy for a person with these limitations would be a

23

hand packager or production worker.

Id. at 71.

In the regional

economy, there are approximately 1300 jobs for hand packagers and
700 jobs for a production worker.

Id.

The third hypothetical the ALJ posed was of a person with
the same limitations in the second hypothetical question, but
with depression that distracts the person.

Id.

The hypothetical

person’s concentration and persistence in pace is around 70
percent. Id.

The ALJ noted that he would consider a 70 percent

limit in pace and concentration to be a marked limitation.

Id.

Ms. Hoiseth testified that there would be no jobs available for
this level of impairment.

Id.

The fourth, and final, hypothetical the ALJ posed was a person
with the same impairments as the second hypothetical, but the
person has to miss three days of work per month.

Id. Ms. Hoiseth

testified that those limitations would preclude the hypothetical
person from working, especially for unskilled labor.

Id. at 72.

III. DISCUSSION
A. Social Security Regulations
For a person to be entitled to disability benefits under the
Social Security Act, the person must be disabled.
404.1501.

20 CFR §§

The definition of disabled is the “inability to do any

substantial gainful activity by reason of any 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.” Id.

24

The

steps that the ALJ must go through to make a determination about
whether a person is disabled are: (1) whether the claimant is
engaged in substantial gainful activity; (2) whether the
claimant’s medical impairments are severe; (3) whether the
medical impairments meet or equals one of the impairments listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the
claimant could still engage in past relevant work; and (5)
whether the claimant can perform any other work after assessing
the claimant’s residual functional capacity, age, education, and
past work experience.

Id.

At step four, the ALJ must first determine the claimant’s
RFC. 20 CFR §§ 416.920(e).

The RFC is the claimants ability to

do physical and mental work despite the claimant’s limitations.
20 C.F.R. §§ 416.945.

The ALJ must base the decision on all of

the relevant evidence in the record. 20 C.F.R. §§ 416.945(a)(1).
The RFC considers all of the claimant’s medically determinable
impairments whether the impairments are considered severe. 20
C.F.R. §§ 416.945(a)(2).

If the claimant reaches step five,

then the commissioner has the burden of proving that “other jobs
exist in the economy that the claimant can perform.”

White v.

Astrue, 820 F. Supp. 2d 839, 848 (N.D. Ill. 2011) (citing Craft
v. Astrue, 539 F.3d 668, 674 (7th Cir. 2008).
B. The ALJ’s Decision
The ALJ’s opinion is dated January 25, 2010.

R. at 15-29.

The ALJ conducted the five step analysis required by the social

25

security regulations.

The ALJ found that Ms. Webb was a younger

individual, has a limited education, is able to communicate in
English, and has no past relevant work history.

Id. at 27.

First, the ALJ found that there was no substantial gainful
activity. Id. at 17.

Despite Ms. Webb’s tax returns and detailed

earnings query (“DEQY”) that noted that Ms. Webb did have some
income, the ALJ did not use those documents as a basis for his
decision because Ms. Webb denied having any income. Id.
Second, the ALJ found that Ms. Webb has severe impairments
of HIV, depression or dysthymia, hypertension, asthma, and
degenerative disc disease.

Id.

The ALJ noted that Ms. Webb has

some hearing loss, but found that it was not severe because the
audiology report stated that she “has 100% word recognition
bilaterally at 70db.”

Id.

Third, the ALJ found that Ms. Webb does not have an
impairment that meets or medically equals one of the listed
impairments in the regulations.

Id.

According to the ALJ’s

findings, Ms. Webb’s asthma does not meet the listings, because
she has never been hospitalized for it and her pulmonary function
test only showed that she has borderline obstruction.

Id. at 18.

Ms. Webb’s HIV is not severe because it has been asymptomatic
since her diagnosis.

Id.

Ms. Webb’s hypertension did not meet

the listings, because there was no evidence of end organ damage
and she does not have heart failure.

26

Id.

Regarding Ms. Webb’s degenerative disc disease, the ALJ
found that the listing for disorders of the spine was not
satisfied.

Id.

When Ms. Webb was examined by the consultative

examiner, Ms. Webb had a full range of motion in her back and she
had normal sensation to a pinprick and a light touch.
19.

Id. at 18-

The ALJ also noted Dr. Villanueva’s findings that Ms. Webb

was capable of walking up to ten feet without a cane at the time
of the examination.

Id. at 19.

The ALJ conducted a part B analysis of Ms. Webb’s alleged
mental impairments.

Id. at 19.

According to the ALJ’s findings,

Ms. Webb’s mental impairments do not meet the listing’s criteria.
Id.

Regarding Ms. Webb’s activities of daily living, the ALJ

found that Ms. Webb had mild restrictions.

The ALJ noted that on

Ms. Webb’s activities of daily living questionnaire, she
indicated that she sometimes plays cards or games with her
children and sometimes does the laundry.

Id.

In addition, Ms.

Webb reported that she sometimes pays her bills, sometimes goes
to her children’s school, and often watches TV.

Id.

The ALJ

found that Ms. Webb has moderate difficulties with social
functioning and has had no episodes of decompensation “of
extended duration.”

Id.

Regarding Ms. Webb’s persistence in concentration and pace,
the ALJ found that Ms. Webb had moderate difficulty.

Id.

finding this, the ALJ cited Dr. Rosenthal’s notes, which

27

In

repeatedly found that Ms. Webb’s “thoughts were coherent without
evidence of a formal thought disorder.”

Id.

Fourth, the ALJ made his RFC findings.

The ALJ found that

Ms. Webb was able “to perform a range of sedentary work.”
20.

Id. at

The ALJ found that Ms. Webb can “stand/walk occasionally;

sit frequently; lift/carry 20 pounds occasionally and 10 pounds
frequently; and engage in postural positions frequently.”
Additionally, Ms. Webb is able to “perform simple, routine tasks;
work with minimal contact with coworkers and supervisors and no
public contact; maintain concentration, persistence, and pace
with a moderate limitation which is pegged at 90%; demonstrate a
mild limitation in activities of daily living; and demonstrate no
decompensations.”

Id.

In explaining his RFC, the ALJ noted that Dr. Stevens’
testimony would have only limited Ms. Webb to light work, but the
ALJ gave more credit to Ms. Webb’s obesity and put her at the
sedentary level.

Id. at 20.

The ALJ also considered the

testimony of Dr. Slodski that Ms. Webb occasionally needs a cane
and noted that the MRI performed on Ms. Webb on July 16, 2009,
showed mild degenerative changes at L4-L5.

Id. at 21.

The ALJ noted that Dr. Kenney and Dr. Donelan found that Ms.
Webb could work at the light exertion level with avoidance of
concentrated exposure to fumes, odors, dusts, gases, and poor
ventilation.

Id. at 22.

However, The ALJ did not place any

28

limitation on Ms. Webb’s breathing because her pulmonary tests do
not indicate any significant impairment.

Id.

Regarding Ms. Webb’s HIV, the ALJ pointed to medical records
that it has repeatedly been classified as asymptomatic.

Id. at

21. Additionally, Ms. Webb was not on any medication for this
disease.

Id. Therefore, he found that HIV did not place a

limitation on Ms. Webb.

Id.

Regarding her hypertension, the ALJ noted that there was no
end organ damage.

Id. at 22.

However, the ALJ did point out

that, when Ms. Webb was hospitalized in 2005, her blood pressure
was high and that the progress notes from Mt. Sinai on June 18,
2008 indicate that her blood pressure was 156/106.

Id. at 21.

Next, the ALJ discussed Ms. Webb’s back pain and how it
limits Ms. Webb to sedentary work.

Id. at 22.

The ALJ relied

upon the notes from Schwab Rehabilitation Hospital, which stated
that Ms. Webb complained of severe back pain.

Id. The ALJ added

that Ms. Webb’s “decreasing participation may be a contributing
factor for the lack of progress from therapy.”

Id.

In reaching his conclusion regarding Ms. Webb’s ability to
perform simple routine tasks and to maintain concentration,
persistence, and pace at the 90% level, the ALJ used Mr.
Carlsen’s progress notes, which stated that Ms. Webb was oriented
to time, place, person, and situation.

Id. at 23.

The ALJ noted

that Ms. Webb has been dealing with various situational stressors
such as having her son incarcerated and her brothers dying.

29

Id.

Ms. Webb’s claims of being depressed and having low energy was
consistent with Mr. Carlsen and Dr. Rosenthal’s notes.

Id.

The ALJ also discussed Dr. Rosenthal’s notes, which
indicated that Ms. Webb’s thoughts were coherent, her mood was
sad, and she was irritable.

Id. at 24.

Dr. Rosenthal’s notes

also stated that she was oriented to person, place, and time.
Id. at 23.
In assessing Ms. Webb’s credibility, the ALJ did not find
Ms. Webb’s testimony regarding her depression to be completely
credible.

Id. at 26.

First, the ALJ noted that Ms. Webb claimed

to have been seeing a psychiatrist for 8 years, but there was
nothing in the record to support that claim. Id. Second, Ms.
Webb’s statements that she lies in bed all day is not credible,
because neither her depression nor her physical impairments would
mandate this.

Id.

Third, Dr. Rosenthal’s assessment contradicts

Ms. Webb’s claim of severe depression.

Id.

Last, the ALJ noted

that Ms. Webb did not put much effort into her therapy regimen.
Id.
In considering the medical records and testimony, the ALJ
adopted Dr. Stevens’ testimony.

Id.

Specifically, he adopted

Dr. Stevens’ testimony that Ms. Webb has morbid obesity, her HIV
is not active, and that she does not need an assistive device.
Id.

The ALJ also noted that Dr. Stevens opined that Ms. Webb’s

RFC is at light work, in a non-noisy office setting.

30

Id.

The ALJ did not “place any significant weight” on the
opinions of Dr. Rosenfeld and Dr. Slodki, because they did not
have the full record when they testified.

Id.

Dr. Rosenfeld

testified without seeing the eight years of progress or treatment
notes.

Id.

The ALJ noted that Dr. Slodki’s statement about

agreeing with Dr. Torres regarding the cane use was made without
having the entire record.

Id.

The ALJ did not agree with Dr. Warikoo’s assessment that Ms.
Webb’s mental impairments prevent her from having any substantial
gainful activity.

Id.

In discrediting Dr. Warikoo’s assessment,

the ALJ noted that Dr. Warikoo’s treatment notes are inconsistent
with her assessment.

Id.

The treatment notes indicate that Ms.

Webb’s mood had been improving, her sleep had been improving, and
that she was beginning to feel better.

Id. at 24-25. The notes

also reflect that Ms. Webb was able to smile and laugh, her
thoughts were coherent, and she had no delusions or abnormal
perceptions.

Id. at 25.

Further, Dr. Warikoo’s opinion about Ms. Webb’s deficiencies
in concentration, persistence, and pace is contradicted by Dr.
Rosenthal’s findings that Ms. Webb’s “attention and concentration
were okay.”

Id. at 26.

Regarding, Ms. Webb’s alleged difficulties with social
functioning, the ALJ found that Ms. Webb’s own activities of
daily living contradicted Dr. Warikoo’s assessment.

Id. at 27.

On that form, Ms. Webb indicated that she sometimes goes to her

31

children’s school, sometimes plays with her children, sometimes
talks to her neighbors, and talks on the phone.

Id.

The ALJ

found these statements to be inconsistent with Dr. Warikoo’s RFC.
Id. In addition, the ALJ noted that the GAF score of 55 given by
Dr. Warikoo does not support her assessment of Ms. Webb’s ability
to perform work related functions.

Id.

The ALJ did not accept Dr. Torres’ assessment and instead
accepted Dr. Stevens’ testimony. Id.

The ALJ discredited Dr.

Torres’ assessment because he had only seen Ms. Webb twice. Id.
Further, Dr. Torres’ notes that state that Ms. Webb’s pain
frequently interferes with her ability to concentrate are
inconsistent with Dr. Rosenthal’s treatment notes and the
treatment notes of her physician.

Id.

Both sets of treatment

notes state that Ms. Webb’s concentration and attention were
okay.

Id.
Regarding Dr. Torres’ opinion that Ms. Webb could only

occasionally lift and carry less than ten pounds and could only
sit for less than two hours per day, the ALJ found that Ms.
Webb’s report in the activities of daily living form contradicted
the testimony.

Id.

Finally, the ALJ found that there were a significant amount
of jobs in the national economy that Ms. Webb could perform.
at 28.

Id.

The ALJ arrived at this determination based on the VE’s

testimony.

The ALJ acknowledged that Ms. Webb has additional

limitations beyond what limits her to sedentary work such as her

32

age, education, work experience, and her RFC. Id. In reaching his
conclusion, the ALJ agreed with the opinion that Ms. Webb could
perform work as a hand packer or production worker.

Id.

C. Ms. Webb’s Motion for Summary Judgment
On June 29, 2012, Ms. Webb filed a motion for summary
judgment.

[26]

In Ms. Webb’s motion for summary judgment, her

first argument is that the ALJ erred by finding that Ms. Webb is
capable of sedentary work because he (1) failed to resolve
conflicts between the medical opinions in the record; and (2)
improperly rejected Ms. Webb’s alleged limitations in sitting.
Ms. Webb’s second argument is that the ALJ erred in his
evaluation of her Mental Residual Functional Capacity by: (1)
“improperly giving greater weight” to Dr. Oberlander’s opinion
over the treating psychiatrist’s opinion; and (2) improperly
analyzing Ms. Webb’s limitations in concentration, persistence,
and pace.
Ms. Webb’s final argument is that the ALJ erred by improperly
assessing her credibility.
D.

Commissioner’s Response and Motion for Summary Judgment

On August 30, 2012, the Commissioner of Social Security
filed a motion for summary judgment in favor of the Social
Security Administration in response to Ms. Webb’s motion for
summary judgment. [33]

The Commissioner argues that the ALJ (1)

reasonably assessed Ms. Webb’s physical impairments; (2) properly
evaluated the medical opinions; (3) reasonably assessed her

33

mental impairments; and (4) reasonably assessed Ms. Webb’s
credibility.
E.

Standard of Review

In reviewing the ALJ’s decision, the Court may not decide
the facts, reweigh the evidence, or substitute its own judgment
for that of the ALJ. Herron v. Shalala, 19 F.3d 329, 333 (7th
Cir. 1994).
The Court reviewing the ALJ’s decision must affirm the ALJ’s
decision if it is supported by substantial evidence and is free
from legal error.

Lawson v. Astrue, 10 C 6851, 2012 WL 1664248,

at *12 (N.D. Ill. May 8, 2012) (citing 42 U.S.C. §§ 405(g);
Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002)).
Substantial evidence is more than a mere scintilla,” but is "such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion." Richardson v. Perales, 402 U.S. 389,
401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971).

When the Court

reviews the ALJ’s decision for substantial evidence and freedom
from legal error, the Court may not "displace the ALJ's judgment
by reconsidering facts or evidence or making credibility
determinations." Lawson,

2012 WL 1664248, at *12. (citing

Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007).

Where

there is conflicting evidence that “allows reasonable minds to
differ, the responsibility for determining whether a claimant is
disabled falls upon the Commissioner, not the courts.”

Id.

(citing Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990)).

34

However, an ALJ is not entitled to unlimited judicial deference.
An ALJ must sufficiently articulate his assessment of the
evidence to “assure us that the ALJ considered the important
evidence ... [and to enable] us to trace the path of the ALJ’s
reasoning.”
1993).

Carlson v. Shalala, 999 F.2d 180, 181 (7th Cir.

The reviewing Court does not require a written evaluation

of every piece of testimony and evidence. Zblewski v. Schweiker,
732 F.2d 75, 78-79 (7th Cir. 1984).

However, the ALJ must

provide a minimal level of articulation of the evidence if
considerable evidence is presented that counter’s the agency’s
decision.

Id. at 78.

The evidence supporting the agency’s

decisions must be substantial “when viewed in the light that the
record in its entirety furnishes, including the body of evidence
opposed to the [agency’s] view.” Id. (quoting Universal Camera
Corp. v. N.L.R.B., 340 U.S. 474, 477-478 (1951).
F. Physical RFC
Ms. Webb does not contest the ALJ’s findings at step one,
two, or three.
and five.

Ms. Webb argues that the ALJ erred at steps four

Regarding step four, Ms. Webb principally argues that

the ALJ erred in developing Ms. Webb’s physical RFC by failing to
resolve conflicts among the medical opinions about: (1) Ms.
Webb’s need for a cane; (2) whether Ms. Webb was limited to an
office-type environment because of her hearing loss; and (3)
whether Ms. Webb’s breathing limitations require her to avoid
exposure to fumes, odors, gases, and poor ventilation.

35

Additionally, Ms. Webb argues that the ALJ erred in developing
the RFC by improperly rejecting Ms. Webb’s alleged limitations in
sitting.
1. Cane Use Findings
Ms. Webb contends that the ALJ made inconsistent findings on
the issue of whether she needs a cane.

According to Ms. Webb,

the ALJ made an inconsistent finding by adopting Dr. Slodki’s
opinion that she needed the cane, but also adopting Dr. Stevens’
entire testimony which included the opinion that Ms. Webb does
not need a cane. Id. at 26.

Dr. Torres’ RFC included the opinion

that Ms. Webb needs a cane and Dr. Slodki agreed with Dr. Torres.
R. at 120, 411-412. However, Dr. Stevens testified that Ms. Webb
does not need a cane or assistive device.

Id. at 59.

Ms. Webb cites Parker v. Astrue in support of her argument
that the ALJ made inconsistent findings on the same issue, and
therefore, the ALJ’s decision should be reversed.

597 F.3d 920,

924 (7th Cir. 2010), as amended on reh'g in part (May 12, 2010).
In Parker, the ALJ stated that in his analysis of the claimant’s
credibility that the claimant’s post-traumatic stress disorder
(“PTSD”) and other psychological impairments “all surfaced after
the last date on which she was insured. “ Id. However, earlier in
the opinion, the ALJ stated that “as of the date last insured,”
the claimant had depression and PTSD.

Since the conclusions were

inconsistent and the ALJ failed to explain the contradiction, the
Seventh Circuit reversed the ALJ’s decision.

36

Id. at 925.

This case is unlike Parker, because there was no internal
inconsistency in the ALJ’s opinion.

First, the ALJ adopted Dr.

Stevens’ findings, which included the statement that Ms. Webb
doesn’t need a cane.

R. at 26.

Second, the ALJ considered

several other pieces of medical evidence that showed that she
does not need a cane.

For example, the ALJ considered Dr. Kenney

and Dr. Donelan’s RFC, which both concluded that she does not
need a cane.

Id. at 22.

Third, the ALJ stated that he was not

putting any significant weight on Dr. Slodki’s testimony, because
Dr. Slodki did not have the entire record before him. Id.

at 26.

Dr. Slodki’s testimony included that he agreed with Dr. Torres
about the use of a cane.

Id. at 59. Finally, the ALJ explicitly

rejected Dr. Torres’ testimony.

Dr. Torres was the only doctor

who opined that Ms. Webb required a cane. Thus, the Court
concludes that the ALJ was consistent in his determination that
Ms. Webb did not need a cane.
Ms. Webb next argues that, even if the Court finds that she
does not need to use a cane, the ALJ’s decision is unclear on
that issue and thus it should be remanded for clarification. When
reviewing the ALJ’s decision, the Court must read the decision as
a whole and with commonsense. Buckhanon ex rel. J.H. v. Astrue,
368 Fed. Appx. 674, 678-679 (7th Cir. Wis. 2010) (unpublished
opinion) (citing Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir.
2004); Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000)).

37

Ms. Webb notes that the ALJ’s opinion states that he was
“considering the testimony of [Dr. Slodki], who stated ... that
he believed claimant occasionally needs a cane, based on the
report of [Dr. Torres].”

R. at 21.

However, when reading the

decision as a whole, the ALJ was clear on the issue of whether
Ms. Webb needed a cane.

Specifically, the ALJ stated that he

adopted Dr. Stevens’ findings, which included that Ms. Webb does
not need an assistive device. Id. at 26. Further, the ALJ also
explicitly “placed no significant weight on” Dr. Slodki’s
testimony that he agreed with Dr. Torres that Ms. Webb
occasionally needs a cane because Dr. Slodki “did not have the
entire record before him.”

Id.

If Ms. Webb did require a cane, Ms. Webb argues that the ALJ
erred by failing to ask the vocational expert about whether using
a cane would impact Ms. Webb’s ability to find employment.
Therefore, if the ALJ did believe that Ms. Webb needed a cane, he
did not include all limitations reasonably supported by the
record in his hypothetical questions to the VE.
In posing a hypothetical to the VE, an ALJ “must fully set
forth the claimant's impairments to the extent that they are
supported by the medical evidence in the record.” Herron, 19 F.3d
at 337 (citations omitted); Kasarsky v. Barnhart, 335 F.3d 539,
543 (7th Cir. 2003).

An ALJ’s decision will be reversed if the

hypothetical question “is fundamentally flawed because it is
limited to the facts presented in the question and does not

38

include all of the limitations supported by medical evidence in
the record.”

Young v. Barnhart, 362 F.3d 995, 1005 (7th Cir.

2004)
In Kasarasky, the ALJ found that the claimant had frequent
“deficiencies of concentration, persistence or pace resulting in
failure to complete tasks in a timely manner (in work settings or
elsewhere).” Kasarasky, 335 F.3d at 543.

Despite this finding,

the ALJ in that case failed to include the limitation in his
hypothetical questions to the VE. Id. at 544.

Thus, the Seventh

Circuit held that the ALJ erred in posing his hypothetical
questions to the VE.

Id.

However, the Court finds that the ALJ in this case
reasonably excluded the use of the cane in his hypotheticals to
the VE. For example, the ALJ noted that Dr. Villanueva’s report
stated that she could walk without a cane.

R. at 21.

Dr. Slodki

based his conclusion about Ms. Webb occasionally needing a cane
on Dr. Torres’s reports.

Id.

However, the ALJ explicitly

rejected Dr. Torres’s report, which included the opinion that Ms.
Webb did not need a cane.

Id. at 27. Further, as stated above,

the ALJ noted that Dr. Slodki did not have the entire record
before him when he testified.

Id. at 26.

Unlike Kasarasky, where there was an explicit finding that
the ALJ made and failed to include, the ALJ here found that Ms.
Webb did not need a cane and, therefore, did not need to include
it. The ALJ adopted Dr. Stevens’ testimony, which included that

39

“[Ms. Webb] does not need an assistive devices.” Id.

Thus, the

ALJ’s questions to the VE were proper because they were
reasonably supported by the record.

Therefore, the Court finds

that the ALJ did not error in his findings regarding Ms. Webb’s
need of an assistive device or in his hypothetical to the VE.
2. Exposure to Irritants
Ms. Webb argues that the ALJ erred in his RFC by not putting
restrictions on Ms. Webb’s breathing.

The ALJ noted that Dr.

Kenney found that Ms. Webb should not “work in an environment
with even moderate exposure to fumes, odors ... gases, [or] poor
ventilation.”

R. at 22. However, the ALJ did not put

restrictions on Ms. Webb’s breathing in his RFC because the
“pulmonary function test shows only borderline obstruction.”

Id.

By doing so, Ms. Webb contends that the ALJ came to an improper
independent medical conclusion.
An ALJ “must not succumb to the temptation to play doctor
and make [his] own independent medical findings.” Rohan v.
Chater, 98 F.3d 966, 970 (7th Cir. 1996).

Ms. Webb cites Suide

v. Astrue for the proposition that, if an ALJ rejects all of the
medical opinions of record and then comes to a conclusion, then
the ALJ is improperly attempting to fill an evidentiary gap with
lay medical opinions. Suide v. Astrue, 371 F. App'x 684, 690 (7th
Cir. 2010) (unpublished opinion).

However, in Suide, the ALJ

rejected a doctor’s report about the claimant’s RFC and came to
conclusions that were not supported by the record. Id. The ALJ

40

also erred by failing to weigh the remaining medical evidence.
Id.
In this case, the x-rays from Mount Sinai on December 27,
2005, showed that Ms. Webb’s lungs were clear and her diaphragms
were normal.

R. at 338.

The admission notes indicate that, when

Dr. Donelan examined Ms. Webb, he found that her lungs were
clear. On May 23, 2006, Dr. Sethi found that Ms. Webb’s “air
entry was good” and there was no wheezing.

R. at 342.

Further,

Ms. Webb stated that her albuterol inhaler was helping.
343.

Id. at

Upon intake at Schwab Rehabilitation Center When she was

at Mt. Sinai to have her ear drained, on July 30, 2008, Ms.
Webb’s respiratory status was spontaneous, regular, and deep.
Id. at 431.

Her lungs were clear.

Id. at 424.

However, on

November 27, 2007, Dr. Villanueva found that Ms. Webb had
decreased breath sounds, wheezing, and rhonci.

Further, at the

time of Dr. Villanueva’s examination, Ms. Webb was on medication
for asthma.

Id. at 372.

Unlike Suide, there was objective medical evidence that Ms.
Webb could be exposed to environmental irritants; specifically,
Dr. Villanueva’s pulmonary function test.

In discounting Dr.

Kenney and Dr. Donelan’s opinions regarding a breathing
limitation, the ALJ cited Dr. Villanueva’s conclusion that Ms.
Webb’s breathing indicated borderline obstruction.
379.

R. at 25,

By using objective medical evidence, the ALJ was reasonable

in his conclusion that Ms. Webb does not need to limit her

41

exposure to irritants.

Thus, the ALJ did not come to an

independent medical conclusion.
In addition, while there is some evidence that Ms. Webb has
difficulty breathing, there is also contrary evidence to support
the ALJ’s conclusion.

Although Dr. Donelan’s RFC states that Ms.

Webb should avoid concentrated exposure to environmental
irritants, he also found that Ms. Webb’s lungs were normal and
clear when she was examined.

Id. at 359, 362.

The Court notes

that Dr. Kenney’s examination revealed that Ms. Webb’s “lungs had
decreased breath sounds with wheezing and rhonchi present.”
at 393.

Id.

However, because there was substantial evidence that Ms.

Webb did not need to limit her exposure to environmental
irritants, the ALJ’s conclusion was reasonable and will thus not
be reversed.
3. Sitting Limitations
Ms. Webb argues that the ALJ erred in assessing Ms. Webb’s
RFC by failing to address Ms. Webb’s alleged limitations in
sitting.

In support of her allegations, Ms. Webb points to her

testimony that sitting for long periods of time causes back pain.
Id. at 51.

Additionally, Ms. Webb points to the physical therapy

notes from Schwab Rehabilitation Center, which show that Ms. Webb
complained that sitting for long periods of time makes her pain
worse.

Id. at 315.

Ms. Webb also cites Dr. Torres’ report that

Ms. Webb could only sit for 20 minutes at a time.

42

Id. at 411.

An “ALJ need not provide a complete written evaluation of
every piece of testimony and evidence” but must meet “a minimal
duty to articulate his reasons and make a bridge between the
evidence and the outcome.”

Rice, 384 F.3d at 371.

Where there

is conflicting evidence that would allow reasonable minds to
differ, the responsibility for determining whether the claimant
is disabled falls upon the Commissioner, not the courts.” Lawson,
2012 WL 1664248, at *12 (citing Herr, 912 F.2d at 181.
In this case, there is substantial evidence in the record
that supports the ALJ’s conclusion that Ms. Webb could sit for an
extended period of time.

For example, in formulating the RFC,

the ALJ cited Dr. Kenney’s report. R. at 22. Dr. Kenney and Dr.
Donelan’s reports both conclude that she could sit for 6 hours in
an 8 hour work day.

Id. at 359, 388.

Dr. Sethi’s report, which

the ALJ also cited, showed that Ms. Webb had full range of motion
in all of her joints.

R. at 22, 359, 388.

In addition, the ALJ

discussed and discredited Dr. Torres’ report that Ms. Webb could
sit no more than twenty minutes.

R. at 27.

Therefore, the Court

finds that the ALJ did not err in his analysis of Ms. Webb’s
alleged sitting limitations.
4. Office Type Setting Restriction
Ms. Webb next argues that the ALJ was unclear on the issue
of whether Ms. Webb’s hearing loss requires her to work in an
office-type setting.

According to Ms. Webb, the ALJ was unclear

because he adopted Dr. Stevens’ opinion, which contained the

43

opinion that Ms. Webb “should work in an office setting.” R. at
26.

Despite adopting Dr. Stevens’ opinion, the ALJ’s RFC does

not contain any limitation to an office environment.

Id. at 20.

Once the ALJ finds that the claimant has a severe
impairment, the ALJ must consider the aggregate effect of all of
the Claimant’s limitations, both severe and non-severe.
Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003)
(citing 20 C.F.R. §§ 404.1520(f)).

When reviewing an ALJ’s

opinion, the Court reads it as a whole and with common sense.
Buckhanon ex rel. J.H., 368 Fed. Appx. at 678-679.
The ALJ considered Ms. Webb’s hearing loss and concluded
that it “does not cause more than minimal limitations in her
ability to perform work-related activities.”

R. at 17.

Further,

the reports by Dr. Donelan and Dr. Kenney indicate that Ms. Webb
does not need a noise-level restriction.

Id. at 362, 391.

Dr.

Sethi’s report also indicated that Ms. Webb “was able to
understand conversational voices.”

Id. at 341. The ALJ also

cited Ms. Webb’s audiology report, which indicated that she had
100% word recognition bilaterally at 70db.

Id. at 17.

The Court

concludes that there was sufficient evidence which supports the
ALJ’s exclusion of a work-place limitation in his RFC.
Ms. Webb also argues that the ALJ’s determination that her
hearing loss did not limit her to an office-type setting was an
independent medical determination, citing Rohan and Wilder. Mot.
at p. 17; Reply at p. 5.

In Rohan, the ALJ came to an

44

independent medical conclusion by determining that the claimant’s
small machine repair/resale business was inconsistent with a
finding of major depression.

Rohan, 98 F.3d at 970.

The ALJ

did not provide any other medical basis for finding that the
claimant’s depression was not severe. Id. at 971.

The Seventh

Circuit held that the ALJ substituted “his own judgment for that
of the medical witnesses.”

Id.

Similarly, in Wilder, an ALJ erred by finding that the
claimant being allowed to adopt a child and holding a job as a
security guard in which she was allowed to carry a gun was
inconsistent with severe depression.
335, 336 (7th Cir. 1995).

Wilder v. Chater, 64 F.3d

In that case, the only medical

evidence presented about the claimant’s depression was the direct
testimony of a psychiatrist about the onset of the claimant’s
depression.

Id. at 337.

There was no other evidence about the

severity of the claimant’s depression.

Id.

Unlike Wilder or Rohan, where there was no other medical
evidence presented that supported the ALJ’s conclusion, the ALJ
in this case did have sufficient medical evidence to support his
conclusion.

As stated above, Dr. Sethi found that Ms. Webb could

understand conversational voices.

R. at 341.

Further, both Dr.

Donelan and Dr. Kenney found that Ms. Webb does not need a noise
restriction.

Id. at 362, 393.

Therefore, the ALJ did not come

to an independent medical conclusion in finding that Ms. Webb did
not need an environmental noise restriction.

45

Ms. Webb argues that if she does require a restriction to
office-type environments, then the ALJ also erred at step five by
not including the restrictions in his hypothetical to the VE and
by relying on jobs that are performed in a factory-type.
However, because the Court concludes that the ALJ reasonably
excluded a limitation to an office-type setting in formulating
his RFC, the ALJ did not err in formulating his questions to the
VE.
G. Ms. Webb’s Mental RFC
Ms. Webb argues that the ALJ erred in evaluating her mental
RFC.

Specifically, Ms. Webb argues that the ALJ erred by (1)

improperly giving greater weight to Dr. Oberlander, a medical
expert, over that of her treating physician Dr. Warikoo; and (2)
by improperly analyzing Ms. Webb’s alleged limitations in
concentration, persistence, or pace.
1. Dr. Warikoo’s Assessment
In the medical reliability determination bridge section of
his opinion, the ALJ rejected Dr. Warikoo’s assessment because it
was inconsistent with her treatment notes.

R. at 26.

Ms. Webb

argues that the ALJ erred in his analysis of the record and Dr.
Warikoo’s notes.
Generally, a treating physician’s opinion is entitled to
controlling weight because of the physician’s “greater
familiarity with the claimant’s condition and circumstances” if
it “is not inconsistent with other substantial evidence in the

46

record.” Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000)
(internal citations omitted); 20 C.F.R. §§ 404.1527(c)(2)).
of the

Some

factors to consider in determining whether to give

controlling weight to a treating physician’s opinion are: (1)
“the nature and extent of the treating relationship”; (2)the
amount of medical evidence the physician uses and provides to
support the opinion; (3) the consistency of the opinion with the
record as a whole; (4) whether the physician is a specialist in
the area in which he is providing his opinion; and (5) other
factors that tend to support or contradict the opinion.

20

C.F.R. §§ 416.927 (c)(2)(i-vi).
Ms. Webb argues that the ALJ erred in his analysis by
finding that Dr. Warikoo’s treatment notes were inconsistent with
her finding that Ms. Webb had extreme difficulties in maintaining
social functioning.

Ms. Webb cites to Dr. Warikoo’s notes that

indicate that Ms. Webb complained of social withdrawal and the
inability to enjoy activities.

R. at 550, 553.

Further, Ms.

Webb also testified to not being a member of any clubs, not
wanting to be around people, and not wanting to participate in
any activities. Id. at 108.

While these are indicative of

difficulty in maintaining social functioning, there are numerous
other pieces of evidence in the record which undercut her claim
of extreme difficulties in maintaining social functioning.

The

ALJ cited some of the pieces of evidence he used in coming to his
conclusion.

Id. at 26-27.

For example, Dr. Warikoo’s notes show

47

that Ms. Webb was able to smile and laugh and she did not have
evidence of a formal thought disorder.

Id. at 27.

The ALJ also

cited Dr. Rosenthal’s notes, which show that Ms. Webb “was
cooperative with fair eye contact” and did not have any
psychomotor abnormalities.

Id.

In addition, the ALJ found Ms.

Webb’s activities of daily living report to be inconsistent with
Dr. Warikoo’s conclusions, because Ms. Webb stated that she
sometimes plays cards with her children, sometimes goes to school
with her children, talks to her neighbors, and talks on the
phone.

Id.

The ALJ found that Dr. Warikoo’s GAF scores contradicted her
own conclusions.

Id.

Ms. Webb argues that the GAF score is a

score that is assessed for a specific period of time and the
longitudinal record is consistent with Dr. Warikoo’s assessment.
Throughout the record, Ms. Webb’s GAF has ranged from 45 to 60.
Id. at 369, 493, 495, 497, 507, 535.

Dr. Warikoo’s opinion that

Ms. Webb has extreme difficulty with social functioning was made
at the same time that her GAF was a 55. Id. at 529-532.

This

fact undercuts Dr. Warikoo’s opinion that she has extreme
difficulty with social functioning because her GAF was at the
“moderate symptom” level of functioning. The ALJ noted that Ms.
Webb’s GAF score of a 45 also relates to her life with children.
Id. at 25.

The ALJ concluded that, on the whole, the evidence is

more consistent with Dr. Rosenthal’s conclusions.

Id.

In light

of the record as a whole, the ALJ articulated a reasonable basis

48

and there was substantial evidence for discounting Dr. Warikoo’s
opinion.
Ms. Webb next argues that the ALJ did not provide an
explanation for why he was accepting Dr. Oberlander’s opinion
over Dr. Warikoo’s opinion.

However, the ALJ’s opinion outlines

pieces of evidence in the record that are consistent with Dr.
Oberlander’s opinion.

Id. at 23-24.

Dr. Rosenthal’s notes.

Id. at 23.

For example the ALJ cited
Dr. Rosenthal’s notes show

that, although Ms. Webb did present with depressed mood, low
motivation, low energy, occasional crying spells, and anhedonia,
she was compliant with her medication, denied suicidal ideation,
and reported that her sleep and appetite was fine.

Id.

Thus,

the ALJ did provide evidence for why he was accepting Dr.
Oberlander’s opinion.
2. Concentration, Persistence, or Pace
Next, Ms. Webb argues that the ALJ did not have a reasonable
basis to find that Ms. Webb’s moderate impairment with
persistence, concentration, or pace equates to an ability to
concentrate for 90% of the workday.

Ms. Webb does not argue that

a specific number would be appropriate.
In Reed v. Astrue, the Court upheld an ALJ’s determination
that a moderate impairment in concentration, persistence, or pace
could be considered a 90% ability to maintain concentration
during a workday.

Reed v. Astrue, 10 C 0001, 2011 WL 3895302, at

*11 (N.D. Ill. Aug. 31, 2011).

Ms. Webb notes that in Reed, the

49

claimant’s GAF score was a 60, which is in the top range of the
“moderate symptom category.”

Diagnostic and Statistical Manual

of Mental Disorders, 34 (4th ed. Am. Psychiatric Ass'n 1994).
Ms. Webb attempts to distinguish this case by pointing out that
the highest GAF score she received was a 55 and her GAF score was
frequently a 50.

First, the Court notes that Ms. Webb’s highest

GAF score was 60. R. at 535.

Dr. Rosenthal was the doctor who

assessed Ms. Webb as having a GAF score of 60.

Id.

Second, in

his medical reliability determination bridge section, the ALJ
credited Dr. Rosenthal’s opinion and GAF score instead of Dr.
Warikoo’s opinion.

R. at 27.

Finally, the ALJ noted that Dr.

Rosenthal found that Ms. Webb’s concentration and attention was
“okay.”

Id.

Therefore, the ALJ reasonably found that Ms. Webb

could maintain concentration, persistence, or pace at a 90%
level.
Further, Ms. Webb argues that the ALJ’s questions in his
hypothetical to the VE that limited Ms. Webb to simple, routine,
tasks did not account for Ms. Webb’s limitations in
concentration, persistence, or pace.

An ALJ’s hypothetical to

the VE must “account for all limitations”, including deficiencies
of concentration, persistence, or pace.

O'Connor-Spinner v.

Astrue, 627 F.3d 614, 620 (7th Cir. 2010) citing Stewart v.
Astrue, 561 F.3d 679, 684 (7th Cir.2009); Kasarsky v. Barnhart,
335 F.3d 539, 544 (7th Cir.2003); Steele, 290 F.3d at 942.
In O’Conner-Spinner, the ALJ erred by finding in the RFC

50

that the claimant had a moderate limitation in maintaining
concentration, persistence, or pace but failing to include the
limitation in the hypothetical to the VE.
F.3d at 618.

O'Connor-Spinner, 627

Instead of including the limitation, the ALJ simply

limited the hypothetical worker to “routine, repetitive tasks
with simple instructions.”

Id.

Here, the ALJ specifically addressed Ms. Webb’s limitation
in concentration, persistence, and pace.

In the first

hypothetical to the VE, the ALJ stated “let’s say that the person
is able to maintain concentration persistence on days with a mild
limitation” and “I’m going to peg the residual at 90 percent
ability to maintain concentration, persistence, and pace.”
69.

R at

This condition was included in the first, second, and fourth

hypothetical.

R. at 69-72.

Thus, the Court concludes that the

ALJ properly included Ms. Webb’s limitations in concentration,
persistence, and pace in his hypotheticals to the VE.
H. Credibility Findings
1. Ms. Webb’s Credibility
The next issue is whether the ALJ properly assessed Ms.
Webb’s credibility and whether the ALJ summarized the evidence
without analyzing the evidence.

In assessing a claimant’s

credibility, the ALJ’s findings are “afforded special deference
because the ALJ is in the best position to see and hear the
witness and determine credibility.” Shramek, 226 F.3d at 811;
Timms v. Astrue, 09 C 1416, 2010 WL 4930386 (N.D. Ill. Nov. 23,

51

2010). Thus, an ALJ’s credibility determination will not be
reversed “unless it is patently wrong.” Diaz v. Chater, 55 F.3d
300, 308 (7th Cir.1995).

A claimant may use his own testimony to

establish the severity of the symptoms, but the subjective
complaints do not need to be accepted “insofar as they clash with
other, objective medical evidence in the record.” Arnold v.
Barnhart, 473 F.3d 816, 823 (7th Cir. 2007). The ALJ must
consider the entire case record, this includes: the objective
medical evidence; the claimant’s own statements about her
symptoms; the statements and opinions of the treating physicians,
examining physicians, and other third parties; and other relevant
evidence in the case record.”

Arnold, 473 F.3d at 823.

Further,

if an ALJ relies on inconsistencies in finding the witness not
credible, he must specifically detail the inconsistencies.
Zurawski v. Halter, 245 F.3d 881, 887.
The ALJ found Ms. Webb’s statements about the “intensity,
persistence, and limiting effects” of her symptoms to be “not
credible to the extent they are inconsistent with the above
residual functional capacity assessment.”

R. at 26.

In making

his credibility determination, the ALJ discussed three issues:
(1) Ms. Webb’s testimony about seeing a psychiatrist for eight
years; (2) her testimony about the intensity, severity, and
symptoms of her depression; and (3) her apparent lack of effort
with her physical therapy regimen.

52

R. at 26.

First, Ms. Webb criticizes the ALJ’s use of the boilerplate
language:
After consideration of the evidence, the undersigned finds
that 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 above
residual functional capacity assessment.
R. at 26.

The Seventh Circuit criticized the use of this

language as getting it backward by implying that “ability to work
is determined first and is then used to determine the claimant’s
credibility.” Bjornson v. Astrue, 671 F. 3d 640, 645 (7th Cir.
2012).

Further, the language “fails to indicate which statements

are not credible and yields no clue to what weight the ALJ gave a
claimant’s testimony.” Clifton v. Astrue, 11 C 1141, 2012 WL
2277860, at *18 (N.D. Ill. June 18, 2012) (citing Spiva v.
Astrue, 628 F.3d 346 (7th Cir.2010); Parker v. Astrue, 597 F.3d
920 (7th Cir. 2010)).

In Bjornson, the ALJ found the

claimant’s testimony to be not credible on the basis of her
doctor’s treatment notes which indicated that she was complaining
of headaches less.

Id.

However, the Seventh Circuit held that

the ALJ erred by ignoring portions of the doctor’s notes that
would have resolved the inconsistency.

Id. Specifically, the

doctor’s notes stated that her “headaches ‘were always present’”
and that “her headaches have been an ongoing problem.”

Id.

Unlike Bjornson, where the ALJ relied on the boilerplate
language and gave very little information and evidence for why he

53

found the claimant’s statements not credible, the ALJ here
provided three different reasons for finding Ms. Webb’s
statements to be not credible.
Next, Ms. Webb argues that the ALJ erred in assessing her
credibility.

In the ALJ’s credibility assessment, he noted the

inconsistency between the medical record and Ms. Webb’s
statements that she had been seeing a psychiatrist for 8 years.
R. at 26.

Ms. Webb argues that the ALJ made an improper negative

inference based on an absence of records.

However, the ALJ did

consider Dr. Rosenthal’s notes which stated that Ms. Webb had a
suicide attempt in 1991, was discharged, and never followed up.
Record at 23, 533.
Further, in assessing Ms. Webb’s credibility, the ALJ noted
numerous inconsistencies between her testimony about the severity
of her psychological symptoms and the medical records.

For

example, the ALJ noted that Dr. Warikoo found that Ms. Webb’s
affect was stable and she was able to laugh and smile.
25.

Id. at

In addition, Dr. Rosenthal noted that Ms. Webb reported that

the medication seemed to be working, and her sleep and mood was
improving.

Id. at 533-549.

Ms. Webb also argues that the ALJ erred in finding that Ms.
Webb “made very little effort” in cooperating with her physical
therapy regime, because the notes from 2008 indicate that she
attended seven sessions and was making some progress with her
physical therapy.

R. at 487.

However, the notes from 2008 also

54

show that she cancelled two appointments, missed the third
appointment and then never called back to reschedule.

R. at 485.

The fact that Ms. Webb never called back to schedule another
appointment is some evidence that Ms. Webb was not compliant with
her physical therapy regimen. The Court finds that there was
substantial evidence which supported the ALJ’s finding.
Ms. Webb argues that the ALJ impermissibly substituted his
lay view of depression by finding that “neither her depression
nor her physical impairments, including her obesity, would compel
that she lie in bed all day.”

R. at 26.

However, the ALJ had a

reasonable basis for finding that neither Ms. Webb’s physical
impairments nor depression would compel that she lie in bed all
day.

For example, Dr. Rosenthal’s notes indicate that, on

January 27, 2009, Ms. Webb stated that “her appetite and sleep
were fine and that her attention and concentration were okay.”
Id. at 26,533.

On June 22, 2009, Ms. Webb also stated to Dr.

Rosenthal that “she is noticing

that she is beginning to feel

better” and that she went out with her kids over the weekend for
about the first time.

Id at 24, 548.

Ms. Webb did present with

low motivation and a dysphoric mood, but her affect was
constricted and appropriate to the situation.

Id. at 534.

Regarding Ms. Webb’s physical impairments, Dr. Sethi found that
Ms. Webb had a full range of motion.

Id. at 18-19.

The ALJ also

noted that Dr. Sethi’s report found that there was “very little
wrong with [Ms. Webb’s] musculoskeletal, neurologic system, or

55

other system.

Id. at 22.

In addition, the ALJ cited that Ms.

Webb’s activities of daily living undercut her claims of pain and
impairment.

Id. at 19. The ALJ cited all of this medical

evidence throughout his opinion, and therefore reasonably
concluded that Ms. Webb’s depression and physical impairments do
not require her to lay in bed all day.

Thus, the ALJ did not

come to an independent medical conclusion based on his lay
opinion of depression and obesity.

The Court finds that the

ALJ’s conclusions about Ms. Webb’s credibility were not patently
wrong and therefore the ALJ’s findings will not be disturbed.
2. Medical Credibility Findings
Ms. Webb argues that the ALJ improperly discredited Dr.
Torres’ opinion and failed to explain why he adopted Dr. Stevens’
opinion.

Generally, “A treating physician's opinion is given

controlling weight when it is "well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence." 20 C.F.R. §§
404.1527(c)(2); see Larson v. Astrue, 615 F.3d 744, 749 (7th Cir.
2010).
However, the treating physician’s opinion “is not the final
word on a claimant's disability.'" Schmidt v. Astrue, 496 F.3d
833, 842 (7th Cir. Wis. 2007).

If an ALJ is discounting the

treating physician’s opinion, then the ALJ “must give good
reasons.”

20 C.F.R. §§ 404.1527(c)(2); Campbell v. Astrue,

627F.3d 299, 306 (7th Cir. 2010); Mueller, 2012 WL 3575274, at 3.

56

An ALJ does not err by rejecting a treating physician’s opinion
when it “is inconsistent with the opinion of a consulting
physician or when the treating physician's opinion is internally
inconsistent, as long as he minimally articulates his reasons for
crediting or rejecting evidence of disability.” Schmidt v.
Astrue, 496 F.3d 833, 842 (7th Cir. 2007).
In determining what weight to give to a physician’s opinion,
the ALJ must consider: the length, nature, and extent of the
treatment relationship; frequency of examination; the physician's
specialty; the types of tests performed; and the consistency and
support for the physician's opinion.

Larson v. Astrue, 615 F.3d

744, 751 (7th Cir. Wis. 2010) (citing Moss v. Astrue, 555 F.3d
556, 561 (7th Cir. 2009); Elder v. Astrue, 529 F.3d 408, 415 (7th
Cir. 2008); Hofslien v. Barnhart, 439 F.3d 375, 377 (7th Cir.
2006)).

An ALJ does not need to “accept a doctor’s opinion if it

‘is brief, conclusory, and inadequately supported by clinical
findings.” Gildon v. Astrue, 260 F. App'x 927, 929 (7th Cir.
2008) (unpublished opinion) (quoting Thomas v. Barnhart, 278 F.3d
947, 957 (9th Cir.2002)); see also Powers v. Apfel, 207 F.3d 431,
435 (7th Cir.2000).
In Mueller, the ALJ discredited the treating physician’s
opinion. However, the ALJ failed to provide reasons for
discrediting beyond “[alluding] to opinions of other mental
health professionals.” Mueller v. Astrue, 11-3013, 2012 WL
3575274, at *5 (7th Cir. Aug. 21, 2012).

57

In addition, the ALJ’s

opinion did not give the names of any of the other physicians
that conflicted with the treating physician. Id. Thus, the
Seventh Circuit held that the ALJ erred by not giving controlling
weight to the claimant’s treating physician. Id.
On the other hand, in Schmidt the Seventh Circuit held that
the ALJ adequately explained why he was discounting the treating
physician’s opinion.

Schmidt v. Astrue, 496 F.3d 833, 842 (7th

Cir. Wis. 2007). The ALJ discredited the treating physician’s
opinion that the claimant was not capable of performing work at
the sedentary level. Id. In discrediting the physician’s opinion,
the ALJ noted that the physician’s opinions were contradicted by
her own treatment notes which stated that her examination was
benign. Id. Further, the ALJ discredited the claimant’s
allegations about her pain, in part because the claimant “did not
follow through with her physical therapy or pursue pain
management.” Id. at 843.
In the case before the Court, the ALJ provided ample
reasoning for rejecting Dr. Torres’ opinion.

First, the ALJ

noted that Dr. Torres had only seen Ms. Webb on two occasions
prior to writing his RFC. R. at 27. The frequency of the
examination is a proper basis for discounting his opinion.
Second, the ALJ found that Dr. Torres’ opinion about Ms. Webb’s
concentration was contradicted by Dr. Rosenthal’s notes. Id.
Specifically, the ALJ pointed to notes which indicated that Ms.
Webb’s concentration was “okay” and that Ms. Webb’s mood and

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sleep was improving.
psychiatrist.

Id.

Dr. Rosenthal was a treating

Further, the ALJ found that Dr. Torres’ opinion

was contradicted by Ms. Webb’s own activities of daily living
form which stated that she sometimes plays cards with her
children and that she sometimes attends school with her children.
Id.

All of these reasons are valid reasons to discount Dr.

Torres’ opinion. Thus, the Court concludes that the ALJ properly
discounted Dr. Torres’ opinion.
Next, Ms. Webb argues that the ALJ did not properly
articulate why he was accepting Dr. Stevens’ opinion.

An “ALJ

need not provide a complete written evaluation of every piece of
testimony and evidence” but must meet “a minimal duty to
articulate his reasons and make a bridge between the evidence and
the outcome.”

Rice, 384 F.3d at 371.

When reading the opinion as a whole, the ALJ adopted Dr.
Stevens’ opinion because he found it more consistent with the
record. The ALJ discredited opinions that were contrary to Dr.
Stevens, and provided reasons for discrediting the opinions.
at 26-27.

R.

With the exception of the breathing limitation, Dr.

Stevens’ opinion is consistent with Dr. Donelan and Dr. Kenney’s
assessment.

R. at 22. The ALJ also rejected Dr. Torres’ opinion,

which was inconsistent with Dr. Stevens’ opinion, and explained
why they were inconsistent with the record as a whole.
27.

Id. at

Dr. Sethi’s opinion is also consistent with Dr. Stevens’

opinion.

Id. at 22.

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The ALJ sufficiently articulated the consistencies between
Dr. Stevens’ opinion and the record as a whole, and where the ALJ
disagreed with Dr. Stevens, he provided adequate evidentiary
support for his conclusion. Id. at 26. For example, Dr. Stevens
opined that Ms. Webb could perform work at the light exertion
level, but the ALJ found that Ms. Webb’s obesity would limit her
to sedentary work.

R. at 21.

Reading the opinion as a whole and

with commonsense, the Court comes to the conclusion that the ALJ
found Dr. Stevens’ opinion to be more consistent with the medical
evidence and testimony. Thus, the ALJ did not err by adopting Dr.
Stevens’ testimony.
IV. CONCLUSION
Having carefully reviewed the entire record, and for the
reasons set forth above, the Court finds that the Commissioner's
conclusion that Plaintiff was not disabled is supported by
substantial evidence in the record as a whole.

Accordingly,

Plaintiff's Motion for Summary Judgment is denied and the
Commissioner's Motion for Summary Judgment is granted.

Date: January 10, 2013

E N T E R E D:

______________________________
MAGISTRATE JUDGE ARLANDER KEYS
UNITED STATES DISTRICT COURT

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